Violation of Article 2(4)
When is it right to intervene? Jim Whitman reports
Article 2(4) of the UN Charter states: "All Members 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." NATO's unsanctioned intervention in Kosovo was plainly a breach of Article 2(4) of the UN Charter. For the many this is justifiable: gross violations of human rights make ethical demands upon us which cannot be overridden by prohibitive law. Such situations are presented to us as an ethical Catch 22 "Justice cannot wait; law cannot bend." When serious and widespread suffering resulting from government action or omission within sovereign borders is characterised in this way, we are given to understand that there is a moral, and arguably, even a legal imperative driving (and justifying) action in direct contravention of international law. Pitting sovereignty against human rights in this way and perhaps more worryingly, justice versus law underlines the now widespread acceptance that sovereignty is not a transcendent or immutable feature of inter-state relations. This bring us a rash of pronouncements that, post-Kosovo, we have a new "doctrine of the international community", as described by Tony Blair speaking to the Economic Club of Chicago, 22 April 1999.
What is at stake in this brave new world of post-Kosovo international relations?
There are three main points. Firstly, in the furtherance of human security, the main lines of tension are not between sovereignty and human rights but between law-based and force-based order. Secondly, an instrumental approach to Article 2(4) of the UN Charter undermines not only the fundamental basis of international order, but also the rule of law more generally. Thirdly, the wider lego-political context of the Kosovo intervention is one in which there has been a gradual erosion not only of the prohibitive force of Article 2(4) but also a growing resistance to codification, enactment and compliance with international law, a pernicious trend to which the NATO intervention is likely to have contributed.
The alacrity with which the recent NATO intervention is being adopted as a paradigm of the conditional applicability of Article 2(4) of the UN Charter should be a source of serious concern. This is not merely because "hard cases make bad law"; indeed, one of the most striking features of the post-Kosovo international climate is the extent to which legal debate appears to have been supplanted by political assertion not least by NATO itself. Former US Deputy Secretary of State, Strobe Talbot, while striving to stress the international integrity of Nato, concludes that Nato has veto to act by its own internal consensus when deemed necessary: " .the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary."
Talbot's address is entirely consistent with other, authoritative pronouncements, such as that from the US Ambassador to the United Nations, Richard Holbrooke, declaring that "We must not overlook a basic fact: the US will not always act through the UN." The disturbing possibility post-Kosovo is of a bifurcation of legal debate and state practice. Consider the UK's defence of its participation in the NATO intervention in the case brought against it by Yugoslavia, challenging the legality of the bombing campaign. Throughout the war, spokespersons for the UK asserted the essential legality of the action an important point, which strongly suggests a determination that the NATO action should not be seen to challenge the rule of law. Yet the UK did not meet the substance of any of the legal challenges brought by Yugoslavia in the International Court of Justice, instead relying on a jurisdictional technicality. It is worth noting that : "The ICJ has not finally discharged the UK from the proceedings. In the case of certain other defendants who have submitted to the jurisdiction, the Court will presumably give a substantive decision in due course."
However, would a judgement in favour of Yugoslavia now be sufficient to alter the political impetus behind the "new interventionism"? Would a vibrant legal debate forestall practical preparations for future unsanctioned instances of "power doing justice" albeit outside the law? The "power doing justice" behind the Kosovo intervention sets a unique precedent. In the three best-known cases of previous intervention driven in varying degrees by humanitarian concerns (India-Bangladesh, 1971; Vietnam-Cambodia, 1978; Tanzania-Uganda, 1979), the intervening states defended their actions as self defence under Article 51 of the UN Charter. There was sufficient flexibility in the international system and within international law to accommodate what many regarded as legal fictions, but ones which served broadly humanitarian purposes. But they did not disturb the integrity of Article 2(4), upon which law-based order between states depends.
The law does bend, but it is not endlessly elastic. The assertion of the inapplicability of Article 2(4) in cases of extreme humanitarian need, in Kosovo and as a general principle, must be seen against a mounting background of persistent violations of the same Article for more directly self-interested purposes. Within a single year (1998), for example, the US and UK twice threatened to use military force against Iraq in respect of compliance with Security Council resolution 687 (but without Security Council authorisation); the US and the UK launched 'Operation Desert Fox' against Iraq, employing cruise missiles as well as air strikes again, without Security Council consent; and the US also launched retaliatory strikes against Sudan and Afghanistan, without recourse to Security Council debate.
Most important is the question of how Article 2(4) could be maintained against a regime which could free itself of the prohibition on a declaration of humanitarian intent effectively on its own say so. International legal mechanisms are not sufficient to the twin demands of maintaining international order and redressing gross violations of human rights. For if states can freely violate the prohibition on the use of force on the scale we have witnessed in Yugoslavia, what interest do any of the world's more powerful states have in reforming law which can be employed instrumentally (against others) and freely ignored in cases where human rights abroad and national interests neatly coincide?
Throughout the NATO bombing campaign, much was made of 'shared values'. The UK Prime Minister asserted that it was " a just war, based not on territorial ambitions but on values". Since the law forbidding genocide and the forced displacement of peoples are as universal an expression of shared values as any we have, opposition to the tactics that were employed to coerce Yugoslavia can then easily be depicted either as a stance founded on legal formalism adherence to Article 2.(4) at the expense of human suffering, or a failure to appreciate the required military means for the desired political outcome. It can therefore be argued that large-scale suffering caused by a repressive and unresponsive government met with a principled and forceful, if illegal response. But the reality, both before and after the bombing is rather more complex.
In a war in which the urgency of the plight of the Kosovo Albanians was the legal justification for the commencement of the bombing, the effect of air strikes on their precarious situation was predictable and predicted. As the OSCE (Organisation for Security and Co-operation in Europe) report "Kosovo- Kosova: As Seen, As Heard" summarises, "By March 1999, the Yugoslav military-security forces were coping with two tasks: defeating the UCK [Kosovo Liberation Army] and preparing for an attack by NATO." Whether the increased pace of forced displacement was retaliatory, or engendered by a plausible fear of a NATO ground incursion, it was plain throughout the West that the perilous situation of the Kosovo Albanians would be made all the more dangerous by the start of the air campaign. An OSCE report, 'Human Rights in Kosovo', states that "Summary and arbitrary killing became a generalised phenomenon throughout Kosovo with the beginning of the NATO air campaign against the federal republic of Yugoslavia on the night of 24-5 March."
What possible humanitarian outcome preferable to a patient conclusion of the Rambouillet Accord negotiations the Interim Agreement for Peace and Self-Government in Kosovo could have been achieved by the bombardment of Yugoslavia? With expulsions and abuses of human rights violations of every kind continuing on the ground in Kosovo, ground troops were never a serious political possibility. As a senior NATO officer quoted in the New York Times remarked, "We said from the outset that we couldn't prevent atrocities and crimes against humanity with just an air campaign. But knowing that we had to keep an alliance of 19 nations together, we knew that if we asked for ground troops, we would be asking the impossible." Instead, the list of targets in Yugoslavia was extended to non-military maufacturing, oil supplies, roads and communications distant from Kosovo and even civilian infrastructure, such as water pumping facilities. Is the quality of the values that animated the intervention to be judged by the nature of the action, or by the mere fact of it? "What kind of soldier," it was asked, "is prepared to kill, but not prepared to die?"
By almost any measure financial cost, displacement of people subsequent to the start of the campaign, number of people killed, the environmental impacts of the bombing the campaign caused untold harm. Most important is the matter of the human rights situation in Kosovo. Has the bombing ended forced expulsions, murders and the persecution of minorities? In other words, did NATO succeed in humanitarian terms? The second part of OSCE 'As Seen, As Heard' report, covering the period June -October 1999 sums up the human rights situation from the end of the war: "One discernible leitmotif emerges from this report. Revenge. Throughout the regions, the desire for revenge has created a climate in which the vast majority of human rights violations have taken place With this climate of vindictiveness a third category of victims emerged: those individuals or groups who were persecuted simply because they had not been seen to suffer before not only have communities been driven from their homes, but also the climate is not conducive to returns. As a result, the spiral of violence has driven a wedge between Kosovo's communities, making ever more elusive the international community's envisioned goal of ethnic co-existence."
The Security Council resolution which ended the war specifies that Kosovo remain a part of Yugoslavia, but the political status of Kosovan Albanians remains unaddressed; indeed, a peaceful political settlement that would have ended the apartheid-like conditions under which they lived is now no longer possible. Meanwhile, 50,000 international peacekeepers are accused by the Serbian and Albanian populations alike and the other, persecuted minorities of not doing enough to halt continuing abuses of human rights. Bernard Kouchner, the head of the UN administration in Kosovo has requested an additional 6,000 policemen to patrol the province but to date has received only 1,800.
One of the functions of the Security Council hurdle for interventions is that matters of great import both to international politics and international law should be subject to international scrutiny. Otherwise, the national interests of intervening states could all too easily be subsumed under their declaration of humanitarian need and urgency. The extent of the military provisions affixed to the Rambouillet Accord were unprecedented (the UN peacekeeping forces for East Timor are not entitled to range over the whole of Indonesia) and NATO's insistence on Yugoslavia's acceptance was backed with the threat of force. A Russian and/or Chinese veto of NATO action would have been quite appropriate, given that NATO had already violated Article 2(4) by the unsanctioned threat of force. And at that time, a genuine continuance of the Rambouillet negotiations, with the United Nations not debarred from its primary responsibility for peace and security, might not only have ended the most immediate suffering but also might have provided a peaceful political settlement. Few things could be more damaging to the standing of international law than that the world's most powerful alliance (which includes three of the five Permanent Members of the Security Council) should have disregarded article 2(4) and still worse, declared its intention to adopt an instrumental approach to legal conformity.
The argument here is not in support of an unbending legal formalism, nor in disregard of the suffering engendered by gross violations of human rights; indeed, because human rights themselves depend on a functioning system of international law, my concern is with violation of one of the foundations of the international legal system and a question as to whether it can continue to withstand such challenges. In other words, I regard the violation of Article 2(4) of the UN Charter not only as a specific act of law-breaking, but also as undermining the ethos of law the perception that its values are universally shared, its prohibitions universally applicable and that its benefits arise from a rule-based international order which requires consistency rather than instrumentalism. The question posed by Thomas Franck nearly 30 years ago has even more purchase today: "[The] demise [of Article 2(4)] does raise a serious question for the nations: Having violated it, ignored it, run roughshod over it, and explained it away, can they now live without it?"
This is an edited version of an article from the web publication , the Journal of Humanitarian Assistance