Category Archives: UN

Humanitarian Intervention and Use of Force: Thinking outside the box of the UN Charter (a short comment on Koh, Heller, Kaye and Stahn)

I’ve been following with much interest the debate initiated by Harold Koh on the legality of humanitarian intervention under international law over at the Just Security Blog and to which such esteemed scholars as Kevin Jon Heller, David Kaye and Carsten Stahn have responded, prompting a response by Harold Koh.

I resisted until now entering the fray of the discussion, because it seemed to me that, albeit very brilliantly, these authors were basically covering familiar ground and points of contention in the ongoing discussion on this issue. I tend to agree that one should be clear on the distinction between law and policy, and be clear on the fact that the latter having absolutely no obligation to abide by the current state of the former. In relation to policy, I personally have no opinion on what is preferable and will leave this to my colleagues, who actually have an influence in policy discussions…

What triggers this post is a small methodological point on the framing of the argumentation and possible confusion between the UN Charter and general international law. Indeed, the heart of the legal discussion seems to be how to interpret Article 2(4) of the UN Charter which relates to the prohibition of the threat or use or force, and whether this might be read to allow some limited forms of humanitarian intervention outside a UNSC Chapter VII authorization. The “textualists” (Heller, Kay, Stahn) say that cannot, while the “progressist” (Koh) thinks that it is, based both on a reading of the UN Charter and its objectives and examples of developing practice in that direction.

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ICTY: an international armed conflict existed in Kosovo during NATO bombings

Today, Trial Chamber II of the ICTY convicted Vlastimir Dordevic for crimes committed in Kosovo. One thing that struck me when reading the summary of the Judgment, is this statement of the Chamber:

In addition, on 24 March 1999 NATO commenced military operations in the Federal Republic of Yugoslavia, so that the Chamber is also satisfied that from 24 March 1999, until the end of hostilities in June 1999, an international armed conflict existed in Kosovo between Serbian forces and the forces of NATO.

To the best of my knowledge, this is the first time that any international court or tribunal has actually legally qualified the nature of the military operation of NATO in Kosovo in 1999. Serbia’s case before the ICJ was rejected on grounds of admissibility and the corresponding case before the ECHR was also rejected at the admissibility phase. As for the ICTY, The Limaj and Haradinaj indictments did not cover the NATO bombing period. In Sainovic, despite the indictment covering that period, the Chamber found that: “Thus, there was an armed conflict between the FRY and the KLA leading up to and into the period of the NATO air campaign” (Judgment, §841). Milosevic does not help either, because the 98bis decision only looked at the existence of an armed conflict prior to the beginning of the bombings. Finally, the OTP report released in 2000 which advised against initiating an investigation for NATO actions, makes absolutely no mention of this aspect.

I need to read the full Judgment in order to understand why the Trial Chamber actually felt compelled to make this statement, i.e., whether the nature of the armed conflict actually makes a difference in relation to the crimes charges, or if this finding is merely the chamber straying into obiter dictum territory.

In any case, it’s an interesting finding on many levels. Specifically in relation to the bombing itself, it raises once again the issue of NATO’s humanitarian law obligations during the operation.
More generally, it puts on the table once again the issue of the impact of external actors on the nature of a conflict. Of course one could argue that this is a case-specific finding, in light of the fact that NATO was not acting under Chapter VII authorization.
On this point, I see in some of the literature a distinction between civil wars where a neighboring State intervenes in favor of one side or another, thus making it an international armed conflict, and international intervention based on humanitarian purposes, by the UN for instance, which is therefore seen as not changing the nature of the conflict because of an alleged neutrality of the third party. The rationale for this distinction is thus a question of 1) political motivation and 2) UN authorization. I would however argue against the distinction.
In relation to political motivation, I believe that political neutrality is a fiction. When the UN, or any other organisation, intervenes to stop a genocide it is definitely taking sides against the perpetrators. It might have legitimate human rights reasons to do so, but one cannot deny that this also has dire internal political repercussions. In this sense, I would disagree with the preliminary finding of the Pre-Trial Chamber in the Abu Garda confirmation of charges that the conflict in Sudan was an armed conflict not of an international character. From the moment that a peacekeeping force is materially preventing two sides to a conflict from fighting, they are factually participants to the conflict.
In relation to the Chapter VII authorization, I don’t see how that should have an effect on the nature of the situation, it is only relevant to the jus ad bellum issue of the legality of the intervention.

With this in mind, I would argue that any external intervention in an internal armed conflict, which has a military component to it makes the conflict an international one. In this sense, I would argue that the Court’s finding, irrespective of the issue of the legality of the intervention itself, in the absence of a UN Chapter VII authorization, could generally apply to UN-sanctioned interventions as well.

Obviously, one could consider that the point I’m making is not that important, from a practical point of view. Indeed, however one qualifies the armed conflict, the fact remains that outside actors such as the UN consider that they are bound by the substantial obligations of IHL.
But I believe it is a fundamental point for several reasons. For one, we should lose this illusion of the neutral good samaritan. Factually, any involvement in an armed conflict is a political act, irrespective of the motives. Moreover, conceptually, keeping external actors outside the legal framework masks the ever-changing reality of armed conflict, which is, on the one hand increasingly less “international” in the traditional Twentieth Century understanding of the term and mostly internal, but which, on the other hand, and somewhat paradoxically,increasingly and more and more systematically, involves an international component, through various types of peacekeeping operations.
This new reality of international participation in the hostilities should be acknowledged and the application of IHL to peacekeepers should not depend on the goodwill of the organisation, but on their direct applicability of the conventions as a matter of law.
In relation to that, I’m in favor of the end of UN immunity before national jurisdictions, which even covers war crimes, as the Srebrenica case in the Netherlands showed. It is extravagant that the organisation that imposes on countries not to provide amnesties or immunities for international crimes, should protect itself in that way. But it is now me who is straying off topic and into obiter dictum territory…