"Хуманитарните войни и новият интервенционализъм в контекста на колективната система на ООН за поддържане на международния мир"

On March 26, 1999, a draft resolution demanding an end to the air strikes was rejected by 12 votes to 3.123 Russia, China, and Namibia supported it, but 12 others (including 5 NATO members) did not. Few states opposing the draft advanced any legal basis for the action. The UK echoed its justification for the no-fly zones in Iraq, stating that military intervention was justified as an exceptional measure to prevent a humanitarian catastrophe. France and the Netherlands noted that previous resolutions had been adopted under Chapter VII of the Charter, thus implying that the coercive powers of the Council already had been invoked. For the most part, the resolution was simply seen as an inappropriate response to the situation, and one that might actually benefit Milosevic more than anyone else.124

In any event, the bombing initially exacerbated humanitarian problems. Ethnic cleansing began with a vengeance in Kosovo. Prior to the bombing, UNHCR estimated that there were 410,000 ethnic Albanians internally displaced as a result of Serb operations, and another 90,000 across the border. Within a matter of days, there were 750,00 refugees in Albania and Macedonia, as well as 250,000 IDPs at the border. UNHCR had prepared contingency plans for 100,000 refugees and was soon overwhelmed.

The 78-day bombing campaign was a textbook example of escalation theory and high-tech, low-risk military warfare. Initial targets were military, but after a month the bombing extended to dual-use targets, including mass media and power grids. The war was also extended to FRY territory, including the bombing of Belgrade. Many observers are of the opinion that the destruction of Serbia’s infrastructure – for instance, 70 percent of bridges and 100 percent of refining capacity – and the threat of ground forces ended the war. The European Union (EU) estimated the cost of reconstruction at some $30 billion; the FRY, at $100 billion.

The FRY brought proceedings against 10 NATO members in the International Court of Justice (ICJ). In the course of hearings on the FRY’s requests for provisional measures, Belgium presented the most elaborate legal justification for the action. In addition to relying on Security Council resolutions, Belgium claimed that a doctrine of humanitarian intervention was compatible with Article 2 (4) of the UN Charter, in addition to making an argument founded on humanitarian necessity.125 The US also emphasized the importance of Security Council resolutions, and together with four other delegations (Germany, the Netherlands, Spain, and the UK) made reference to the existence of a humanitarian catastrophe.126 Four delegations did not offer any clear legal justification (Canada, France, Italy, and Portugal).

Yugoslavia had requested the ICJ to issue an injunction, based in part on provisions of the Genocide Convention, calling for an immediate cessation of bombing. However, the ICJ found that it did not have prima facie jurisdiction to issue what it termed interim measures, based on those provisions. 127 The ICJ declined to grant the relief sought, for technical reasons to do with the FRY’s accession to the jurisdiction of the ICJ during the conflict. Decision on the jurisdiction of the ICJ on other dimensions and a possible ruling on the merits of the case have been postponed at the request of Yugoslavia until April 2002.

Immediately following the end of hostilities, NATO deployed a 20,000-strong Kosovo Force to provide security within the war-torn society, which operated within the UN Interim Administration Mission in Kosovo. The security force was designed to complement the division of labour with four other intergovernmental organizations. The UN was charged with interim civil administration and capacity building. The UNHCR was given responsibility for humanitarian affairs. The EU took the lead in rehabilitation, reconstruction, and post-war peace building. And the OSCE pursued more elusive longer-term institution-building.

As Kosovo is a region of the FRY, and it was treated as such by NATO, the massive postintervention effort constitutes a military protectorate. The desire to avoid setting a precedent was evident in subsequent statements by NATO members. US Secretary of State Albright stressed in a press conference after the air campaign that Kosovo was a unique situation sui generis in the region of the Balkans.128 UK Prime Minister Tony Blair appeared to suggest at one point that such interventions might become more routine, stating that, The most pressing foreign policy problem we face is to identify the circumstances in which we should get actively involved in other people’s conflicts.129 He subsequently retreated somewhat from this position, however, and emphasized the exceptional nature of the air campaign.130 This was consistent with one of the more considered UK statements, by Baroness Symons in the House of Lords, made on November 16, 1998, and reaffirmed on May 6, 1999:

There is no general doctrine of humanitarian necessity in international law. Cases have nevertheless arisen (as in northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the Security Council but without the council’s express authorization when that was the only means to avert an immediate and overwhelming humanitarian catastrophe. Such cases would in the nature of things be exceptional.131

The UK Foreign Affairs Committee, as part of its inquiry into the legal merits of the Kosovo intervention, concluded that NATO’s military action, if of dubious legality in the current state of international law, was justified on moral grounds.132 Similarly, the Independent International Commission on Kosovo held that NATO’s military intervention was illegal but legitimate.133

The Kosovo case has important implications for the employment of international criminal prosecution. In May 1999, the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia indicted Slobodan Milosevic and four senior FRY officials for crimes in Kosovo. In mid-June 2001, the new government in the FRY issued a decree that permitted the extradition of these indicted criminals to The Hague, despite the fact that the constitution did not permit it. Under considerable pressure from international donors, especially the US, the government contended that international covenants outweighed national law. The symbolism of Milosevic’s transfer to The Hague on June 27, 2001, was noteworthy in itself – St Vitus’s Day, the date in 1389 that the Serbs had lost a key battle in Kosovo, the day that he had unleashed the passionate jingoism in 1989, and the day 10 years after the Balkan wars erupted in Slovenia and Croatia.

One of the persistent criticisms, even among supporters of the intervention,134 was the unwillingness of the NATO coalition to put ground troops into the equation. According to this view, the presence of and the threat to use ground troops would have averted the mass exodus of refugees. It would also have helped make a more credible moral stance, in that humanitarian intervention would have been worth the lives of Westerners as well as Yugoslavs. By remaining at 15,000 feet, there were no NATO casualties, and public support was sustained in the West.135 But the moral high ground was less firm.

The NATO intervention in Kosovo remains highly controversial. The moral, legal, operational, and political dimensions of humanitarian intervention have never come under such sustained and sometimes vitriolic scrutiny. The establishment of what is, in effect, a UN protectorate is also controversial, particularly given the retaliatory attacks against the remaining Serb minority. Finally, however unwittingly, intervention on behalf of the repressed Kosovo Albanians played into the hands of the insurgents striving for independence. Despite NATO and UN protests that they do not support Kosovo’s drive for independence, that is the most likely outcome.

During this period, the balance between three forms of nonconsensual action shifted. The decade ended as it began, with multinational coalitions undertaking extremely high-intensity military interventions – yet the intervening years were characterized by considerable scepticism as to the utility of military force for humanitarian purposes, particularly as a result of experiences in Somalia and the Balkans.

It was a decade of profound change for two other forms of intervention – sanctions and international criminal prosecutions – as well. The 1990s have been labelled the sanctions decade because the Security Council imposed 12 sanctions regimes, several times more than in the previous 40 years combined. As well as being used more frequently, sanctions were also applied more widely, including against nonstate actors in Angola and Cambodia.140 The frequent resort to sanctions occurred despite the fact that most observers criticized their political inefficacy, and an even larger number of critics lamented their humanitarian consequences.141 Particularly as a result of the painful human suffering in Iraq, the view that sanctions represent a kinder and gentler alternative to deadly force seems unsustainable. Ultimately, the Charter’s call to use nonforcible before forcible measures may have a less than optimal humanitarian result. Some advocate moving toward smart sanctions designed to target regime leaders while minimizing the impact on the general population,142 while others call for the application of deadly force sooner rather than later.

International criminal prosecution was another type of intervention that, for the first time since the immediate aftermath of the Second World War, was employed to bring to justice those who had committed crimes against humanity. A number of recent legal decisions suggest considerable erosion of the rules relating to the immunity of states and their leaders. These have long provided that leading officials (including retired ones) of a state cannot be tried in courts in another country for acts committed in their own state and in the exercise of their official duties.143 Although the Genocide Convention specifically calls for punishing perpetrators whether they are constitutionally responsible rulers, public officials or private individuals, state practice over decades had overwhelmingly supported the notion of sovereign immunity. This is one reason why states avoided calling the Rwanda genocide a genocide.144

The fight to establish limits to impunity received a boost with the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda in 1993 and 1994, respectively. More recent violence in Burundi, the Congo, and East Timor has led to calls for additional ad hoc tribunals. And the Khmer Rouge’s atrocities of the 1970s have long been a topic that has led to a similar call, although legislation to establish a tribunal is stalled in the Cambodian parliament. A more likely third tribunal may be for Sierra Leone, where rebels have committed horrible cruelties against civilians, and a planning delegation was authorized by the Security Council in July 2001, about a year after the decision to establish such a mechanism. While the tribunals for Rwanda and the former Yugoslavia are entirely international, the ones proposed for Cambodia and Sierra Leone would each have an international prosecutor but a mix of local and foreign judges.

Dissatisfaction with early institutional shortcomings for both the Rwandan and the former Yugoslavian tribunals demonstrated to many observers the need for a permanent court. The creation of the ICC awaits the 60th ratification of the 1998 Rome Statute. However, international agreement on the independence of the prosecutor and the court’s jurisdiction over internal conflicts and disturbances suggests that criminal prosecution could become a common, rather than an ad hoc, response in the face of large scale atrocities.

Questions related to the legality of armed military intervention for humanitarian purposes are also relevant to nonmilitary intervention. The Security Council has the legal capacity both to authorize intervention and to delegate needed authority to regional bodies. Sanctions and embargoes have been imposed without Council authorization, by regional bodies or unilaterally.

The most substantive departure in the post-Cold War era, however, remains the Security Council’s willingness to authorize military actions in response to matters thought previously to be solely within the domestic jurisdiction of states. The decade witnessed serious second thoughts about humanitarian intervention. Euphoria after the Gulf War and the rescue of the Kurds in 1991 gave way, three brief years later, to the nihilism of the international nonresponse to Rwanda’s genocide. The last year of the millennium conjured up, depending on one’s point of view, optimism or pessimism about humanitarian intervention, because of the visible and costly international efforts in Sierra Leone, Kosovo, and East Timor.

Two major trends in the nature of Security Council authorizations should be highlighted. The first relates to the expansion of what constitutes threats to international peace and security. And the second relates to organizational limitations of the UN and the concomitant use of multinational forces and the dependency of the Council on such coalitions of the willing for the application of deadly force.

The most basic transformation in the use of Security Council powers is that civil war and internal strife have been described as threats to international peace and security and may therefore be the basis for Chapter VII enforcement action. This development was virtually inconceivable during the Cold War, when similar conflicts were not considered to constitute such threats. Yet, by 1995, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia summarized that it is the settled practice of the Security Council and the common understanding of the United Nations membership in general that a purely internal armed conflict may constitute a threat to the peace.145 In fact, when the Security Council considered the civil war in Angola, it was even prepared to locate such a threat specifically within a rebel movement.

Substantial flows of refugees have been deemed by the Security Council to constitute a threat to international peace and security. This has enabled them to justify Chapter VII actions to create safe havens in the Balkans and Rwanda. The Council also determined that serious or systematic, widespread and flagrant violations of IHL within a country also threaten international peace and security. This undoubtedly represents a considerable stretch for those who are familiar with the convictions of the framers of the UN Charter. But resolutions establishing the international criminal tribunals for Rwanda and the former Yugoslavia did not indicate that violations of IHL were a threat to international peace and security, a position strongly supported by the ICRC and other humanitarian agencies.146 There has been, therefore, a gradual shift away from strict reliance on the transboundary implications of a humanitarian situation as the determining factor.

Some have argued that the ever-widening definition of international peace and security is artificial and unsustainable and that more explicit grounds for intervention to protect civilians should be developed. For example, the Independent Commission on Global Governance proposed an appropriate Charter amendment permitting such intervention but restricting it to cases that constitute a violation of the security of people so gross and extreme that it requires an international response on humanitarian grounds.147

If humanitarian and human rights tragedies can be squeezed under the rubric of international peace and security, the restoration of democracy within a country demands even more leeway. In this light, Operation Restore Democracy in Haiti can be seen as a high watermark of Council activism in the 1990s. The unprecedented authorization called for the use of force to remove one regime and install another. It has been argued that this foreshadows the emergence of a more general norm of intervention in support of democ-racy, a proposition that finds limited support in the amended OAS Charter.148 ECOWAS’s intervention into Sierra Leone further supports the argument that an international norm of prodemocratic intervention is developing. While it can be seen neither as a literal interpretation of Chapter VIII nor as involving a threat to international peace and security, the Council’s post hoc ratification of ECOWAS’s intervention may be best understood as an example of prodemocratic intervention.

Three other cases of prodemocratic intervention are not discussed here because they do not fall under the humanitarian heading defined at the outset. However, the outside military efforts in Guinea-Bissau (by Senegal, Guinea, and ECOWAS), in the Central African Republic (by MISAB), and in Lesotho (by South Africa and Bostswana under SADC agreements) suggest that democratic governance is in the forefront of African interventions. As one analyst notes, While in theory, Western nations purport to have the strongest democratic traditions, in practice, this emerging norm is taking firmer root in Africa than in any other region.149

In addition, the expansion of situations that come generally under the rubric of threats to international peace and security has had another result, considered by many in a less positive light. A series of ambiguous resolutions and conflicting interpretations have arisen over the extent and duration of the authority conferred by the Security Council. These were most notable in the operations against Iraq throughout the 1990s and in the Kosovo War in 1999. The weakening of formal requirements may have undermined the substantive provisions of the Charter’s collective security system and contributed to facilitating actions in advance of Council authorization, or indeed without it.

This reflects a second trend in the expanding activities of the Security Council in the 1990s. The absence of any real UN operational capacities to meet the growing demands of a responsibility to protect civilians has led to a delegation of authority. The provisions in Article 43 concerning Security Council military enforcement presume the existence of agreements with member states to make forces available to the Council on its call. Such agreements have never been concluded, and Chapter VII has never been applied according to the strict terms of Article 42. Yet, the Security Council has repeatedly authorized states to use all necessary means (or similar language), and this appears to be accepted as a legitimate application of its Chapter VII powers. The same language appears relevant for the delegation of authority under Chapter VIII.

Security Council military enforcement actions were limited to situations where states had the political will to bear the financial and human costs. For humanitarian interventions, the division of labour resulting from the experience of the 1990s highlights the chasm between peacekeeping and peace enforcement. These enforcement actions make it clear that the military protection functions do not squarely fall under either Chapters VI or Chapter VII. Some argue that these challenges can be accommodated by a slightly more robust form of peacekeeping. But the evidence suggests that demilitarizing refugee camps and creating safe havens that are truly safe require scaling back combat-capable troops willing to employ deadly force, rather than scaling up blue helmets. Distinctions that were fuzzy in the 1992 An Agenda for Peace became clearer in the 1995 Supplement to An Agenda for Peace. They have subsequently become clearer still in the recommendations from the 2000 Panel on UN Peace Operations: the UN should concentrate on peacekeeping and civilian administration – others should undertake robust military deployments.

Yet, the loose connections between UN authorization and member-state enforcement is not without its problems. In particular, the delegation of authority – or subcontracting to coalitions of the willing and able or to regional arrangements or agencies – has raised concerns about the use of Security Council authority to give legitimacy to the foreign policy objectives of powerful states.