Back to the Future

[Ulhas Joglekar]

13 November 1999
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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Bennett, Coleman & Co. Ltd. 1999.