Academic journal article
By Brown, Bartram S.
William and Mary Law Review , Vol. 41, No. 5
I am free, shielded from your severities, yet who am I? ... I haven't killed anyone? Not yet to be sure! But have I not let deserving creatures die? Maybe. And maybe I am ready to do so again.
The 1999 NATO bombing of Yugoslavia was not a typical armed confrontation, and it has raised a challenging set of legal issues. On the day that Operation Allied Force bombing began, NATO Secretary-General Javier Solana claimed the moral high ground when he stated that the goal of the bombing was to "stop further humanitarian catastrophe."(2) Yet unlike the Gulf War, which also involved the use of force on behalf of fundamental principles, the NATO bombing was not authorized by the United Nations Security Council, leaving its legal basis unclear. From the beginning, the NATO Secretary-General was careful to avoid explicitly invoking a right of humanitarian intervention as the legal justification for the mission,(3) and officials in the United States and other NATO countries followed suit. At the same time, NATO leaders made it clear that the moral and political justification for the mission was humanitarian,(4) and no alternative legal justification has been offered so far.(5) Not surprisingly, commentators have raised questions concerning the legality of humanitarian intervention despite NATO's careful attempts to skirt the issue.
This Essay argues that, under an appropriate and narrowly defined set of circumstances, acts of forcible humanitarian intervention can indeed be legal, even without the authorization of the Security Council. The principal focus, however, is on the task facing the United States and NATO now that they have invoked this controversial doctrine.(6) Those who rely upon the right of humanitarian intervention have a responsibility to define its legal parameters. Indeed, when a vague doctrine can be invoked by states to justify the use of force, it offers them a license that is subject to abuse. This justification for the use of force is inherently threatening to other states, particularly when those states claiming this license are the most powerful states in the international community. Without clear legal standards to limit it, the practice of humanitarian intervention threatens to undermine the friendly relations among states and could have an adverse impact upon international peace and security.
This Essay uses the term "humanitarian intervention"(7) narrowly to refer to forcible action by a state on the territory of another to protect individuals from continuing grave violations of fundamental human rights.(8) Cases in which the Security Council or local government authorizes the use of force are excluded from this definition because their legality can be established independently of any right of humanitarian intervention.(9) In most scenarios of humanitarian intervention,(10) the territorial state's government either is directly responsible for the violations or has acquiesced in them.(11)
Although NATO has relied, at least implicitly, upon a right of humanitarian intervention, serious doubts remain regarding both the status of this right under international law and the conditions that would necessarily have to limit it. This confusion stems from the tension between two key aspects of the post-World War II international legal order.
A strict prohibition on the use of force was incorporated into Article 2(4) of the U.N. Charter(12) as the cornerstone of its strategy for promoting order and peace in the international system.(13) The Charter recognizes only two exceptions to this prohibition. The first is that force may be used in self-defense.(14) The second exception applies only when a decision of the Security Council authorizes the use of force to protect or maintain international peace and security.(15) The prohibition, like other parts of the Charter,(16) reinforces the sovereign rights of the state. The Charter also affirms that the United Nations itself lacks the authority to intervene in the domestic jurisdiction of its members. …