New Interventionism

This new interventionism, or willingness to use force in the name of humanitarian values, played a major role in
shaping international relations during the 1990s. As a result of actions such as that undertaken by NATO in response
to the Kosovo crisis, or the authorisation of
the use of force in East Timor by the Security Council, issues about the
legality and morality of humanitarian intervention again began to dominate the international legal and political
agenda. One of the most significant changes in international politics to emerge during that period
was the growth of support, within mainstream international law and
international relations circles, for the idea that force can legitimately
be used as a response to humanitarian challenges such as those facing
the people of East Timor. The justifications for these actions are illustrative of the transformation undergone by the
narratives that underpin
the discipline of international law with the ending of the Cold War.1
A new kind of international law and internationalist spirit seemed to
have been made possible in the changed conditions of a world no longer
structured around the old certainties of a struggle between communism
and capitalism.

This shift in support for the notion of humanitarian intervention

resulted in part from the post-Cold War revitalisation of the Security
Council and the corresponding expansion of its role in maintaining international peace and security. 2 Under Article
24 of the UN Charter, the
Security Council is the organ of the UN charged with the authority to
maintain peace and security. Unlike most other international bodies or
organs, the Security Council is invested with coercive power. Under Chapters VI and VII of the UN Charter, the
Security Council is granted powers
to facilitate the pacific settlement of disputes, and to decide what means
should be taken to maintain or restore international peace and security.
For many years the coercive powers vested by the UN Charter in the
Security Council seemed irrelevant. During the Cold War, the Security
Council was effectively paralysed by reciprocal use of the veto exercisable by the five permanent members – China,
France, the United Kingdom
(UK), the USA and, since December 1991, the Russian Federation (formerly the Soviet Union).3

Collective humanitarian intervention’.

military intervention has achieved a new

respectability and has come to represent, amongst other things, a means
for the liberal alliance of democratic states to bring human rights,
democracy and humanitarian principles to those in undemocratic, authoritarian or failed states. Such liberal
internationalists argue that
collective humanitarian intervention has become necessary to address
the problems of local dictators, tribalism, ethnic tension and religious
fundamentalism thrown up in the post-Cold War era. While the Gulf
War was generally justified in traditional collective security terms, as
a measure that was necessary to restore security to the region and to
punish aggression, later actions in Bosnia, Somalia, Rwanda, Haiti and
East Timor have been supported by a very different interpretation of the
legitimate role of the Security Council. There is now a significant and
influential literature arguing that, in light of the post-Cold War practice
of the Security Council, norms governing intervention should be, or have
been, altered to allow collective humanitarian intervention, or intervention by the Security Council to uphold
democracy and human rights.
The enthusiastic embrace of multilateral intervention has extended
in some quarters to support for military action undertaken by regional
organisations without Security Council authorisation, most notably in
the case of NATO action over Kosovo during 1999.8 Arguments in favour
of NATO intervention in Kosovo represent a new phase in the progression of international legal arguments in favour
of humanitarian intervention. In the case of Kosovo, international lawyers argue that there
are situations in which the international community is justified in
undertaking military intervention even where such action is not authorised by the Security Council and is thus
(arguably) outside the
law.9 According to this argument, a commitment to justice required the international community to support the
NATO intervention in Kosovo,
despite its illegality.10 While earlier literature about international intervention saw the Security Council as the
guarantor of humanitarian values, literature about the Kosovo intervention has begun to locate those
values in a more amorphous ‘international community’. Legal literature
discussing the legitimacy of the actions undertaken by NATO appears
to indicate a loss of faith in international law as a repository of the
values that should underpin the actions of international organisations.
Yet while the bases upon which commentators justify international
intervention have shifted since the days when a ‘revitalised’ Security
Council was hailed as the guarantor of a new world order, the arguments made by international lawyers supporting
intervention share a
certainty about the moral, ethical, political and humanitarian imperatives justifying military action.

Many
legal scholars working in the areas of human rights and international
humanitarian law were highly critical of the actions undertaken in the
Gulf. Criticisms ranged from analyses of the merely rhetorical nature of
the Security Council’s commitment to human rights, to criticism of the
effects of the bombing and sanctions on the Iraqi people, to concern
about the apparent domination of the revitalised Council by the United States.11 The response to later interventions,
however, has been more
ambivalent. There are certainly some legal commentators who have continued to express concern about the apparent
willingness of a largely
unrestrained Security Council to expand its mandate to include authorising the use of force to remedy human rights
abuses or ‘to make every
State a democratic one’.12 Many legal scholars, however, seem haunted by
the fear that opposing military intervention in Bosnia, Haiti, Kosovo or
East Timor means opposing the only realistic possibility of international
engagement to end the horrific human suffering witnessed in such conflicts. The need to halt the horrors of genocide
or to address the effects
of civil war and internal armed conflict on civilians has been accepted
as sufficient justification for intervention, even if other motives may be
involved.

Page 19
The most significant change in the human rights movement as it goes into the
twenty-first century is that it will go on the offensive. The past has been a matter
of pleading with tyrants, writing letters and sending missions to beg them not
to act cruelly. That will not be necessary if there is a possibility that they can be
deterred, by threats of humanitarian or UN intervention or with nemesis in the
form of the International Criminal Court. Human rights discourse will in the
future be less pious and less ‘politically correct’. We will call a savage a savage,
whether or not he or she is black.17

Thus Robertson has no doubt that the new right of humanitarian intervention, represented by NATO’s action in
Kosovo and the multilateral
intervention in East Timor, is to be welcomed because it allows for more
effective enforcement of human rights. The human rights movement
will no longer be reduced to humiliating acts of begging and pleading
with tyrants. Lawyers can now take a more active and forceful role in
promoting and protecting human rights globally, offering salvation to
those threatened by state-sponsored murder and genocide.
For Robertson, the test of whether such intervention is justified should
not be whether it is lawful, or authorised by the Security Council, but
rather ‘the dimension of the evil’ to be addressed by the intervention.18
The extent of this evil can partly be ascertained through global media,
where ‘television pictures of corpses in Racak, Kosovo, put such obscure Thus Robertson has no doubt that the new
right of humanitarian intervention, represented by NATO’s action in Kosovo and the multilateral
intervention in East Timor, is to be welcomed because it allows for more
effective enforcement of human rights. The human rights movement
will no longer be reduced to humiliating acts of begging and pleading
with tyrants. Lawyers can now take a more active and forceful role in
promoting and protecting human rights globally, offering salvation to
those threatened by state-sponsored murder and genocide.
For Robertson, the test of whether such intervention is justified should
not be whether it is lawful, or authorised by the Security Council, but
rather ‘the dimension of the evil’ to be addressed by the intervention.18
The extent of this evil can partly be ascertained through global media,
where ‘television pictures of corpses in Racak, Kosovo, put such obscure.

British Prime Minister Tony Blair portrayed the NATO intervention in Kosovo as a ‘just war, based not on territorial
ambitions, but on values’.26 According to Blair,
British foreign policy decisions in the post-Cold War era ‘are guided by
a . . . subtle blend of mutual self-interest and moral purpose in defending the values we cherish . . . If we can
establish and spread the values
of liberty, the rule of law, human rights and an open society, then that
is in our national interest.’27 The war in Kosovo was fought precisely to
defend such values:
This war was not fought for Albanians against Serbs. It was not fought for territory. Still less for NATO aggrandisement. It was
fought for a fundamental principle necessary for humanity’s progress: that every human being, regardless of
race, religion or birth, has the inalienable right to live free from persecution. 28

the representation
of the interventions in Bosnia and Kosovo as the actions of an international community interested in protecting
human rights and humanitarian values served to obscure the extent to which the international
community had itself contributed to the humanitarian crises that had
emerged in those places.42 While ancient hatreds and ethnic tensions
continue to be represented as the cause of the violence that erupted in
the former Yugoslavia, critics have suggested that the crisis was equally
a product of modern capitalist international relations.43 In the former
Yugoslavia as elsewhere, the project of economic restructuring and liberalisation which remains central to the new
world order contributed
to creating the conditions in which such hatreds were inflamed.44 For
these and other reasons, I had argued that the desire to use violence
and to take ‘action’ by sending armed forces to create security had to
be interrogated. As Edward Said has shown, the belief that ‘certain territories and people require and beseech
domination’ was at the heart of
making colonialism palatable.45 Given that it was so difficult for people to stand back from the culture that produced
and legitimised imperialism, it seemed necessary to be cautious about any arguments that made
the use of force appear benevolent to us today.

NATO action in Kosovo

was clearly illegal. Any suggestion that it ‘stands for the right of foreign states to intervene in the absence of proof
that widespread grave
violations of international human rights law are being committed . . .
leaves the door open for hegemonic states to use force for purposes
clearly incompatible with international law’.16 It is international law,
particularly UN Charter law, that remains the best guarantor we have
of peace and security, order, and the protection of human rights.17 For
Charney, humanitarian intervention, no matter how ‘well-intentioned’,
poses a threat to the stability and promise of the international legal
order.18 Yet in an apologetic moment mirrored in other examinations of
humanitarian intervention, Charney notes that powerful states can and
do intervene in contravention of international law, and may want to retain ‘their power to take actions for political
reasons notwithstanding
the law’.19 The best, albeit not perfect, solution for ‘weak states’ lies in
maintaining a formal legal prohibition against such intervention, so that
powerful states are required ‘to break the law in extreme circumstances’
if they want to take military action.20 To take one further example,
Simon Chesterman reaches the same conclusion in his analysis of the
illegality of humanitarian intervention, arguing that: In the event of an intervention alleged to be on humanitarian grounds,
the
better view is that such an intervention is illegal, but that the international
community may, in extreme circumstances, tolerate the delict. In judicial
terms this might translate to a finding of illegality but the imposition of
only a nominal penalty . . . Moreover, by affirming the prohibition of the use of
force, recourse to military intervention is maintained as an extreme, and last,
resort.

Many are uneasy about the recognition of

a new norm allowing for unilateral humanitarian intervention because
of its potential for abuse, yet want to allow for situations in which
collective action without Security Council authorisation is permissible,
particularly in light of the Kosovo precedent. Thus they adopt a natural
law argument, suggesting that there are situations in which the international community must act outside positive
law, in ways that are nevertheless legitimate because of the demands of morality and justice. This
is the approach adopted by Michael Glennon. While acknowledging that
the NATO air strikes against Serbia were not ‘technically legal under the
old regime’, Glennon suggests that the ‘death of the restrictive old rules
on peacekeeping and peacemaking . . . should not be mourned’.28 According to Glennon, ‘in Kosovo, justice (as it is
now understood) and the
UN Charter seemed to collide’.29 Similarly, for Bruno Simma the NATO
intervention was required in order to promote justice and morality,
despite the illegality of such intervention. ‘The lesson which can be
drawn from [the use of force by NATO] is that unfortunately there do
occur ‘‘hard cases” in which terrible dilemmas must be faced, and imperative political and moral considerations may
appear to leave no choice
but to act outside the law.’30
Louis Henkin has also argued that in the case of Kosovo, the law was
caught between needing to uphold the international legal order based
on respect for state sovereignty as a protection against the dangers
of unilateral intervention by powerful states, while making space for
the development of ‘bona fide, responsible, collective intervention’ to protect against human rights abuses.31 Henkin
resolves this dilemma
by arguing that Kosovo represents the movement towards a new norm
of international law, according to which states engaging in humanitarian intervention will act without Security
Council authorisation, and
then challenge the Security Council to pass a resolution terminating the
action. Such a resolution would reverse the burden of the veto, because
‘a permanent member favouring the intervention could frustrate the
adoption of such a resolution’.32 For Henkin, the Kosovo intervention can
be interpreted as ‘a step toward a change in the law, part of the quest
for developing ‘‘a form of collective intervention” beyond a veto-bound
Security Council’.33 This could be done without formal amendment of
the UN Charter, on the basis of ‘a ‘‘gentleman’s agreement” among the
Permanent Members’.34

Proportionality

proportionality plays a
much more central part in that legal regime. For example, in the 1990--1
Persian Gulf conflict and the 1999 NATO action in Kosovo, proportionality in IHL has been relied on in many
contexts where there have been
differences as to the legality of actions of the attacking forces. 8 A further factor that contributes to the resistance to
proportionality in ius ad bellum is that its constraints are equally applicable to all parties irrespective of the legality
or perceived ‘justness’ of a party’s
resort to force. This requirement of equality of application is also a
characteristic of IHL and has been problematic in that regime over
the years. As the campaign progressed, it grew in intensity. However, it was not a campaign
against the Serbian people. It focused specifically on the forces of repression from
top to bottom to coerce a change in their behaviour or, failing that, to degrade
and ultimately destroy their means of repression. Allied planners, targeters and
pilots worked diligently to prevent injuries and loss of life among the civilian
population and to prevent collateral damage. 90
Moreover, in practice it is a more straightforward task to determine what
are the relevant rules of IHL and when they apply. The requirements
of IHL apply on the objective fact of the existence of a certain level
of armed conflict. The legality of the respective parties’ resort to force,
although it may subtly affect the implementation of IHL, is not a relevant
consideration for the regime to come into operation.
In the case of Kosovo, for example, the legitimate aim of the forceful action by NATO was to bring an end to the
human rights abuses against the Kosovars.96 Were the means employed,
however, proportionate to achieve this end? ere the means employed,
however, proportionate to achieve this end? It is debatable as to whether
a campaign of high-altitude aerial bombardment dictated by the policy
of zero casualties for the attacking force was in fact more likely to exacerbate the humanitarian problem (as indeed
appears in hindsight to be
the case) than to achieve the ends. Although it is true to say that there will be a theoretical divide
between States involved in an armed conflict in terms of their respective
legal position under the Charter ban on the use of force, its practical
impact is negligible. With some notable exceptions, States invariably
conduct themselves on the basis that, whatever the legal status of their
forceful actions, be it self-defence or what may be perceived by others as
unlawful aggression, proportionality and necessity govern their actions.
Even States that claim expansive rights to resort to force do not regard
themselves as having the right to use unlimited force.
At the end of the day it is probably as much the mere existence of
two differing rules of proportionality that operate simultaneously and
in relation to the same activity that is responsible for the marginal
attention accorded to the requirements in ius ad bellum. The dominant
position of the rule in IHL, moreover, owes much to the fact that the angible human cost of a disproportionate action
under IHL is readily
demonstrable.

Ammunition containing depleted uranium is only

mildly radioactive but on impact with a solid object the uranium burns
off in a spray of very fine dust.62 The use of this substance can have detrimental health effects on combatants and
also civilians through contamination of the environment.6 hazards that do exist are far outweighed by the military
usefulness of
the substance, particularly against tanks

o what extent, therefore, does practice in the two Persian Gulf and
the Kosovo conflicts indicate that, even if there is no negligence in the
assessment of the target or in the conduct of the attack, the likelihood
and level of civilian casualties and damage to civilian objects must still
be considered? Even if care were taken to ensure the selection of means
and methods of attack that minimised the risk to civilians and civilian
objects, were attacks avoided or cancelled if the level of civilian casualties and damage to civilian objects appeared
unacceptable? In other
words, does the practice in these conflicts confirm that proportionality
operates in this broad sense in customary law?

YES. However, what requires clarification is exactly what this State practice
indicates as to the detailed operation of the rule for both members and
non-members of the Protocol and in what respects the requirements
of the norm remain obscure. This clarification is not always readily
obtained, as although the relevance of proportionality was acknowledged in all these conflicts, there is little detailed
information as to
exactly how it was applied.