On your broader point, what I think you are objecting to is what could be called the ‘Robin Cook argument’ – which is why get so riled up about legality over Iraq when it didn’t seem to matter so much over Kosovo. I think that is a bit unfair on him, personally, since I know that they did have good legal advice at the time that they were on the right side of legality, but I can see where you are coming from with the broader critique. I supported the NATO intervention at the time because I genuinely believed the stories about a hundred thousand people being killed – which turned out to be so much propaganda – and it was partly my experiences in Kosovo that made me so much more sceptical about the arguments for the invasion of Iraq.

My book on humanitarian interventions is also basically about that segment of liberal-left opinion with this sort of dilemma over the past two decades.

I will do another above the line piece in the next few days on the issue of war and legality since you raised a few points that I would need to spend more time on, which is always a sign of a good debate.

It’s perfectly possible, logically and morally, to have supported the war in Kosovo and oppsoed the invasion of Iraq. But I maintain it is highly hypocritical to do so and simultaneously make great play of the supposed illegality of the latter. I say this because the very best one can say of Kosovo is that it enjoys dubious legal status. I don’t mean “dubious” in that I would disagree with the invocation of the doctrine of humanitarian intervention by NATO, but in that some farily significant world players would contest such an invocation, in that the UNSC never endorsed the action and in that the ICJ was silent on its legality.

I certainly wouldn’t accept that given this backdrop the Kosovo intervention enjoys some form of default legal status, but I don’t have to go that far in order to make my point, which is that if you wed yourself to the importance of international law and demand that it be adhered to in spirit and letter, then we must do better than is possible with Kosovo where the legal justification hinges on a disputed invocation of a non-codified doctrine, and where the accepted arbiters of international law conferred no legal legitimacy using other arguments.

The moral and intellectually honest position to adopt, in my view, is to say that international law matters, but until such time as the doctrine of humanitarian intervention is properly codified and ratified by treaty, then it’s not all that matters. Indeed, even after this happens, it still won’t be all that matters.

This, more or less, is where I stand.

Thanks for the discussion.

Of course there is a problem with states claiming the humanitarian intervention doctrine for false purposes, but the same point applies to claims of self-defence. This is explicitly recognised in the UN Charter, but is also frequently relied upon by states as a justification for military action. What is to stop them doing this? Well up until the ICJ or the UNSC, or some other body definitively states that they were not in fact acting in self-defence, but were in fact committing an act of aggression then nothing. However, there are numerous such judgments and findings by the ICJ, UNSC and other international bodies, which have rejected such claims. Read Nicaragua v US or DRC v Uganda, for example.

Can you give me even a single legal cite which supports your apparent position that a state which used the doctrine of humanitarian intervention as justification for a military intervention in a genuine humanitarian crises and which fitted the generally accepted criteria for what an intervention should be? Alternatively can you cite me a single scholar of international law who would argue that it is undisputably illegal for country A to intervene in country B if this was the only way to prevent an act of genocide or mass killing and such an intervention had a reasonable chance of making the situation better?

If not then I am not sure what your point is (except that you think that international law is more restrictive on this subject than is actually the case) and I think we can agree that this argument has run its course.

Thanks for conducting it in a reasonable way though.

Really? Early you wrote:

They threw the case out at the very first stage on admissibility grounds.

And this is very much my understnading and, for what it’s worth, the assessment as per Wikipedia. If you have a source that supports your claim here that the ICJ “accepted the arguments of lawyers put forward by the NATO countries that there was no case to answer”, assuming you mean this differently to “no case to answer because Serbia was not a UN member when the case was first brought”, then I’d be interested to read them.

My contention is that the ICJ was silent on legality/illegality of the war. Do you dispute this or don’t you?

As for the rest, we’re getting nowhere fast. I make absolutely no claims that UNSCrs are needed to legitimise invocation of the doctrine. I’m saying that absent UNSCrs and absent judgment from the ICJ, we have a legal bun fight and nothing more. One country’s “genuine humanitarian crisis” is another’s “transparently self-serving justification for war”. The UN won’t make a determination either way as allies of the first country vote down any resolution proposed by those of the second (pace what happened in the case of Kosovo and Russia’s attempts at the UN to have the war declared illegal).

So we’re left with competing theories and interpretations. Which serves the rule of international law how, exactly? You don’t think Russia and China can cite reputable legal sources who would dispute any case you or I or anyone else would care to make that claimed a legitimate invocation of the doctrine by NATO in Kosovo? You think that the next time a country cites the doctrine to justify its actions there won’t be dissenting voices in the UN? And when this happens, you aren’t honestly going to claim that said war is still legal because the UNSC couldn’t agree the action was de facto illegal?

Like you, I want to see the doctrine properly codified and ratified by treaty. Until then, its random invocation remains nothing more than a subjective interpretation of events on the ground. The logic of your current position is that NATO is effectively insultated against any claims its future actions could be deemed illegal as it can always cite the doctrine and its presence at the UNSC precludes any possiblity that body can hand down an unfavourable verdict. A self-fulfilling prophecy indeed.

A stalwart defender of the primacy of international law should not find himself in such a position, but you do.

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‘Your starting point that the doctrine of humanitarian intervention does not exist is contradicted by virtually every legal scholar that I have ever read. It is part of customary law and state practice and there are dozens of instances of it being invoked by states in the past and those interventions not being condemned as illegal.’

‘Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.’

Now, again:

The doctrine of humanitarian intervention – to which the Attorney General referred to in his memo – derives from those variety of sources. The British government has twice relied on in recent years as the basis for legal action. The whole point of it is that it does not rely on authorisation from the UNSC. What it relies on is the existence of a genuine humanitarian crisis and then a bunch of things related to proportionality, chances of success, etc. I am sure that you are very familiar with its content – even if you had not previously realised the source – since this is what Blair basically read out when he gave his Chicago speech in 1999. If you will remember he did not specify in that speech that military action needed to be authorised by the UNSC to be lawful – if it was done on humanitarian grounds. The logic of his argument was fairly clear up to that point, it was whn he tried to apply it to Iraq that he came unstuck (because there was not an ongoing humanitarian crisis at the time).

The logic of your argument about the ICJ decision is also back to front. The final judgment of the court was delivered on 15 December 2004. Serbia was a member of the UN by this stage and the ICJ most certainly could have heard the case. Serbia was also a party to the Genocide Convention, which also gave it standing. Courts can interpret their own rules far more flexibly than you give them credit for Brownie – particularly on an issue like this where there was no binding precedent. Had the ICJ wished to rule that NATO’s actions were unlawful it could have done so . Instead the court accepted the arguments of the lawyers put forward by the NATO country lawyers that there was no case to answer.

So, (again), the doctrine of humanitarian intervention permits countries to take unilateral military action in cases of grave humanitarian crises in order to prevent situations of mass killing. The basis of this doctine can be found in ‘international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists’ which form the established basis of international law. While it is not explicitly contained within the UN Charter, this is only one of the basis of international law. States have invoked this doctrine in recent years as the basis for military action and neither the highest political body within the UN nor the UN’s Court have condemned them for doing so or ruled that such actions were illegal

if you selectively disregard international law than you weaken its framework and that makes the world a more dangerous place.

I think that need to be rephrased as:

If you selectively misrepresent international law, inventing doctrines on an ad-hoc basis to justify those decisions that worked out and condemn those that didn’t, then that will weaken it’s framework and make the world a more dangerous place..

If you want a law to have credibility, you need it to be debated in oak-panelled chambers, acclaimed by cheering crowds of all nations, and interpreted by old guys in wigs and robes. You can’t juat make it up on a whim in a blog post.

Conor, elsewhere in my comment I ask whence the authority derives absent UNSCrs and when the ICJ is silent. The point is that in the case of Kosovo, legal legitmacy was not argued for on the basis of extant UNSCRs and as for the ICJ, well, they gave no view. So I ask again: from which body empowered to confer legal legitimacy did NATO derive its authority to invoke the doctrine of humanitarian intervention to justify its actions in Kosovo? Of course, you and I both know the answer to that already.

On your comment on Kosovo and the ICJ – well you are the one saying that NATO’s actions were indisputably illegal so why did the ICJ not find this?

The ICJ refused to hear the case brought by Serbia. The fact is that the ICJ was silent on the il/legality of the war. This is indisputable. I’m taking the position that for a war to enjoy legal legitimacy, an authority empowered to confer such legitimacy ought to have done so, and that an absence of a declaration of illegality does not equate to ‘legal’. I think most people would agree that this is the way it should work. I’d venture that declaring an act illegal because it didn’t enjoy express legality from those bodies empowered to confer legality, is an infinitely more defensible postion than maintaining an act is legal because it hasn’t been declared illegal by the relevant authorities. You’ve just rendered war legal by default, otherwise.

You are also glossing over why the ICJ refused to hear the complaint. Serbia claimed to be the successor state to Yugoslavia, but other states refused to recognise this claim mainly as a way of punishing and isolating the Serbian government due its role in the Bosnian conflict (which the ICJ has since ruled they basically sponsored). There was a huge amount of politics to that decision and so the ICJ refusal to hear Serbia’s claim was not some technical issue, but a direct snub to the Milosovic regime.

It may have been the latter but it was definitely the former. Serbia was not a UN member and therefore the ICJ couldn’t hear the case. End of.

They threw the case out at the very first stage on admissibility grounds. This was a legal triumph for NATO’s lawyers and yet you are citing it as backing your (and the Serbian government’s) position!

“A legal triumph” only in the sense that a body that could have declared the war illegal was incapable of even taking the case into its consideration. Again, since when did such a state of affairs confer legitimacy? The ICJ was effectively saying, “We can’t comment on the question of legality.” I’m asking (rhetorically) that if neither the UN nor the ICJ declared the war legal, then who did? Clearly, no body with the requisite authority ever did.

Blair would, I am sure, dearly liked to have used a similar justification for Iraq – the humanitarian intervention doctrine – but the legal advice that he got was that this would not stand up. So instead he used this incredibly convoluted argument about a resolution passed in 2002 ‘reviving’ ones passed in entirely different circumstances in 1991 and providing justification for a military attack 12 years later; even though the evidence that Iraq was in fact in breach was always very flaky and turned out to be completely wrong!

Leaving aside the question of how convoluted was Blair’s argument as opposed to one that claims legitimacy for a war on the basis that it has never been formerly declared illegal, your understanding of constituted a breach of Iraq’s cease-fiire obligations as codifed in various UNSCrs is manifestly wrong. Iraq didn’t have to be in possession of a single vial of anthrax to be in non-compliance and contrary to what you say, the UNSC found Iraq to be in continued breach when it unanimously passed res.1441. There was no dispute about Iraq’s state of non-compliance, just a disagreement about how to address this.

As the Attorney General said at the time ‘the UK has consistently taken the view . . . that, as the cease-fire conditions were set out by the Security Council in Resolution 687, it is for the Security Council to assess whether any such breach of those obligations has occurred.’

Indeed 1441 itself talked of the need for the UNSC to reconvene in the event Iraq continued its non-compliance, and notwithstanding Blix’s infamous “progress on process” even he could not and never did claim Iraq was fully compliant. What 1441 did not say is that following a reconvening of the UNSC a further resolution would be required before military action could follow.

But regardless, and as you already know, I’m not too intersted in whether Iraq can be shown to be legal or illegal. But I do object to half-arsed attempts to demonstrate Kosovo enjoyed greater legal legitimacy when it clearly did not. The simple question you cannot answer is that if it did, from where did that legitimacy come? Not from the UN. Not from the ICJ.

The truth is that it was magic’ed out of thin air by NATO members, and a bloody good thing too.

‘You most certainly would not have allowed such an argument to pass unchallenged had the UK second resoultion on Iraq achieved its simple majority, so you have a nerve deploying that argument with reference to Kosovo.’

But, of course I would!

I don’t think UN endorsement of the invasion of Iraq would have made much practical difference to the mess that was made of running the country (although read Samantha Power’s biography of Sergio de Mello for some of the detail of what went wrong in those first few months) but it certainly would have completely changed the debate about its legality.

If the UNSC rules that something is an act of agression then it is. The UNSC is the highest body in the UN – which is a body charged with preserving the peace – and so when it ruled – for example – that Iraq’s invasion of Kuwait was an act of aggression that was sufficient to make it illegal and that was why the UN authorised the coaltion’s military action to expel Kuwait from Iraq (but not to go into Iraq and overthrow Saddam Hussein – as you surely know).

If the ICJ rules something is illegal then it also is. Read their judgments on Nicaragua v US, DRC v Uganda, Bosnia v Serbia and (if you can bear it) on Israel’s security barrier.

If another international legal body (eg ICTY, SCSL or the ICC) were to rule that something is a criminal offence then it is.

If a domestic court rules something is illegal – perhaps using laws of universal jurisdcition – than it is.

In all of the above cases there are consequences to such rulings. Sometimes people get put in prison, sometimes country’s are forced to pay damages, sometimes the UN authorises military action against countries.

If none of the above has happened then all we can say is that ‘there is a prime facie case that X is illegal’ because Y body held Z action to be illegal and that was similar to the case that we are discussing here. Or in A case B did not find that C was illegal and that is a bit like this issue.

You would also need to look at the totality of the relevant bits of international law – whereas you just keep coming back to the UN Charter. To use your own analogy, that is like basing your view on the current British criminal justice code on one law passed in 1948 and ignoring all the statutory legislation and case-law since.

On that point we can at least agree. But it does to me – for the reasons I have given above. It also does to the British Government and to the Chilcott Inquiry and the British media and a large number of politicians and pundits, legal scholars, diplomats, soldiers, etc. which is why I wrote the post.

I am glad that we also agree that the doctrine of humanitarian intervention should be better codified (perhaps as a defence to the charge of aggression) although it is difficult to square this with your other view that ‘it doesn’t matter’.

The rest of what you say is basically wrong though. When you say that ‘So country A decides to invoke the doctrine to justify act X, but who determines the legal legitimacy of such action absent UNSCrs?’ Well the ICJ can do this. Have you read its findings on DRC v. Uganda in 2005 where it found Uganda had committed an act of aggression?

If the ICC incorporates this crime into its statute next year it will also be able to investigate cases. There is – as I mentioned above – already some jurisprudence from ICTY and there may be more coming out of the trial of Charles Taylor over his sponsorship of terror in Sierra Leone. If the signatories of the Euston Manifesto who called for a ‘reform of international law’ had shown any interest in or understanding of these arguments it would have been an interesting initiative – rather than just turning into another piece of Trot fish-and-chip paper.

On your comment on Kosovo and the ICJ – well you are the one saying that NATO’s actions were indisputably illegal so why did the ICJ not find this?

You are also glossing over why the ICJ refused to hear the complaint. Serbia claimed to be the successor state to Yugoslavia, but other states refused to recognise this claim mainly as a way of punishing and isolating the Serbian government due its role in the Bosnian conflict (which the ICJ has since ruled they basically sponsored). There was a huge amount of politics to that decision and so the ICJ refusal to hear Serbia’s claim was not some technical issue, but a direct snub to the Milosovic regime. They threw the case out at the very first stage on admissibility grounds. This was a legal triumph for NATO’s lawyers and yet you are citing it as backing your (and the Serbian government’s) position!

On the UNSC resolutions and Kosovo, well NATO threatened airstrikes unless the Serbs accepted the OSCE mission that was the clearly understood meaning of 1199 as everyone who followed it knew at the time. The OSCE KVM were like the weapons inspectors in Iraq and their expulsion that December (in disputed circumstances) became the trigger for war. That might have been avoided if an agreement had been reached at Rambouillet in February 1999 but the failure of this round of diplomacy (again in disputed circumstances) was what led to the start of the bombing campaign.

But – here is the difference with Iraq – NATO did not need to argue that UNSC 1199 was the justification for airstrikes, despite the fact that it was issued under Chapter VII and similar resolutions issued during the Bosnian conflict had led to airstrikes; they said that they were intervening to prevent an ongoing act of genocide or mass murder. That is the reason why they so massively inflated the civilian death toll before the start of hostilities – it was the legal justification that they were using for the resort to the use of force.

Blair would, I am sure, dearly liked to have used a similar justification for Iraq – the humanitarian intervention doctrine – but the legal advice that he got was that this would not stand up. So instead he used this incredibly convoluted argument about a resolution passed in 2002 ‘reviving’ ones passed in entirely different circumstances in 1991 and providing justification for a military attack 12 years later; even though the evidence that Iraq was in fact in breach was always very flaky and turned out to be completely wrong!

As the Attorney General said at the time ‘the UK has consistently taken the view . . . that, as the cease-fire conditions were set out by the Security Council in Resolution 687, it is for the Security Council to assess whether any such breach of those obligations has occurred.’

That was the private legal advice that Blair received 11 days before he sent British troops to war. I think that you have got a basic duty to your troops to give them not just proper weapons, kit and supplies, but also an honest assessment of whether their commanders are leaving themselves open to prosecution at some point in the future for following your orders.

In short, it’s that no legal authority empowered to confer legality did so. If one is genuinely concerned about the rule of international law (as I know you are), it strikes me this is a better test than “no legal authority empowered to determine illegality did so”. This assumes a default position of “legal” whenever and wherever a nation state decides to invoke the doctrine. I can’t believe you want that?

Huh? Contradict’s how? I’m asking from where NATO devied its authority to invoke the doctrine of humanitarian intervention? The fact that a simple majority of UNSC members refused to agree with a Russian motion criticising the NATO action does not, cannot, never could confer legal legitimacy. You most certainly would not have allowed such an argument to pass unchallenged had the UK second resoultion on Iraq achieved its simple majority, so you have a nerve deploying that argument with reference to Kosovo.

s Bob B states above, states frequently cite the doctrine of ‘humanitarian intervention’ when invading other countries. Hitler did it in Poland and, more recently, Russia cited in Georgia, so the test has to be more than just what the government of one country says. There is some guidance from the ICJ decision on Nicaragua v United States. There are also a whole raft of decisions by the International Criminal Tribunal for the Former Yugoslavia which touch on this and the ICJ decision on Srebrenica. The doctrine of humanitarian intervention can be drawn from this array of sources. It has also been extensively debated in relation to the R2P doctrine – which has been approved by both the UN General Assembly and Security Council.

Yes, yes, and when we’ve drawn on all these sources and countries A, B, and C claim the invocation of the doctrine to justify their action is correct, and countries X, Y and Z say otherwise, and the UNSC is deadlocked because at least some of these countries are permanent members and can veto any motion, and the ICJ is silent (in other words, when the situation is as it was in Kosovo), who gets to decide?

There was no legal authority prepared or able to endorse the action in Kosovo. The best you can come up with is that attemtps to get the action declared illegal at the UN were blocked by the same NATO countries responsible for the action, and that the ICJ refused to hear a case brought by Serbia for the reasons already cited. These facts nethier individually nor collectively come close to conferring legal legitimacy on the NATO action in Kosovo.

My contention that the war in Kosovo was illegal is based on the fact that no authority capable of conferring legal legitimacy did so; you object to this because no legal authority determined that it was illegal. Surely the legal standard for invocation of the doctrine must be higher than a failure of the international community to agree that such an invocation was explicitly illegal? That way lies trouble for reasons too obvious to mention.

Conor, I never said that the doctrine of humanitarian intervention doesn’t exist because I don’t believe that. I’m firmly in the camp that would dearly love to see this doctrine codified and formally adopted as international law as we currently understand the term with the UN as the arbiter of when and where it can be invoked. My contention is not the states avoid invoking this doctrine to justify different acts, but that there is no agreement whence authority to so invoke derives. So country A decides to invoke the doctrine to justify act X, but who determines the legal legitimacy of such action absent UNSCrs? The answer is no-one.

The ICJ had a chance to rule that the Kosovo intervention was illegal in a case brought by Serbia, they refused to do so.

That’s a little bit naughty, Conor. They “refused to do so” not because they determined the intervention was legal, but because Serbia was not a UN member at the time of conflict and therefore the court refused to hear the case. The ICJ was entirely silent on the question of whether the intervention was legal or not.

As I am sure you know full well, that has legal significance.

Not in this case given the reason supplied above.

The UN Security Council had a chance to vote on a resolution condemning the intervention, it was voted down by a simple majority.

Since when does legality automatically flow because resolutions criticising action are blocked? This isn’t how it works, Conor. All that happened here was NATO decided to act and then many of those same NATO countries and their friends voted down a Russian-sponsored resolution in the UNSC. I really don’t think you you want to equate this with legality. You’re effectively giving every permanent member of the UNSC the greenlight to invoke the doctrine of humanitarian intervention on the most specious grounds as they’ll always be able to veto any condemnatory motion at the UNSC. You want to go down that route?

It is also wrong to say that the UNSC would ever need to invoke the doctrine of ‘humanitarian intervention’ to justify an intervention. As you must know it merely needs to use its Chapter VII powers which contain no such language.

You’ve misunderstood my point here. I’m absolutely not saying the UNSC needs to invoke the doctrine; I’m saying that without some agreed authority the use of the doctrine defence is entirely arbitrary. For example, from where did NATO derive its authority to invoke the doctrine to justify its intervention in Kosovo? You and I might agree that the situation pertaining in Kosovo in 1999 warranted such an invocation, but who are we? Since when was NATO granted special dispensation in international law to determine when and where the doctrine can be invoked? There was no judgment handed down by the ICJ that its use in Kosovo was justified, nor any UNSCr endorsing its use. NATO simply decided and then did. This is made legal how, exactly?

Finally, you are completely wrong in stating that there were not UNSC resolutions threatening ’serious consequences’ over Serbia’s behaviour in Kosovo. Have a look at the wording of UNSC resolution 1199 – which was adopted under Chapter VII on 23 September 1998 – and get back to me.

I’ve re-read my comment and I’m not sure how you’ve come to the conclusion that I stated what you claim I stated. I compared the legal case made for Iraq (which is that earlier UNSCrs authorising the use of military force were revived once Iraq’s continued non-compliance had been established), with the case made for Kosovo. I think it’s fair to say that similar arguments are not made to justify the war in Kosovo notwithstanding 1199, rather people tend to do as you do (and indeed as I have done) and invoke the doctrine of humanitarian intervention defence and the fact the action wasn’t explicitly called “illegal” by the UN.

To be clear, it doesn’t much matter to me whether either or both conflicts were illegal. The point I’m making is that it’s entirely hypocritical to claim the sanctity of international law is absolute when discussing Iraq, but then ditch that argument like a stone when we talk about Kosovo and/or perform intellectual gymnastics in a determined effort to demonstrate a veneer of legal legitimacy that doesn’t exist.

I like you too, by the way.

I am with Oliver Kamm on his opinion of Wikipedia as authoritative source material. I don’t see anything wrong with those two sentences though. Russia did bring a resolution over Kosovo which was voted down and so it is safe to say that a simple majority on the UNSC did not regard the intervention as a violation of international law (which contradicts Brownie’s argument). The reason why there was no UNSC resolution authorising the action is that the Russians had indicated they would veto it and so it was felt to be legally stronger not to press the issue. The reason that there was not a UNSC resolution authorising the invasion of Iraq was because Britain and the US knew that they did not have a simple majority in favour of it (because Mexico and Chile had indicated they would vote against). Blair’s subsequent spinning of this as being about a French threatened veto has long been shown to be untrue (a lie in fact).

On the second paragraph, yes the ICJ threw the case out on procedural grounds. They also declined to hear the case under Article 9 of the Genocide Convention (which Serbia was a party to). So, again, when Brownie says the ‘Kosovo intervention was illegal’ what is his source? A court was given the opportunity to consider the case, and decided not to make such a finding.

I would dearly love a court to be given a similar opportunity to decide on the legality of the invasion of Iraq, but, for the reasons described above, I don’t think that it is very likely to happen. An alternative woould be the Chilcott Inquiry to address this, but it has no legal standing.

What’s your comment then on this from wikipedia :

“The United Nations Charter does not allow military interventions in other sovereign countries with few exceptions which in general need to be decided upon by the United Nations Security Council. The issue was brought before the UN Security Council by Russia, in a draft resolution which — inter alia — would affirm “that such unilateral use of force constitutes a flagrant violation of the United Nations Charter”. China, Namibia and Russia voted for the resolution, the other members against, thus it failed to pass.[49]

On April 29, 1999 Yugoslavia filed a complaint at the International Court of Justice (ICJ) at The Hague against ten NATO member countries (Belgium, Germany, France, Great Britain, Italy, Canada, The Netherlands, Portugal, Spain, and the USA). The Court did not decide upon the case because Yugoslavia was not a member of the UN during the war.”

http://en.wikipedia.org/wiki/Kosovo_War#Criticism_of_the_case_for_war

This seems to be saying you need a resolution from the UNSC to agree on war because of humanitarian intervention which didn’t happen in this case. Also the reason given here for the ICJ rejecting the Serbian case puts a different view on the legal status from what you said above.

The bottom line as I see it is that the legal process is far from straightforward and when linked to a lack of appetite for prosecution (in certain quarters) it is hard to imagine Blair being taken down the same road as Milosevic even though the ex-PM may increasingly come to be regarded as a latter day Waldheim?
http://hague.bard.edu/

Brownie: ‘You either believe in the absolute sanctity of international law or you do not.’

One of the problems with debating this issue is that some people think that international law must a) be exactly the same as national law or b) does not exist. But, of course, neither of these statements are true and nor is the UN a World Government capable of imposing its will on member states.

Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.

With the greatest respect, I don’t think that you fully grasp this point.

International law has emerged over time as a way of states agreeing to pool sovereignty in certain areas and cooperate together under a common framework of rules. Some states may sometimes find the rules inconvenient and either withdraw from certain international bodies or seek to evade the rules or cheat (eg Iran’s current attempts to get a nuclear weapon). This can lead to a ‘prisoner’s dilemma’ situation or ‘free-loading’ where the states that agree to abide by the rules suffer because the cheaters get an unfair advantage. That is a big issue in international trade law and the phenomenon of ‘social dumping’, but appplies to a whole range of other issues as well. When big states simply declare that the rules don’t apply to them this also weakens the entire system (eg Kyoto, ICC, etc.) That is why the illegality of the invasion of Iraq is one – although only one – of the reasons why I think it was wrong.

The UN Charter is one – but only one – source of international law that principally regulates state relations in the conduct of war and peace. The Charter is basically intended to prevent future war and so it prohibits the use of force save in two specified conditions: self-defence (Article 51) and where it has been authorised by the UNSC (Chapter VII). The Charter does, however, also contain numerous references to human rights and these have been elaborated in greater detail by numerous treaties. The ICJ has also made reference to human rights in various rulings including the issue of when one state can interfere in the affairs of another to protect human rights.

As Bob B states above, states frequently cite the doctrine of ‘humanitarian intervention’ when invading other countries. Hitler did it in Poland and, more recently, Russia cited in Georgia, so the test has to be more than just what the government of one country says. There is some guidance from the ICJ decision on Nicaragua v United States. There are also a whole raft of decisions by the International Criminal Tribunal for the Former Yugoslavia which touch on this and the ICJ decision on Srebrenica. The doctrine of humanitarian intervention can be drawn from this array of sources. It has also been extensively debated in relation to the R2P doctrine – which has been approved by both the UN General Assembly and Security Council.

The British government has twice relied on the doctrine of humanitarian intervention in recent times: first in relation to the creation of the safe have in 1991 and second over Kosovo in 1999. These were legal opinions which the government publicly advanced and defended. If you read the Attorney General’s private memo to Blair and the Chiefs of Staff of 7 March 2003 you will also see that he says that there are three legal grounds on which the use of force can be justified: ‘a) self-defence (which may include collective self-defence) b) exceptionally to avert an overwhelming humanitarian catastrophe and c) authorisation of the UN Security Council acting under Chapter VII of the UN Charter’

So this is hardly ‘my subjective definition’ is it Brownie?

there are other obvious cases of deliberately targeting civilians, although I don’t think you can easily say this was “with the intention of inflicting as many casualties as possible” , although that is setting the bar somewhat high . The bombing of Serbian TV during the Kosovo war springs to mind.

Absolutely. In September 1939, Nazi Germany invaded Poland supposedly to protect ethnic Germans living in Danzig, then part of Poland’s sovereign territory.

That is why UN sanction is needed to distinguish between valid and and invalid claims to exercise the doctrine of humanitarian intervention.

The ICJ had a chance to rule that the Kosovo intervention was illegal in a case brought by Serbia, they refused to do so. As I am sure you know full well, that has legal significance. The UN Security Council had a chance to vote on a resolution condemning the intervention, it was voted down by a simple majority.

It is also wrong to say that the UNSC would ever need to invoke the doctrine of ‘humanitarian intervention’ to justify an intervention. As you must know it merely needs to use its Chapter VII powers which contain no such language.

Finally, you are completely wrong in stating that there were not UNSC resolutions threatening ‘serious consequences’ over Serbia’s behaviour in Kosovo. Have a look at the wording of UNSC resolution 1199 – which was adopted under Chapter VII on 23 September 1998 – and get back to me.

I like you Brownie. Unlike some of your fellow contributors at Harry’s Place you do at least get the point that war is a serious business in which real people get killed and injured, but you are wrong on this point.

Throughout the late 90s and early 2000 (before 9/11) the US and UK was accused of bombing Iraq’s water facilities.

When, in the history of the world, has toppling a viscous tyrant ever been “wrong”? It may not have been legal but it was right.

A tyrant being toppled isn’t necessarily a good thing, or, indeed, a good act. If there’s no better alternative – practically speaking – and the deposition leads to greater suffering than existed before, there’s no utilitarian good. If the deposition took place in the knowledge that there was no better alternative, with scant concern for the question, or with scant concern for the people in general (ulterior motives, say) there’s a damn good case that it was “wrong” (i.e. immoral).

So if, as many believe, the Iraq invasion’s led to greater suffering, and was carried out with insufficient concern for this possibility, it’s difficult to argue that it wasn’t extremely immoral.

As for your question, here’s an example that no one will disagree with: Hitler’s (admittedly unsuccessful) invasion of Soviet Russia. That was an attempt to topple one of the most brutal tyrants that’s ever existed, but I think you’ll agree, without me even having to argue the point, that it was still “wrong“.