SPECIAL SECTION: ETHICS OF HUMANITARIAN INTERVENTION

Legality Versus Legitimacy: Humanitarian Intervention, the Security Council,

and the Rule of Law

SIMON CHESTERMAN*

International Peace Academy, New York, NY, USA

This article sketches out the nature of legal responses to humanitarian intervention in general and the Kosovo intervention in particular, with particular attention given to arguments that were not made. Though some possible arguments appear to have been omitted through over-sight, the nature of the discussion suggests a view of international law as one policy justification among others. These debates are then situ-ated in a broader historical context by drawing parallels between the current international framework and earlier historical periods in which no body comparable to the Security Council existed. It is argued that developments since the end of the Cold War, and in the past few years in particular, suggest a reversion to pre-Charter paradigms, where the council exists merely to advise member-states and international order is contingent, once more, on the goodwill of the powerful. The reluc-tance of the Great Powers to submit themselves to law may yet have a more lasting effect on the international order than NATO’s decision to wage war on behalf of the Kosovo Albanians.

Introduction

IN DEBATES THAT HAVE EXERCISED the many humanitarian interven-tion agonists since NATO’s Kosovo intervention in 1999, the currency of international law has been of uncertain value. While the bombs were falling,

many international lawyers sought cover under references to the inadequacy of ‘traditional’ international law; few were willing to condemn NATO for tak-ing action against a brutal leader who clearly wished ill on the Albanian popu-lation of Kosovo.1 Though academic commentators tended, with hindsight, to become more polarized on the question, the more sober assessments by the acting states themselves have continued to blur the question of legality. In a report on the intervention, the United Kingdom Foreign and Commonwealth Office concluded that, ‘at the very least, the doctrine of humanitarian interven-

Security Dialogue © 2002 PRIO. SAGE Publications, Vol. 33(3): 293–307. ISSN: 0967-0106 [028853]

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tion has a tenuous basis in current international customary law, and ... this renders NATO action legally questionable’.2 In proceedings before the Interna-tional Court of Justice, only Belgium sought to establish that its participation in the NATO airstrikes did not violate Article 2(4) of the UN Charter, which prohibits the threat or use of force.3 Other states emphasized the relevance of Security Council resolutions (which fell well short of authorizing the use of force) or made reference to the existence of a ‘humanitarian catastrophe’ – ap-parently wary of invoking the doctrine of humanitarian intervention by name.4

Such reticence to reach a firm position on the legality of the intervention was not restricted to the states participating in it. Two well-respected independent commissions also returned Solomonic verdicts. The Kosovo Commission, headed by Richard Goldstone, concluded that NATO’s intervention was ‘ille-gal but legitimate’.5 The International Commission on Intervention and State Sovereignty, chaired by Gareth Evans and Mohamed Sahnoun, took a more political tack. Acknowledging that, as a matter of ‘political reality’, it would be impossible to find consensus around any set of proposals for military inter-vention that allowed for intervention not authorized by the Security Council or the General Assembly, the commission sought to present this as a political rather than legal problem:

That may still leave circumstances when the Security Council fails to discharge what this Commission would regard as its responsibility to protect, in a conscience-shocking situation crying out for action. It is a real question in these circumstances where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by.6

This article will not seek to explore the legality of unilateral humanitarian in-tervention as such; this has been undertaken elsewhere, with varying degrees of success. Rather, the focus here is on the question of whether and how inter-national law matters at all in this area. Of central interest is the decision on the part of key actors to avoid a clear legal determination of the issues at stake: this article will examine that question in the context of the preceding decade of increased activism under the auspices of the United Nations, and explore what structural consequences the dilution of legal standards might have for the role of law in the current international order.7

First, the nature of legal responses to humanitarian intervention in general and the Kosovo intervention in particular will be sketched out, with particular attention given to arguments that were not made. This will then be situated in a broader historical context by drawing parallels between the current interna-tional framework and earlier historical periods in which no body comparable to the Security Council existed. In essence, it will be argued that developments since the end of the Cold War, and in the past few years in particular, suggest a reversion to pre-Charter paradigms, where the council exists merely to advise

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member-states and international order is contingent, once more, on the good-will of the powerful.

International Law and the Kosovo Intervention

Most legal analysis of NATO’s Kosovo intervention considers the provenance and future of Article 2(4) of the UN Charter. The passage agreed to by states at the San Francisco conference of 1945 was broad in its scope:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.8

The prohibition was tempered by only two exceptions. First, the Charter pre-served the ‘inherent right of individual or collective self-defense’.9 Second, the newly established Security Council was granted the power to authorize en-forcement actions under Chapter VII. (Although this latter species of military action is sometimes considered in the same breath as unilateral humanitarian intervention, council authorization changes the legal questions to which such action gives rise.)10 Most serious legal analysis of the alleged ‘right’ of humani-tarian intervention seeks to justify it either (1) within the terms of Article 2(4), by reference to a parallel rule of customary international law, or (2) within a broad interpretation of Security Council resolutions not explicitly authorizing the use of force – especially where it is alleged that a properly authorizing resolution is blocked only by capricious use of the veto.11

A further possible exception concerns the role of the General Assembly. Interestingly, the role of the General Assembly in authorizing intervention was first raised at a time when it was feared that a Russian veto would block a council resolution authorizing military intervention. For some months in 1950, the representative of the USSR boycotted the Security Council in protest at the continuing recognition by the United Nations of the recently defeated Kuomintang regime in China. In his absence, three council resolutions were passed that in effect authorized the United States to lead a military operation against North Korea under the UN flag. The return of the Soviet delegate precluded any fur-ther council involvement.12 At the initiative of Western states, the General As-sembly adopted the ‘Uniting for Peace’ resolution. This provided that the as-sembly would meet to recommend collective measures in situations in which the veto prevented the council from fulfilling its primary responsibility for the maintenance of international peace and security. In the case of a breach of the peace or act of aggression, the measures available were said to include the use of armed force.13 The legal status of the capacity of the General Assembly to do more than authorize peacekeeping is questionable,14 but a resolution was

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passed recommending that all states lend every assistance to the UN action in Korea,15 and this capacity was used again in relation to the Suez crisis in 195616 and in Congo in 196017 – on these occasions against the interests of the West-ern powers that had developed the mechanism earlier in the decade.

In the course of the Kosovo crisis, especially when it appeared likely that Russia would block any attempt to authorize the use of force against the Fed-eral Republic of Yugoslavia (FRY), it might seem surprising that such a mechanism was not considered. In fact, as shown in testimony by Professor Adam Roberts before the UK Foreign Affairs Committee six months after the conclusion of hostilities, the possibility of going to the General Assembly had indeed been suggested when the first Rambouillet negotiations broke down. His statement is worth quoting at length:

I actually raised that issue in a meeting at Chatham House on the day Rambouillet initially failed, in February of 1999, and I suggested that might be one possible way out of the Security Council’s obvious paralysis on the question of Kosovo. At that time, the Foreign Office took the view that this was very ill advised, and I was told that really it was not very helpful of me to have talked about this. Because I think they clearly took the view (a) that it was uncertain that they would get anything like the two-thirds majority which I believe is what is required under ‘Uniting for Peace’, and (b) that the General Assembly is a somewhat cumbersome instrument, in that it does not meet continuously, it cannot continuously develop its policy, once you have got an agreement in the General Assembly you will be absolutely stuck with whatever that agreement is, and it is not the kind of flexible instrument that the Security Council is.18

This is interesting because it shows two discrete reasons why fuller recourse was not had to international law. On the one hand, there was reluctance to submit important decisions to such a ‘cumbersome instrument’ as the UN General Assembly; on the other, it was unclear whether this body would de-liver the desired legitimacy anyway.

The political tension underlying such an approach to legal advice in the field of foreign affairs is most evident in James Rubin’s account of debates between the NATO capitals on the legality of proposed NATO action in the weeks prior to the air campaign. A series of strained telephone calls between US Secretary of State Madeleine Albright and UK Foreign Secretary Robin Cook had led the latter to cite problems ‘with our lawyers’ over using force in the absence of UN endorsement. Albright’s reply, reportedly, was, ‘Get new law-yers.’19

Equivocation about the role of international law in decisionmaking processes is hardly new; the history of international law is to some extent a struggle to raise law above the status of being merely one foreign policy justification among others.20 In the course of the US operation to oust Manuel Noriega from Panama in 1989, for example, Attorney General Richard Thornburgh was first called in to advise President George Bush that the United States had clear legal authority to act on 19 December 1989 – two days after Bush had author-ized the operation and a matter of hours before 24,000 marines actually landed

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in Panama.21 Legal advisers today appear to have greater involvement in some decisions – especially on questions of targeting high-precision weapons – but on fundamental questions of whether and when to use force, they are com-monly marginalized. To a non-lawyer, this might seem a trivial or obvious point. But it is instructive to compare current debates over the legal regulation of the use of force with debates that pre-dated the UN Charter; indeed, much about recent practice suggests that analogies with times when the use of force itself was not prohibited are particularly appropriate.

Humanitarian Intervention Before the United Nations

There is a widespread misconception that, before Article 2(4) of the UN Char-ter outlawed the use of force,22 a right of humanitarian intervention was rec-ognized in customary international law. Quite apart from the circumstances in which this alleged 19th-century right was usually invoked – generally in sup-port of Christian brethren against their Muslim overlords or neighbors – it is misleading to suggest that a majority of legal scholars supported the view that humanitarian intervention existed as an exception to the general prohibition on intervention.23

Such intellectual history is complicated by the fact that international law did not proscribe unilateral resort to war as a means of settling disputes between states until the 20th century.24 The term ‘intervention’ came into use over the course of the 19th century, but its meaning remained imprecise. In any event, in the absence of a clear distinction between intervention and war, any regula-tion of the former could be circumvented by resort to the latter. When the United States objected to a pacific blockade by Great Britain and Germany against Venezuela in 1902, for example, the European powers simply ac-knowledged a state of war to exist.25

Interestingly, debate at the time exhibited divisions comparable to that seen now among legal scholars, with some confidently asserting a right of humani-tarian intervention26 and others confidently rejecting it.27 Of most interest here is the significant body of writers who held that international law could or should have little to say about the matter at all. Historicus (Sir William Harcourt) expressed this in a frequently quoted passage published in 1863:

Intervention is a question rather of policy than of law. It is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give ef-fect to it, may be the highest policy of justice and humanity.28

Various writers echoed his view that international law had little to say about such ‘high politics’.29 Others adopted a more subtle position, noting that there is scope for moral evaluation of state behavior independent of the legal regime.

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The jurist William Edward Hall explained the apparent political and juristic acceptance of humanitarian intervention as reflecting ‘considerations of sen-timent to the exclusion of law’.30 His own position was that no such interven-tion is legal unless ‘the whole body of civilized states have concurred in authorising it’.31 Where such authorization is not possible, he argued that such measures should be justified

as measures which, being confessedly illegal in themselves, could only be excused in rare and extreme cases in consideration of the unquestionably extraordinary character of the facts causing them, and of the evident purity of the motives and conduct of the interven-ing state. The record of the last hundred years might not have been much cleaner than it is; but evil-doing would have been at least sometimes compelled to show itself in its true colours; it would have found more difficulty in clothing itself in a generous disguise; and international law would in any case have been saved from complicity with it.32

Oppenheim, in a passage that remained unchanged through five editions of his International Law, doubted whether there was a rule admitting ‘interven-tions in the interests of humanity’, but did note that ‘public opinion and the at-titude of the Powers are in favour of such interventions’.33 He concluded that such a right may be recognized at some point in the future, but restricted it to collective intervention by the Great Powers.34

Most of the themes that dominate contemporary debates on humanitarian intervention were present in these 19th- and early 20th-century texts: the moral impetus to act on behalf of the oppressed and not to let evil go unpun-ished; concern about the possible abuse of any unilateral right of intervention on subjectively determined grounds; the emerging public discourse on human rights issues; and the countervailing desire to preserve sovereignty. Central to these themes was the overriding view that international law could neither sanction nor ignore actions that ‘shock the conscience of mankind’.35

But nor was there consensus on what it could do. Following the conclusion of World War II and the adoption of the UN Charter, the use of force was out-lawed and the Security Council was established and granted primary respon-sibility for international peace and security. It is almost certain that none of the framers imagined the council authorizing military intervention solely to pro-tect human rights of nationals within a sovereign state,36 but it was clearly in-tended to have a monopoly on the use of non-defensive force. Nevertheless, there is no evidence that the framers turned their mind to what would happen in the event that the system they were constructing simply failed to function.

Humanitarian Intervention and the Security Council

In one of the war crimes trials brought in the US Zone of Germany two years after the conclusion of World War II, Brigadier General Telford Taylor, Chief

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of Counsel for the United States, was required to put forward a legal basis for a charge of crimes against humanity. Taylor argued that the concept of crimes against humanity first found articulation in the works of Hugo Grotius, whose concept of the ‘just war’ allowed for armed intervention to put an end to in-humane atrocities against civilian populations; he cited a number of such interventions from the 19th century. There could be no doubt, he stated, that murderous persecutions and massacres of civilian population groups were clearly contrary to the law of nations long before World War I. And, on occa-sion, nations had resorted to military intervention to put a stop to such atroci-ties.37 Nevertheless, he continued,

unilateral sanctions of this kind today are ineffective if confined to words and dangerous if military measures are resorted to. Intervention may well have been an appropriate sanction in the nineteenth century, when the fearful resources of modern warfare were unknown, and particularly when resorted to by a strong nation in behalf of minorities persecuted by a much weaker nation. Indeed, lacking some vehicle for true collective ac-tion, interventions were probably the only possible sanction. But they are outmoded, and cannot be resorted to in these times either safely or effectively.38

As is well known, the intended ‘vehicle for true collective action’ – the Secu-rity Council – was soon paralyzed by the Cold War. The failure to implement the collective security system as envisaged by the framers of the Charter is well documented.39 In particular, agreements to place military forces at the disposal of the Security Council were never completed.40 The Military Staff Committee (MSC), which was to advise and assist the Security Council in the ‘employment and command of forces placed at its disposal’,41 today remains little more than a curiosity. Its published records indicate that the MSC has met every two weeks since February 1946; in over 50 years, it has done noth-ing of substance since it reported to the council in July 1948 that it was unable to complete the mandate given to it two years previously. The fortnightly meetings presently last a couple of minutes.42

Creative ways of getting around this paralysis were found. These included use of the ‘Uniting for Peace’ resolution under the authority of the General Assembly, discussed above, and peacekeeping (whose legal basis UN Secre-tary-General Dag Hammarskjöld famously located in Chapter ‘VI½’ of the Charter).43 The most important mechanism for present purposes, however, is the delegation of Security Council enforcement powers to one or more states or a regional arrangement.

Council authorization started slowly: before the end of the Cold War, the only isolated cases of authorized action were the Korean War and the block-ade of southern Rhodesia. The decade following the end of the Cold War saw an explosion in these actions. Since 1990, the council has explicitly authorized one or more nominated states, regional organizations, or ‘coalitions of the willing’ to use ‘all necessary means’ (or ‘all measures necessary’ or ‘all neces-sary measures’) in the following situations:

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• Operations Desert Shield and Desert Storm in Kuwait and Iraq (1990–91); • Operation Restore Hope (UNITAF) in Somalia (1992–93); • Opération Turquoise in southwest Rwanda (1994); • Operation Uphold Democracy in Haiti (1994–95); • Implementation Force (IFOR) and Stabilization Force (SFOR) in Bosnia

and Herzegovina (1995– ); • a Canadian-led force in eastern Zaire (1996) (never implemented); • NATO-led Kosovo Force (KFOR) operations in Kosovo (1999– ); • International Force in East Timor (INTERFET) (1999); and • International Security Assistance Force (ISAF) in Kabul and its surround-

ing areas (2001– ).

The council has also authorized more limited uses of force under Chapter VII in the following situations:

• UN Protection Force (UNPROFOR) and member-states providing air sup-

port in respect of safe areas in Bosnia and Herzegovina (1993–95); and • Operation Alba in Albania (1997).

In many cases, different classes of operations have been closely related to

one another, and have even overlapped. Peacekeeping operations in Somalia, Haiti, Rwanda, and Bosnia were followed by enforcement operations when they proved incapable of discharging their mandates. Similarly, enforcement operations were followed by the deployment of peacekeepers in Somalia, Haiti, and East Timor. In addition, the council has also given implicit retroac-tive approval to the Economic Community of West African States (ECOWAS) Cease-Fire Monitoring Group (ECOMOG) operations in Liberia (1990–92) and Sierra Leone (1997–98), and to operations by the Inter-African Mission to Monitor the Implementation of the Bangui Agreements (MISAB) and France in the Central African Republic (1997–98), as well as questionable authoriza-tion for the air-exclusion zone in Iraq (1991– ) and NATO threats and air-strikes in relation to FRY operations in Kosovo (1998–99). Most of these opera-tions, with the exception of the action to drive Iraq from occupied Kuwait, might be characterized as ‘humanitarian’ in character.

An irony of collective security in the 1990s is that just when it appeared that the end of the Cold War would allow a more unified and active Security Council to fulfill its primary responsibility for the maintenance of interna-tional peace and security, the same period saw a blurring of the circumstances and the manner in which it could exercise that responsibility. Importantly, the definition of a threat to international peace and security – the trigger for Secu-rity Council enforcement actions – underwent a remarkable transformation. Amid euphoric talk of a ‘new world order’ after the expulsion of Iraq from Kuwait, the council declared at a January 1992 summit that instability in the economic, social, humanitarian, and ecological fields could also constitute

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threats falling within its purview.44 This followed actions in Iraq and former Yugoslavia that appeared to relate primarily to internal strife; two years later, after problematic operations in Somalia and Rwanda, the Security Council au-thorized an intervention to address the ‘threat’ posed by refugees and the ob-struction of democratic rule in Haiti. By 1995, the International Criminal Tribunal for the former Yugoslavia was able to assert that it was ‘settled prac-tice’ that Chapter VII powers could be invoked to address purely internal armed conflicts as a species of ‘threats to the peace’.45

At the same time, however, the absence of international institutions capable of dealing with this increased responsibility led to a reliance on delegation. Security Council enforcement actions were thus limited to situations where acting states had the political will to bear the financial and human costs of such measures. The UNITAF operation in Somalia confirmed this view in the most graphic terms. Resolution 794 (1992) was not merely contingent on a US offer of troops; the first draft was written in the Pentagon and tailored to US Central Command (CENTCOM) concerns.46 In language that bordered on the coy, paragraph 8 of the resolution referred to ‘the offer by a Member State de-scribed in the Secretary-General’s letter to the council of 29 November 1992’.47 A subsequent provision authorized the Secretary-General and member-states concerned to ‘make the necessary arrangements for the unified command and control of the forces involved, which will reflect the offer referred to in para-graph 8 above’.48 The effect was to hand over responsibility for the military operation to the United States. A similar approach was adopted in Rwanda (operation led by France), Haiti (by the United States), eastern Zaire (by Canada, though never implemented), Albania (by Italy) and East Timor (by Australia). Regional arrangements have also been authorized to intervene in former Yugoslavia (NATO),49 Liberia and Sierra Leone (ECOWAS/ECOMOG), and the Central African Republic (MISAB).50

These two themes – the plasticity of the council’s mandate and the contin-gency of council authorization on the willingness of a state or states to take ac-tion – were suggestive leitmotifs throughout the interventionist 1990s. Where there was no willingness to act, the council remained silent. One of many pos-sible illustrations of this point is the case of Sudan. Civil war has raged there for almost two decades, with an estimated two million casualties.51 And yet the only resolutions passed by the council in relation to Sudan concerned its failure to extradite suspects in the unsuccessful attempt to assassinate Presi-dent Mubarak of Egypt, which failure was determined to threaten interna-tional peace and security.52

This explicit conjunction of Security Council enforcement actions and na-tional interest has exacerbated the politicization of council voting. To take the best-known example, the United States offered various inducements to mem-bers of the Security Council voting on the resolution authorizing Operation Desert Storm against Iraq. These included promises of financial help to

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Colombia, Côte d’Ivoire, Ethiopia, and Zaire, and agreements with the USSR both to help keep Estonia, Latvia, and Lithuania out of the November 1990 Paris summit conference and to persuade Kuwait and Saudi Arabia to provide the USSR with hard currency. China’s abstention appears to have been se-cured by agreements to lift trade sanctions in place since the June 1989 Tiananmen Square massacre and to support a World Bank loan of $114.3 mil-lion.53 Yemen, one of the two states to vote against the resolution, had $70 mil-lion in annual aid from the United States cut off.54 Minutes after the vote was taken, a senior US diplomat reportedly told the Yemeni representative, ‘That was the most expensive no vote you ever cast.’55 The other dissenting state, Cuba, was already the subject of extensive sanctions.

Similar horse-trading has been documented in relation to the Security Coun-cil’s treatment of Haiti. David Malone writes that when an expanded mandate to provide international support for the restoration of democracy was first discussed in the council, Russia threatened to veto it owing to lack of US sup-port for the language Russia had proposed in a separate resolution welcoming a Commonwealth of Independent States (CIS) peacekeeping mission in Georgia. He also suggests that Russia was disappointed that its support for France’s Opération Turquoise had not paid more dividends.56

It would be idealistic in the extreme to argue that national interest should not play a role in such actions. Unless the United Nations establishes its own armed forces, it will remain dependent on national forces, which in turn are dependent on domestic political support. The problem, rather, is that as au-thorization by the council has come to be seen as a formal step towards legiti-mate intervention, its substantive role in decisions on international peace and security has diminished correspondingly. The general trend of Security Coun-cil delegated actions in the 1990s, then, was towards intervention only when such action coincided with the preparedness of a regional power to act – NATO in Europe, France and ECOWAS in West Africa, and the United States in the Americas.57 Evidence of such a trend has been shown in the form of au-thorizations, but this has been accompanied by a more troubling shift in the practice of the Security Council away from debating international peace and security issues in open session to granting its formal imprimatur to pre-arranged deals. Such practices have depended on a level of political comity that ultimately foundered when national interests clashed over the appropri-ate response to the situation in Kosovo in 1998–99.

International Law and the Great Powers

The League of Nations died, I remind you, when its members no longer resisted the use of aggressive force.... We have witnessed tonight an effort to rewrite the Charter, to

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sanction the use of force in international relations when it suits one’s own purposes. This approach can only lead to chaos and to the disintegration of the United Nations.

– US representative on the Security Council, 196158

At the beginning of the 1990s, the United States, while proclaiming itself the victor of the Cold War, magnanimously asserted that this provided an oppor-tunity for the United Nations to fulfill its long-promised role as the guardian of international peace and security. The Security Council saw new possibilities for action without the paralyzing veto; Secretary-General Boutros Boutros-Ghali laid out grand plans with An Agenda for Peace.59 In President Bush’s words, ‘the rule of law would supplant the rule of the jungle’.60

The rhetoric was euphoric, utopian, and short-lived. As quickly became clear, international security issues continued to be resolved by reference to Great Power interests; notably, the role of the UN Security Council was re-duced to something akin to that of the League of Nations Council, with power merely to give advice on matters of collective security.61 There is, now, a real danger that the United Nations will be used only when it is geopolitically convenient or useful to do so. The Security Council in particular may be re-duced to what Richard Falk has described as a ‘law-laundering service’: a le-gitimizing mandate for the unilateral use of force or (at best) the use of force by a coalition of like-minded states.62 This is suggestive of the earlier historical period considered in this article, when peace was contingent on the alliances of convenience that formed the Concert of Europe. In such a schema, the Sec-retary-General of the United Nations assumes the role of a sort of secular pope, holding all influence and no power, ensconced in the bureaucracy of his temporal office.63

These analogies are extreme, but highlight the diminishing significance of the United Nations. Less than two months before NATO’s air campaign against the FRY commenced, US Deputy Secretary of State Strobe Talbott gave a speech that suggested one of the ways in which multilateralism was chang-ing at the end of the 20th century. In what was, presumably, intended to be an upbeat evaluation of multilateral approaches to dealing with the situation in Kosovo, he praised the ‘unprecedented and promising degree of synergy’ that had developed between ‘five bodies – NATO, the EU, the OSCE, the United Nations and the Contact Group’, adding: ‘By that I mean that these disparate but overlapping organizations have pooled their energies and strengths on behalf of an urgent common cause.’64 In terms of the UN’s specific contribu-tion, he noted that ‘the UN has lent its political and moral authority to the Kosovo effort’.65 (No reference was made to the UN’s legal authority.) As Bruno Simma has observed, the rhetorical point of placing the United Nations in the company of regional organizations and similar institutions may suggest (and be intended to suggest) that it should be regarded as existing on a similar hierarchical plane as these bodies. Taken one step further, this could be seen

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as implicitly relativizing the legal primacy of the UN Charter and the obliga-tions it embodies.66

Any such development should be treated with great caution. Despite the reservations expressed here concerning the nature of UN authorizations to use force, the decade of the 1990s was remarkable for the fact that recourse was had to international institutions at all: the United States sought authorization to intervene in the hemisphere previously demarcated as its own under the Monroe Doctrine; France sought leave to intervene in its former African colo-nies; and Nigeria (belatedly) sought legitimacy for operations in its sphere of influence. The politics might well have been the same as those that beset the old world order, but they had assumed a very different form – it was the abandonment of even this form that made Kosovo all the more dangerous a precedent.

These concerns apply a fortiori in the wake of the terrorist attacks on New York and Washington, DC, in September 2001. Though the United States turned swiftly to the United Nations for support, obtained an extraordinary resolution endorsing a broad exercise of its right of self-defense (including, crucially, reference to states that ‘harbor’ alleged terrorists), and assembled a wide coalition for its military action in Afghanistan, the fragility of the UN’s position is exposed when one imagines what might have happened had that support not been forthcoming. This became clear in the course of the USA’s apparent vacillation in the first months of 2002 as to whether it would seek to topple Iraqi President Saddam Hussein.

Conclusion

Writing on the development of the rule of law in 18th-century England, the Marxist historian E. P. Thompson noted that the law certainly had the effect of systematizing and reifying inequality between the classes. This was consistent with the view of law as part of the superstructure of society in traditional (and highly schematic) Marxism. But at the same time, he argued, it ‘mediated these class relations through legal forms, which imposed, again and again, in-hibitions upon the actions of the rulers’. For this reason, he termed the rule of law an ‘unqualified human good’.67 Similarly, the position adopted here is that the danger of an international rule of law being subverted to legitimizing the interests of Great Powers is still preferable to the unregulated exercise of that power. Even though Security Council resolutions authorizing interventions might have been drafted in the war rooms of states preparing military action, adopted in votes of questionable impartiality, and implemented by states of dubious disinterestedness, such limitations do less damage to the interna-tional legal order than the abandonment of the multilateral institutions set in

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place after World War II that characterized NATO’s 1999 intervention in for-mer Yugoslavia.

NOTES AND REFERENCES

99.

* Simon Chesterman is a Senior Associate at the International Peace Academy, New York, where he directs the project on Transitional Administrations. He is the author of Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001) and the editor of Civilians in War (Boulder, CO: Lynne Rienner, 2001).

1 See, for example, Neil A. Lewis, ‘The Rationale: A Word Bolsters Case for Allied Intervention’, New York Times, 4 April 19

2 UK House of Commons, Foreign Affairs Committee, Fourth Report: Kosovo (23 May 2000), para. 132; available at http://www.parliament.the-stationery-office.co.uk/ pa/cm199900/cmselect/cmfaff/28/2813.htm.

3 Legality of Use of Force Case (Provisional Measures) (ICJ, 1999) pleadings of Belgium, 10 May 1999, CR 99/15 (uncorrected translation).

4 See further Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), p. 213. Some passages in the present article are drawn from this book.

5 Independent International Commission on Kosovo, The Kosovo Report (Oxford, 23 October 2000), p. 4; available at http://www.kosovocommission.org.

6 International Commission on Intervention and State Sovereignty (ICISS), The Responsi-bility to Protect (Ottawa: International Development Research Centre for ICISS, 2001), pp. 54–55, available at http://www.iciss.gc.ca. See also Ramesh Thakur, ‘Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS’, and J. Peter Burgess, ‘The Foundation for a New Consensus on Humanitarian Intervention’ (Refer-ence Review), Security Dialogue, vol. 33, no. 3, September 2002, pp. 323–340 and 383–384, respectively.

7 See also Michael Byers & Simon Chesterman, ‘Changing the Rules About Rules? Uni-lateral Humanitarian Intervention and the Future of International Law’, in J. L. Holzgrefe & Robert O. Keohane, eds, Humanitarian Intervention: Ethical, Legal and Politi-cal Dilemmas (Cambridge: Cambridge University Press, forthcoming).

8 UN Charter, Article 2(4). 9 UN Charter, Article 51. 10 See generally Chesterman (note 4 above), pp. 112–218. 11 For the most sustained (if ultimately fruitless) effort to locate such a right, see Fernando

R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, 2nd edn (Dobbs Ferry, NY: Transnational, 1997).

12 See Anjali V. Patil, The UN Veto in World Affairs 1946–1990: A Complete Record and Case Histories of the Security Council’s Veto (London: Mansell, 1992), pp. 189–196.

13 GA Res 377A(V) (1950). 14 See Ian Brownlie, Principles of Public International Law, 5th edn (Oxford: Clarendon

Press, 1998), pp. 700–701. 15 GA Res 498(V) (1951). 16 GA Res 997(ES-I) (1956); GA Res 1000(ES-I) (1956). 17 SC Res 157 (1960); GA Res 1474(ES-IV) (1960). See further Chesterman (note 4 above),

pp. 118–119.

306 Security Dialogue vol. 33, no. 3, September 2002

18 UK House of Commons, Foreign Affairs Committee, Fourth Report: Kosovo, Minutes of Evidence – Volume II, HC 28-II, 18 January 2000, Question 178 (Prof. Adam Roberts); available at http://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/ cmfaff/28/0011806.htm.

19 James Rubin, ‘Countdown to a Very Personal War’, Financial Times, 30 September 2000. 20 See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International

Law 1870–1960 (Cambridge: Cambridge University Press, 2001). 21 See Simon Chesterman, ‘Rethinking Panama: International Law and the US Invasion of

Panama, 1989’, in Guy S. Goodwin-Gill & Stefan A. Talmon, eds, The Reality of Interna-tional Law: Essays in Honour of Ian Brownlie (Oxford: Oxford University Press, 1999), pp. 61–62.

22 It is arguable that the use of force was first outlawed by the 1928 Kellogg–Briand Pact; see Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963), pp. 83–89.

23 This section will confine itself to the late 19th and early 20th centuries; for a discussion of earlier periods, see Chesterman (note 4 above), pp. 7–24.

24 See Brownlie (note 22 above). 25 J. L. Brierly, The Law of Nations: An Introduction into the International Law of Peace, 4th edn

(Oxford: Clarendon Press, 1949), p. 285. 26 See Chesterman (note 4 above), pp. 36–38. 27 Ibid., pp. 38–39. 28 William Vernon Harcourt, Letters by Historicus on Some Questions of International Law:

Reprinted from ‘The Times’ with Considerable Additions (London: Macmillan, 1863), p. 14. 29 See, for example, John Norton Pomeroy, Lecture on International Law in Time of Peace

(Theodore Salisbury Woolsey, ed.) (Cambridge, MA: Riverside, 1886), pp. 244–245. 30 William Edward Hall, Treatise on International Law, 2nd edn (Oxford: Clarendon Press,

1884), p. 265. 31 Ibid., p. 266. 32 Ibid. See also T. J. Lawrence, The Principles of International Law, 6th edn (Boston, MA:

D. C. Heath, 1915), p. 129. 33 Lassa Francis Lawrence Oppenheim, International Law (New York: Longmans Green &

Co., 1905), vol. 1, p. 186. 34 Ibid., pp. 186–187. 35 Lassa Francis Lawrence Oppenheim, International Law, 8th edn (London: Longmans,

1955), p. 312. 36 Chesterman (note 4 above), pp. 48–53. 37 Flick Case (1947) 6 CCL 10 Trials 3, pp. 87–89 (Telford Taylor for the Prosecution). 38 Ibid., pp. 89–90. 39 See Chesterman (note 4 above), pp. 114–121. 40 UN Charter, Article 43. See Andrew Boyd, Fifteen Men on a Powder Keg: A History of the

UN Security Council (London: Methuen, 1971), pp. 78–81. 41 UN Charter, Article 47(1). 42 Sydney D. Bailey & Sam Daws, The Procedure of the Security Council, 3rd edn (Oxford:

Clarendon, 1998), p. 274. 43 Chesterman (note 4 above), p. 118. 44 Security Council Summit Statement Concerning the Council’s Responsibility in the

Maintenance of International Peace and Security, UN Doc S/23500 (1992), (1992) UNYB 33.

45 Prosecutor v. Tadic, IT-94-1-AR72, Interlocutory Appeal on Jurisdiction (1995), para. 30. 46 Walter Clarke, ‘Failed Visions and Uncertain Mandates in Somalia’, in Walter Clarke &

Simon Chesterman Legality Versus Legitimacy 307

Jeffrey Herbst, eds, Learning from Somalia: The Lessons of Armed Humanitarian Interven-tion (Boulder, CO: Westview, 1997), pp. 3–19.

47 SC Res 794 (1992), para. 8, referring to S/24868. 48 SC Res 794 (1992), para. 12. 49 On NATO’s characterization as a regional arrangement, see Chesterman (note 4 above),

p. 177. 50 Ibid., pp. 175–179. 51 See, for example, ‘Misguided Relief to Sudan’, New York Times, 6 December 1999. 52 SC Res 1054 (1996). These sanctions were terminated shortly after the 11 September

2001 attacks on New York and Washington, DC: SC Res 1372 (2001). 53 Burns H. Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making:

Precarious Legitimacy’, American Journal of International Law, vol. 85, no. 3, July 1991, pp. 516–535, on pp. 523–525.

54 Ibid., p. 524. 55 Thomas L. Friedman, ‘How US Won Support To Use Mideast Forces’, New York Times,

2 December 1990. 56 David Malone, Decision-Making in the UN Security Council: The Case of Haiti, 1990–1997

(Oxford: Clarendon Press, 1998), p. 107. 57 Australia’s role in securing authorization to lead INTERFET in East Timor fits a similar

model; see Chesterman (note 4 above), pp. 149–150. 58 S/PV.988 (1961) paras 130–131 (US) (referring to UN inaction in the face of the Indian

invasion of Goa). 59 Boutros Boutros-Ghali, An Agenda for Peace (New York: United Nations, 1992). 60 ‘Address Before a Joint Session of the Congress on the Persian Gulf Crisis and the Fed-

eral Budget Deficit’, 11 September 1990, in (1990) 1 Bush Papers 1219. 61 Covenant of the League of Nations, Article 10. 62 Richard A. Falk, ‘The United Nations and the Rule of Law’, (1994) 4 Transnational Law

and Contemporary Problems 611, p. 628. 63 See Amos S. Hershey, The Essentials of International Public Law (New York: Macmillan,

1918), pp. 95–96. 64 Strobe Talbott, address delivered in Bonn, 4 February 1999; quoted in Bruno Simma,

‘NATO, the UN and the Use of Force: Legal Aspects’, European Journal of International Law, vol. 10, no. 1, March 1999, pp. 11–18.

65 Ibid., p. 11. 66 Ibid., p. 18. See also UN Charter, Article 103. 67 E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth: Penguin,

1977), p. 264.