High-Level Expert Group Meeting
17-19 July 2004
Bruno Kreisky Forum for International Dialogue
Chaired by Malcolm Fraser
In July 2004, a High-level Expert Group of the InterAction Council convened in Vienna, Austria, to explore the conditions under which military interventions are justified.
Since the collapse of Communism, the end of the Cold War and the attacks of September 11, 2001, the international legal framework governing the use of military force has been placed under enormous pressure. The emerging threat posed by the spread of weapons of mass destruction (WMD) to state and non-state actors, and especially great power hegemony have stimulated the debate concerning the adequacy of the existing UN Charter scheme. This Report seeks to examine the existing mechanisms for the peaceful resolution of disputes and the legal rules governing the use of force.
1. The Peaceful Resolution of Disputes in International Law
An international system founded on the rule of law benefits all states including the most powerful nations. Even the strongest members of any society need the protection of the rule of law. UN member states must recognize that real security can best be established through collective action, respect for international institutions, and crucially a commitment to peaceful settlement of disputes.
The jus ad bellum (rules governing the resort to force) includes an obligation to exhaust all peaceful means before resorting to force. This important principle needs to be re-emphasized in the light of recent, sometimes peremptory resort to force. Pacific dispute resolution is an important and sometimes neglected part of the story of international law (e.g. the Secretary-General's Good Offices).
War, conflict and intervention are big stories, of course, full of blood, and headline-grabbing. But the little stories of successful dispute resolution have saved countless lives and need our support. A good example of successful peaceful dispute resolution is the UN supervised peace process in Cambodia, which saw the rebuilding of democratic institutions in a failed state that had seen some of the worst violence in the 20th century.
2. The Rule of Law And Due Process
It is imperative that all states recognize immediately the importance and the value of institutions such as the International Criminal Court. For example, both the Court's significance as well as the centrality of international law were highlighted in January 2003 when the British Chief of Defence Staff asked for clarification regarding the legal basis for British military action against Iraq before he would commit troops on the ground. In doing so, Admiral Boyce emphasized the importance of the rule of law in determining decisions on military intervention.
The recent decision of the U.S. Supreme Court (Rasul), asserting the rights of detainees at Guantanamo Bay, confirms also that there are limits to the exercise of executive power. Individuals detained anywhere in the world must always be permitted recourse to the law.
There are also limits to the exercise of unilateral military power. The case of Iraq demonstrates that even the most powerful states when acting outside existing multilateral structures often fail to achieve their political goals, however just they believe their cause, and however supreme their military power. Such intervention tends to provoke a negative international reaction, and this could lead to threats to wider security. These adverse consequences could be avoided if greater reliance was placed on patient diplomacy.
This rule of law does not operate in a vacuum. It requires the presence of strong institutions and authorised processes. The UN system provides a powerful tool for resolving disputes and building a decent and humane world order. The system ought to be supported and enhanced.
3. Charter Law Under Threat
Disturbingly, this commitment to the rule of law is under fundamental assault. Those who attack the Charter framework argue that the emergency facing Western states after 9/11 requires a radical break with the Charter tradition. This position emphasizes the following: the unique threat from the coupling of state and non-state outlaws with WMD; and the unreliability of existing institutions in meeting this challenge.
This approach is most strongly associated with doctrines of preventive war and rests on an absolute distinction between enemies and friends. It takes a very flexible attitude towards the prohibition against force in Article 2(4) of the Charter and lacks patience with peaceful dispute resolution.
This High-level Expert Group Meeting of the Interaction Council opposes this assault upon the Charter conception of the use of force. Instead, the group takes the position that if the great powers work cooperatively and responsibly through existing institutions, then there is no reason why the existing Charter framework cannot effectively respond to current and future security challenges.
4. Collective Security
Responsible cooperation did not occur in the case of Iraq. Critics of the Security Council have drawn the wrong conclusion from this. These critics have argued that the Iraq crisis of 2003 demonstrates that the Security Council is unable to address the spread of weapons of mass destruction to rogue states and other modern threats. On the contrary, Iraq demonstrates the potential of the Security Council to meet non-imminent but serious threats to international security (in this case through the employment of its Chapter VII powers to police Iraq's WMD programs in the immediate aftermath of the 1991 Gulf War).
The reason why the Security Council was divided over Iraq in 2003 was because of a fundamental disagreement as to whether the inspections process led by Hans Blix could provide an effective long-term monitoring of Iraq's WMD program. The majority of the Council, including three members of the Permanent Five, were persuaded that non-forcible collective action could reliably meet the long-term danger of Iraq's WMD. Furthermore, if the monitoring programme had been allowed to take its course, and Iraqi weapon development programmes been found, the Security Council would have maintained unity on this issue. Moreover, it would have been possible to put together a broad-based international coalition to forcibly disarm Iraq, thereby rendering unilateral action redundant.
The collective security mechanisms of the UN Charter are critical in maintaining peace and security. But it is crucial that the Council is seen to be applying its resolutions impartially. In this regard, the Council's focus on Iraq's WMD capabilities stands in stark contrast to its treatment of other states possessing or developing WMD in the region.
The United States and its coalition partners, on the other hand, purported to justify the invasion of Iraq on the basis of a so-called 'golden thread' of resolutions stretching back to 1991. This, though, was an artificial and dangerous reading of these resolutions and ultimately, the invasion was not justified under international law. It was not a legally authorised exercise of collective security; nor was it a legitimate exercise of self-defence.
In order to legitimately validate force, Security Council resolutions must be clear, explicit and contemporaneous with the proposed intervention or use of force. Interventions whose claim to legitimacy relies on vague resolutions or old resolutions will not and ought not to command the support of the international community. Iraq demonstrates both the truth of this proposition and the potential effectiveness of peaceful dispute resolution.
Article 51 of the United Nations Charter preserves the unilateral or collective right to resort to military force in self-defence. The language of the Charter requires an armed attack before the activation of a right to self-defence. However, it is now largely accepted that states can act in self-defence where there is an imminent threat of attack, leaving no choice of means and no moment of deliberation.
Recent efforts to extend this right further to embrace preventive wars, when there is no imminent threat, have met with a lack of support from the international community and lack standing in international law.
The best response to the argument in favour of preventive war is the development of the Security Council's and other multilateral capacities for addressing non-imminent threats. The case of North Korea poses a challenge in this regard. The latter's acquisition of nuclear capacity threatens global security, and current attempts through the G6 (4+2) are seeking to address this threat peacefully.
6. Humanitarian Intervention
The moral imperative to protect endangered foreign populations in cases of genocide and mass killing has raised, in the post-Cold War era, the question of whether there should be limits to state sovereignty. Public opinion, especially in liberal democracies, often expects their governments to act, sometimes forcibly, in these extreme cases.
In keeping with the strong commitment to a restrictive interpretation of the legal framework governing the use of force, the subject of humanitarian intervention should be treated with considerable caution. The danger is that the use of force for ostensibly humanitarian purposes can all too easily end up resulting in policies that contradict the declared goals of the intervention.
In thinking about humanitarian intervention, it is important to distinguish between actions expressly authorised by the Security Council under its Chapter VII powers (e.g. Somalia), and those unilateral (defined here as non-Security Council authorised) actions that lack such a mandate (e.g. India's 1971 intervention in East Pakistan leading to the creation of the state of Bangladesh).
During the 1990s, the Security Council interpreted its wide-ranging discretionary powers under Chapter VII to define humanitarian crises inside state borders as a threat to 'international peace and security' justifying military enforcement action. The most prominent cases include US-led intervention in Somalia, the NATO-led intervention in Bosnia and the Australian-led intervention in East Timor. This practice reflects changing perceptions concerning the balance to be struck between respect for sovereignty on the one hand, and the humanitarian responsibilities of the Council on the other.
It is virtually inconceivable today that members of the Security Council would oppose an armed intervention, even one which lacked the consent of the target state, solely on grounds that this was a breach of the sovereignty principle. In the context of the current humanitarian catastrophe in the Sudan, were a state, or group of states, to request a UN mandate to intervene to protect civilians in Darfur, the Security Council would not oppose such an action by appealing to the principle of non-intervention.
This development is to be welcomed because it means that reliance on the sovereignty principle is no longer a legitimate barrier to UN-authorised international intervention. This shows the dynamic capacity of the UN system to respond to changing humanitarian sensibilities in the wider global community.
In this regard, this High-level Expert Group Meeting of the InterAction Council supports the important efforts of those international NGOs like the International Crisis Group and Human Rights Watch in alerting the Security Council to emerging dangers. The Secretary-General's recent announcement of the appointment of a Special Representative for Genocide Prevention is to be welcomed in this respect.
This developing norm of UN authorised humanitarian intervention can be contrasted with the continuing illegality of unilateral military action to promote humanitarian goals. Nevertheless, this group recognises that cases may arise in which the Security Council fails to exercise its responsibility to protect a threatened population. In such circumstances, the legitimacy of military action without Security Council authorization (e.g. Kosovo), would have to be judged on a case-by-case basis.
7. Nation Building
In cases of intervention, whether by states or international organisations, it is important to stress the intervener's responsibility to create a legitimate rule-governed state. This commitment to nation building applies irrespective of whether the original intervention was for self-defence or humanitarian reasons.
8. Regional Organisation
In many cases of peaceful dispute resolution, regional and sub-regional organisations offer an important mechanism. Beyond that, it is likely that regional actors will have the requisite mix of national security and humanitarian impulses to incur the costs and risks of military intervention in their regions. Ideally, such interventions would operate with a flag of UN-legitimacy under Chapter VIII of the UN Charter. Africa is an example of a continent where there are likely to be major benefits gained from adopting this approach. The problem in realising this possibility is lack of capacity for effective intervention.
(1) A Renewed Commitment to the Rule of Law
An international system founded on the rule of law benefits all states including the most powerful nations. Even the strongest members of any society need the protection of the rule of law. Member states must recognize that real security can be best established through collective action, respect for international institutions and the rule of law (including, for example, support for the International Criminal Court) and crucially a commitment to peaceful settlement of disputes. National Courts can play a critical role in reinforcing the rule of law as they provide the first opportunity for legal redress.
(2) Great Power Responsibility
A commitment to UN institutions, legal processes and the rule of law on the part of the Great Powers. No single power should define the legitimacy of the Security Council in terms of whether it complies with that particular state's immediately perceived security requirements.
(3) Security Council Authorisation
The collective security mechanisms of the UN Charter are critical in maintaining peace and security. In order to legitimately validate force, Security Council resolutions must be clear, explicit and contemporaneous with the proposed intervention or use of force. This would avoid subsequent acrimonious disputes over the meaning of the particular resolutions.
Interveners should only act militarily if they are prepared to commit to the long-term rebuilding of the target state.
(5) General Assembly and Regional Authorisation
Security Council decision-making at times has been frustrated on purely political grounds by the veto powers of one or more of the permanent members. To remedy this in future cases, consideration should be given to reviving the United Nations General Assembly 'Emergency Special Session Procedure' as an alternative institution for the multilateral endorsement of military intervention when there are grave and immediate threats to international peace and security.
In the event that the Security Council and the General Assembly fail to act in cases of genocide and mass killings, then consideration should be given to regional organizations taking military action to end the suffering.
(6) UN Standing Force
An international force should be created along the lines of the Article 43 provisions of the Charter. Member states should agree to provide stand-by forces that would be available for the Security Council to deploy in situations that threatened international peace and security. The military command and control of this force should be the responsibility of a revived Military Staff Committee.