Louis Henkin, “Kosovo and the Law of ‘Humanitarian Intervention’,” American Journal of International Law 93 (1999) | Samuel Moyn | August 17, 2016

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Louis Henkin, “Kosovo and the Law of ‘Humanitarian Intervention’,” American Journal of International Law 93 (1999)

EDITORIAL COMMENTS: NATO'S KOSOVO INTERVENTION
        from the American Journal of International Law v.93, no. 4, October 1999

***  Kosovo and the Law of "Humanitarian Intervention"

        I.
       "Kosovo" has compelled us to revisit the troubled law of "humanitarian intervention." The terrible facts in
and relating to Kosovo in 1998-1999 are known and little disputed. The need to halt horrendous crimes against
humanity, massive expulsions and war crimes, was widely recognized. NATO intervention by military force
was widely welcomed, but it was also sharply criticized. And it inspired much searching of soul by students of
international law.
       Now that the fait of the NATO bombing is accompli, and has been assimilated into a political resolution
blessed by the Security Council, the legal issues of humanitarian intervention can be addressed in comparative
tranquility, and the legal lessons pursued with less urgency, and with greater wisdom.
       Was military intervention by NATO justified, lawful, under the UN Charter and international law?(1) Does
Kosovo suggest the need for reaffirmation, or clarification, or modification, of the law as to humanitarian
intervention? What should the law be, and can the law be construed or modified to be what it ought to be?

        II.
       Before the Second World War, international law prohibited "intervention" by any state within the territory
of another without that state's consent: international law prohibited unilateral intervention in internal wars;
international law prohibited intervention even for agreed, urgent humanitarian purposes. In 1945 the UN
Charter reaffirmed those prohibitions as part of a general prohibition on the use of force.
       Article 2(4) of the Charter prohibits "the threat or use of force against the territorial integrity or political
independence of any state" (subject only to the right of self-defense, Article 51). Article 2(4), it has been
accepted, prohibits intervention by a state in internal war in another state by military support for either side. It
has been commonly accepted, too, that the prohibition on intervention applies regardless of the political
(democratic or less-than-democratic) ideology or the moral virtue of the government of the target state or of
either side in the internal war. War apart, there was general agreement, too, that the Charter prohibits
intervention by any state for humanitarian purposes.

        III.
       In my view, unilateral intervention, even for what the intervening state deems to be important
humanitarian ends, is and should remain unlawful. But the principles of law, and the interpretations of the
Charter, that prohibit unilateral humanitarian intervention do not reflect a conclusion that the "sovereignty" of
the target state stands higher in the scale of values of contemporary international society than the human rights
of its inhabitants to be protected from genocide and massive crimes against humanity. The law that prohibits
unilateral humanitarian intervention rather reflects the judgment of the community that the justification for
humanitarian intervention is often ambiguous, involving uncertainties of fact and motive, and difficult questions
of degree and "balancing" of need and costs. The law against unilateral intervention may reflect, above all, the
moral-political conclusion that no individual state can be trusted with authority to judge and determine wisely.
       But, as Professor Richard Falk wrote long ago: "The renunciation of [unilateral] intervention does not
substitute a policy of nonintervention; it involves the development of some form of collective intervention."(2)
The need for intervention may sometimes be compelling, and the safeguard against the dangers of unilateral
intervention lies in developing bona fide, responsible, collective intervention.
       Serious efforts to develop "some form of collective intervention" began soon after the end of the Cold
War, when it ceased to be hopeless to pursue collective intervention by authority of the UN Security Council.
In 1991 and 1992, the Security Council authorized military intervention for humanitarian purposes in Iraq and
Somalia. In principle, those interventions were not justified as "humanitarian" (a term that does not appear in
the UN Charter); the theory supporting such actions was that some internal wars, at least when accompanied
by war crimes, and massive human rights violations and other crimes against humanity even if unrelated to war,
may threaten international peace and security and therefore were within the jurisdiction and were the
responsibility of the Security Council under Chapters VI and VII of the Charter. Of course, under Article 27(3)
of the Charter, a Security Council resolution to authorize intervention, like other "nonprocedural" matters, was
subject to veto by any permanent member. Thus, by the sum (or product) of law and politics, humanitarian
intervention by any state was prohibited; humanitarian intervention was permissible if authorized by the
Security Council, but a single permanent member could prevent such authorization.
       Kosovo surely threatened international peace and security, as the Security Council had held in several
prior resolutions. And, in 1998-1999, when negotiation and political-economic pressures appeared futile, for
many Kosovo begged for intervention by any states that could do so, and by any means necessary. NATO
heeded the call. It did not ask leave or authorization from the Security Council.(3)
       The reason why NATO did not seek explicit authorization from the Security Council is not difficult to
fathom. Even after the Cold War, geography and politics rendered unanimity by the permanent members in
support of military action (especially in the Balkans) highly unlikely. Evidently, NATO decided that not asking
for authorization was preferable to having it frustrated by veto, which might have complicated diplomatic
efforts to address the crisis, and would have rendered consequent military action politically more difficult.
       Subsequent events confirmed that fear of the veto had not been unfounded. After the NATO action was
begun, the representative of the Russian Federation proposed a resolution in the Security Council to declare
the NATO action unlawful and to direct that it be terminated.(4) In the vote, the proposed resolution was
supported by three states, including Russia and China, two of the permanent members. It was not implausible
for NATO to have assumed that Russia, or China, would have vetoed a resolution authorizing military
intervention by NATO.

        IV.
       Was the NATO action unlawful?
       The Charter prohibition on intervention, even for humanitarian ends, is addressed to individual states, but
what the Charter prohibits to a single state does not become permissible to several states acting together.
Intervention by several states is "unilateral," i.e., "on their own authority," if not authorized by the Security
Council. Was NATO intervention in Kosovo authorized? Was it a justifiable exception?
       The argument for NATO might go something like this.
       Human rights violations in Kosovo were horrendous; something had to be done. The Security Council was
not in fact "available" to authorize intervention because of the Veto. Faced with a grave threat to international
peace and security within its region, and with rampant crimes reeking of genocide, NATO had to act.
       NATO intervention was not "unilateral"; it was "collective," pursuant to a decision by a responsible body,
including three of the five permanent members entrusted by the UN Charter with special responsibility to
respond to threats to international peace and security. NATO did not pursue narrow parochial interests, either
of the organization or of any of its members; it pursued recognized, clearly compelling humanitarian purposes.
Intervention by NATO at Kosovo was a "collective" humanitarian intervention "in the common interest,"(5)
carrying out the responsibility of the world community to address threats to international peace and security
resulting from genocide and other crimes against humanity. The collective character of the organization
provided safeguards against abuse by single powerful states pursuing egoistic national interests. And action by
NATO could be monitored by the Security Council and ordered to be terminated. The NATO action in
Kosovo had the support of the Security Council. Twelve (out of fifteen) members of the Council voted to
reject the Russian resolution of March 26, thereby agreeing in effect that the NATO intervention had been
called for and should continue. And on June 10, the Security Council, in Resolution 1244 approving the
Kosovo settlement, effectively ratified the NATO action and gave it the Council's support.

        V.
       In my view, the law is, and ought to be, that unilateral intervention by military force by a state or group of
states is unlawful unless authorized by the Security Council. Some-- governments and scholars--thought that
NATO too needed, but had not had, such authorization, at least ab initio. But many--governments and
scholars--thought that something had to be done to end the horrors of Kosovo, that NATO was the
appropriate body to do it, and perhaps the only body that could do it, and that the law should not, did not,
stand in the way.
       In 1991 Professor Oscar Schachter wrote:
       Even in the absence of such prior approval [by the Security Council], a State or
       group of States using force to put an end to atrocities when the necessity is evident
       and the humanitarian intention is clear is likely to have its action pardoned. But, I
       believe it is highly undesirable to have a new rule allowing humanitarian intervention,
       for that could provide a pretext for abusive intervention. It would be better to
       acquiesce in a violation that is considered necessary and desirable in the particular
       circumstances than to adopt a principle that would open a wide gap in the barrier
       against unilateral use of force.(6)
       Does that apply to Kosovo? Is it better to leave the law alone, while turning a blind eye (and a deaf ear) to
violations that had compelling moral justification? Or should Kosovo move us to push the law along, to bring it
closer to what the law ought to be?
       Humanitarian intervention on the authority of the Security Council recognizes that the Charter prohibition
on the use of force does not apply to the use of force "in the common interest"; it also recognizes that
intervention authorized by the Security Council affords the strongest safeguard against abuse of humanitarian
intervention that the contemporary political system provides. But, as Kosovo illustrated, the Council, as
presently constituted and under prevailing procedures, remains seriously defective and may sometimes be
unavailable for that awesome responsibility.
       NATO did not seek the Council's mantle, presumably because of the fear of the veto. We are not about to
see a major restructuring in the composition of the Security Council, and we are not likely soon to see an end
to the veto generally. But might we pursue an exception to the veto, as regards humanitarian intervention, in
practice if not in principle?
       That may be what Kosovo in fact achieved, in some measure. For Kosovo, Council ratification after the
fact in Resolution 1244--formal ratification by an affirmative vote of the Council--effectively ratified what
earlier might have constituted unilateral action questionable as a matter of law. Unless a decision to authorize
intervention in advance can be liberated from the veto, the likely lesson of Kosovo is that states, or
collectivities, confident that the Security Council will acquiesce in their decision to intervene, will shift the
burden of the veto: instead of seeking authorization in advance by resolution subject to veto, states or
collectivities will act, and challenge the Council to terminate the action. And a permanent member favoring the
intervention could frustrate the adoption of such a resolution.

        VI.
       Neither one state nor a collectivity of states should be encouraged to intervene on its own authority in
expectation, even plausible expectation, of subsequent ratification or acquiescence by the Security Council. But
that is likely to happen, as it did as regards Kosovo, unless the Security Council and the permanent members in
particular are prepared to agree to adapt their procedures to permit the Council's consideration in advance,
with the understanding that the veto would not be operative.
       Changes in the law and in UN procedures and understandings to that end might begin with Chapter VIII
of the Charter.
       Article 52(1) provides:
       Nothing in the present Charter precludes the existence of regional arrangements or
       agencies for dealing with such matters relating to the maintenance of international
       peace and security as are appropriate for regional action, provided that such
       arrangements or agencies and their activities are consistent with the Purposes and
       Principles of the United Nations.
       Article 53(1) adds: "The Security Council shall, where appropriate, utilize such regional arrangements or
agencies for enforcement action under its authority."
       Article 52 readily lends itself to using NATO and similar regional bodies, for pacific settlement of disputes
within their region. Article 53 also contemplates that the Security Council might use regional arrangements for
"enforcement action under its authority." It is unrealistic, and perhaps undesirable, to ask the Security Council
to give general approval in advance for regional groupings to engage in military humanitarian intervention. But
should the law and practice be that a recognized, responsible regional collective body may intervene for bona
fide humanitarian purposes unless the Security Council orders it to cease and desist--by a vote not subject to
the veto? Or, better, might there be agreement that recognized regional bodies may intervene if authorized in
advance by vote of the Security Council not subject to veto?
       Kosovo demonstrates yet again a compelling need to address the deficiencies in the law and practice of the
UN Charter. The sometimes-compelling need for humanitarian intervention (as at Kosovo), like the compelling
need for responding to interstate aggression (as against Iraq over Kuwait), brings home again the need for
responsible reaction to gross violations of the Charter, or to massive violations of human rights, by responsible
forces acting in the common interest. We need Article 43 agreements for standby forces responsible to the
Security Council, but neither action by the Security Council under Article 42, nor collective intervention as by
NATO at Kosovo, can serve without some modification in the law and the practice of the veto. The NATO
action in Kosovo, and the proceedings in the Security Council, may reflect 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.
That may be a desirable change, perhaps even an inevitable change. And it might be achieved without formal
amendment of the Charter (which is virtually impossible to effect), by a "gentlemen's agreement" among the
permanent members, or by wise self-restraint and acquiescence. That, some might suggest, is what the law
ought to be, and proponents of a "living Charter" would support an interpretation of the law and an adaptation
of UN procedures that rendered them what they ought to be. That might be the lesson of Kosovo.

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August 17, 2016

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Samuel Moyn

Harvard Law School

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