Our illegal bombing in the Balkans
From the very beginning of the Kosovo war, the British Government accepted that the operation had to be legal (as defined by international law) if it was to justify its actions. "It is clear we have legal authority for action to prevent humanitarian catastrophe," said the Foreign Secretary, Robin Cook, on February 1.
George Robertson, the Defence Secretary, said on March 25: "We are in no doubt that Nato is acting within international law. Our legal justification rests upon the accepted principle that force may be used in extreme circumstances to avert a humanitarian disaster."
The Government was right to emphasise that Nato had to justify that its actions conformed with international law. Without it and the institutions created to enforce it, we would be back in the condition in which we were 100 years ago when all wars were lawful.
The relevant law is to be found in treaties and in the practice of states. One such treaty, of great importance, is the Charter of the United Nations. By its own terms, it prevails over all other treaties.
The following provisions of the Charter are particularly relevant to the question of the legality of the Nato action in respect of Kosovo: Article 2 (3) declares that all members "shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not threatened"; and Article 2 (4) says that they "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations"; Article 53 says that "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council".
It is generally accepted that the use of force in the settlement of disputes between states is absolutely prohibited except in self defence or under the authority of the Security Council. Suggestions have been made that, in addition to the exception of self-defence, there is also an exception where forceful intervention is necessary to prevent a humanitarian disaster. However, such a suggestion has no basis in treaty law, little basis in state practice (all of which is disputed) and limited support from academic writers.
This also seems to have been the British Foreign Office view, as expressed in Foreign Policy Document Number 148 (1986): "The overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons. Firstly, the UN Charter and the corpus of modern international law do not seem specifically to incorporate such a right; secondly, state practice in the past two centuries, and espec- ially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation."
As Akehurst argues: "Claims by some states that they are entitled to use force to prevent violations of human rights may make other states reluctant to accept legal obligations concerning human rights." The case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be outweighed by its costs in terms of respect for international law.
On April 29, Yugoslavia brought proceedings against several members of Nato, including the UK, before the International Court of Justice, alleging that the Nato intervention was unlawful. The ICJ is an arm of the United Nations and the general, universal and permanent judicial institution for the settlement of international disputes by peaceful means. Submissions on behalf of the complaint were made by Professor Etinski, Professor of International Law at the University of Novi Sad and Professor Brownlie, Chichele Professor of Public International Law at the University of Oxford.
Professor Etinski noted that the prohibition on the use of force has become a norm of international law from which no derogation is permitted, so that Nato states were not permitted to contract out of it at regional level. He relied on much of the evidence outlined above (state practice and treaty law, supported by later UN General Assembly declarations) to show that intervention of this nature is not permitted by international law.Professor Brownlie cast doubt on whether the action in Kosovo could be regarded as humanitarian in any case, particularly given the nature of the bombing campaign.
He made the crucial point that Security Council authority was not sought; if there was a genuinely humanitarian motive, he contended, this would have been done. Finally he submitted that even the model of humanitarian intervention which those who promoted its existence subscribe to could not support the kind of action which Nato was taking in Kosovo, again given the nature of the bombing.
A response to these submissions was made on behalf of the UK by a distinguished team of lawyers including the Attorney-General John Morris, QC. However, no member of the UK team addressed any of the propositions or legal authorities cited on behalf of the complainant.
They concentrated entirely on a jurisdictional issue: a caveat to the UK's acceptance of the Court's compulsory jurisdiction where the other party had made the complaint less than 12 months after accepting the Court's jurisdiction. The Yugoslav case fell within this exception to the UK's general acceptance and so fell on this technicality.
The Court was bound to sustain this objection since, as Judge Rosalyn Higgin, the British judge at the ICJ, put it: "The jurisdiction of the Court - even if one might regret this state of affairs as we approach the 21st century - is based on consent." However, the UK could have waived this objection and accepted the Yugoslav challenge to have the legality of the bombing tested before the Court.
It chose not to do so. The Government thus deprived the British public of the opportunity of an authoritative decision on this crucial matter. In his speech, the Attorney General said: "I say very firmly that the UK has acted, and will continue to act, in accordance with international law."
Why then did the Attorney General not welcome the opportunity to gain the support of the Court for the UK position?
Given the weight of opinion and legal authority against the Nato position, the paucity of evidence in its favour and the reluctance of the UK to test its view before the ICJ, it is difficult to avoid the conclusion that the Nato action was illegal.
The author is a former Master Treasurer of the Inner Temple. This article is an extract from his CPS pamphlet Kosovo: Law and Diplomacy.
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