images of the night after night bombardment of Belgrade and other targets in ... Nuremberg Charter of the international military tribunal at Nuremberg. Article 6(a) ...
MISSION IMPOSSIBLE? "HUMANITARIAN INTERVENTION" AND THE NEW PARADIGM OF INTERNATIONAL CRIMINAL LAW Gerhard Kemp BA LLM Lecturer, University of Stellenbosch
"To that world assembly of sovereign states, the United Nations, our last best hope in an age where the instruments of war have far outpaced the instruments of peace, we renew our pledge of support to prevent it from becoming merely a forum for invective-to strengthen its shield of the new and the weak-and to enlarge the area in which its writ may run."
John F Kennedy, in a speech entitled "A new generation of Americans', delivered on 20 January 1961, as quoted in MacArthur (ed) The Penguin Book of Historic Speeches (1996) 485 "It is the right of 'humanitarian intervention' that is claimed by the US/NATO in Kosovo, with the general support of editorial opinion and news reports."
Noam Chomsky Rogue States (2000) 40
1 The notion of "humanitarian intervention"' The use of military force by the North Atlantic Treaty Organisation (NATO) against the Federal Republic of Yugoslavia (FRY) in respect of Kosovo captured the attention of the world for the greater part of the first half of 1999. CNN, BBC World and other media provided the images of the night after night bombardment of Belgrade and other targets in Yugoslavia. As was the case with the Gulf War and Operation Desert Storm, the world was mesmerized by the use of military force and the display of power. The terrible facts in, and relating to, Kosovo are well known. The world witnessed crimes against humanity, torture, forced removals and massive human rights violations during 1998-1999. Although the NATO intervention was widely welcomed, it was also criticized, particularly from an international law point of view. The events in Kosovo compelled 'There is no generally accepted definition of "humanitarian intervention". One possibility is: "... the theory of intervention on the ground of humanity (... ) recognizes the right of one State to exercise international control over the acts of another in regard to its internal sovereignty when contrary to the laws of humanity". See Ryniker "The ICRC's position on 'humanitarian intervention' " 2001 International Review of the Red Cross 528. Another possibility is: "Humanitarian intervention. The coercive intrusion into the internal affairs of a state to protect large-scale human rights violations. As such, it is to be distinguished from humanitarian 'assistance' which does not involve coercion and usually occurs with the consent of the target state. In other words, humanitarian intervention (HI) involves theuse of armed forces by a state, a group of states or an international organization on the grounds of humanitarianism with the specific purpose of preventing or alleviating widespread suffering or death" Evans & Newham Dictionary of International Relations (1998) 231.
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international lawyers to revisit the notion of so-called "humanitarian intervention". The matter is further complicated by the possibility that the intervention, as in Kosovo, could be an internationalcrime, apart from being a possible violation of public international law. The development of international criminal law provides us with a new paradigm. There is a growing emphasis on individual criminal liability for international crimes. Individual liability for aggressive wars is not new in international law. 2 The question, however, is whether illegal "humanitarian" intervention could constitute individual criminal liability for the international crime of aggression. The new paradigm of international criminal law is firmly set by the creation of the permanent International Criminal Court. 3 Will illegal "humanitarian" intervention lead to actual prosecutions, or will it be possible to develop prima facie illegal "humanitarian" intervention into a possible excuse or defence4 on a charge of international aggression? 2 The use of force and international law 2 1 The United Nations Charter The United Nations Charter (UN Charter) prohibits intervention by any state within the territory of another without that state's consent. Article 2(4) of the charter prohibits "the threat or use of force against the territorial integrity or political independence of any state". Article 51 of the charter permits the threat or use of force in cases of self-defence. Apart from self-defence, there is one other exception to the prohibition on the use of force. The UN Security Council may, under chapter VII of the charter, authorise intervention and the use of force. Thus, it is quite clear that the use of force by one state against another state is prohibited under the UN charter. The two exceptions to this prohibition are selfdefence and authorisation by the Security Council. International lawyers generally accept that the threat of force, followed by the use of armed5 violence, by NATO states against the FRY was contrary to the charter. The question to be answered is whether the text and interpretation of the UN Charter and the understanding of permissible intervention is still applicable in the light of a changing world and a changing international legal paradigm.
See discussion infra. 3 See discussion itra. 4 For general discussions on defences and exonerations in international criminal law, see Defences and Exonerations in Bassiouni Crimes against Humanity in InternationalCriminal Law (1992) 397-446 and Eser 'DeJences' in War Crime Trials in Dinstein & Tabory (ed) War Crimes in International Law (1996) 254-273. 5 Cassese "Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?" 1999 European Journal of International Law 23-24.
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2 2 The criminalization of international aggression It is necessary to see to what extend forcible intervention is criminalized in international law. After the Second World War, there was a general consensus amongst the allied powers to prosecute and punish Nazi leaders for war crimes. 6 However, possible criminal liability for "crimes against peace" or "aggression" was much more controversial. The result was that no definition on aggression was inserted in the Nuremberg Charter of the international military tribunal at Nuremberg. Article 6(a) of the Nuremberg Charter 7 provides that: "The following acts or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for any of the foregoing..."
Although aggression was not a crime under international law prior to the Nuremberg Charter, the prosecution maintained the principle of individual criminal liability for the planning and starting of war. They did not actually rely on any established definition of "aggression". The prosecution relied on the so-called Kellog-Briand Pacts and argued that the use of war as an instrument of national policy had been outlawed in 1928. On that basis it could be argued that individuals who planned and instigated the launching of "aggressive war" were criminally liable under 9 international law. Although strong criticisms were brought against the prosecution of individuals for liability for "aggression" on the basis of the nullum crimen sine lege, nulla poena sine lege principle, the tribunal nevertheless rejected the defence arguments in this regard. The tribunal stated: "Charter makes the planning of waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and '0 to what extent aggressive war was a crime before the execution of the London Agreement." (
The tribunal not only accepted aggression to be an international crime, it in fact framed the crime as the11supreme international crime for which individuals could be held liable. The outcome of the Nuremberg Trials, in the context of aggression, is that individual criminal liability for this international crime was firmly established. The fact that the tribunal was in actual fact applying criminal 6 See Sunga The Emerging System of International Criminal Law (1997) 40. 7 United Nations Treaty Series, vol 82, 279 as reprinted in Van den Wyngaert InternationalCriminalLaw (2000) 55-61. The Kellog-Briand Pact (International Treaty for the Renunciation of War as an Instrument of National Policy) signalled the international community's intention to consider war to be an unacceptable means by which to further national priorities. The pact was signed on 27 Aug 1928 and entered into force on 24 July 1929. See Sunga Emerging System 36-37. 9 Sunga Emerging System 44. International Military Tribunal (Nuremberg): Judgment and Sentences 1 Oct 1946 as quoted in Sunga Emerging System 45. I Sunga Emerging System 45-46.
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law retrospectively, and thus offended the principle nullum crimen sine lege, nulla poena sine lege, cannot undo the historic acceptance of individual criminal liability for aggression. The debate about the retroactive application of criminal law by the Nuremberg tribunal is fast becoming a purely academic debate. Future prosecutions for the crime of aggression will be based on firm legal foundations. The United Nations Charter contains comprehensive prohibitions of the use of force in international relations.1 2 As pointed out above, the judgment of the Nuremberg Tribunal established individual criminal liability for the crime of aggression. The Nuremberg Principles 13 also provides for the individual criminal liability for the 14 crime of aggression. One of the most explicit formulations of the international rejection of aggression can be found in the United Nations General Assembly's resolution on the crime of aggression. The resolution15 states that: "A war of aggression is a crime against international peace. Aggression gives rise to international responsibility."
The statutes of the two ad hoc international criminal tribunals (Yugoslavia and Rwanda) 16 do not mention liability for aggression or the opening of hostilities as such. However, this does not mean that the possibility of individual criminal liability for aggression is slipping away from any practical or concrete enforcement. The 1991 Draft Code of Crimes against the Peace and Security of Mankind17 provides for individual criminal liability for aggression. In terms of article 15 of the code, the Security Council must determine cases of aggression. The code itself provides for a definition of aggression which follows article 1 of the General Assembly Resolution of 1974, referred to above. The definition was quite narrow in the sense that it basically covered the actual deployment of armed forces, but not other forms of interference, such as economic measures or even belligerent 8 declarations. 1
12 Art
2(4); 39 and 51 of the UN Charter 33The principles of international law as recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal. Furthermore, the International Law Commission was authorized to formulate these principles. See General Assembly resolution 95(1), GAOR First Session, Part II, 188 (1946-12-11). The principles were published in 1950. See Nuremberg Principles(1950) UNGAOR, 5th Session, Supp No 12, UN Doc A/1316 (1950) as published in Van den Wyngaert International CriminalLau, (2000) 203-204. 14 Principle 6 of the Nuremberg Principles. s Resolution 3314 ("IX) of 1974-12-14, 29 UN GAOR Supp (No 31) at 142 UNDoc A/9631 (1974), 13 International Legal Materials 710. '6 Statute of the International Criminal Tribunal for the Former Yugoslavia, Security Council Resolution 827 (1993); InternationalLegal Materials (1993) 1192.
17 Report of the International Law Commission, 43rd Session, UNGAOR, 46th Session, Supp No 10, A/
46/10 (1991) as published in Van den Wyngaert International Criminal Law 207. 1 See also Sunga Emerging System 51.
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The 1991 Code was followed by the 1996 Draft Code. this code provides that:
9
Article 16 of
"An individual, who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression."
There are considerable differences between the Draft Codes of 1991 and 1996. Article 16 of the 1996 Code replaced article 15 of the 1991 Code. Article 16 contains a formulation of aggression very similar to the Nuremberg Charter.20 The reasons for this change in formulation are of a legal technical nature, but also political. As mentioned above, article 15 of the 1991 Code was based on the General Assembly Resolution of 1974. However, that resolution had been drafted for international political purposes and not so much for the purpose of enforcing individual 21 criminal liability. The resemblance between article 16 of the 1996 Code and the relevant provisions of the Nuremberg (and Tokyo) Charters would make it easier to interpret the crime of aggression. One can use the jurisprudence arising from these tribunals as valuable guidelines. Most importantly, article 16 of the 1996 Code introduces a specific reference to individual liability for aggression committed by a state. The ambit ratione personae of the 1996 Code focuses on the top level of the command structure. However, it extends this with a further reference to individuals who have "actively participated" 22 in the crime of aggression. This is a very controversial phrasing, but it is beyond the scope of this contribution to venture into the many difficulties of the definition and scope of the crime of aggression. The crime of aggression is de jure included in the statute of the permanent International Criminal Court.2 3 However, the crime is not yet defacto included in the statute.2 4 Article 5(l)(d) provides that aggression is one of the crimes 25 within the jurisdiction of the court. Article 5(2) qualifies this by providing as follows: "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."
'9 International
Law Commission Report A/48/10 (1996) as published in Van den Wyngaert International CriminalLaw 215.
20 See art 6(a) of the Nuremberg Charter.
21 There were, for example, statements by the governments of Switzerland, the UK and the USA to the
effect that resolution 3314 should not form the basis of the Draft Code provisions on aggression since it was not designed for the purposes of international criminal law. See Sunga Emerging System 58. 22 See art 16 of the Draft Code of 1996. 23 Rome Statute of the International Criminal Court UN Doc A/CONF 138/9, International Legal Materials (1998) 999, 24 See also Scheffer The United States and the ICC in Shelton (ed) International Crimes, Peace, and Human Rights: The role qf the InternationalCriminal Court (2000) 206. 2' The other crimes are: genocide, crimes against humanity and war crimes. See Rome Statute art 5 (1).
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The text of the Rome Statute thus leaves us with the prerequisite of a definition for aggression, but within the limits provided by the United Nations Charter. Under article 103 of the charter, any definition of aggression must stay within the limits provided by the charter itself. Any future provisions on aggression will also have to address the role of the Security Council. Zimmermann explains the role of the Security Council in this context as follows: "It seems that the Statute, by stating explicitly that such a provision must be in line with the Charter of The United Nations acknowledges the special role and prerogatives that the Security ' Council possesses when it comes to the maintenance of international peace and 2 6 security.
It is clear that any amendments of the Rome Statute will have to contain provisions on the role of the Security Council. It is conceivable that the Security Council will have to determine, under chapter VII of the United Nations Charter, that the underlying action by the state concerned amounted to an act of aggression before any individuals can be prosecuted in the International Criminal Court.2 7 2 3
Threat of aggression
The United Nations Charter prohibits "the threat or use of force" in international relations. 28 Thus, a case could be made for individual criminal liability in this matter. However, norms providing for individual criminal liability must be clear and specific in order to satisfy the nullum 29 crimen sine lege, nulla poena sine lege principle. The problem is that a "threat of aggression" is quite difficult to define. At any rate, it is more difficult to define than the actual use of force. The 3 1991 Draft Code of Crimes against the Peace and Security of Mankind 0 provides in article 16 that: "1. An individual who as leader or organizer commits or orders the commission of a threat of aggression shall, on conviction thereof, be sentenced [to ... ]. 2. Threat of aggression consists of declarations, communications, demonstrations of force or any other measures which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State."
Because of the difficulties and general vagueness of "a threat of aggression" and because of critical comments by a number of states, the International Law Commission decided not to provide for individual
26 Zimmermann Jurisdiction, Admissibility and Applicable Law in Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (1999) 105-106. 27 Zimmennann Jurisdiction 106. 28 Art 2(4) UN Charter.
2' See also Sunga Emerging System 59. 30Report of the International Law Commission. 43rd Session, UNGAOR, 46th Session, Supp No 10, A/ 46/10 (1991) as published in Van den Wyngaert (ed) InternationalCriminal Law (2000) 207.
HUMANITARIAN INTERVENTION 31 criminal liability for "a threat of aggression" in the 1996 Draft Code. Since the Rome Statute of the International Criminal Court does not contain a definition of aggression or a threat of aggression, it is clear that the Rome Statute will first have to be amended before individuals can be prosecuted for the crime of aggression. Besides that, the Rome Statute only provides for "the crime of aggression" as a crime within the jurisdiction of the court. It does not contain any references to a separate crime of "threat of aggression". Given the problems with vagueness already pointed out above, it is submitted that "threat of aggression" will not likely form part of any future amendments of the Rome Statute. Against this background, it is necessary to evaluate the events in Kosovo. It is clear that any future criminal definition of aggression under the Rome Statute will refer to the UN Charter. Thus, if we want to know whether the intervention in Kosovo could be described as an international crime (aggression), we must apply the UN Charter to the Kosovo crisis.
2 4 The UN Charter and the Kosovo crisis The Kosovo crisis did not only bring the notion of "humanitarian" intervention back to the forefront, but also the difficulties of interpreting and applying the UN charter in the post Cold War era. Henkin puts it as follows: "Kosovo demonstrates yet again a compelling need to address the deficiencies in the law and practice of the UN Charter. The sometimes-compelling need for humanitarian intervention (as at Kosovo), like the compelling need for responding to interstate aggression (as against Iraq over Kuwait), brings home again the need for responsible reaction to gross violations of the Charter, or to massive violations of human rights, by responsible forces acting in the common 32 interest."
It is contended by scholars that there is nothing explicit in either the text of the UN Charter or its negotiating history to support the notion of unilateral "humanitarian" intervention by states. 33 The fundamental problem seems to be that the charter does not envisage military intervention on humanitariangrounds.34 Article 39 of the charter provides the Security Council with enforcement powers. 35 The council is entitled
3 Draft Code of Crimes against the Peace and Security ofMankind, Report A/48/10 (1996) as published in Van den Wyngaert International Criminal Law 215. The governments of Australia, the Netherlands, the USA, the UK, Switzerland and Paraguay opposed the inclusion of "threat of aggression" in the Draft Code. They argued that the notion did not convey a sufficiently precise notion amenable to individual criminal liability. See Sunga Emerging System 63. 32 Henkin "Kosovo and the law of 'humanitarian intervention' " 1999 American Journalof International Law 828. See Kritsiotis "The legal travails of kind-hearted gunmen" 1999 The Modern Law Review 945 review article of Scan D Murphy Humanitarianintervention: the United Nations in an evolving world order (1996). 34Ryniker "The ICRC's position on 'humanitarian intervention' " 2001 InternationalReview of theRed Cross 527-532 530. '5See also Simma (ed) The Charterof the United Nations A Commentary (1994) 605-616.
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to adopt various measures to resolve the threats to the peace, breaches of the peace, or acts of aggression and to maintain or restore international peace and security. The text of article 39 does not provide for intervention on humanitarian grounds. Higgins has pointed out that the Security Council has chosen to circumvent this problem by declaring a human rights violation to be a threat to international peace and security. 36 Forcible intervention, as in Kosovo, seems to be in violation of the UN Charter. 2 5 The report by the Independent International Commission on Kosovo The Independent International Commission on Kosovo ("the Commission") was the initiative of the Prime Minister of Sweden, Mr G6ran Persson. The Swedish government invited a number of individuals of high standing from around the world to participate in the commission. Justice Richard Goldstone of South Africa and Mr Carl Tham, Secretary General of the Olof Palme International Center in Stockholm, were invited to act as chairman and co-chairman respectively. 37 The main aim of the commission was to investigate and analyse the conflict in Kosovo. The scope of the report is very broad, as the commission has also acknowledged. The actions of all the major players involved in the conflict were scrutinized. The report was handed over to the Secretary General of the United Nations. The central problem that the commission struggled with was whether the constraints imposed by international law on the non-defensive use of force 38 were adequate for the maintenance of peace and security in the contemporary world. In its report the commission acknowledges that their interpretation of the "emerging doctrine of humanitarian intervention" is somewhat problematic. "This interpretation [of humanitarian intervention] is situated in a gray zone of ambiguity between an extension of international law and a proposal for an international moral consensus. In essence, this gray zone goes beyond strict ideas of legality to incorporate more flexible views of legitimacy." 39
The basic tenure of the commission's report is that NATO's actions in Kosovo were, as they put it, "on shaky legal ground, given the decision to proceed with an armed intervention without obtaining, or even seeking, a 36 Higgins The UN Security Council and theIndividualState in Fox (ed) The Changing Constitution of the
United Nations (1998) 47. 3 The other I I members of the commission were: Dr Hanan Ashwari (Palestine), Prof Grace d'Almeida (Benin), Senator Akiko Domoto (Japan), Prof Richard Falk (USA), Ambassador Oleg Grinevsky (Russian Federation), Mr Michael Ignatieff (Canada), Prof Mary Kaldor (UK), Prof Martha Minow (USA), Prof Jacques Rupnik (France), Mr Theo Sommer (Germany) and Mr Jan Urban (Czech Republic). Selection was made on the basis of known expertise. Gender and geographical composition were also taken into account. The members have participated in their personal capacities and the Secretary General of the UN, Kofi Annan, endorsed the project. See The Kosovo Report (2000) 21-22. 3 See also discussion above. 39The Kosovo Report (2000) 164.
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making any clear UN Security Council ...authorization, and without 40 sort of secondary appeal to the General Assembly.", The commission accepted that the traditional interpretation of the United Nations Charter regarding the use of force is in fact a narrow interpretation. This narrow interpretation was followed by the International Court of Justice in the leading Nicaraguacase. 4t This boils down to the fact that the threat or use of force by states is categorically prohibited by article 2(4) of the charter. The only exception to this can be found in article 51, which provides for the right of self-defence. The other relevant directive in this regard is contained in article 53 of the charter, which allows regional organisations (like NATO) to engage in enforcement actions provided that they do so on the basis of Security Council authorization.4 2 However, there seems to be a stronger argument that the United Nations Charter is in fact also giving support for the international promotion and protection of human rights, in addition to the limitations on the use of force. 43 The commission took notice of this line of argument, but rejected the notion that the protection of human rights is as strong a charter commitment as the core restrictions on the use of force. The commission put it as follows: "[T]he Charter provisions relating to human rights were left deliberately vague, and were clearly not intended when written to provide a legal rationale for any kind of enforcement, much less a free-standing mandate for military intervention without UNSC approval. Human rights were given a subordinate and marginal role in the UN system of 1945, a role that was 44 ' understood to be, at most, aspirational.
In addition to the above-mentioned provisions of the United Nations Charter, any interventionary claim based on human rights would face the legal obstacle posed by article 2(7) of the charter, which forbids intervention, also by the United Nations itself, in matters that fall essentially within the "domestic jurisdiction of states". Despite the rather literalist interpretation of the United Nations Charter, the commission nevertheless recognizes that there is a window of opportunity to bring charter interpretation and application in line with the status of human rights in international law.46 One should not underestimate the growing number of people that would like to see the United Nations reflect on the post cold-war world and the reality that internal conflicts have replaced international conflicts as the primary threat to peace and security and yes, human rights.4 7 ,,45
4" The Kosovo Report 166.
41Case concerning the military and paramilitary activities in and against Nicaragua (Nicaraguav United States of America) Judgment of 1986-06-27 http://www.icj-cij.orgicjwwwi'idecisions/isummaries/ inussummary860627.htm. 42 The Kosovo Report 167. 43See also par 2 1 supra. 44 The Kosovo Report 167-168. 45The Kosovo Report 168. 46 The Kosovo Report 168.
47See Sunga Emerging System 90-91.
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Former president Nelson Mandela has pointed out that the international community (certainly including the United Nations) is quite reluctant to act to halt conflicts in Africa. "It has now become so customary to point to the failure of the international community to intervene and end the genocide in Rwanda that it is almost forgotten that this relative neglect of Africa in these matters is much more general than only the Rwanda case. For example, while NATO prepared itself for action in Kosovo, Sierra Leone seemed a virtually forsaken place from an international perspective. As atrocities were carried out in Sierra Leone, Nigeria, under the aegis of an ECOMOG peacekeeping mandate, sent in troops, but the weaponry, funding, communications and intelligence promised by Western powers failed to materi48 alise.,
The commission correctly found that there was no factual basis upon which NATO could claim a defensive use of force that could qualify as self-defence under international law. 49 At the initiation of hostilities, Javier Solana, Secretary General of NATO, released a press statement in which he explained the reasons for NATO's actions against Yugoslavia. The principal line was "humanitarian intervention" in order to end the violence in Kosovo. The nearest Solana came to justify NATO's actions on the basis of self-defence was his reference to possible spreading of "instability" in the region. The "region" is, in the context of his statement, not Europe at large, but the Balkans.50 The Prime Minister of Britain, Tony Blair, was closer to justifying NATO's actions as selfdefence. "We must act: . . . ; to save the stability51of the Balkan region, where we know chaos can engulf all of Europe." No serious observer would argue that NATO acted in self-defence, but a more reasonable argument could be that NATO's actions were instances of enforcement of peace and security by a regional organisation. This option is provided for in article 53 of the United Nations Charter. The statements by Solana and Blair, referred to above, are indications of this last mentioned option, and not so much self-defence. It is evident from the commission's report that Kosovo cannot be a precedent for a state or coalition of states to ignore or contradict the United Nations Charter and the stabilizing function of the Security Council. In fact, Kosovo is not a good example of legally permissible "humanitarian" intervention. The commission stated: "Arguably, Kosovo thus fell into a special zone where neither approval nor censure was 52 forthcoming, making a weak case for bypassing the United Nations.'
48 Address by former president Nelson Mandela, delivered at the Independent International Commission
on Kosovo's final seminar, University of the Witwatersrand, 2000-08-25 as published in The Kosovo Report (2000) 14-17. 49 The Kosovo Report 171.
5oSee press statement by Dr Javier Solana, Secretary General of NATO, 1999-03-23 as quoted in Weller The Crisis in Kosovo 1989-1999 (1999) 495. 51 See Statement by the Prime Minister, Tony Blair, in the House of Commons, Tuesday,1999-03-23 as quoted in Weller Crisis in Kosovo 496. 52 The Kosovo Report 174.
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In the light of the Kosovo crisis, one may ask the question whether the UN Charter is not perhaps in need of reform. Because of the charter's restrictions on the use of force, it would take an amendment or a new and liberal interpretation of the charter before one could safely argue that "humanitarian" intervention is indeed permissible under the charter. 3 A new interpretation of the UN Charter ? There is an argument that the international legal system has radically changed since the founding of the United Nations. The result of this, so the argument goes, is that a "right of humanitarian intervention" has developed. Charney put it as follows: "At the time the Charter entered into force, international law centered on state sovereignty. The independence of states, especially with respect to matters of domestic concern, was of foremost importance. New developments in international human rights law, particularly with regard to international crimes, authorize, if not require, all states to take action in the face of widespread grave violations of human rights amounting to such crimes. Thus, one might argue that contemporary public international law and a proper contemporary interpretation of the without Chapter VII authorization by the UN Charter permit pure humanitarian intervention 53 ' Security Council or a situation of self-defence.
Interventions authorised by the Security Council cannot necessarily be classified as "humanitarian interventions". We can look at two Security Council authorised interventions of the past decade. Security Council 688 of 1991 stipulated that the violent repression in Iraq threatened the international peace and security of the region. The concern of the Security Council was international peace and not so much the state of authorize the human rights in Iraq. Resolution 688 at any rate did 5not 4 Security Council to use force to protect human rights. The civil war and religious intolerance in Somalia led to massive human rights violations. As with the crisis in Iraq, the Security Council reacted to the Somalia-situation with a resolution. Resolution 794 (1992) stipulated that the crisis in Somalia constituted a threat to international peace and security. The Security Council decided that the use of55force was necessary to restore peace and stability in the Horn of Africa. It seems to be quite clear that forcible "humanitarian" intervention would only be possible with Security Council consent. However, the Security Council is likely to act only if international peace and security is threatened. Thus, states who would like to intervene for "humanitarian" purposes and who would not like to do so without the consent of the UN, will have to convince the Security Council that the particular crisis is threatening international peace and stability. Clearly, this rather unclear legal position is not very satisfactory. 53 Charney "Anticipatory humanitarian intervention in Kosovo" 1999 American Journalof International
Law 837. See also Barrie "Forcible intervention and international law: legal theory and realities" 1999 South Aftican Law Journal 804. '5 See also Barrie 1999 SALJ 804-805. 14
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It is submitted that a possible solution would be to place a qualification on the prohibition of use of force under article 2(4) of the UN Charter. Intervention for human rights and humanitarian purposes would not contravene article 2(4) if it is confined within the conditions for its exercise. 56 The submission is that article 2(4) is not an absolute proscription of use of force. If the force is used in a manner and for a purpose which does not threaten the territorial integrity or independence of a state, the action taken escapes the restriction of article 2(4). The point is that a genuine humanitarian intervention does not result in 57 territorial conquest or political subjugation. When applying article 2(4) it is also necessary to consider article 2(7) of the UN Charter. Article 2(7) establishes the principle of non-intervention in the internal affairs of states. 58 However, in the past, the UN has found that matters lying within a state's domestic jurisdiction provided no impediment to such international efforts as de-colonization or antiapartheid actions. 59 States make commitments to an ever wider reaching regime of international treaties and conventions. Customary international law also expands its reach and states are more and more willing to exercise universal jurisdiction over serious international crimes like genocide, war crimes and crimes against humanity. 60 The result is that the concept of "domestic jurisdiction" is shrinking. 61 The establishment of the permanent International Criminal Court is perhaps one of the best examples of internationalefforts to combat mass human rights violations,
s Abiew The evolution of the doctrine and practice of humanitarianintervention (1999) 93. See Abiew Evolution 94 and Stone Aggression and World Order (1976) 95. But see also Brownlie Internationallaw and the use of force by states (1963) 222-223 where the author argues that any act of armed intervention will be at least a temporary violation of the target state's territorial integrity. 58Art 2(7) provides as follows: "The Organization and its Members, in pursuit of the Purposes stated in Article 1,shall act in accordance with the following Principles: (... ) 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which areessentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII." 59Abiew Evolution 96. See also the Millennium Report by the UN Secretary-General, where he states, at par 219: "Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle-not even sovereignty-can ever shield crimes against humanityArmed intervention must always remain the option of last resort, but in the face of mass murder itis an option that cannot be relinquished." UN Secretary-General Millennium Report Chap IV "Freedom from Fear" http:www.un.org/millennium/sg,'report/ch3.htm. 60See in general Van Elst"Implementing universal jurisdiction over grave breaches of the Geneva Conventions" 2000 Leiden Journal of International Law 4 815-854; Van der Vyver "Universal jurisdiction in international criminal law" 1999 SAYIL 107-132: Council Decision of 2002-16-13 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes Official Journal of theEuropean Communities 2002/494/JHA; The Princeton Principles on Universal Jurisdiction 2001-07-23 http:/iwww.princeton.eduilapa/univejur.pdf. 6 Abiew Evolution 96-97.
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are willing to exercise in addition to the fact that quite a number of 62 states universal jurisdiction over such violations. 4 Conclusion In resent history the world has witnessed many mass violations of human rights and humanitarian law. Apart from Kosovo and the rest of the former Yugoslavia, there were Rwanda, Somalia, Sierra Leone, to name but a few. There is a growing sense of frustration with the apparent inability of the United Nations to stop these atrocities. The basic argument of this contribution is that the provisions of the United Nations Charter should be reviewed and interpreted in such a way as to give effect to the elaborate international human rights and humanitarian regime. It is better to have a legal framework for intervention based on present day realities. While individual criminal liability for aggression should help to deter this "gravest of all crimes against peace and security throughout the world,",6 3 it is equally important to have clarity on the legal status of "humanitarian" intervention. The alternative is interventions on an ad hoc basis, much criticised for not being conducted for humanitarian 64 purposes, but rather for political agendas and hypocritical strategising. OPSOMMING In hierdie bydrae word daar ondersoek ingestel na sogenaamde "humanitre intervensie", en veral dan die impak daarvan op internasionale reg. Hierdie ondersoek word gedoen teen die agtergrond van ontwikkelinge op die terrein van internasionale strafreg. Tensy ditdeur die Handves van die Verenigde Nasies (VN) toegelaat word, verbied die volkereg militlre invalle deur state onderling. Naas die volkeregtelike verbod, bestaan daar ook nog die moontlikheid dat sodanige aggressie 'n internasionale misdaad is, met potensiile individuele aanspreeklikheid. Dit is egter ook duidelik dat daar soms deur state omstandighede aangevoer sal word wat militere ingryping (individueel of kollektief) moet regverdig. In die bydrae word daar veral gekyk na die omstandighede wat aanleiding gegee het tot ingryping in die Joego-Slawiese provinsie Kosovo deur lede van die Noord-Atlantiese Verdragsorganisasie (NAVO) in 1999. Daar word tot die slotsom gekom dat die Handves van die VN hervorm moet word ten einde duideliker regsretls ten opsigte van humanitere intervensie daar te stel. Dit moet geskied met volle inagneming van die omwenteling wat ontwikkelinge op die terrein van internasionale strafreg teweeggebring her.
62The Rome Treaty of 1998-07-17 establishing the permanent International Criminal Court (ICC), is the culmination of many decades of behind the scenes effort of academics, NGO's, diplomats and other role players of international civil society. In terms of art 5 of the Statute, the ICC will have jurisdiction to try the most serious crimes of concern to the international community: genocide, crimes against humanity, war crimes and the crime of aggression. See in general Triffterer (ed) Commentary on the Rome Statute of the InternationalCriminalCourt (1999) and Bassiouni (ed) InternationalCriminalLaw 2 ed Volume 1I (1999). The Rome Statute came into operation on 1 July 2002 after more than 60 states ratified it. See in this regard art 26 of the Statute. 63 See Bassiouni International Criminal Law 319. See the criticism of Ryniker 2001 International Review of the Red Cross 529, Chomsky The New Military Humanism - Lessons From Kosovo (1999) 72-80 and Bandow NATO's Hypocritical Humanitarianismin Carpenter (ed) NA TO's Empty Victory (2000) 31-47.
