COMMENT NATO, the UN and the Use of Force: Legal Aspects What others have to say ... Kai Ambos[*] Comment on: Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, and on Comment - Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? One can hardly disagree with Prof. Simma's stringent analysis of international law with regard to the use of force in the Kosovo conflict. Indeed, the scholarly discussion on the legality of military countermeasures against massive human rights violations points as its the central starting point to the competence of the Security Council under chapter VII (see, for example, Endemann, Kollektive Zwangsmaßnahmen zur Durchsetzung humanitärer Normen, 1997, at 414 et seq.; Hoogh, Obligations erga omnes and international crimes, 1996, at 212 et seq). Individual states, groups of states, or regional organizations may only resort to the use of force in cases of self-defence within the meaning of art. 51 UN Charter. This requires the existence of an armed attack against another state. Abuses of a state's own population within a state's own territory do not constitute such an attack under international law. However, I disagree with Simma on one point. It is not certain that the massive persecution and deportation of the Kosovo Albanians by the Serbs cannot be classified as acts of genocide within the meaning of the 1948 Convention. The crime of genocide as interpreted by international jurisprudence and scholarly opinion (see most recently the commentary on art. 6 Rome Statute by Schabas, in: Triffterer [ed.], Commentary on the Rome Statute, 1999, www.nomos.de) requires a specific intent (dolus specialis) aimed at the destruction of a protected group. If such intent can be established, the "destruction" (killing, deportation etc.) even of a few members of this group is sufficient to constitute the crime of genocide. Thus, if it could be proved that the current Serbian policy against Kosovo aims at the "destruction" of the national or ethnic group of the Kosovo Albanians, Serbian officials responsible for these acts could be held responsible for genocide in a criminal trial. This said, Prof. Cassese's argument gains more weight that under certain narrow conditions an evolving customary rule of international law would allow - as a further exception to the prohibition of the use of force (Art. 2 para. 4 UN Charter) - use of military force by a group of states in the absence of prior authorization by the Security Council. It is clear, however, that such a rule did not exist at the beginning of the NATO air strikes against the FRY (Serbia and Montenegro) and it can hardly be said that it exists at the moment.. As Cassese in his innovative, forward looking spirit rightly puts it, such a rule is only "evolving", i.e., "resort to armed force may gradually become justified" (emphasis added). Thus, as international law stands today, the NATO attacks cannot be justified in the absence of an explicit chapter VII resolution of the Security Council. Remarkably, there is no dissent between Simma and Cassese on this point. Both consider that the NATO attacks against the FRY are illegal under current international law. The further question whether a rule legalizing „humanitarian interventions" (without participation of the Security Council) is evolving, was not adressed by Simma. I believe that Simma would not deny - in the face of recent state practice, in particular the Kosovo precedent - that the possibility of the evolution of such a rule has to be considered and analyzed seriously. It is high time to develop and discuss the conditions of such a rule. In this respect Casssese makes a great contribution although at least one of his conditions (No. 6: no "strong opposition" against the use of military force) provokes doubts since he seems to define "strong opposition" in terms of numbers of states, not in terms of the (political) weight of a certain state (in my view, the opposition of Russia and China against the NATO attacks deserves the characterization as "strong" within the meaning of Cassese's sixth condition). On the other hand, it is clear, that the establishment of conditions for a practice which has to be characterized as illegal under current international law entails the risk that this practice will be legalized ex post and quickly converted from an exception into a new rule. Instead, it must be asked if it would not be wiser to seriously think of a reform of the Security Council, with the aim of avoiding, for the future, situations where one of the permanent members can block a humanitarian intervention for purely political reasons. In other words: would it not be more reasonable to remove the main obstacle (the veto right of the permanent members) which compels certain states to resort to the use of force outside the UN-system instead of creating such a rule? Let me conclude with a more fundamental point: The Kosovo crisis dramatically shows the limits of international law. Whether one decides in favor or against the NATO attacks against the FRY, both positions create massive conflict with international legal duties to protect against violations of the right to life of the civilian population. The violations of the right to life which we presently witness in the FRY, in particular Kosovo, because of their sheer quantity, could never be justified by the traditional (international) criminal law defences of necessity or duress (on this point see the discussion between Judges McDonald and Cassese in the ICTY`s Erdemovic appeals decision). The worst is that the NATO attacks, apart from accounting for the killing of innocent civilians, apparently cannot prevent Milosevic from executing his plan of ethnic cleansing. On the contrary, the available information seems to indicate that the execution of this plan was even speeded up by the attacks. And yet, the ultimate defeat of international law in this conflict lies still ahead: this would be the negotiation of a peaceful solution with Milosevic in exchange for a waiver of charging him with international crimes in The Hague. [*] Dr. Kai Ambos, Max Planck Institute for International and Foreign Criminal Law, Freiburg im Breisgau, Germany
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