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By Ken
Coates
The Nato bombardment of Yugoslavia was undoubtedly illegal, since it contravened the fundamental principles of the United Nations Charter, which enjoins all members to refrain "from the threat or use of force against the territorial integrity or political independence of any state"; and which commits all members "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". These are the points of departure for an article by the Swedish jurist, Ove Bring, published in the Autumn number of the Nato Review, 1999. Professor Bring tells us that there are only two justifications for the use of force which are acceptable under the UN Charter. One of these is covered in Article 51, which permits actions of self-defence only "until the Security Council has taken measures necessary to maintain international peace and security". The other is also covered in Chapter 7 of the Charter which entitles the Security Council to determine the existence "of any threat to the peace, breach of the peace or act of aggression" … and "make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security". The Security Council was not involved in any way in the decision by Nato to begin the bombardment of Yugoslavia, and was therefore not asked to rule on it. The justification of self-defence cannot be sustained for a moment, and the justification for the launching of a war under Chapter 7 could obviously only apply if a positive decision had already been received from the Security Council. The failure to report an intention of military action, to say nothing of the actual attack, is a direct breach of the preamble of the North Atlantic Treaty itself. This reaffirms "faith in the purpose and principles of the Charter of the United Nations" - and Article 1 undertakes "as set forth in the Charter of the United Nations to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purpose of the United Nations". These commitments lie at the foundations of present international law, and they cannot be wished away. Certainly they cannot be countermanded on the basis of the alleged desirability of other reforms not yet agreed. So it is small wonder that, according to Professor Bring "There was a conspicuous absence of legal argumentation in defence of the Nato position from Nato itself. When a group of international law students from Stockholm University visited Nato headquarters in Brussels, in April 1999, they were told that there was no consolidated Nato position, but that it was up to the Governments … of the participating Member-states to assess the international law situation and produce the justification(s) they saw fit." No doubt Professor Bring's students were being briefed by a fairly junior spokesman. Nonetheless, this response reflects the total nihilism of the American power structure, which dominates Nato. This has long since tired of affirming any kind of "faith" in the Charter of the United Nations, and has built up an extensive record of contempt for that body. We shall return to this question later. The lesser allies, however, do not all share this view. Most of the European States have, in stark contrast to the US, sought to defend and strengthen the UN in the past. Even the British have sometimes urged the US to take it more seriously, for example, by paying its dues, while the French, unlike the British, have actually defended United Nations' decisions against flagrant American breaches, as over Iraq. This, one presumes, is the reason for such unwonted pluralism at Nato HQ. If no single doctrine can be agreed, then a confusion of several might be preferable to none. There can be rigorous if strained unity while bombing, but the legal and moral justification for bombing can be left open to the subordinate participants, whatever contradictory explanations they may care to dream up. Professor Bring, to do him justice, considers that this is an unsatisfactory state of affairs, and enjoins Nato to formulate an overarching rationale behind its collective action, which, he hopefully insists, will "probably go down in history as a case of humanitarian intervention". But there is no legal foundation for such humanitarian intervention outside the framework of UN decisions, and relevant International Court of Justice rulings, even though Secretary General Kofi Annan has made various statements in which he has expressed the wish that one might "emerge slowly". A law may result from a specific decision, either within a State through legislation or between States by Treaty. If it does, it will, in the words of the Statute of the International Court of Justice, which is an integral part of the United Nations Charter, "establish … rules expressly recognised by the contesting States". The International Court of Justice may also apply "international custom as evidence of a general practice accepted as law; the general principles of law recognised by civilised nations;" and "judicial decisions and the teachings of the most highly qualified publicists of the various nations." To be sure, attempts have been made and will continue, to create a new "customary" rule that Nato, meaning in practice, the United States, is entitled to intervene militarily against states to which it is hostile. Unfortunate precedents abound: but would the Courts accept that these are "customary"? One United States-led precedent did have the endorsement of the United Nations in the beginning: this was the intervention in Iraq. But numerous other interventions did not. The decision to bomb the El Shifa pharmaceutical factory in Sudan in 1998 was justified as an act of self-defence following the terrorist bombardments of American Embassies in other countries in East Africa. But the bombing was based on faulty intelligence, and it is in the highest degree unlikely that any Court would have accepted such a justification as that proclaimed, even if the proposed target had really been a military one, which it was not. Another air-raid was mounted against Afghanistan on similar pretexts. Building precedent on precedent, one might cite the continuous military intervention against Nicaragua, in which the United States carried out a series of attacks aimed at destabilising and overthrowing the Nicaraguan Government. But the International Court of Justice did actually consider this precedent, and found against the United States. The Americans showed their respect for the United Nations and international law by deliberately ignoring these judgements. All these are relatively recent infractions. There are many others, around the globe, from Libya, to Panama or Grenada. Perhaps it is thought that such controversial precedents can become part of a custom if they are subsequently repeated without serious challenge. "We particularly ask you", said Bertolt Brecht, "when a thing continually occurs - not on that account to find it natural". Still less should we call it legal. It is often claimed that the Nato action in Yugoslavia was undertaken in the name of the "international community". But outside the United Nations there is no such legal entity as an international community, although there are numerous formal meeting places between states, and there are many international cartels and associations which can act within their own rules, which for them may well carry the force of law. Each of these bodies, however, is an exclusion of all outside it, while an international community, whatever it might claim to mean, would normally aspire to be generally inclusive. The truth is that the only secure groundwork for humanitarian intervention has to be a decision of the present overriding authority, which is the United Nations. To create a better instrument for upholding humanitarian purposes would indeed be a laudable objective, but the work of doing this is itself subject to the same processes of law as all other decisions. It cannot be unilaterally proclaimed, leave alone generated by osmosis in any concert of powerful states, short of the whole UN framework. Given these facts, it is not only true, but it is a necessary precondition of progress towards a law-governed international polity to insist that the Nato bombardment was indeed illegal Professor Bring is unhappy about this. He would like to find a way to ensure that "the illegality view should not prevail". But he admits that the Nato action might be explained in one of three ways: as deviating from the law; as conforming to a new interpretation of the UN Charter in line with modern international law; or as progressively developing the law. Unfortunately, Nato as an organisation has opted for none of these positions, and Professor Bring's students might find it an interesting exercise to try to anticipate the results which would follow the adoption of any of them. What is the snag about the first option, that the bombardment was "an exceptional deviation from international law"? Firstly, by ignoring the question, Nato statesmen might hope that it will never raise its head. No-one wants to admit to a breach of international law, whether "exceptional" or not. But secondly, since following this flagrant breach, other exceptions are more likely than not, it is impolitic to plead in this way. When will the next breach be "necessary"? How many breaches may we anticipate before the new millennium has got its head wet? Above all, if serial exceptions are to be permitted to the United States and those who support it, how can they be denied to, say, China or Russia? Indeed, the Russian bombardment of Chechnya which followed the incursion of Muslim guerrilla forces into Dagestan, and a series of bomb explosions in Moscow and other cities, has already been quite specifically "justified" by the innovation of the Yugoslav precedent. It may be supposed that in practice such "deviations" will prove acceptable if they are confined within the recognised sphere of influence of the powers which initiate them, and will be strongly condemned if they are not. For sure, this would mark a retreat from the universalist principles enunciated in the UN Charter. It may also invite future conflicts, even outright wars, where the odds are in favour of them. But perhaps the United States will not mind very much about that. It intends to keep the odds favourable, if it can. What would be the consequence of the second option, to base the justification "upon a new interpretation of the UN Charter in line with modern international law"? Here the whole question turns on who is prepared to empower himself or herself to provide the new interpretation, and who is to be excluded from framing it? If any are excluded, by what justification do the others defend their temerity in enunciating it? There is an orderly way by which international organisations can agree upon new interpretations of their statutes. They meet, discuss them, agree upon a form of words, and then secure the ratification of the new arrangements by all participants. In theory that is how the United Nations might amend its Charter, or clarify the meaning which it conveys. How else would a reformer wish to proceed? He or she could ask some international jurists for an opinion, for sure; but outsider states would be unlikely to defer to any such opinion, unless it had already secured their adhesion through due process. The third option is the big one. Was Nato attempting "a shift of international law to a new position where, in humanitarian crises, the sovereignty of states has to yield to the protection of peoples"? There is a strong case for such a shift, but it entails more than an "interpretation". A new law cannot be framed on a selective basis. More: under any genuine new law it will not be possible to pick and mix between different breaches of human rights. If allies conduct massacres they must be subject to the same law, and the same possibilities of intervention, and punishment, as opponents. It would assuredly be very difficult to persuade the United Nations to accept this "shift", because so many powers have strong particular interests in preventing impartial international intervention in areas under their control or influence. But as public opinion continues its close concern with human rights matters, so, over time, may these defensive reactions be overcome? First among the powers which needs to overcome them is the United States itself. The US Government has consistently refused to surrender any of its sovereign autonomy to any agency of the UN. For many years, this was the stated reason for its refusal to ratify the Convention on Genocide. In the end, in response to the kind of pressures we have been considering, some ground was given: finally, ratification was agreed, subject to the reservation that before any dispute to which the United States is a party may be submitted to the jurisdiction of the Court, "the specific consent of the United States is required in each case". We have already mentioned the most dramatic instance of this rooted and permanent American exceptionalism: it was the attitude of the American Government to the jurisdiction of the International Court of Justice in The Hague, during the case of Nicaragua. The Nicaraguan Government had laid complaints against the US, for repeated and systematic breaches of international law, involving the mining of Nicaraguan ports, repeated overflights, attacks on patrol boats, and attacks on Puerto Sandino, Corinto, and Potasi Naval Base. All these actions, of course, were undertaken during the conduct of a range of clandestine operations. The International Court, which is the highest judicial organ of the United Nations, entered fifteen specific judgements against the US Government, awarding large sums for reparations to the Nicaraguan Government. All these judgements were ignored. These are not the only instances of American disregard for the institutions of the United Nations. This disregard is comprehensive, and is perhaps best understood when we recall that the American deficit in UN contributions is the largest and by far the longest outstanding. If the majority of Member-states within Nato might possibly agree to "shift" international law to a new recognition of human rights, there is absolutely no evidence that the United States could bring itself to accept any such shift. This reluctance is not based upon the exceptional vulnerability of the United States to criticism in this area. True, in some connections, such as the extensive reliance on capital punishment, the United States lags behind most liberal democracies in its standards. But there are other areas in which civil liberties in the USA are well developed, hardy, and even enviable. The American opposition to shifts in international law comes from a different source: fundamentally, the United States regards itself as the giver of the law, not its subject. It is this imperial protection pretension which is one of the major challenges which we all face in seeking a more equitable international order. It has to be said that the American empire is just as strongly rooted in Washington politics when the Government is Democratic, as it is during Republican rule. There is some evidence that the collapse of Communism has strengthened this national pretension, and weakened all rational efforts to moderate it. Fear induced a kind of rationalism. Now there is nothing to fear, power fantasies have free reign. This is the main problem with the search for a third option. By choosing such an option, Professor Bring thinks "Nato could influence the legal situation". But Nato has been very quiet about all this, and for very good reason. This, thinks the Professor, "risks giving the impression that Nato itself perceives its action as illegal, and … is not prepared to fight the intellectual battles for a more human rights focused international order that harbours the concept of humanitarian intervention". No, the last thing which the United States Government wants is the threat of humanitarian interventions in its own backyard. Were the law to be changed, due process would come into being, and those whose rights were trodden underfoot would gain redress. But the claims which they would seek to make would be likely to undermine United States nominees at least as often, or more often, than they menaced all the other sanguinary dictators who might come into the judicial frame. The result would be painful to the imperium, and that is why discussions on the matter are unlikely to be engaged. Professor Bring is very lucky to get his article published in the Nato Review, for this reason. He seeks to provide legal cover for such interventions as that in Kosovo, first by invoking the 1950 decision of the UN General Assembly to allow a qualified majority of the Assembly to decide on matters of international peace and security whenever the Security Council was unable or unwilling to do so. This decision arose from the diplomatic confrontation which accompanied the Korean War. It was an attempt to overcome the Soviet veto. Subsequently, this naked collision was more politely masked. In the intervening years, notwithstanding a great deal of misleading propaganda, far and away the most consistent user of the veto has been the United States of America. Britain is the runner up. The invocation of qualified majority voting could easily have upset American policy, say, in the Middle East. Of course this would have had grave consequences for the United Nations Organisation itself. The veto is an unattractive mechanism, but it was designed to maintain a rudimentary international framework in spite of the assumed continuation of great power conflicts. This framework would be destroyed if the veto were persistently and unilaterally set aside at any time before the convergence of all the main states on a largely consensual polity. Of course, after such convergence no veto is needed, because unanimity is possible. The need for the unanimity rule will remain until that happens, however. None of this means that the veto should remain as it is. There is a strong case for reform, but such reform can only be by consent. The second line of defence for further interventions is offered by the proposal that Nato should become a regional organisation under Chapter VIII of the UN Charter. This is subject to the same objections that we have already discussed. The Americans do not want to place themselves under the control of the United Nations, and do not want to restrict their freedom of movement, whatever others in the United Nations might think. Some members of Nato are almost certainly unhappy about this fact, especially now that the Yugoslav intervention has given them a stark choice, between Nato as the fount of power and the UN as the legitimate authority. In the past, Nato was only acceptable to them because they could offset it by invoking the need for UN support, and thus moderate American behaviour. In the future, the danger is that the UN, having been sidelined, will cease to count. It is said that if Nato were to license itself as a subordinate unit of the United Nations, it could appeal to the General Assembly to overrule the Security Council whenever it might be threatened with the use of the veto. But this kind of dispensation would perforce apply to any other relevant regional organisations which might emerge, and might thus impinge on the United States spheres of influence, real or anticipated. Nato always represented a "region" which was defined in a most peculiar way. Since the Jubilee Summit this definition has been loosened, and if its arrangements were included under Chapter VIII of the UN Charter, this would invite similarly eccentric patterns of states, pursuing similar randomly opportunistic agendas, to form themselves. No doubt their rules would conflict. The biggest snag for the Americans about subsuming Nato within the UN framework, is that Nato would then become subject to Chapter VII of the Charter. Article 47 establishes a Military Staff Committee to advise and assist the Security Council, and the responsibilities of this Committee are closely defined. But one of the things we learned from the Kosovo conflict was that the control of Nato operations is nothing like so tightly circumscribed. General Wesley Clark, the Supreme Allied Commander during the bombardment of Yugoslavia, was quoted by the BBC on August 20th, as informing Mr. Javier Solana, Nato's then Secretary General, that "the war could not be run on the basis of least common denominator solutions". The BBC report continues: "On the 30th March, Mr. Solana, General Clark and General Naumann jointly informed Nato Ambassadors that the old phased war plan with its political safeguards was being thrown away. In return for a promise that Nato would only hit 'strictly military targets' the lukewarm allies were then persuaded to back them. General Clark then hit the Milosevic Party HQ, the Presidential Palace, and the TV stations - all targets taken from the phase three list that several allies had refused to vote for. The Supreme Commander then proceeded with his escalation, occasionally phoning the key political leaders to get particularly sensitive targets okayed. The subsequent bombing of electrical power plants disabled the pumps without which water supplies were disconnected, and put out of action vital equipment in hospitals." All of these actions were dubiously legitimate under the Geneva Conventions. These and other related allegations about the Supreme Commander were all relayed in a special BBC2 feature broadcast taking up the whole of the programme Newsnight, on Friday 20th August, at 10.30 p.m. All these bombardments which did not take place with the express sanction of the North Atlantic Council were surely illegal, in that the appropriate controls which might have prevented grave breaches of the Geneva Convention during military action were not in place. [They were arguably already illegal in that they did not have the express sanction of the United Nations Security Council. (Charter of the United Nations, 1945: Article 1, Article 2: ~ 3~ 4~ 7, and Article 37: ~ 1~ 2, Chapter 7 Article 39, Article 41.) If this contention is sustained, then they were illegal under the terms of the North Atlantic Treaty, which specifically founds itself on the United Nations Charter (Preamble, Article 1)]. But this broadcast also implies that they were illegal because General Clark admits "I didn't always defer to those who wanted targets withheld". "Those", of course, were the competent legal authorities who were supposed to be in control of the Nato exercise. So the General is taking personal responsibility for all bombardments for which he had not received express prior authorisation. The BBC transcript continues: "So Nato had to sideline its reluctant members in order to win." The transcript further continues: "The 'triumph of Nato resolve' trumpeted by some leaders after Milosevic agreed to withdraw is therefore emerging now as a triumph of ruthless alliance management by Washington. When it suited them - for example in keeping the 'bombing pause' lobby in check, they used Nato's constitution with its stress on unanimity skilfully. When Washington needed to escalate the bombing and it didn't suit them, they worked their way round these same rules. For the decision-makers involved the ends justified the means." This complaint was reinforced by the French Government, when the Defence Ministry published its Report on The Lessons of Kosovo. This said: "The conclusion cannot be avoided that part of the military operations were conducted by the United States outside the strict framework of Nato and its procedures." Defending this view, the Defence Minister, Alain Richard, said that, while French forces operated strictly within the Nato command structure, "Washington had done what it liked". French politicians kept tight control over their military, but "this doesn't correspond with the American tradition". Presumably, if Nato became an official region of the UN in Chapter VIII of the Charter, its military operations would be subject to Chapter VII, which would not only ensure that some of the members of the Treaty itself would need to be consulted on operational matters, but which would involve the continuous scrutiny of all the permanent members of the Security Council, as permanent members of the Military Staff Committee. It is doubtful whether the Chinese, whose Embassy in Belgrade was illegally bombed, would wish to afford so much autonomy to their military agents in such a conflict. But overall, of course, it would be an excellent thing to bring Nato and all its military initiatives under the control of the UN, even if this were to prove unpopular with the United States, for reasons which we have already spelt out. Realism, however, might lead us to suspect that no such reform will take place. This leaves the European members of Nato in some difficulty, unless they can re-establish the authority of the United Nations. Nato governs itself largely by an informal consensus on decisions to use military force. There is no structured unanimity rule, or veto right, on such decisions, although there is on the question of the admission of new Treaty members. Any dissentient member would have to appeal to the Security Council if it wished to block any military decision in the course of hostilities, after it had agreed to begin them. While the authority of the United Nations was unchallenged, its fail-safe would apply: but it is doubtful, after the baleful experience of the Yugoslav bombardment, to what extent the old rule still runs. To return to the question of regionalism: the revision of Nato's strategic perspectives is already undermining all the frontiers of its previously established region. Yugoslavia was never part of the Nato "area", and played a distinguished neutral and non-aligned role during the cold war. The Washington Summit communiqué of the Nato Jubilee conference, drafted during the bombardment, says it quite specifically: "The continuing crisis in and around Kosovo threatens to further destabilise areas beyond the Federal Republic of Yugoslavia. The potential for wider instability underscores the need for a comprehensive approach to the stabilisation of the crisis region in South Eastern Europe. We recognise and endorse the crucial importance of making South Eastern Europe a region free from violence and instability. A new level of international engagement is thus needed to build security, prosperity and democratic civil society, leading in time to full integration into the wider European family. Nato is determined to play its full part in this process …" Who invited this intrusion? How can they decline to accept it? Clearly these elastic borders of the modified Nato region threaten new wars, new bombardments and new crises, wherever the natives become restive about such partial "stability". The Summit communiqué from Washington on the 24th April 1999 goes beyond declaring an interest out of Nato's original area. Article 24 reads: "Any armed attack on the territory of the Allies, from whatever direction, would be covered by Article 5 and 6 of the Washington Treaty. However, Alliance security must also take account of the global context. (our emphasis) Alliance security interests can be affected by other risks of a wider nature, including acts of terrorism, sabotage and organised crime, and by the disruption of the flow of vital resources. - - "(our emphasis) Article 29 elaborates further: "Military capabilities effective under the full range of foreseeable circumstances are also the basis of the Alliance's ability to contribute to conflict prevention and crisis management through non-article 5 crisis response operations. - -" while Article 31 rounds out a charter for global policing: "In pursuit of its policy of preserving peace, preventing war, and enhancing security and stability and as set out in the fundamental security tasks, Nato will seek, in cooperation with other organisations, to prevent conflict, or, should a crisis arise, to contribute to its effective management, consistent with international law, including through the possibility of conducting non-Article 5 crisis response operations." In short, Nato now envelops the globe, all of it. It claims the right to intervene on all questions, with all necessary means. It does not propose to ask anybody for endorsement or justification. By claiming the right to prevent the disruption of the flow of vital resources, it insists on the recognition of the United States thirst for oil as a prime condition for the keeping of the Pax Americana. A convenient short summary of these was made by Stratfor in their Weekly Analysis on October 11th. First, they say, Kaliningrad is a Russian city, but it is now cut off from Russia proper because Lithuania is an independent state. It could be even more isolated with the accession of Lithuania to the European Community and the development of "Northern Area" EC policy. Will a "more assertive" Russia wish to demand a corridor to guarantee access? "Under the same scenario" they go on to say, in speculative vein, "Russian forces build up along the Polish frontier. The pro-Nato Government under challenge from neutralists asks for Nato troops. Will the US participate?" Extending this fantasy: "Slovakia, now excluded from Nato, signs a mutual defence pact with Russia and Russian troops deploy into Slovakia. What does the US do?" "The United States has substantial investments in Central Asia. How would it view any effort to reintegrate the region with Russia?" The forthcoming summit between China and Russia raises other interesting possibilities which have troubled Stratfor and many other American sources. What will the attitude of a Sino-Russian alliance be, for instance, to North Korea? The conflict with Taiwan could develop beyond diplomacy and the exchange of threats. Will the United States seek to intervene? These questions all concern relatively restricted issues. But what will the United States do if the crisis in Russia develops further? Already, Brzezinski has warned that it might be necessary for the US to intervene if the prospects of reunion between Russia and Ukraine were to be taken seriously. This, he said, was not a question of democracy but of "strategic interests". In present circumstances no-one can be certain of the internal stability of either Russia or even China. And, leaving the speculations of American analysts to one side, there are more than enough trouble spots in the former Soviet Union to make us apprehensive of any further developments in interventionist policy. We have seen during the last weeks the war in Dagestan, the confrontation in Chechnya, the detonation of terrorist bombs in Moscow and other cities, the presentation of a flight of helicopters by Secretary Cohen to Shevardnadze in Georgia, "to police the border", and, on world television, the gunning down of the Armenian prime minister with his Parliamentary cohorts. All this gives us a by no means comprehensive map of future trouble spots. But future troubles are not confined to spots. There have been fundamental economic crises in Asia as well as in Russia, and we are by no means out of the woods in either case. The military and security problems which could arise make it more than ever necessary to seek to define a non-aggressive policy for Europe, optimising the chances for peace and human rights. The international framework is already greatly strained by previous decisions, and in any case was in serious need of reform, as was agreed at the Hague Peace Conference of NGOs this May. But this brings us back to the need for a thorough-going reform of the entire international framework, which is nothing whatever to do with the "justification" of the Nato intervention in Yugoslavia. There are many features of the present international order, and its basis, the United Nations Charter, which are clearly hallmarked by the postwar settlement of 1945. There has, of course, been a consistent growth in the scale of economic organisations, and a concomitant polarisation of riches and poverty. Striding across frontiers, business has concentrated remarkable powers in its hands. These powers can certainly undermine the free choices of smaller countries, and are frequently used to justify the ever-present rhetoric about "globalism". Capital is surely more and more transnational, but democracy is not. Democrats still struggle to associate across frontiers, and only succeed with very great difficulty. True regional associations, like the European Union, have accelerated this process with some real success: but they are still far short of achieving the integration of a genuinely European civil society. Democracy is therefore hobbled, and to some considerable extent weakened as compared with its 1945 position. This implies that we have in the United Nations, a united organisation of weaker nations in the main. But there is one conspicuous exception to this general debility: the United States is stronger than ever it was. If we could change the ethos which governs that power, it could become a major and dynamic part of the solution to our difficulties, extending and deepening democracy, and helping human rights to flower. But in the meantime, it becomes more and more necessary to bring together those predominantly national democratic forces which can influence and even shape public opinion. The winding up or fundamental reform of Nato, and the reform of the United Nations itself, are both urgent tasks which are vitally necessary if the post cold war peace is to be sustained, and new democratic international institutions to be created. But the development of democracy and human rights is evidently a labour of civil society, and even given friendlier, more sympathetic governments than those we have, it is impossible to see how institutional reform can be accomplished on a world scale without the active involvement of that same civil society.
Ken Coates can be contacted at elfeuro@compuserve.com
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