FLYING ABOVE THE LAW
London Times
May 31, 1999 William Rees-Mogg
In 1946 the Nuremberg Tribunal, which judged the war crimes of the Nazi era, found that: "He who violates the rules of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence in international law . . . the principle of international law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law."
This Nuremberg ruling is still good law, 50 years later, and was quoted by Lord Millett as recently as March 24, which happened coincidentally to be the first day of the Nato attack on the Federal Republic of Yugoslavia. He was giving one of the majority judgments in the House of Lords' rejection of the Pinochet appeal.
The application of this Nuremberg ruling to the Pinochet case is obvious; it would also obviously apply to the case of President Milosevic if his indictment before The Hague War Crimes Tribunal comes to trial. The ethnic cleansing of Kosovo is an act "condemned as criminal by international law".
How does the Nuremberg ruling on "competence" apply to Nato's own actions? Is the bombing well founded in international law, or is it, as has been suggested, in breach of the United Nations Charter and international law generally? In the House of Commons, Tony Benn has accused Nato of breaching the UN Charter. Mary Robinson, the former President of Ireland, has questioned the "proportionality" of Nato's action in international law; former President Jimmy Carter has described the bombing as "senseless and excessively brutal", and President Mandela of South Africa has stated that Nato's actions are equally criminal with those of President Milosevic. These critics are not people whose careers have shown any lack of concern for human rights.
The hearing of the Yugoslav case before the International Court of Justice at The Hague was largely argued on jurisdictional grounds. However, John Morris, the Attorney-General, in his summing up of the United Kingdom case on May 11, did outline Nato's defence on the merits in international law. "The Federal Republic of Yugoslavia accuses the United Kingdom of violating the United Nations Charter, the Geneva Conventions of 1949, the first Additional Protocol of those Conventions and a wide variety of human rights treaties . . .
"What we are doing is not against any people or population, but for the rescue of the Kosovo Albanians from their desperate plight. Speaking in the Security Council on March 24, the day the military action began, the United Kingdom's Permanent Representative described it as 'an exceptional measure to prevent an overwhelming humanitarian catastrophe . . . the force now proposed is directed exclusively to averting a humanitarian catastrophe and is the minimum judged necessary for that purpose'." Morris went on to quote the Prime Minister, speaking the day before in the Commons, as saying that Nato's action was "primarily to avert what would otherwise be a humanitarian disaster".
This remains the United Kingdom's and Nato's justification in international law. When I telephoned the Foreign Office last Friday, they referred me to a written answer given by Baroness Symons of Vernham Dean to the House of Lords on November 16, four months before the bombing started. "Cases have arisen (as in Northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justified in support of purposes laid down by the Security Council but without the council's express authorisation, when this was the only means of averting an immediate and overwhelming humanitarian catastrophe."
These justifications for the Nato action avoid any claim that Nato, rather than the Security Council, has the authority to use military force in circumstances other than the self-defence of the Nato nations. Nato's defence rests solely on two pillars: urgent necessity to "avert" a catastrophe; minimum force.
As the Nato case implicitly concedes the exclusive competence of the United Nations to authorise force in these circumstances, it is hardly necessary to detail the terms of the Charter. However Article 2 (4) lays down that "all members shall refrain in their international relations from the threat or use of force"; Chapter VII states that the Security Council alone can determine the existence of any threat to the peace (Article 39) and is alone entitled to take such actions by land, sea or air forces as may be necessary to maintain or restore international peace and security (Article 42). In the terms of the Nuremberg judgment, Nato has undoubtedly acted outside its competence, on the grounds of urgent necessity and minimal force. The minimal-force defence is itself only a mitigation; bombing without UN authority is unlawful, however few bombs are dropped.
The urgent-necessity defence must always have been suspect. Negotiations had been going on for months; Nato had made its first threats (themselves contrary to the UN Charter) months before they were carried out; Lady Symons had even published Nato's defence in international law four months before the action started; the Nato campaign had taken months to prepare, and was not launched overnight; the precise timing was largely determined by a Nato ultimatum.
In international law the classic tests of urgent necessity are those given in the Caroline incident by Daniel Webster, the early 19th-century US Secretary of State. The necessity must be "instant, overwhelming and leaving no choice of means, and no moment for deliberation". Plainly the Nato action did not and does not come anywhere close to meeting any of these Daniel Webster tests. Yet that pillar of the defence is essential if Nato is to be acquitted of the knowing and deliberate invasion of the exclusive authority of the Security Council to authorise force.
The Nato action did not prevent the humanitarian tragedy; it is arguable that it accelerated Serb ethnic cleansing. Even if the urgent-necessity defence were accepted, the alleged necessity was to "avert" a catastrophe which has now occurred. Reversing the ethnic cleansing will at best take months or years; the use of further force to restore the peace in Kosovo is a matter for the Security Council, not for Nato; Nato had no Security Council authority for starting the bombing, and clearly has no present UN authority to continue it, or to intensify it, let alone to start a ground war.
The "minimum force" argument had some validity at the start of the campaign, when Nato was indeed using highly discriminate bombing, focused on defined military targets. However, this bombing has been escalated, and has become less discriminate. Last Wednesday in Washington General Wesley Clark told the Nato Ambassadors that "he would be asking soon for permission to go after targets that in the past had been rejected because attacking them had higher risks of collateral damage". That means there will be more civilian casualties, not as an accident, but as the fully foreseen consequence of intensified bombing.
Last week a Gallup poll in the United States showed that 82 per cent would favour a temporary suspension of airstrikes to allow negotiations. That would also allow the dispute to be referred back to the Security Council. However unwelcome the conclusion may be, Nato has no authority in international law for the bombing; the Security Council does. At least in theory, the Nato leaders, under the Nuremberg ruling, are open to a similar indictment to the one which has been brought against President Milosevic; their decision to act without UN authority will certainly be quoted in his defence.
An even more dangerous conflict has to be resolved in Kashmir, where both parties are nuclear powers. In the 20th century, painfully and falteringly, mankind has developed a system of international law under the United Nations to maintain peace and protect human rights. As a subordinate arm of that law Nato is invaluable; as a mutineer against that law Nato would be doomed. |
