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The So-called ‘Right’ of Humanitarian Intervention1

Published online by Cambridge University Press:  17 February 2009

Adam Roberts
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Humanitarian intervention, a long-standing issue in international legal writing and in state practice, has become a major focus of international legal thinking and military action. Since the early 1990s, there have been new and unexpected elements in the practice of intervention, in its authorization, and in debates about it. Action by outside military forces in several territories — northern Iraq, Somalia, Haiti and Kosovo — has provoked questions about whether there is a right of humanitarian intervention. In addition, the debate on the subject has been spurred by the strong sense that there were crises (most notably, the genocide in Rwanda in 1994) in which the international community should have intervened promptly but failed to do so.

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Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 3 - 51
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Copyright © T.M.C. Asser Instituut and the Authors 2000

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References

3. This definition is consistent with the implicit or explicit definitions in numerous works including Hall, W.E., A Treatise on International Law, 8th edn., Higgins, A. Pearce, ed. (Oxford, Clarendon Press 1924) pp. 342–344Google Scholar; Beyerlin, U., ‘Humanitarian Intervention’, in Bernhardt, R., ed., Encyclopaedia of Public International Law, vol. 3 (Amsterdam, North-Holland Publishing 1982) p. 211Google Scholar; and Abiew, F. Kofi, The Evolution of the Doctrine and Practice of Humanitarian Intervention (The Hague, Kluwer Law International 1999) p. 18Google Scholar.

4. See e.g., the definition of humanitarian intervention contained in a report commissioned by the Danish government in January 1999 and completed in October 1999, Humanitarian Intervention: Legal and Political Aspects (Copenhagen, Danish Institute of International Affairs 1999) p. 11Google Scholar. Here such intervention is defined as ‘coercive action by states involving the use of armed force in another state without the consent of its government, with or without authorisation from the United Nations Security Council, for the purpose of preventing or putting to a halt gross and massive violations of human rights or international humanitarian law’.

5. ‘Humanitarian intervention’ is viewed in both these senses in Harriss, J., ed., The Politics of Humanitarian Intervention (London, Pinter for the Save the Children Fund 1995) e.g., at pp. xi, 2–3, 8–9, etcGoogle Scholar.

6. The five objectives which President Slobodan Milošević was required to accept on behalf of the Federal Republic of Yugoslavia, and which were set out in the Statement on Kosovo issued by the NATO summit in Washington DC on 23–24 April 1999, were: a verifiable cessation of all combat activities and killings; withdrawal of Serb military, police and paramilitary forces from Kosovo; the deployment of an international military force; the return of all refugees and unimpeded access for humanitarian aid; and a political framework for Kosovo building on the Rambouillet accords. The first, third and fourth are those most clearly encompassed within the purposes of humanitarian intervention as defined in this paper.

7. For an excellent survey of the history of the principle, see Vincent, R.J., Nonintervention and International Order (Princeton, NJ, Princeton University Press 1974)Google Scholar. He did not commit himself directly pro or con humanitarian intervention either in this book or in a subsequent study, Human Rights and International Relations (Cambridge, Cambridge University Press for Royal Institute of International Affairs 1986) p. 45Google Scholar.

8. On the continued application of rules of customary international law relating to the use of force, alongside the rules of the UN Charter, see esp. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. (1986) pp. 92–97Google Scholar.

9. In addition, the Charter's Chapter IX, on ‘International Economic and Social Co-operation’, contains in Article 56 a pledge by members to ‘take joint and separate action’ to achieve, inter alia, universal observance of human rights. However, it has never been suggested that this legitimizes military action.

10. See the excellent expositions of these issues by Akehurst, M., ‘Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States’, 42 BYIL (1967) esp. at pp. 179–182Google Scholar; and by Dr G. Ress in his analysis of UN Charter Article 53(1), clause 2, phrase 1 in Simma, B., ed., The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 1994), pp. 732–735Google Scholar. Both studies refer to a number of cases in which regional bodies have taken action without specifically referring the matter to the UN Security Council.

11. The role of regional bodies in providing authorization for humanitarian intervention is discussed further below, in section 6.4.2.

12. Prof. K. Doehring, section on self-determination, in Simma, op. cit. n. 10, at pp. 71–72.

13. Prof. A. Randelzhofer, section on Art. 2(4) of the UN Charter, in Simma, op. cit. n. 10, pp. 123–124. See also his statement, in the section on Art. 51 (p. 672), that ‘forcible rescue operations for nationals endangered in another country are no longer lawful under the UN Charter’, (p. 672.)

14. The full title is ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty’, annexed to GA Res. 2131 (XX) of 21 December 1965, adopted with 109 in favour, none against, and one abstaining. Resolutions adopted by the General Assembly during its Twentieth Session, UN doc. A/6014, 1965, pp. 11–12.

15. ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, annexed to GA Res. 2625 (XXV) of 24 October 1970, adopted without a vote. Resolutions adopted by the General Assembly during its Twenty-fifth Session, UN doc. A/8028, 1971, pp. 121–124. For an excellent analysis, see Sinclair, I., ‘The Significance of the Friendly Relations Declaration’, in Lowe, V. and Warbrick, C., eds., The United Nations and the Principles of International Law (London, Routledge 1994) pp. 1–33Google Scholar.

16. ‘Definition of Aggression’, annexed to GA Res. 3314 (XXIX) of 14 December 1974, adopted without a vote. Resolutions adopted by the General Assembly during its Twenty-ninth Session, Vol. 1, UN doc. A/9631, 1975, pp. 142–144Google Scholar.

17. In the Definition of Aggression, in addition to the articles cited, Art. 2 might theoretically be relevant to humanitarian intervention. It recognizes a general right of the UN Security Council to ‘conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances…’. However, one reason for this provision is to cover cases in which the acts concerned, or their consequences, are not of sufficient gravity to merit being characterized as aggression. (A possible example might be an accidental or unauthorized crossing of an international border by a small group of soldiers.)

18. ‘Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States’, annexed to GA Res. 36/103 of 9 December 1981, adopted with 120 in favour, 22 against, six abstaining and nine absent. Those voting against were mainly western developed states. Resolutions and Decisions adopted by the General Assembly during its Thirty-Sixth Session, UN doc. A/36/51, 1982, pp. 78–80.

19. C. Gray, ‘The Principle of Non-Use of Force’, in Lowe and Warbrick, op. cit. n. 15, at p. 34.

20. SC Res. 232 of 16 December 1966, imposing sanctions on Southern Rhodesia; and SC Res. 418 of 4 November 1977, imposing an arms embargo on South Africa.

21. Dag Hammarskjöld, cable to Andrew Cordier, late August or early September 1960, quoted in Urquhart, B., Hammarskjöld (London, Bodley Head 1972) p. 438Google Scholar. A footnote (p. 623) sources the cable simply as ‘Unpublished’.

22. On 14 September 1960 a military coup in the Congo resulted in Prime Minister Patrice Lumumba being expelled from office. On the background to events in the Congo in August-September 1960, and the western view of Lumumba as a communist stooge, see O'Brien, C. Cruise, To Katanga and Back: A UN Case History (London, Hutchinson 1962) pp. 89–97Google Scholar; and James, A., Britain and the Congo Crisis, 1960–63 (Basingstoke, Macmillan 1996) pp. 62–63 and 66–72Google Scholar.

23. Such policies and acts of governments are briefly surveyed below in section 4.2.

24. ‘Is Intervention Ever Justified?’, July 1984, issued by the FCO, London, as Foreign Policy Document No. 148, 1986, para. 11.22. The whole of Part 11 of the document is reprinted in 57 BYIL (1986) pp. 614–620Google Scholar. Contrast this conclusion to the substantially different FCO views in 1998–1999, below, section 4.2.

25. Works published from the 1960s to the 1980s reflecting a critical view of humanitarian intervention include Brownlie, I., International Law and the Use of Force by States (Oxford, Clarendon Press 1963) pp. 338–42CrossRefGoogle Scholar. He provides a succinct survey of the history of ‘humanitarian intervention’ in international legal debate over the centuries, and in the final sentence of this section (p. 342) suggests that, in light of the UN Charter and other legal developments, any right of humanitarian intervention that existed in earlier times has not survived. Natalino Ronzitti concludes that humanitarian intervention by states is ‘radically contrary’ to Art. 2(4) of the UN Charter in his Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht, Martinus Nijhoff 1985) p. 108Google Scholar. A fundamentalist denial of any right of humanitarian intervention can also be found in Röling, B.V.A., ‘The Ban on the Use of Force and the U.N. Charter’, in Cassese, A., ed., The Current Legal Regulation of the Use of Force (Dordrecht, Martinus Nijhoff 1986) pp. 3–8Google Scholar.

26. Works published in the 1970s and 1980s reflecting a broadly favourable view of humanitarian intervention include Lillich, R. B., ed., Humanitarian Intervention and the United Nations (Charlottesville, University Press of Virginia 1973), which contains as an appendix (pp. 197–221)Google Scholar an impressive paper by J.P.L. Fonteyne on ‘Forcible Self-Help by States to Protect Human Rights: Recent Views from the United Nations’; Verwey, W. D., ‘Humanitarian Intervention’, in Cassese, , ed., Current Legal Regulation of the Use of Force, pp. 57–78 (at p. 59Google Scholar he excludes from his definition of humanitarian intervention those interventions authorized by the relevant organs of the UN); Rufin, J-C., Le piège humanitaire (Paris, Jean-Claude Lattès 1986)Google Scholar; and Tesón, F.R., Humanitarian Intervention: An Inquiry into Law and Morality (Dobbs Ferry, New York, Transnational Publishers 1988)Google Scholar. Tesón explicitly relies on ‘an ethical theory of international law’ (p. 129) to interpret the Charter. (A revised edition of his book was published in 1997).

27. ‘Conclusion’ in Bull, H., ed., Intervention in World Politics (Oxford, Oxford University Press 1984) p. 195Google Scholar. See also his remarks on p. 193 on the impact of ‘the growing legal and moral recognition of human rights on a world-wide scale’ on the question of humanitarian intervention.

28. Writing on the issue reflecting the experience of the 1990s includes Murphy, S. D., Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia, University of Philadelphia Press 1996)Google Scholar; Wheeler, N., Saving Strangers: Humanitarian Intervention in International Society (Oxford, Oxford University Press 2000)Google Scholar and Chesterman, S., Just War or Just Peace? Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001)Google Scholar.

29. The operation of the Unified Task Force (UNITAF) in Somalia was authorized in SC Res. 794 of 3 December 1992; and of the Multinational Force (MNF) in Haiti in SC Res. 940 of 31 July 1994.

30. In northern Iraq, following the creation of the ‘safe havens’ by US, British and French forces in April 1991, the presence of the lightly-armed UN Guards Contingent in Iraq (UNGCI), which is not a peacekeeping force, was authorized by the UN Secretary-General in May 1991, in conjunction with an agreement with Iraq. In Kosovo, following the NATO bombing campaign of Yugoslavia in March-June 1999, the international security presence – i.e., the NATO-led Kosovo Force (KFOR) — was authorized in SC Res. 1244 of 10 June 1999.

31. SC Res. 929 of 22 June 1994. The French-led operation, which thus started eleven weeks after the mass killings had begun, has been widely criticized.

32. ECOMOG (ECOWAS Monitoring Group) is a military force consisting of troops from Nigeria and some other West African states operating under the auspices of ECOWAS (the Economic Community of West African States). Its two main involvements have been in Liberia from August 1990 and Sierra Leone from May 1997. In both countries its role has not been confined to monitoring, but has included phases of direct support for one or another party in the civil wars. Its activities have been multi-faceted and controversial.

33. SC Res. 1132 of 8 October 1997 on Sierra Leone. This took note of previous decisions of the OAU and the ECOWAS; then, under Chapter VII, demanded that the military junta in Sierra Leone should relinquish power; called on it to cease all interference with the delivery of humanitarian assistance; and expressed strong support for ECOWAS actions, authorizing ECOWAS to ensure strict implementation of certain sanctions provisions.

34. See e.g., Wedgwood, R.'s contribution to the editorial comments on ‘NATO's Kosovo Intervention’ in 93 AJIL (1999) at p. 832 and n. 22Google Scholar.

35. For evidence of a sober approach, see Mayall, J., ed., The New Interventionism 1991–1994: United Nations Experience in Cambodia, former Yugoslavia and Somalia (Cambridge, Cambridge University Press 1996) esp. pp. 18–24CrossRefGoogle Scholar.

36. Glennon, M. J., ‘The New Interventionism: The Search for a Just International Law’, 78 Foreign Affairs (05/06 1999) pp. 2–7CrossRefGoogle Scholar. The article is predicated on the claims that the transcendent problem addressed in the UN Charter was inter-state violence and that the Charter scheme is irrelevant to today's problem, which is securing justice. Prof. Glennon asserts, grandly and incorrectly, that in Haiti, Somalia and Rwanda, ‘when the international community stepped in to halt the slaughter of civilians, it did so without the blessing of international law’. The author favours a new interventionist regime in support of justice, but says that it ‘might not at the outset be a legal one’.

37. For advocacy of a right of humanitarian intervention in the light of the events of the 1990s, including Kosovo, see the memorandum dated 22 November 1999 submitted by Greenwood, C. QC to the UK House of Commons Foreign Affairs Committee, published in its Fourth Report — Kosovo, Vol. II, Minutes of Evidence and Appendices (London, Stationery Office 05 2000, HC 28–11) pp. 137–142Google Scholar. As indicated in para. 2 of his memorandum, Greenwood acted as counsel for the UK in the case concerning Legality of Use of Force brought by the Federal Republic of Yugoslavia in the International Court of Justice, in which the FRY sought provisional measures directing a halt to the NATO operation.

38. 1948 Genocide Convention, Art. VIII. For a critical view of the provisions and working of the Convention see Kuper, L., Genocide: Its Political Use in the Twentieth Century (New Haven, Yale University Press 1982) esp. pp. 36–39 and 174–185Google Scholar.

39. For an authoritative account of the origins and meanings of common Article 1 see Kalshoven, F., ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’, 2 YIHL (1999) pp. 3–61CrossRefGoogle Scholar. This presents conclusive evidence that the negotiators at Geneva in 1949, in drawing up Art. 1, did not have in mind anything approaching a legal right of States Parties to take action regarding violations in conflicts in which they were not involved. They were in fact addressing a completely different issue. However, the author does accept that a moral if not legal right along the lines indicated has emerged.

40. For a judicious interpretation of these provisions of international humanitarian law, surveying the ways in which they can provide a basis for enforcement action by states and the UN, see de Chazournes, L. Boisson and Condorelli, L., ‘Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests’, IRRC No. 837 (2000) pp. 67–87Google Scholar.

41. 1994 Convention on the Safety of United Nations and Associated Personnel, Art. 7(3). Since the Convention's entry into force on 15 January 1999, several UN Security Council resolutions on operations in which UN forces were vulnerable have emphasized the need to observe the principles of this Convention. See for example, the following resolutions: on Sierra Leone, 1270 of 22 October 1999, paras. 13 et seq., and 1289 of 7 February 2000, preamble and para. 15; and on East Timor, 1264 of 15 September 1999, preamble, and 1272 of 25 October 1999, preamble.

42. One example is the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda by the authority of the UN Security Council. Their respective Statutes place duties on states to cooperate with the Tribunals.

43. See e.g., Kofi Annan's speech to the UN General Assembly on 20 September 1999, ‘Two Concepts of Sovereignty’, UN Press Release SG/SM/7136 GA/9596 of 20 September 1999; text reprinted in Annan, K., The Question of Intervention: Statements by the Secretary-General (New York, UN Department of Public Information, 12 1999) pp. 38–39Google Scholar.

44. See e.g., GA Res. 53/144 of 9 December 1998, ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’, which emphasizes individual human rights, but at the same time stresses that ‘the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the state’.

45. On the complex range of considerations that led to the intervention in Haiti in 1994 see David Malone, M., Decision-Making in the UN Security Council: The Case of Haiti (Oxford, Oxford University Press 1998)CrossRefGoogle Scholar.

46. UN, Security Council Official Records (SCOR), 26th year, 1606th meeting,4 December 1971, pp. 14–18Google Scholar, statement of Mr Sen (India); and pp. 18–19, statement of Mr Bush (USA).

47. Michael Akehurst later wrote, apropos this meeting, that in the official record of UN Security Council proceedings India deleted its statements suggesting a humanitarian justification for its military action, replacing them with claims that Pakistan had attacked India first. He also stated: ‘Certainly the reactions of other states provided no support for the legality of humanitarian intervention.’ M. Akehurst, ‘Humanitarian Intervention’, in Bull, ed., op. cit. n. 27, at pp. 96–97. These statements appear to be incorrect. Whether or not any amendments were made, the Indian justification as it appears in the printed record is mainly on the grounds of humanitarian considerations, especially Pakistan's human rights violations. The Soviet Union strongly supported the Indian action, and while its representatives in the Security Council did not use the term ‘humanitarian intervention’ their arguments largely fell within that category. In the Security Council debate on 4 December 1971 the Soviet representative vetoed a ceasefire resolution promoted by the USA.

48. UN, SCOR, 26th year, 1613th meeting,13 December 1971, pp. 15–17 and 19–23Google Scholar. For a sophisticated discussion of the question of humanitarian intervention in light of the 1971 events in the Indian subcontinent, see Franck, T. M. and Rodley, N. S., ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67 AJIL (1973) pp. 275–305CrossRefGoogle Scholar.

49. These three draft UN Security Council resolutions on the India-Pakistan war were defeated on 4, 5 and 13 December 1971. In each case the voting was 11 in favour, two against (Poland and the Soviet Union), and two abstaining (France and UK). Source: ‘Table of Vetoed Draft Resolutions in the United Nations Security Council 1946–1998’, Research Analysts Memorandum 2 (London, Foreign and Commonwealth Office September 1999) p. 25.

50. Cited in speech in Louisville, Kentucky, by Kenneth Dam, US Deputy Secretary of State, on legal bases for US action, 4 November 1983. Text in O'Shaughnessy, H., Grenada: Revolution, Invasion and Aftermath (London, Sphere Books 1984) p. 243Google Scholar. See also Dam's summary of US objectives on p. 243.

51. The voting on the UN Security Council draft resolution on Grenada on 27 October 1983 was 11 in favour, one against (USA), and three abstaining (Togo, UK and Zaire). Source: ‘Table of Vetoed Draft Resolutions 1946–1998’, p. 34. The voting on the General Assembly resolution on the subject, GA Res. 38/7 of 2 November 1983, was 108 in favour, nine against, and 27 abstaining.

52. A one-page FCO note of 7 October 1998, ‘FRY/Kosovo: The Way Ahead; UK View on Legal Base for Use of Force’. This note states that it was being circulated ‘to all our NATO allies’. The author received a copy indirectly in 1999, and published it in an article in 41 Survival (Autumn 1999)Google Scholar.

There are many possible grounds of criticism of this note. Its claim that Bosnia and Somalia provide firm legal precedents for Security Council-authorized use of force for humanitarian purposes underplays the key difference between these cases and that of Kosovo: in Bosnia there was government consent for military action under UN auspices, and in Somalia there was no government to give or refuse consent. The central argument, that intervention could be legitimate even in the absence of Security Council authorization, was of course contested by many, not least because of doubts as to whether the practice of bombing could be deemed to constitute an appropriate form of the principle of humanitarian intervention.

53. Baroness Symons of Vernham Dean, written answer to Kennet, Lord, Hansard, 16 11 1998, col. WA 140Google Scholar. The same basic line of UK government thinking on legal authority for military action over Kosovo can also be found in an FCO memorandum of 22 January 1999 which made brief additional reference to the possibility that circumstances could arise in which a use of force over Kosovo would be justified in terms of individual or collective self-defence. The text of the memorandum, and of the House of Commons Foreign Affairs Committee's examination on 26 January 1999 of MrLloyd, Tony MP, Minister of State at the Foreign Office, is in House of Commons Foreign Affairs Committee, Seventh Report – Kosovo: Interim Report (London, Stationery Office, 07 1999, HC 188) pp. 1–15Google Scholar.

54. Canada, 36th Parliament, 1 st session, House of Commons, 7 October 1998, debating the innocuously worded resolution: ‘That this House take note of the dire humanitarian situation confronting the people of Kosovo and the government's intention to take measures in co-operation with the international community to resolve the conflict, promote a political settlement for Kosovo and facilitate the provision of humanitarian assistance to refugees.’ Verbatim report of debate can be found at the Canadian Parliament website, www.parl.gc.ca.

55. Simma, B., ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL (1999) p. 13CrossRefGoogle Scholar.

56. Kofi A. Annan, Ditchley Foundation Lecture, ‘Intervention’, Ditchley Park, England, 26 June 1998. This and four key statements made in 1999 are collected in Annan, op. cit. n. 43.

57. ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’, UN doc. S/1999/957, 8 September 1999, pp. 26–27.

58. UN Press Release SG/SM/7136 GA/9596 of 20 September 1999; text reprinted in Annan, op. cit. n. 43, at pp. 38–39 and 44.

59. SC Res. 794 of 3 December 1992, on Somalia; and SC Res. 940 of 31 July 1994, on Haiti.

60. Account of the Security Council debate, UN Press Release SC/6659, 26 March 1999.

61. The question of authorization, as one criterion for intervention, is explored further below in section 6.4.

62. For a strong denial, in the light of the Kosovo events, that there is a right of humanitarian intervention, see the two undated memoranda submitted by ProfessorBrownlie, Ian QC to the UK House of Commons, Foreign Affairs Committee, published in its Fourth Report — Kosovo, Vol. II, Minutes of Evidence and Appendices (London, Stationery Office, 05 2000, HC 28–11), pp. 217–241Google Scholar. As indicated in para. 3 of the first memorandum, Brownlie acted as counsel on behalf of the Federal Republic of Yugoslavia in the proceedings in the International Court of Justice in which the FRY sought provisional measures directing a halt to the NATO operation.

63. Simma, B., ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL (1999) pp. 4–6 and 22CrossRefGoogle Scholar; and Cassese, A., ‘Ex iniuria ius oritur. Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, 10 EJIL (1999) pp. 23–25CrossRefGoogle Scholar.

64. GA Res. 43/131 of 8 December 1988. See also the virtually identical terms of GA Res. 45/100 of 14 December 1990. A further resolution, GA Res. 46/182 of 19 December 1991 on ‘Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations’, sometimes cited in discussions of a right of humanitarian assistance, contains as Guiding Principle 3 of its Annex an exceptionally strong and clear recognition of the sovereignty and territorial integrity of states.

65. See e.g., the report of the XVIIth Round Table of the Institute of Humanitarian Law, Remo, San, on ‘The evolution of the right to assistance’, IRRC, No. 291 (1992) pp. 592–602Google Scholar; and Guicherd, C., ‘International Law and the War in Kosovo’, 41 Survival (Summer 1999) p. 22Google Scholar. In both these sources there is also reference to the practice of the UN Security Council, for example in demanding that parties to a particular conflict should cooperate with international bodies in the delivery of humanitarian aid, as evidence of a right to assistance.

66. A. Kane (Director, Americas and Europe Division, UN Department of Political Affairs), address at Marshall Center, Garmisch, 16 May 2000.

67. Movement of the Non-Aligned Countries, XIII Ministerial Conference, Cartagena, Colombia, 8–9 April 2000, Final Document, extracts from paras. 11 and 263. There are 115 countries in the Movement. Text and information from the Non-Aligned Movement site at www.nam.gov.za. It is coincidental that the wording and quotation marks in para. 263 and in the title of the present article are identical: the title was decided before the author came across the text of the Cartagena statement.

68. Pakenham, T., The Scramble for Africa 1876–1912 (London, Weidenfeld & Nicolson 1991) p. 22Google Scholar. See also Hochschild, A., King Leopold's Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa (London, Papermac 2000) pp. 43–46Google Scholar.

69. See esp. Cassese, loc. cit. n. 63, at p. 27.

70. In outlining ‘five major considerations’ which could assist in deciding ‘when and whether to intervene’, Blair stated: ‘I am not suggesting that these are absolute tests. But they are the kind of issues we need to think about in deciding in the future when and whether we will intervene.’ Tony Blair, ‘Doctrine of the International Community’, speech in Chicago, 22 April 1999, text on the Downing Street website, www.number-10.gov.uk.

71. See for example the speech of the Foreign Minister of Singapore, Mr Shunmugam Jayakumar, at the UN General Assembly on 24 September 1999, stating that ‘rules and objective criteria for such interventions are urgently needed’.

72. Canadian Foreign Minister, Lloyd Axworthy, Hauser Lecture at New York University School of Law, 10 February 2000. Text on file with author. Reference to the lecture, and information on how to obtain a text, is on the New York University website at www.law.nyu.edu.

73. Speech by UK Foreign Secretary, Robin Cook, ‘Guiding Humanitarian Intervention’, at a meeting of the American Bar Association in London, 19 July 2000, text available on the FCO website, www.fco.gov.uk.

74. Hall, op. cit. n. 3, at p. 344.

75. On 3 November 1950, the Western powers, needing continued support for their military action in Korea, secured the passage of GA Res. 377 (V), known as the ‘Uniting for Peace’ resolution, which stated that ‘if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary…’

76. Rule 83 of the Rules of Procedure of the General Assembly. Text in von Mangoldt, H. and Rittberger, V., eds., The United Nations System and its Predecessors, Vol. I, The United Nations System (Oxford, Oxford University Press 1997) p. 91Google Scholar.

77. Cook, supra n. 73.

78. See above, section 2.1.

79. However, the term ‘regional security organizations or arrangements’ has been applied to NATO in certain UN Security Council resolutions: see e.g., para. 9 of SC Res. 836 of 4 June 1993, addressing the protection of the six ‘safe areas’ in Bosnia-Herzegovina. Moreover, NATO was one of a large number of international bodies which participated in a meeting on cooperation between the UN and regional organizations on the maintenance of international peace and security, UN Headquarters, New York, 1 August 1994.

80. See e.g., on Sierra Leone, SC Res. 1132 of 8 October 1997, on Sierra Leone. This took note of previous decisions of the Organization of African Unity (OAU) and the Economic Community of West African States (ECOWAS) and expressed strong support for ECOWAS actions, authorizing ECOWAS to ensure strict provisions of certain sanctions. Two years later, SC Res. 1270 of 22 October 1999 reiterated the Security Council's ‘appreciation of the indispensable role which ECOMOG forces continue to play in the maintenance of security and stability and in the protection of the people of Sierra Leone…’.

81. Some have seen SC Res. 1244 of 10 June 1999 as conferring a degree of legitimacy on the NATO military action over Kosovo. This is debatable. It did, however, unambiguously authorize the international security presence in Kosovo that was largely the result of the military campaign.

82. The North Atlantic Treaty, concluded in Washington DC on 4 April 1949. Art. 5 refers to ‘armed attack against one or more’ parties as the basis for collective military action ‘in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations …’. The text of the treaty with amendments and protocols is in The North Atlantic Treaty Organisation: Facts and Figures, 11th edn. (Brussels, NATO Information Service 1989) pp. 376–383Google Scholar.

83. The general principles involved are usefully addressed in Osieke, E., ‘Ultra Vires Acts in International Organizations — The Experience of the International Labour Organization’, 48 BYIL (1976–1977) pp. 259–280Google Scholar. See also the brief discussion by Georg Ress on whether the enforcement measures of a regional agency, if authorized by the UN Security Council, may still depend on the agency's own statute in Simma, ed., Charter of the United Nations, op. cit. n. 10, at p. 735.

84. These issues are explored in Roberts, A., ‘NATO's “;Humanitarian War” over Kosovo’, 41 Survival (Autumn 1999) pp. 102–123CrossRefGoogle Scholar.

85. See for example the discussion in Neuhold, H.-P., ‘The Foreign-Policy “Cost-Benefit Analysis” Revisited’, 42 GYIL (1999) pp. 108–109Google Scholar. The framing of the issues in terms of jus cogens does not make clashes of law over the question of intervention any easier to resolve. See his discussion on pp. 118–122 of ‘situations in which actions to stop and prevent further violations of key obligations under international law are urgently needed’. He concludes (p. 122) that NATO's operations over Kosovo in March-June 1999 were ‘contrary to international law as it stands today’. He goes on to express the opinion that ‘NATO's air raids against the FRY were morally acceptable and politically necessary. This view is easier to live with if one does not consider compliance with the law — not only international law for that matter — as the supreme value. Law and justice do not always coincide.’

86. See for example, the hesitant conclusions on the international legal basis of non-Security Council based military action in two post-Kosovo War reports: the October 1999 Danish, report on Humanitarian Intervention: Legal and Political Aspects, pp. 121–130Google Scholar; and the UK House of Commons, Foreign Affairs Committee, Fourth Report — Kosovo, Vol. I, Report and Proceedings of the Committee (London, Stationery Office, 05 2000, HC 28–1), para. 132Google Scholar.

87. Bring, O., ‘Should NATO Take the Lead in Formulating a Doctrine on Humanitarian Intervention?’, NATO Review (Autumn 1999) pp. 25 and 27Google Scholar. Prof. Bring's scepticism as to whether there was any UN Charter basis for the NATO action over Kosovo were, perhaps, overstated. In some NATO countries, there was extensive reference to UN Security Council resolutions and UN principles on human rights as being relevant to the decision to use force even if the Security Council had not specifically authorized it.

88. ‘NATO and Humanitarian Intervention’, plenary resolution adopted by the NATO Parliamentary Assembly, Amsterdam, 15 November 1999. There was no resolution on this subject at the Berlin Plenary Session of the NATO Parliamentary Assembly in November 2000. Text of resolutions of the 1999 and 2000 assemblies is at NATO Parliamentary Assembly website, www.naa.be.

89. Report of the Secretary-General pursuant to General Assembly resolution 53/35: The Fall of Srebrenica, UN doc. A/54/549, New York, 15 11 1999Google Scholar.

90. Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, attached to UN doc. S/1999/1257, New York, 16 12 1999Google Scholar.

91. Report of the Panel on United Nations Peace Operations, contained in UN doc. A/55/305 of 21 August 2000, p. x. Brahimi is the former foreign minister of Algeria. For Hammarskjöld's instruction on the same type of issue as it arose in the Congo in 1960, see supra n. 21.

92. Lakhdar. Brahimi has confirmed that the panel could not have reached agreement on the principle of humanitarian intervention. Address at a seminar on ‘The UN, Europe and Crisis Management’, held at Institute for Security Studies of the WEU, Paris, 19 October 2000.