13 November 1999

Back to the Future: International Law after Nato's War

November 13, 1999
The Times of India

Back to the Future
International Law after NATO's War

By Siddharth Varadarajan

PARIS: Five months after NATO ended its bombardment of Yugoslavia, scholars, jurists and diplomats are still arguing over whether there is such a thing as the right to humanitarian intervention in international law. At a conference organised by the journal Dialogue in the French capital recently, academics and lawyers from several countries described NATO’s actions in Yugoslavia as illegal and argued against any dilution of existing norms on state sovereignty and non-intervention. The consensus was that while the existing body of international law is flexible enough to handle serious humanitarian crises, its procedures have to be respected. There can be no room for unilateral action.

Exaggerated Estimates

During this year’s session of the UN General Assembly, Secretary General Kofi Annan and several European leaders made an impassioned plea for the international community to abandon ‘rigid’, legalistic notions of sovereignty and adopt a more contingent definition wherein the systematic violation of human rights by a state would constitute legitimate grounds for outside military intervention. It is surely not a coincidence that such proposals — which normally do the rounds at academic and NGO circuits but not UN meetings — were aired so soon after NATO’s war against Yugoslavia. After all, the US and its allies had insisted that compelling humanitarian considerations had prompted them to act despite prior authorisation from the UN Security Council. The situation in Kosovo was described as critical and the Yugoslav authorities were accused of indulging in a genocidal campaign against the ethnic Albanian population of the province.

During the war, widely exaggerated estimates of the number of ethnic Albanians thought to have been killed by the Yugoslav authorities were given by the leaders of the US and Britain. At one point, the claim was made that as many as 100,000 people, mostly young men, had summarily been executed and thrown into mass graves. When the war ended and NATO troops moved into Kosovo, several suspected massacre sites were scoured for evidence. Bodies were exhumed under the supervision of expert forensic scientists from Canada, Spain and the US, and prosecutors from the UN’s International Criminal Tribunal for the former Yugoslavia (ICTY) said they had begun to collect evidence which would help in the prosecution of President Slobodan Milosevic and other senior Yugoslav leaders.

Moral Grounds

In the past weeks, a controversy has arisen about the nature of the grave sites and the precise number of bodies exhumed. A Spanish forensic scientist told El Pais that the number of bodies examined was under 200 and that he was quitting Kosovo because of the lack of work. Stung by allegations that the US and the ICTY had wilfully exaggerated the extent of war crimes committed by Serb forces, Ms Carla del Ponte, the ICTY’s chief prosecutor, told a press conference in New York on Wednesday that so far some 2,000 bodies had been exhumed. She said this was still a preliminary figure as many suspected grave sites had yet to be dug up. However, the numbers are unlikely to rise much further since the ICTY started with those sites most likely to yield mass graves first and now what remains are sites thought to hold only one or two bodies each. It is also not immediately apparent that each and every one of the bodies exhumed is of victims of ‘ethnic cleansing’.

If one sets aside the legal objections to NATO’s intervention, could its bombardment of Yugoslavia be justified on moral and ethical grounds? This is a difficult issue because 2,000 dead bodies, though far short of genocide, is no small matter. However, two questions are in order here. First, by intervening ostensibly in the name of saving innocent civilian lives in Kosovo, was NATO morally justified in killing innocent civilians elsewhere in Yugoslavia? The official estimate of the number of civilians killed in NATO bombing is approximately 2,000. By refusing to help Serbia rebuild and insisting on a fuel embargo this winter, the US and its allies will cause further death and morbidity among Yugoslav civilians. Surely all of this must rob NATO of its morality card. Second, what happens if the ICTY’s forensic tests establish that most of those killed by the Serb forces were killed after NATO started bombing Yugoslavia? Their deaths would still be a crime but surely they cannot be invoked as a posteriori justification for the intervention.

In legal terms, it is a fact that international law, even as it stands today, contains provisions for humanitarian intervention. As Prof Oliver Corten of the Free University of Brussels argued, the UN Charter does not explicitly provide this right but non-intervention does not mean that a state can do exactly as it pleases. In particular, the UN Security Council can authorise military intervention if it apprehends a threat to international peace.

Although international law does provide for the possibility of humanitarian intervention, precise minimum conditions have to be satisfied for any action to be legal: the given situation must be a threat to international peace, there must be a vote in the Security Council authorising intervention, and no permanent member must exercise its veto. These formal criteria do not necessarily make an authorised intervention justified in political and moral terms; if Russia and China decide not to use their vetos, the US could use the UN to target any country it wants to. However, these rules certainly do establish the bounds of impermissible behaviour.

Legitimate Reason

Even if the international community accepts the principle that intervention is justified in the event of human rights violations, different states will have different interpretations whenever a concrete case comes up. According to Prof Corten, all law contains procedures for dealing with interpretations. “But when you don’t follow procedures, every state can simply assert that it is right. So we have come back to the 19th century definition of international law: States cannot use force except when there is legitimate reason, but it is the state which decides whether its reasons are legitimate.''

Before the UN Charter, there were moral and ethical rules governing the use of force and the right of intervention. The UN Charter was epochal in that it introduced legal rules. What an irony that on the threshold of the year 2000, one of the greatest achievements of the present millennium is being deliberately undermined.

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