The inuence of Operation Allied Force on the development of the jus ad bellum

STEVEN HAINES When the NATO air campaign against Serbia commenced on 2425 March 1999 it did so against a less than clear legal backdrop. The British government had long anticipated that UN Security Council authorization for the operation would be unlikely. It was assumed that Russia would veto any draft resolution put to the Council and, while Chinas general approach had tended over time towards abstention in votes on resolutions it could not support, the deployment of its veto on such a signicant issue could not be ruled out.1 This assessment of the poor chances of success in obtaining a UN mandate for intervention had prompted an early admission that such a use of force could well depart from the strict law of the Charter. The government accepted that there was no general doctrine of humanitarian necessity in international law, but qualied this statement by asserting that a limited use of force was justiable in support of purposes laid down by the Security Council but without the Councils express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe.2 This claim, articulated by Baroness Symons in November 1998 in a parliamentary answer to a question from Lord Kennet, represented the underlying justication for Britains subsequent involvement in Operation Allied Force (OAF) four months later. To say that Londons position (and the positions of its NATO partners) courted controversy would be something of an understatement. It divided legal opinion and generated a vigorous debate among international lawyers, both during and after the NATO air campaign. Operation Allied Force and international legal opinion That debate was well reected in the range of opinions expressed by four of Britains most distinguished international lawyersProfessors Ian Brownlie, Christine Chinkin, Christopher Greenwood and Vaughan Lowewho were requested to provide input to the parliamentary inquiry conducted by the House of Commons
1

Indeed, China went on to become one of the most vocal opponents of NATOs action within the UN and supported the Russian draft resolution condemning NATOs action put to the Council on 26 March 1999. China, furthermore, had already exercised its veto power in February 1999 to prevent an extension of UNPREDEPs mandate in Macedonia. 2 Hansard (Lords), 16 Nov. 1998, WA, cols 139, 140.

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Steven Haines Foreign Affairs Committee during the winter of 19992000.3 In addition, a selection of opinions was published by the American Society of International Law, with leading scholars Louis Henkin, Ruth Wedgewood, Jonathan Charney, Richard Falk, Thomas Franck and W. Michael Reisman equally divided on the merits of NATOs action.4 To give a avour of the range of views, threeor perhaps four common positions are worth describing. First there is the orthodox, and generally positivist, view that the use of force is manifestly unlawful unless undertaken in a manner strictly consistent with Chapter VII of the UN Charter. This allows for self-defence under article 51 or empowers the Security Council to authorize diplomatic, economic or military sanctions for enforcement purposes following an article 39 determination that a situation reects a threat to the peace, a breach of the peace or an act of aggression. Under article 42, military sanctions may be authorized, following an article 39 determination, if article 41 economic and diplomatic sanctions have either failed or are deemed most likely to do so. Since OAF was neither a case of article 51 selfdefence nor an article 42 enforcement action authorized by the Security Council it was, strictly speaking, unlawful. A second, and diametrically opposed, view asserts the legality of the operation largely on the basis of a previously existing customary norm allowing for the use of force in cases of humanitarian necessity. This reects a natural law tendency to privilege individual human rights over the sovereign rights of states, or at least place limits on the extent of the latter in favour of the former. Such a position can be argued on two levels. The rst suggests that there was a customary right of humanitarian intervention prior to the coming into force of the UN Charter, one that the Charter did not negate (very much a minority view5). The second is that, while the coming into force of the UN Charter may have negated any pre-existing customary right of humanitarian intervention (if, indeed, there had been such a right in 1945), further post-Charter evidence of state practice combined with opinio juris has resulted in the re-emergence or development of such a right since.6
3

Fourth Report of the House of Commons Foreign Affairs Committee, 2 vols, 7 June 2000 (hereafter Foreign Affairs Committee Report). The written contributions of Professors Brownlie, Chinkin, Greenwood and Lowe are also available in A. Boyle, Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000, International and Comparative Law Quarterly 49: 4, 2000, pp. 876943. While all four provided written evidence, Professors Lowe and Greenwood gave additional oral evidence to the Committee on 8 Feb. 2000. 4 See Editorial comments: NATOs Kosovo intervention, American Journal of International Law 93: 4, 1999, pp. 82462. 5 Although a distinguished one, including as it did among its proponents Sir Hersch Lauterpacht. See Ian Brownlie, International law and the use of force by states (Oxford: Clarendon Press, 1963), pp. 33842. 6 Examples of relevant state practice that are invariably quoted in this context include the Indian intervention in East Pakistan (subsequently Bangladesh) in 1971; the Vietnamese intervention against the Pol Pot regime in Cambodia/Kampuchea in 1978; and the Tanzanian intervention in Uganda that led to the ousting of President Idi Amin in 1979all notably non-western interventions with signicant positive humanitarian consequences (although none was justied on those grounds). See Thomas M. Franck, Recourse to force: state action against threats and armed attacks (Cambridge: Cambridge University Press, 2002), pp. 13951. Franck goes on to mention also the French ousting of Emperor Bokassa from the Central African Empire in 1979 and the ECOWAS intervention in Liberia between 1990 and 1995 (not authorized by the UN at the time of its initiation but subsequently authorized by the Security Council in 1992). Arguably, this was especially signicant in relation to arguments supportive of NATOs intervention over Kosovo, given the Security Councils willingness to endorse intervention retrospectively.

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The inuence of Operation Allied Force on the development of the jus ad bellum A third view is positioned between these two opposing standpoints. In essence, so this argument goes, OAF provides further evidence of state practice combined with the claim on the part of NATO states that they were acting within the law. While this may well not fully satisfy the rigorous criteria for a customary right of humanitarian intervention, it could certainly contribute to moving the law in that direction. Three factors in particular are signicant in this respect. First, there was unanimity within NATO, an especially strong regional grouping, three members of which are permanent members of the Security Council. Second, there was the refusal of the Security Council to condemn NATOs action when it voted overwhelminglyby twelve votes to threeagainst a draft resolution proposed by Russia on 26 March 1999. Finally, tacit ex post facto authorization was arguably provided by UN Security Council Resolution (UNSCR) 1244, which covered the post-OAF administrative arrangements for Kosovo and included a substantial continuing role for NATO (the KFOR operation) alongside the UN Mission in Kosovo (UNMIK). Arguably it is the case that while NATO acted unlawfully, by doing so it was acting in a manner consistent with the way in which the law ought to develop, especially in the light of the development of international human rights law since the Charter was negotiated over 50 years before. It is an inevitable feature of emerging customary law that state practice has to depart from the existing law in order to create the conditions for the eventual emergence of a new customary norm. OAF needs to be considered from this perspective, as a legitimate departure from existing law as a means of effecting necessary change to it. A slight variation on this is what might be described as the fourth position. This stresses the illegality of NATOs action but contends that it represented an exceptional departure from the established norm, justied on the basis of humanitarian necessity. Rather than using OAF as part of a growing body of evidence of state practice contributing to a shift in the customary law, some believe that interventions of this nature and in such circumstances should, as a matter of principle, remain strictly unlawful, with a breach of the law being exceptionally condoned (as, it could be argued, OAF was by UNSCR 1244). The third and fourth positions clearly support the frequently articulated contention that OAF, while strictly unlawful, was nevertheless legitimate.7 At the risk of grossly oversimplifying the detailed submissions each presented to the Foreign Affairs Committee, Brownlies views corresponded with the rst position above, Greenwood argued the second,8 and both Lowes and Chinkins submissions can be associated with the unlawful but legitimate assessment. But it is stressed that these positions were by no means the only ones on offer. The overriding sense one gets from reading the wide selection of arguments published at the time and shortly after OAF is that while some individual international
7

This was, for example, the conclusion of the Kosovo Commission, chaired by Justice Richard Goldstone, which submitted its report to UN Secretary General Ko Annan in 2000. See Independent International Commission on Kosovo, The Kosovo report: conict; international response; lessons learned (Oxford: Oxford University Press, 2000). 8 Although he stressed the importance of practice during the 1990s rather than placing heavy emphasis on interventions that had occurred in the 1970s.

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Steven Haines lawyers could be quite rm in their views, the legal community as a whole was faced with a genuine dilemma created by a situation in which strict legality was confounded by humanitarian necessity. Its collective response pointed to a degree of uncertainty as to the law obtaining at the time. Faced with a series of opinions from four distinguished international lawyers, each of whom disagreed with the others (and with an awareness of the intensity of the debate within the wider legal community), the Foreign Affairs Committee, not surprisingly, resisted the temptation to reach a clear and unambiguous conclusion as to the legality of NATOs intervention. Its report, published in June 2000, concluded that the NATO intervention ran counter to the specic terms of the UN Charter.9 This might have been seen as embarrassing to the British government, but the committees conclusions were some way short of a clear declaration that OAF was unlawful. Indeed, the committee expressed some sympathy with Foreign Secretary Robin Cooks call for the establishment of new principles within the UN framework governing humanitarian intervention.10 In its recommendations it suggested that less criticism would have been levelled at NATO if the member states had pursued a UN Security Council mandate, failed to obtain the necessary vote in favour of an authorizing Chapter VII resolution, and then taken the issue to the General Assembly under the Uniting for Peace procedure.11 Such a route would, of course, have been extremely risky. If a resolution had been vetoed in the Security Council and then voted down in the General Assembly (in which it would have required a two-thirds majority to succeed), any subsequent NATO military intervention would have been even more legally controversial. Canada seriously considered the Uniting for Peace option but rejected it for this very reason. If one were generally well disposed to the idea of intervention (as this author was at the time) it would be difficult to criticize the political judgement within NATO that determined that it was better to proceed with military action on the basis of an ambiguous legal position (but backed by a humanitarian imperative) than openly to defy both the Security Council and the General Assembly. The other option would, of course, have been to abandon the inter vention altogether and remain on the right side of the positive law of the Charter. This was, however, not regarded by any NATO state as politically, strategically or morally acceptable. There was a conviction in NATO capitals that unless action was taken a humanitarian catastrophe would unfold, perhaps even exceeding those previously witnessed in the Balkans. This view was strongly felt following the massacres in Drenica, Gornje Obrinje and, especially, Racak. It was reinforced by reports forwarded by the OSCE Kosovo Verication Mission about the deepening crisis in the province, a crisis which had already resulted in the substantial displacement of
9

Foreign Affairs Committee Report, vol. 1, Summary of conclusions and recommendations, recommendations 1823. 10 See Foreign Affairs Committee Report, vol. 1, p. 144. 11 For a summary of the Uniting for Peace process to date, see Dominik Zaum, The Security Council, the General Assembly and war: the Uniting for Peace resolution, in Vaughan Lowe, Adam Roberts, Jennifer Welsh and Dominik Zaum, eds, The United Nations Security Council and war: the evolution of thought and practice since 1945 (Oxford: Oxford University Press, 2008), pp. 15474.

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The inuence of Operation Allied Force on the development of the jus ad bellum around a third of a million Kosovar Albanians in the autumn of 1998, long before the air campaign commenced.12 Here the author ought to admit an interest. In 1999 he was a military officer serving in the Policy Area of the Ministry of Defence Central Staff.13 In his assessment of the prevailing view in that particular part of Whitehall at the time, it was the fear of humanitarian catastrophe and profound concern for the consequences of a mass exodus from Kosovo of its ethnic Albanian population that drove the decision to intervene, rather than any political aims to do with removing the government of Yugoslavia or maintaining NATOs credibility. He was also reasonably comfortable with the humanitarian justication deployed by the British government at that time. That is not to say that he remained comfortable with the manner of the intervention. There was much that was controversial about NATOs military action. Despite, for example, the claims of NATOs Supreme Allied Commander, General Wesley Clark, that the air campaign was a great success,14 what it actually seemed to demonstrate was the profound inadequacy of air power in delivering a humanitarian result. The campaign lasted much longer than expected and failed to prevent ethnic cleansing, which occurred both during and after the air campaign. While most Kosovar Albanians were able to return to their homes subsequently, the same cannot be said of those Serbs who in turn ed once NATO ground forces entered the province following the 78-day air campaign. The manner in which the operation was conducted is not, of course, strictly speaking, a jus ad bellum issue. We are here concerned with the law relating to the strategic decision to employ force, not the operational and tactical decisions taken once the strategic choice had been made. So what of the jus ad bellum issue itself ? Did OAF serve to shift the law more in favour of humanitarian intervention than it had been before? Would a similar intervention without a UN mandate be more acceptable today than it was in 1999? Providing an answer to this group of questions requires us to assess the impact of OAF on the sources of international law. But before we examine those sources to establish what the law may or may not say on the matter, it is worth briey commenting on what has been done within the UN itself in response to the challenges posed by NATOs decision to act outside the Charter. The issue of humanitarian intervention was an important inuence on Secretary General Ko Annans reform agenda. The pursuit of that agenda serves as an important backdrop to any assessment of ways in which the law relating to military intervention may have shifted during the past decade.

12 13

Adam Roberts, NATOs humanitarian war over Kosovo, Survival 41: 3, 1999, p. 113. Although it must be stressed that he was not directly involved in the decision-making about, planning for or implementation of Operation Allied Force. 14 See Gen. Wesley K. Clark, Waging modern war (New York: Public Affairs, 2001), pp. 430, 438.

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Steven Haines The UN reform agenda The experience of dealing with post-Cold War security issues in the Balkans, the Great Lakes region of Africa, the Middle East and Gulf, and elsewhere has generated much comment on the UNs shortcomings. OAF concentrated attention on one problem in particular: the inability of the Security Council to act to prevent humanitarian catastrophe when action is opposed by even a minority of its permanent members. Secretary General Annan was sufficiently concerned about this issue to throw down a challenge at the Millennium General Assembly: If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenicato gross and systematic violations of human rights that offend every precept of our common humanity?15 The challenge was taken up by the Canadian Foreign Minister, Lloyd Axworthy, who initiated the International Commission on Intervention and State Sovereignty (ICISS) to look into this very issue. Although it was not established by the UN, the ICISS can usefully be regarded as the starting point of the review process in relation to possible reform of UN mechanisms for authorizing the use of force. It is important to stress at the outset that the ICISS was formed in 2000 as a direct consequence of the legal controversy generated by OAF. It carried out most of its review work during 2001, presenting its report to Ko Annan in December that year.16 The commission made a number of recommendations, two of which are especially signicant in the context of this article. First, its clearly stated intention was to make the UN system work and to reduce the possibility that states would in future bypass the Security Council in cases of potential humanitarian catastrophe. It suggested that the possibility of veto action by the permanent members should be reduced by obtaining agreement on their part not to deploy this sanction unless vital national interests were engaged. If the veto was still deployed, the Uniting for Peace route should be pursued. The second important recommendation was encapsulated in the ICISS reports title: Responsibility to protect. The notion of a right of humanitarian intervention to be exercised by states was to be displaced by a responsibility to protect (correlative to the human rights of those deserving protection) to be borne by states.17 The report was unfortunate in its timing. While the issue of humanitarian intervention had been the big subject in the use of force debate in international
15

From Ko Annans Millennium report of the Secretary-General of the United Nations, quoted in Gareth Evans, The responsibility to protect: ending mass atrocity crimes once and for all (Washington DC: Brookings Institution Press, 2008), p. 31. 16 The author must again declare an interest, having attended a meeting in the Canadian Foreign Ministry in Ottawa in December 2000 at which members of the commission outlined their approach to their work, and then having participated in the commissions London round table in Canada House in February 2001. In Ottawa he outlined a case for a shift in emphasis from states rights to intervene to some degree of obligation on the part of states, correlative to the rights of individuals being threatened by atrocities. His Ottawa paper was subsequently published as Steven Haines, Genocide, humanitarian intervention and international law, in M. Mason, ed., Hudson papers, vol. 2 (London: Royal Navy Defence Studies and Oxford University Hudson Trust, 2004), pp. 5392. 17 See ICISS, The responsibility to protect: report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), 2 vols, vol. 1, pp. 1118, 4756.

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The inuence of Operation Allied Force on the development of the jus ad bellum law circles from the spring of 1999 onwards, on 11 September 2001 it was rather dramatically displaced by legal issues to do with combating international terrorism, including the development of law relating to self-defence. And, of course, just 18 months later, the US-led invasion of Iraq without an express UN Security Council authorization pushed the issue of humanitarian intervention still further out of the limelight. Against that backdrop, it is not surprising that Responsibility to protect appeared at times to be gathering dust in New York. But appearances were slightly deceptive. The idea of a shift in emphasis from the right of states to intervene to individuals rights to some measure of protection remained sufficiently powerful to keep the report in play. Annan, keen to take action to reform the UN and make it t for the twenty-rst century, established the High-Level Panel on Threats, Challenges and Change in 2003 and gave it Responsibility to protect as a source document for consideration. The panel reported to the Secretary General in 2004 with A more secure world.18 Annan took this and used it in the production of his own report In larger freedom, published in March 2005, which he forwarded to all member states in the hope that it would provide the basis for a formal UN reform agenda at the world summit later that year.19 These three documents all contained recommendations relating to the authorization of the use of force for humanitarian purposes. The UN should remain the body with authority to approve intervention, and when it provided this it would be doing so more in recognition of states responsibilities to protect than in acknowledgement of their rights to intervene on humanitarian grounds as such. Much has been said about responsibility to protect (or R2P as it has come to be known). Alex Bellamy has in this journal recently provided a detailed explanation of the signicance of the R2P principle for military intervention.20 Reference to R2P is now frequently made whenever any humanitarian issue is in the news. The French Foreign Minister Bernard Kouchner, for example, somewhat controversially referred to R2P in early 2008 in the context of natural disaster in Burma and the Burmese governments reluctance to allow humanitarian aid into the country. It was invoked by Pope Benedict XVI on his visit to the UN in New York in April 2008.21 It is also frequently referred to in the contexts of both Sudan and Zimbabwe. Obviously, the principle has contemporary signicance although, as Gareth Evans has pointed out most forcefully, references to R2P are frequently couched in terms and applied to situations for which the original conception was
18

A more secure world: our shared responsibility. Report of the Secretary-Generals High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (New York: United Nations, 2004). 19 In larger freedom: towards security, development and human rights for all. Report of the Secretary-General, UN Doc. A/59/2005 (New York: United Nations, 2005). 20 Alex J. Bellamy, R2P and the problem of military intervention, International Affairs 84: 4, 2008, pp. 61540. There is little, if anything, to challenge in his treatment of the subject and there is nothing to be gained from going over the same ground. That is not the purpose of this article, which is focusing very specically on how, if at all, international law relating to the use of force has changed as a consequence of Operational Allied Force. 21 See the Vatican website, www.vatican.va/holy_father/benedict_xvi/speeches/2008/april, accessed 2 April 2009.

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Steven Haines not designed.22 Clearly it is an idea with legs. But has a notion that emerged as a consequence of OAF contributed in any way to a shift in the law? If the law relating to the use of force in general and humanitarian intervention in particular has changed at all since 1999, that change will be manifest in some way in the sources of law. These include treaties (or conventions), customary law, the opinions of legal specialists and the judgments arrived at by various international tribunals.23 Treaty law and customary law are fundamental sources; opinions expressed by specialists or included in judicial decisions are by and large an interpretation of what is contained in or derived from either treaty law or customary law, or are a commentary on the often symbiotic relationship between them. A key question, given doubts as to the veracity of claims that a right of humanitarian intervention existed in customary law in 1999, is to do with whether or not a new norm has crystallized since. But before attempting an answer to that question we need rst to consider relevant treaty law. Essentially, this is about the UN Charter. Treaty law and the law of the Charter There has been no new treaty dealing with the legal framework for the use of force since OAF. It would have been rather surprising if there had been. Despite the massive increase in the range and scope of treaties in the last century, those on the use of force are extremely rare. Indeed, the full range agreed during the course of the twentieth century consists of just three: the 1919 League of Nations Covenant; the 1928 Pact of Paris (or KelloggBriand Pact); and the 1945 UN Charter. Effecting substantial change to the UN Charter is by no means easy or common. Formal changes in the past have been restricted to those that have been rendered politically desirable by increases in the membership of the organization. The most signicant change of relevance to the use of force has actually not been achieved by any formal amendment. In the earliest days of the UN, the provision in article 27(3) that required the concurrent vote of all ve permanent members on all non-procedural votes (including, of course, those approving resolutions under Chapter VII of the Charter) was dispensed with and a practice established that allowed for a positive decision to be made within the Council despite the abstention of a permanent member in the voting.24 The Charter provisions relating to voting remain today as they were originally drafted, but the law of the Charter as amended by practice ignores the need for the affirmative vote.
22

Evanss book on the subject, Responsibility to protect, is essentially an attempt to dene R2P in ways that do not render it exclusively concerned with coercive humanitarian/military intervention or include under its purview issues that are less serious than what he refers to as mass atrocity crimes; to establish that it is not about the protection of human rights in the round (see Evans, Responsibility to protect, pp. 5569). 23 In article 38 of the statute of the International Court of Justice, the sources of law also include general principles of law recognized by civilized nations, but these have not changed since 1999 and require no further consideration here. 24 Benedetto Conforti, The law and practice of the United Nations (The Hague: Kluwer Law International, 1996), pp. 668.

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The inuence of Operation Allied Force on the development of the jus ad bellum As Responsibility to protect led to A more secure world and on to In larger freedom, there was some hope among advocates of UN reform that a further shift in practice might occur if the permanent members all agreed with the High-Level Panels proposal that they should not vote down a draft resolution authorizing military sanctions for humanitarian purposes related to genocide and large-scale human rights abuses.25 This might be referred to as the Chechnya clause, given the way that it was expressed in the ICISSs report.26 Clearly, if an intervention was being proposed that directly affected a permanent member, a (politically unlikely) decision to go ahead could have potentially catastrophic consequences. To avoid this, the veto would be retained. So, in the case of a proposal advocating international intervention in Chechnya, Russia could have legitimately issued a veto. However, in the case of Kosovo (always the backdrop to this particular theme of reform), neither China nor Russia could have argued vital national interest and so both would have been obliged to abstain in any Security Council vote on an authorizing Chapter VII resolution. The ICISS referred to this approach as constructive abstention. Whether one regards hopes of such change as reasonable or hopelessly naive, the fact is that nothing of the sort came to pass. If it had, one can assume that the agreement of a more robust Chapter VII resolution on the situation in Darfur, for example, would have proved possible, with China complying with the new norm by not standing ready to veto. Despite general disappointment at the nal outcome of the world summit, it did not fail entirely to effect some measure of change. The General Assembly voted unanimously on 16 September 2005 on a resolution to endorse the summits outcome document,27 paragraphs 13840 of which dealt with the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. While General Assembly resolutions are not legally binding, some prove particularly signicant in relation to the development of international law; this might prove to be one such. Importantly, this act by the General Assembly was followed up by the Security Council on 28 April 2006. Operative paragraph 4 of UNSCR 1674, on the protection of civilians during armed conict, reaffirmed the provisions of paragraphs 138 and 139 of the World Summit Outcome Document and made reference to R2P. Proponents of R2P have been able to point to both resolutions as providing UN support for their cause. Of course, the actual signicance of two or three paragraphs in a large document (containing a total of 178 paragraphs) being endorsed by the Assembly can be overstressed.28 In the Councils case, it was limiting itself to brief reference to R2P in the context of a resolution on a very specic issuethe protection of civilians during armed conict. Further, neither Assembly nor Council said anything about the criteria for determining when the use of force in the pursuit of humanitarian purposes would be justied.29 What
25 26 27 28

A more secure world, para. 256. Responsibility to protect, para. 6.21. UN General Assembly Resolution 60/1, 16 Sept. 2005. Especially given the degree of dissent expressed by various states, both on the day of the vote and subsequently, about how the document was drafted and how many states were excluded from the drafting process. 29 Such as the criteria described in the High-Level Panel report (A more secure world, para. 207).

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Steven Haines has certainly not been forthcoming is a clear and unambiguous acknowledgement of the notion of R2P, what it means and what its consequences are likely to be. Since the General Assembly supported the world summit outcome document, a large number of states have pointed out that such support should not be read as an endorsement of R2P as such, which many still see as a cloak for unilateral western interventionism. In interpreting R2P in this way, however, opponents are forgetting one important factthat none of the R2P-related documents (Responsibility to protect, A more secure world, In larger freedom or the world summit outcome document) have said anything other than that military intervention will require a Security Council mandate to confer legitimacy. Far from creating a new exception to the Charter ban on the use of force, they all place the ultimate use of force in the gift of the Council acting under Chapter VII. In relation to the law of the Charter, about the most that can be claimed, therefore, is that whereas, prior to the world summit, the Security Council acted on the basis of states collective rights to use force (rights effectively transferred to the Security Council by states on their ratication of, or accession to, the UN Charter), in future the Council may well increasingly be seen as acting in the light of the international communitys obligation to protect the rights of victims or potential victims of mass atrocity crimes. This might be construed as a paradigm shift in the jurisprudential underpinning of the Security Councils powers to authorize force. It must be admitted, however, that it may have no practical effect. Interventions may or may not be authorized by the Security Council in the future, regardless of whether it is acting in exercise of a collective right or in recognition of a collective obligation. This is not, however, to suggest that such a shift is only of academic interest. The actual extent of the shift in the jurisprudential underpinning of the employment of force cannot yet be nally dened; it will be revealed over time, in the practice of the Security Council and in the future development of customary law. If it becomes the case that states increasingly accept a legal responsibility to protect, it is at least conceivable that they will also develop a greater tendency to intervene when extreme humanitarian catastrophe either occurs or seems imminent, even if that greater tendency is only marginal. Customary law For the moment we must rely on an analysis of practice to date as part of our assessment of the legal impact of OAF. It is important to recognize that customary law combines two elements: state practice and opinio juris. Only if states act because they believe themselves to be exercising a legal right or complying with a legal obligation are they demonstrating that practice is matched by the required opinio juris. Perhaps the most apposite comment one can make about state practice in relation to humanitarian intervention since 1999 is that there has been precious little of it. While the 1990s were undoubtedly a decade for humanitarian intervention, the 486
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The inuence of Operation Allied Force on the development of the jus ad bellum decade since has been to do with the so-called global war on terror and Iraq. Neither the invasion of Afghanistan nor the invasion of Iraq was motivated principally by humanitarian concerns, despite claims since that there have been positive humanitarian consequences. The invasion of Afghanistan was justied by reference to self-defence and was almost unanimously supported by the UN membership. The invasion of Iraq, in contrast, was not specically authorized by the UN but, even if one accepts the minority legal view advanced by Britain and the US that UN Security Council resolutions did provide authority for the invasion, neither they nor the invasion itself were about the protection of people from mass atrocity crimes.30 Claims that Iraq was R2P in action are just plain wrong.31 The only two examples of intervention for expressed humanitarian purposes initiated since OAF have been those into East Timor and Cte dIvoire, in 1999 and 2003 respectively. Both were authorized by the Security Council.32 (There are, of course, continuing operations in the Balkans and in Africa that commenced prior to OAF, but these were all authorized by the Security Council.) There is, therefore, no evidence in state practice that can be deployed to support what some believed was an emerging norm allowing for unilateral humanitarian intervention at the time of OAF. Further, there is ample evidence of negative progressthat is, situations in which humanitarian intervention might have been consistent with the sorts of arguments deployed by NATO states to support their intervention in 1999, but which have not, so far at least, provoked the same military response. The situations in both Darfur and Zimbabwe would seem, prima facie, to full just the conditions necessary to render humanitarian intervention appropriate. In the case of Zimbabwe, no Chapter VII mandate for military intervention has been authorized because, despite the appalling nature of the Mugabe regime (as displayed in the substantial crimes against humanity in Matabeleland between 1982 and 1987, and the continuing destruction of the economy leading to mass human distress and displacement), no state is prepared to propose intervention in response. Of course, if South Africa and the African Union (AU) did want to intervene it is certainly possible that a UN Security Council authorization would be forthcoming.33 This would conrm the existing law of the Charter. Since there has been no intervention or any apparent desire to intervene, the case of Zimbabwe does nothing to advance the cause of humanitarian intervention in customary law, let alone that of a unilateral nature. If anything, it puts it back. The case of Zimbabwe may be instructive, but no situation is as signicant as that which has evolved in the Darfur region of Sudan over the last ve years. While the International Commission of Inquiry on Darfur was not able to
30 31

The relevant resolutions relied upon are 678 (1990), 687 (1991) and 1441 (2002). A point made forcefully by Evans in Responsibility to protect, pp. 6971. See also Ramesh Thakur, Responsibility to protect and the war on Saddam Hussein, in Ramesh Thakur and Waheguru Pal Singh Sidhu, eds, The Iraq crisis and world order: structural, institutional and normative challenges (Tokyo: United Nations University Press, 2006), p. 465. 32 By UNSCRs 1264 (1999) and 1464 (2003) respectively. 33 Although one cannot be certain that China would not deploy its veto.

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Steven Haines conclude that genocide had been committed, it did state that this should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.34 Genocide is a difficult crime to identify, given the central importance of precise motive. For many, the deaths of almost a quarter of a million people and the displacement of approximately two million more represent genocide in all but name. Whatever we may choose to call it, the fact that the humanitarian catastrophe that has gripped that region for over ve years has resulted in not a single robust Chapter VII Security Council resolution is arguably an international disgraceand more so in the light of the international breast-beating that went on following events in Rwanda. No such resolution has been possible because China would veto it in order to protect its interests in Sudanese oil. Gareth Evans points to Darfur as an R2P situation but is reluctant to support the view that military intervention would help the overall situation, given the broader context within Sudan.35 Notwithstanding Evanss position, Darfur would seem to many to present precisely the circumstances that those justifying the NATO intervention over Kosovo believed ought to qualify for exceptionalism in relation to the law of the Charter. Neither the AU nor the UN has been able significantly to improve the situation with the military forces they have deployed. One wonders whether or not either Britain or the US would have pushed for action if they had not been preoccupied with Iraq and Afghanistan. Have they conveniently hidden behind the inability of the Security Council to deliver a robust Chapter VII mandate, either because they are not in a position to intervene given other preoccupations, or because they simply do not wish to become embroiled in a messy situation not directly affecting their interests? However one answers this question, and whatever ones view about the potential benets of military intervention, the relevant conclusion is that the situation in Darfur and the international reaction to it have done absolutely nothing to advance the cause of an emerging customary norm to do with humanitarian intervention unauthorized by the UNand, just like events in Zimbabwe, may well also have put it back. If state practice appears somewhat uninspiring to proponents of a norm supporting unilateral humanitarian intervention if the UN will not act, then they will certainly get no succour from an examination of the extent of relevant opinio juris. The Belgian international lawyer Olivier Corten has recently provided an excellent analysis of just how little support states have given to the view that a customary norm supports unauthorized humanitarian intervention. The practice after 1999 shows a clear and categorical refusal to allow a unilateral right of military intervention under international law The statement of positions we have laid out are numerous, varied and concurring. We can only ask ourselves why the quasi-totality of states are so reluctant to admit an idea which, at rst sight,
34

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (Geneva: 25 Jan. 2005), p. 4. 35 Evans, Responsibility to protect, pp. 6061.

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The inuence of Operation Allied Force on the development of the jus ad bellum seems generous enough.36 To extend this, Corten detects no generality of support within the international community for the view that there is a legal obligation (or right) to intervene in extreme circumstances of humanitarian distress caused by mass atrocity crimes.37 Those who do believe there to be such an obligation or right tend to believe that it should only be exercised following UN Security Council authorization. There is emphatically no generality of belief such as would be necessary to engender the degree of opinio juris required to support a shift in customary law in favour of the sort of unilateral action taken by NATO in 1999. Further, even among the NATO states that intervened then there is less than full conviction that such intervention is lawfulor likely to become so any time soon using Kosovo as a precedent.38 Belgium, admittedly, argued strongly in favour of the lawfulness of unilateral humanitarian intervention at the International Court of Justice (ICJ) in the legality of the use of force case brought by Yugoslavia against ten NATO states. But the ICJ refused provisional measures on the ground that it did not have prima facie jurisdiction on the merits of the case. As a consequence, there was no judgment on the legality or otherwise of NATOs intervention. Nevertheless, the court did take the opportunity to express its profound concern about the use of force by NATO in Yugoslavia.39 Interestingly, a number of NATO members, including the US and Germany, have stressed the exceptional or sui generis nature of the Kosovo intervention.40 While the practice manifest in OAF seems supportive of the development of a new norm, the evidence of opinio juris to match that practice, both at the time and since, is substantially less convincing. Conclusions What all of this leads to, inexorably, is the conclusion that unilateral humanitarian intervention as exercised by NATO in OAF was strictly unlawful then and would be so today. Claims at the time that the intervention was lawful as a result of a customary norm already established were, on balance, somewhat wide of the mark. What seems to be the most appropriate conclusion is that the positivist interpretation, most associated with Brownlie at the beginning of this article, was and remains correct, but that there may be an exceptional moral justication for a breach of international law to mitigate the effects of potentially extreme humanitarian abuse, when the UN Security Council is unable to act because of the
36

Olivier Corten, Human rights and collective security: is there an emerging right of humanitarian intervention?, in Philip Alston and Euan MacDonald, eds, Human rights, intervention and the use of force (Oxford: Oxford University Press, 2008), p. 133. 37 Indeed, as Adam Roberts has noted, there are some large and powerful states, such as China, India and Russia, that have expressed strong opposition. See his Law and the use of force after Iraq, Survival 45: 2, 2003, p. 49. 38 See the discussions in Christine Gray, International law and the use of force (Cambridge: Cambridge University Press, 2008), pp. 3955; Michael Byers and Simon Chesterman, Changing the rules about rules? Humanitarian intervention and the future of international law, in J. L. Holzgrefe and Robert Keohane, eds, Humanitarian intervention: ethical, legal and political dilemmas (Cambridge: Cambridge University Press, 2003), pp. 198201. 39 ICJ Reports (1999) 124, International legal materials, vol. 38, 1999, at p. 950. 40 For a most useful summary of German views, see Stefan Talmon, Changing views on the use of force: the German position, Baltic Yearbook of International Law 5, 2005, pp. 6471.

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Steven Haines deployment or likely deployment of a veto. The corollary of this position is that a customary norm in favour of unilateral intervention did not exist at the time of OAF. The expectation held by some that OAF would contribute to the emergence of such a norm thereafter has so far not been realized. The author has to admit to being a little disappointed by this conclusion. Having been attracted to the argument for humanitarian intervention by NATO in 1999, having then had the privilege of making a contribution to the work of the ICISS, and having argued for intervention in extreme humanitarian circumstances even when the UN Security Council was incapable of delivering an authorization, he hoped to be able to conclude that OAF had acted as a catalyst for some degree of shift towards a new customary norm. After a fresh look at the issues, it would seem that it did not. Nor is it likely to do so in the foreseeable future. What is not in any doubt at all is that UN Security Council authorization remains central to the legitimacy of humanitarian intervention. Nevertheless, an exceptional breach of the law being condoned in extreme circumstances remains a possibility, albeit one not enthusiastically favoured by all. At the heart of this possibility is the conict between strict legal positivism on the one hand and a combination of common sense and morality on the other. As Franck has noted: Law is strengthened when it avoids absurdly rigid absolutesfor example, by requiring passivity in the face of destruction of entire populationsbut only if exceptions intended to prevent such reductio ad absurdum are clearly understood and applied in a manner consonant with agreed notions of procedural and evidentiary fairness.41 So OAF does not appear to have changed the law in such a way as to render unilateral humanitarian intervention a lawful exception to article 2(4) of the Charter. Nevertheless, it did have some effect. It led to one signicant development that may come to mean more in the future than it does at present. Responsibility to protect emerged as a result of a process initiated to take account of the dilemma faced by NATO in 1999. It must be right that intervention for humanitarian effect should be predicated on the rights of the individuals who are vulnerable rather than on the sovereign rights of states to act as they wish within the international system. The sovereign right to intervene (albeit a collective and not a unilateral right) should give way to a collective acceptance of a responsibility to take appropriate action to protect the vulnerable from mass atrocity crimes. It is that for which OAF acted as a catalyst, and that which should come to be seen as its normative legacy.

Franck, Recourse to force, p. 172.

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