High-Level Expert Group Meeting
17-19 July 2004
Bruno Kreisky Forum for International Dialogue
Vienna, Austria
Chaired by Malcolm Fraser
Introduction
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.
5. Self-Defence
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.
9. Recommendations
(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.
(4) Nation-Building
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.