IV Kosovo

The Problem

Kosovo was an autonomous province within the Federal People’s Republic of Yugoslavia but in 1989 the President of Serbia retracted the autonomous status.[115 Ninety percent of the Kosovar population was Albanian.[116] Kosovo was run as a police state by the Serbian authorities and in response to discrimination and abuse the Albanian community created their ‘own parallel political structure’ and in 1997 the Kosovo Liberation Army (KLA) began ambushing the police and demanding independence.[117] The State police responded in a brutal manner resulting in internal fighting.[118] Under the Holbrooke Agreement the Government agreed to withdraw troops and the KLA declared ceasefire.[119] In January 1999 forty-five unarmed Albanians were killed,[120] prompting further political negotiations-the Rambouillet conference. The Albanian delegation signed the agreement but the Serbian Government refused.[121] During the negotiations Government forces positioned themselves around Kosovo’s borders.[122] The Austrian Government warned of a large scale offense and the German Government revealed the Serbian Authorities plans for ‘Operation Horseshoe’- a plan to expel all Albanians from Kosovo.[123]  In March Government forces launched their ‘methodically planned and well implemented campaign,’[124] to ethnically cleanse Kosovar Albanians by forcing them out of the country and preventing their return.[125] Rape was used as a weapon, HRW documented 96 rapes but predict the actual number to be much higher.[126] The death toll is disputed; NATO estimated 100,000, HRW documented 3,453 (although they predict the number to be much higher[127] and the Independent International Commission of Kosovo estimated 10,000, the majority being Albanian.[128] Forty percent of residential homes were damaged or destroyed.[129] By the start of April 634,000 people had been displaced,  and at the end of April UNHRC reported of 367,000 refugees in Albania, 142,650 in the Former Yugoslav Republic of Macedonia, 15,000 in Bosnia, 63,000 in Montenegro and 650,000 internally displaced in Kosovo.[130]  In total the Government forces expelled ninety percent of the Kosovo Albanian population. [131]

Legal Option

Intervention with SC Authorisation

The UN had been recommended to intervene to prevent genocide and gross human right violations therefore the SC should have determined a threat under Article 39. The strength and violent nature of the campaign made it unlikely that Article 41 measure would to succeed, creating the legal basis for the use of force under Article 42.  The SC could have authorised the use of force under Chapter VII and requested state troop contribution. The crisis was evolving rapidly and it would have taken prolonged period of time for the SG to coordinate fully equipped troops under UN command, therefore authorising a regional organisation Chapter VII would have been more efficient.  This was a viable option. The North Atlantic Council authorised activation orders for North Atlantic Treaty Organisation (NATO) airstrikes on the 13th of October 1998, which were suspended following the Holbrooke agreement.[132] NATO and the Government agreed on veritification flights.[133] NATO had the resources and plans in place for air strikes before the large scale ethnic cleansing started therefore the SC could have immediately authorised force under Chapter VIII. SC authorisation was not a realistic prospect; China and Russia were likely to veto. The Russian Prime Minister stated they were ‘categorically against the use of force in Yugoslavia,’ and claimed not all political means had been exhausted.[134] The Chinese Foreign Minister claimed military action in Yugoslavia would ‘violate the UN Charter and other universally acknowledged norms of international law.’[135]

Other possible legal arguments 

Genocide Convention 

The scale and systematic nature of the operation shows a well planned and coordination campaign with the intention to destroy the group within the meaning of Article 2. During the 1998 the main target was KLA members and supporters- a political group,[136] however the campaign launched in March extended to targeting civilians for the sole reason they were Albanian- an ethnical group under Article 2. The widespread killings and summary executions violated Article 2(a), however the scale of these killings is contested. Rape violated Article 2(b)[137], however the number of reported incidents are low. The forced expulsions violated Article 2(c). During a conflict it is difficult to ascertain the number of deaths or rapes committed but the sharp rise in refugees indicated mass expulsion. Military action was the only realistic prospect of halting the acts, placing a moral obligation on the SC to authorise force. It is unclear whether the scale of the killings and rapes were widespread enough to constitute genocide. However the IC and the SC also have a moral obligation to act during gross violations of human rights.

Unauthorised Humanitarian Intervention

A state, a coalition or regional organisation could have intervened justifying it on a right of humanitarian intervention in customary law. However the lack of state practice and opinion juris makes this argument controversial and vulnerable to being considered illegal. Claiming a customary right would have contributed to its development and crystallisation. Perhaps a more legitimate and possible legal argument was implied SC authorisation from a SC Article 39 determination and inadequacies of Article 41 measures.

Response

The SC condemned the attacks on civilians and acting under Chapter VII created an arms embargo,[138] latterly the situation was determined to constitute a threat under Article 39.[139] Resolutions 1160 and 1199 threatened the consideration of additional measures in the event of non-compliance.[140] The SC endorsed the Holbrooke agreement and the OSCE and NATO veritification missions under Chapter VII.[141] The SG reported of no improvement to the situation, warning that if the situation was to escalate humanitarian action would not be able to meet the resulting need.[142]

NATO launched ‘Operation Allied Forces’ (OAF), a 78 day air strike campaign, with the objective of, inter alia, stopping ‘all military action, violence and repression.’[143] NATO used the ‘most advanced precision guidance systems,’[144] to target the infrastructure and equipment used to coordinate and conduct the campaign.[145] Ground forces were not considered because of the likely opposition from Russian and the Yugoslav forces,[146] likely loss of US congressional support and FRY Macedonia refused the use of its’ territory for the mounting of an operation.[147] NATO did not seek SC authorisation, the Secretary General claimed NATO had ‘an obligation to act’[148] to protect ‘ethnic Albanians from ethnic cleansing.’[149] NATO claimed the action was in support of the IC’s political aims, namely SG statements.[150] The UK Prime Minister proclaimed three reasons for the use of force; to avert a humanitarian disaster, to prevent spill over effects in the Balkans and the whole or Europe and because the UK was committed to a ‘promise’ that it would ‘not tolerate the brutal suppression of the civil population.’[151] The first was a legal justification, the second political and third moral.[152] The UN Permanent Representative of Slovenia accused Russia and China of abusing their veto power and failing their special responsibilities as members of the SC.[153] Russia submitted a draft resolution calling for an immediate halt to the air strikes; it failed 3-12.[154] The SG stated ‘there are times when the use of force may be legitimate’ however the SC ‘should be involved’ in decisions.[155] Yugoslavia invoked proceedings against some NATO countries.[156] Belgium invoked the use of the language ‘impending humanitarian catastrophe’ in Resolutions 1199 and 1203 as supporting the existence of a ‘state of necessity,’ which justified the use of force[157]- thus invoked implied SC authorisation as a legal justification.[158] Other states failed to invoke legal justifications and the ICJ did not declare the intervention as illegal.[159]

The air campaign was suspended in June and Serbian forces withdrew.[160] The SC welcomed the NATO and Government agreement and under Chapter VII authorised the establishment of security presence.[161]

China abstained  NATO created a security presence ‘Kosovo Force’ (KFOR),[162] this was separate to but in support of, the UN Mission in Kosovo (UNMIK).[163] On the 17th of February 2008 the Kosovo declared itself an independent and sovereign state.[164]  Kosovo’s independence has been recognised by 75/192 UN members.[165]

Outcome

The International Committee of the Red Cross (ICRC) said justifications based on ‘humanitarian catastrophes’ have ‘no legal significance’ and the human rights abuses were not on a scale that justified any military action- even with SC authorisation.[166] The International Independent Commission on Kosovo (Commission) concluded OAF created an ‘internal environment’ that made the ethnic cleansing campaign ‘feasible.’[167]  ICRC claimed NATO violated international humanitarian law namely of Articles 51, 52 55 and 56 of Additional Protocol 1 (1997) of the Geneva Conventions (1945). [168] The Commission criticised the ‘exclusive reliance of air power’ because it ‘proved incapable’ of stopping the expulsions and ethnic cleansing. [169]

The Commission considered legality as ‘matter of degree’- noting the way international law is formed. [170]

Following the intervention the law was in a ‘gray zone of ambiguity,’ where strict ideas of legality have been extended ‘to incorporate more flexible views of legitimacy.’[171] Contributing factors were Chapter VII resolutions, the rejection of the Russian draft resolution, and Resolution 1244.[172] The degree of legality had not extended to custom because non-Western countries did not support the doctrine[173],  mostly because of a stronger commitment to sovereignty.[174] The Commission recognised the only way to enhance the legitimacy of HI was to equalise global military capabilities, suggesting the creation of a ‘UN standing army.’[175] Roberts warned that shifting focus away from legality to legitimacy creates legitimacy ‘as an independent source of authority in international law.’ [176]

The ‘most convincing’ legal justification was the SC Article 39 determination of a threat, which created the opportunity for the legal use of force, thus it was ‘legally relevant’ that the SC were treating Kosovo under Chapter VII.[177] The Commission rejected the notion of implied SC authorisation, warning it would increase the use of P5 veto.[178] NATO wanted the intervention to be treated as an exception,[179] (the German Foreign Minister explicitly stated NATO’s intervention ‘must not become a precedent’[180]), however it is impossible to prevent states invoking the intervention as a state practice;[181] this view is also supported by Roberts.[182] Bilder warned that unauthorised interventions undercut the UNs authority,[183]

however Wheeler stressed inaction by the SC also undermines the UN’s authority. [184]

The Commission suggested for an intervention to be legitimate ‘threshold principles’ should be satisfied; protection of the population is the overriding aim, violations of human rights and humanitarian law are ‘substantial’ and the catastrophe must be ended as quickly as possible.[185] ‘Contextual principles’ ‘enhance or diminish the degree of legitimacy,’[186] inter alia; failure of peaceful solutions and inconclusive recourse to the UN (SC failure to authorise because of or in anticipations of, a P5 veto or when subsequent appeal to the GA would not be practical).[187]

The Commission suggested the UN Charter should be reformed to ‘enhance the role of human rights in their own right within the collective security system.’[188] The amendments would ‘put pressure on and make it possible’ for the SC to invoke human rights and humanitarian law violations as direct reasons for taking action.[189] Article 24(1) could be extended to include ‘respect for fundamental human rights’ within the SCs primary responsibility and Article 39 could permit the SC to determine the existence of any ‘serious violation of human rights.’ [190] The Commission urged the IC to clarify the law. 

Conclusion 

The UN failed to intervene to protect civilians. NATO claimed they had an obligation to intervene to protect, and the intervention put the law into a gray zone with tensions between legality and legitimacy. To ensure interventions are legitimate threshold and contextual principles should be satisfied and to equalise global capacity a UN standby force should be created. The law needed urgent clarification. 

---

[115] European Navigator, Yugoslav Conflict <http://www.ena.lu/  (last accessed 16/4/11)

[116] Dr.Smith ‘Kosovo Renewed Conflict’ Conflict Studies Research Centre, Occasional Brief 58 (May 1998) p.1

[117] HRW ‘Kosovo: Rape as a weapon of ethnic cleansing’ (1 March 2000) <http://www.hrw.org/legacy/reports/2000/fry/ p.1> (last accessed 26/2/11) 

[118] Ibid 

[119] House of Commons (HC) ‘Kosovo; NATO and Military Action’ Research Paper 99/34 (24 March 1999) p.8  

[120] Ibid p.11

[121] Ibid p.12-17  

[122] HRW ‘Under Orders: War Crimes in Kosovo’  (1 October 2001)  <http://www.hrw.org/legacy/reports/2001/kosovo/> (last accessed 3/2/11) see Background 

[123] Ibid

[124] HRW n.121 see executive summary

[125] Independent International Commission on Kosovo ‘The Kosovo Report: conflict, international response and lessons learned’ OUP (2000) p.88

[126] HRW n.116 p.3 

[127] HRW n.121 see executive summary  

[128] Commission n.124 p.91 

[129] Ibid 

[130] House of Commons  ‘Kosovo: Operation “Allied Force”’ Research Paper 99/48 (29 April 1999) p.13,31

[131] HRW n.121 executive summary

[132] NATO ‘The Kosovo Air Campaign’  <http://www.nato.int/cps/en/natolive/topics_49602.htm#objectives> (last accessed 26/2/11)  

[133] ‘Operation Eye Eagle-The NATO Veritification Mission’ <www.afsouth.nato.operations/deleagle/nato.int/archives/Eagle.htm> (last accessed 14/3/11)  

[134] Russian Public TV, BBC World Summary of World Broadcasts, 22 March 1999 

[135] BBC World Summary of World Broadcasts 12 October 1998  

[136] Political groups are not included in Convention

[137] Akayesu Judgement Case No.ICTR-96-4-T

[138] S/RES/1160 31 March 1998 para.8 

[139] S/RES/1199 23 September 1998 

[140] 1160 para.19 and 1199 para.16

[141] S/RES/1203 24 October 1998 

[142] S/1998/1221 24 December 1998 para.34 

[143] NATO n.131 

[144] Ibid  

[145]NATO Secretary-General ‘Humanitarian Situation’ (Published in the International Press 12 May 1999) <http://www.nato.int/kosovo/articles/a990521a.htm>  (last accessed 28/2/11) 

[146] HC n.118 p.25

[147] HC n.129 p.58,66 

[148] NATO n.144 

[149] NATO n.131

[150] NATO ‘The situation in and around Kosovo’ Press Release M-NAC-1(99)51 17 April 1999 <http://www.nato.int/docu/pr/1999/p99-051e.htm>(last accessed 14/4/11)

[151] HC Debate 19 Oct 1998 c.953 

[152] HC n.118 p.27 

[153] S/PV.3988 24  March p.6-7

[154] HC n.129 p.11 

[155] Reported by the Guardian 25^th March 1999 

[156] Legality of the Use of Force (Yugoslavia v Belgium, Canada, France, Germany, Italy, Netherlands, Spain, United Kingdom, Unites States of America) 1999 <http://www.icj-cij.org> (last accessed 16.4.11)

[157] Legality of the Use of Force (Yugoslavia v Belgium) Request for the Indication of Provisional Measures, Oral Proceedings CR 1999/15

[158] A.Roberts ‘Legality vs Legitimacy: Can use of Force be illegal but justified?’ in Alston n.5 p.202  

[159] Ibid p.202,190 

[160] NATO ‘NATO’s Role in Kosovo’ <http://www.nato.int/cps/en/natolive/topics_48818.htm> (last accessed 14/2/11) 

[161] S/RES/1244 10 June 1999 para.7.

[162] NATO n.159 

[163] UNMIK ‘UNMIK at a glance’ <http://www.unmikonline.org> (last accessed 18/4/11) 

[164]BCC Full Text; Kosovo Declaration 17^th Feb 2000 <http://news.bbc.co.uk/1/hi/world/europe/7249677.stm> (last accessed 14/4/11)

[165] Kosovo Thanks You ‘Who has recognised Kosovo as an independent State?’ <http://www.kosovothanksyou.com/>(last accessed 5/3/11) 

[166] ICRC Public ‘Statement of the ICRC on the situation in Kosovo’ (31 December 1998) Article, International Review of the Red Cross No.325  

[167] Commission n.124 (initiated by the Swedish Prime Minister) p.88-89 

[168] ICRC n.165

[169] Commission n.166 p.289 

[170] Ibid 172 

[171] Ibid 164 

[172] Ibid p.171-172  

[173] Ibid p.170

[174] Ibid p.296

[175] Ibid p.297 

[176] n.157 p.212 

[177] Commission n.166 p171,172 

[178] Ibid p.173

[179] Ibid p.174

[180] Deutscheur Bundestag, Plenarprotokoll 13/248,16 October 1998, 23129 quoted in Roberts n.157 

[181] Commission n.166  p.174 

[182] Roberts n.157 p.212 

[183] R.Bilder The Implications of Kosovo for International Human Rights Law in Alston n.5 p.151  

[184] N.Wheller ‘Humanitarian intervention after Kosovo: emergent norm, moral duty of the coming of anarchy?’ International Affairs pp.113 77(1) 2001 p.199

[185] Commission n.166  p.193-194  

[186] Ibid p.193 

[187] Ibid p.194-195 

[188] Ibid p.196 

[190] Ibid  

III. Rwanda

The Problem


On the 6th April 1994 President Habyarimana’s plane was shot down, the interim government blamed the Rwanda Patriotic Front (RFP) and within hours the ‘orchestrated campaign of killing began.’[56]  The Presidential Guard (PG) and the party militia killed 20,000 people in a week.[56] The PG trained party militia to kill and the Government distributed fire arms.[58] The massacres included the slaughter of 2,800 people in a Kibungo Church. [59] By the end of April the PG and militia began ‘cleaning up’ the surviving Tutsis.[60] In the 100 days of slaughter estimated death tolls include 80,000 (UN), 1 million (Rwandan Government) and nearly 2 million (2008 AERG estimate).[61] Up to 500,000 women were raped.[62] Approximately 2 million people fled their homes; central Rwanda had 500,000 displaced persons, 200,000 people sought refuge in RPF controlled areas, 250,000 fled to Tanzania, 8,500 to Zaire, 6,500-10,000 to Uganda and up to 47,000 to Burundi. [63] Refugee camp conditions were ‘atrocious’ and Hutu gangs continued to slaughter Tutsi’s in the camps. [64] In July RPF had gained control over a majority of the territory then declared a ceasefire and on the 19th the new Government of Unity was formed.[65]

Legal Option

Intervention with SC Authorisation

A peacekeeping force was present when the slaughter began; UNAMIR (United Nations Assistance Mission in Rwanda) under a Chapter VI mandate.[66] Support for UNAMIR was conditional upon cooperation and implementation of the Arusha Accords.[67] On the 20th April (14 days into the slaughter) the SG considered the options available to UNAMIR.[68] An option articulated was a HI, recognising that;

‘the situation could only be changed by immediate and massive reinforcement of UNAMIR and a change in its mandate so that it would be equipped and authorised to coerce the opposing forces into cease fire.’ [69]

This would require a Chapter VII mandate. The SG recognised the repercussions in neighbouring countries would create regional instability,[70] suggesting satisfaction of Article 39.  Rwanda’s UN representative and the President of Uganda urged for UNAMIR reinforcements.[71] Spain, New Zealand, Argentina and Czech Republic unsuccessfully proposed a resolution to mandate reinforcements.[72] SC authorisation was not a realistic prospect due to the position of the P5, notably the US and France. The new US Government Policy Presidential Directive 25 (PPD 25) restricted support for UN missions.[73] The PPD25 was generated from congressional hostility towards UN missions since the murder of 18 US soldiers in the UN peacekeeping mission in Somalia in 1993.[74] Chapter VII missions could only be supported if they advanced national interests, if international inaction would have to be deemed ‘unacceptable’[75] and it had political support. [76] US policy showed ‘geopolitical indifference’ to Africa and no national interest was at stake.[77] The PDD 25 ‘deterred the UN Secretariat from advocating stronger measures.[78] France was Rwanda’s ‘closest ally, militarily, politically and diplomatically.’[79] When the anti-Tutsi violence increased the French expanded their support for the abusive government and supplied arms until 3 months into the genocide.[80] France wanted to maintain its diplomatic relations with Rwanda and was unlikely to support a multilateral intervention. 

The SG proposed two further options; the withdrawal of the majority of UNAMIR personnel, but continuance of UNAMIR by 270 personnel or the complete withdrawal of UNAMIR.[81] The SG did not favour complete withdrawal, identifying the consequences; severe loss of life and repercussions in neighbouring countries. [82] These consequences should have also been given strong consideration in relation to majority withdrawal given the realities of what 270 personnel could realistically achieve. 

Other Possible Legal Arguments 

The Genocide Convention 

Members of the international community were aware of Article 3 crimes being committed prior to April. The International Community received many ‘warnings,’ including reports of the Government arming and training the militia, radio broadcasts inciting Tutsi extermination and Senior Officials in the PG reported the planned massacre.[83] The acts were genocide within Article 2 because they were commitment with intention to destroy the Tutsi ethnic group and the killings violated Article 2(a) and the rapes violated Article 2(b). States had a legal and moral obligation to stop the genocide and the use of force was the only realistic option of immediately halting the acts, placing a moral obligation on the SC. 

Unauthorised Intervention

A state or a coalition of states could have intervened by claiming the right of humanitarian intervention in customary law. This would have been be a controversial and uncertain legal argument but the state practice and opinion juris of the intervention on would have contributed to the creation of a customary right. States conducting the intervention could have possibly claimed implied SC authorisation, if the SC had determined the situation satisfied Article 39 and Article 41 measures were proving inadequate. A successful intervention requires immediate deployment of large troops; this was not realistic option because states with the capacity to intervene had little interest in contributing.  

Response 

The SG described the ‘widespread killings’ as having ‘political and ethnical dimensions.’[84] The Belgian contingents withdraw after the murder of ten peacekeepers, reducing force strength to 1,515,[85] then resolution 912 authorised the removal of UNAMIR except 270 personnel.[86] The SC were ‘appalled’ but emphasised the ‘crucial importance’ of the peace agreement.[87] The SG stressed measures had to be taken before a ceasefire was achieved and outlined UNAMIR II proposals;  Chapter VI mandate authorising 5,500 troops, with no enforcement action but with the ability to take action against threats to populations.[88] The SG stressed the atrocious effects on innocent civilians could not be ignored.[89] Resolution 918 expanded UNAMIRs mandate and authorised 5,5000 troops.[90] Resolution 918 used the language of the Genocide Convention but failed to us the word of ‘genocide’ and determined the situation a ‘threat to peace and security.’[91] Two months after the genocide began; the SC finally recognised the situation as genocide in resolution 925.[92] The SG only received one offer of fully equipped troops (Ethiopia) and several conditional offers, the US offered fifty armoured personnel carriers and France offered to pay for 200 equipped Senegalese men.[93] Governments are expected to make unconditional offers of fully equipped troops but states possessing the capacity failed to offer.[94]

In June the SC welcomed the offer of establishing a ‘temporary operation under national command’ to secure the protection of displaced persons, refugees and civilians and authorised Chapter VII action to take ‘all necessary means to achieve the humanitarian objectives.’[95] Initially proposed as a multilateral force only the French intervened: Operation Turquoise,[96] it established a ‘humanitarian protection zone’ over one fifth on Rwandan territory, which was assumed by UNAMIR in August and UNAMIR reached full strength in October 1995.[97]

Outcome

The Independent Inquiry (Inquiry) was mandated to establish the role of the UN during the genocide.[98]

The UN failed to acknowledge and respond to the genocide.[99] ‘The SC has a particular responsibility, morally if not explicitly under the Convention, to react against a situation of genocide.’[100] The International Panel of Eminent Personalities (Panel), (created by the Organisation of the African Unity) found the UN took for granted that the killings were a ‘by-product of the war’ failing to understand that an outright genocide was occurring independently of the war.[101] The US had amble information about the genocide, with direct knowledge humanitarian organisations, for example HRW[102] but genocide was not admitted to prevent a subsequent obligation of intervening.’[103] The SG labelled the failure to intervene ‘tragic’ considering most UN members are party to the Genocide Convention.[104]

The IC failed to contribute resources to UNAMIR; states lacked national interest and showed ‘double standards.’[105] The resources contributed to Operation Turquoise should have been contributed to UNAMIR. [106] Operation Turquoise was not a true humanitarian intervention because its ‘humanitarian motives’ were ‘highly suspect.’[107] The Panel found many members of the genocidaire regime, fled to the ‘humanitarian safe zone’ and French troops assisted their escape into Zaire.[108]

The Inquiry recommended the creation of an action plan for the prevention of genocide.[109] ‘Lessons from Rwanda and The UN and the Prevention of Genocide’ programme[110] was established by the GA in 2005. [111] The programme outlines a five point prevention plan; prevent armed conflict, protect civilians, end the culture of impunity, create early warning systems and ‘take swift actions including military force.’[112] The Inquiry concluded the UN ‘must be prepared to act to prevent acts of genocide or gross violations of human rights.’[113] In response to the Inquiry the SG outlined the UN’s commitment to ‘never again fail in protecting a civilian population from genocide or mass slaughter.’[114]

There was no humanitarian intervention in Rwanda. The IC failed to recognise the situation as genocide; states party to the Convention had a legal obligation to prevent the genocide and the SC had at least a moral obligation to act. The IC should intervene to protect civilians from genocide and gross violations of human rights. The UN committed to never again fail to protect.

---

[56] Amnesty ‘Annual Report for Rwanda 1995’ <http://www.amnestyusa.org/annualreport.php?id=ar&yr=1995&c=RWA> (last accessed 10/10/10)

[57] Human Rights Watch (HRW) ‘Genocide in Rwanda’ (May 1994) p.2 <http://www.hrw.org/en/reports/1994/05/01/genocide-rwanda> (last accessed 15/10/10>)
[58] Ibid
[59] Ibid p.4
[60] Ibid p.6
[61] Survivors Fund ‘Statistics on Rwanda’  <http://www.survivors-fund.org.uk/resources/history/statistics.php> (last accessed 12/11/10)
[62] Ibid
[63] HRW n.56 p.9
[64] Amnesty n.55
[65] Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda S/1999/1257 15 December 1999

[66] S/RES/872 5 October 1993 para.2-3

[67] S/RES/893 6 January 1995 para.3

[68] S/1994/470 20 April 1994
[69] Ibid para.13
[70] Ibid 
[71] Ibid para.14 
[72] L.Melvern A People Betrayed: The Role of the West in Rwanda’s Genocide (Zed Books, London 2000) p.214 
[73] The White House, Washington, May 3, 1994, no.20482, Presidential Decision Directive/NSC-25 <http://www.fas.org/urp/offdocs/pdd/pdd-25.pdf> (last accessed 6/4/11) 
[74] International Panel of Eminent Personalities ‘Rwanda: The Preventable Genocide’ (July 2000) para.12.33 <http://www.africa-union.org/official_documents/reports/Report_rowanda_genocide.pdf> (last accessed 12/12/10)
[75] PPD25 n.72 Annex I A,H
[76] Ibid Annex II E
[77] Panel n.73 para.12.32-12.33 
[78] Ibid para.12.36
[79] Ibid para.12.4
[80] Ibid 12.26,12.28
[81] SG n.67 para.16,19
[82] Ibid para.19
[83] A.Deforges ‘Leave None to Tell the Story’ (1999) see Warnings <http://www.hrw.org/legacy/reports/1999/rwanda/> (last accessed 1/11/10)
[84] SG n.67 para.2
[85] Ibid para5,7
[86] S/RES/912 21 April 1994 para.8
[87] Ibid para.10 
[88] S/1994/565 13 March 1994 para.4,11,16,15
[89] Ibid para.31
[90] S/RES/918 17 May 1994 para.3-5  
[91] Ibid  
[92] S/RES/925 8 June 1994  
[93] S/1994/728 20 June 1994 para.6 
[94] Ibid para.10             
[95] S/RES/929 22 June 1994 para.2,3 
[96] Panel n.73 para.15.66
[97] UNAMIR ‘Historical Background’ <http://www.un.org/en/peacekeeping/missions/past/unamirFT.htm> (last accessed 6/5/11)
[98] Inquiry n.64 set up by the SG under the authority of S/RES/935 1 July 1994 para.1 p.4#
[99] Ibid p.35  
[100] Ibid  
[101] Panel n.73 para.15.12  
[102] Ibid para.15.16 
[103] Ibid para.15.17 
[104] S/1994/924 3 August 1995 para.29
[105] Inquiry n.64 p.43-44
[106] Ibid p.49 
[107] B,Jones ‘Intervention without Borders’: Humanitarian Intervention in Rwanda’ 1990-94 Journal of International Studies Vol.24 (1995) No.2 pp.225  p.231  
[108] Panel n.73 para.15.68 
[109] Inquiry n.64 p.53
[110] Information and educational outreach programme run by the UN Department of Public Information <http://www.un.org/preventgenocide/rwanda/about.shtml > (last accessed 6/5/11) 
[111] UNGA/RES/60/225 23 December 2005 
[112] Prevention of Genocide n.109
[113] Inquiry n.64 p.53 emphasis added
[114] 16^th Dec 1999  <http://www.un.org/News/ossg/sgsm_rwanda.htm>  (last accessed 5/4/11) emphasis added 

II. Identifying the Law

International law concerns the rules and norms regulating the conduct of states.[2] Article 38 of the Statute of the International Court of Justice (ICJ) identifies the sources of international law; ‘international conventions,’ ‘international custom (as evidence of general practice accepted as law),’[3] ‘general principles of law’ and ‘judicial decisions’ and highly qualified academic publications.[4]


Humanitarian Intervention (HI) is;
‘the threat or use of force across state borders by a state (or group of states) aimed at  preventing or ending widespread and grave violations of fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied.’ [5]


HI is a ‘pressing legal challenge in international law,’ the challenge arising from the tension between human rights, sovereignty and security.[6] Human rights have gained increased importance globally[7] and international human rights law has developed out of necessity when states fail to protect their citizens.[8] Although legal instruments and enforcement mechanisms exist (for example International Covenant on Civil and Political Rights and Optional Protocol 1[9]), they can only protect and punish ‘normal’ human rights violations (sporadic and individual)[10] thus leaving a void in the law for protecting citizens against mass human rights violations.[11]


The law relating to the use of force is outline in the United Nations (UN) Charter, an international convention which created the international organisation the UN.[12] The preamble outlines the ambitions of the UN to ‘save succeeding generations from the scourge of war’ and ‘to reaffirm faith in fundamental human rights.’ Article 1(1) declares the UN’s purpose, including, maintaining international peace and security by ‘taking effective collective measures’ to prevent and remove ‘threats to peace,’ acts of aggression or ‘other breaches to the peace.’ Article 2(1) requires states to respect ‘the principle of ‘sovereign equality’- this includes the right of a state to freely ‘choose and develop its political, social, economic and cultural systems.’[13] Article 2(4) prohibits the threat of or use of force against ‘the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.’ The violation of Article 2(4) constitutes an act of aggression and aggression cannot be justified by any consideration, whatever its nature, including political or other considerations.[14] The ICJ in Nicaragua concluded this prohibition was custom, with the Declaration on Friendly Relations resolution providing opinio juris.[15] Article 2(7) outlines the principle of non-intervention in domestic affairs, further confirmed in the Declaration on Friendly Relations.[16] An exception to the prohibition on the use of force is force authorised under Chapter VII.[17] Under Article 39 the Security Council (SC) is responsible for determining the existence of a threat to or breach of the peace, or an act of aggression. Upon such a determination Article 41 permits the use of non-forceful measures, but if non-forceful measures are or would be inadequate, Article 42 permits the use of force. Force is to be exercised by member states.[18] Article 43(1) obliges member states to have forces available for maintaining international peace and security; qualified to special agreements. Thus states should have ‘combat ready units,’ however no special agreement has ever been concluded and states have failed to make advanced preparations.[19] Instead the UN developed the practice of authorising states and regional organisation use force ‘in sharply defined situations’ and states volunteer forces.[20] Chapter VIII of the Charter concerns regional organisations and Article 53 permits the use of force by regional organisations with SC authorisation.


The development of peacekeeping must be noted. Peacekeeping has no express basis in the UN Charter however it is a significant part of the UN’s work, highlighted by the current fifteen operations.[21] Traditionally peacekeeping was impartial, required state consent and only light force was permitted in self defence.[22] However in 1992 the Secretary General (SG) declared ‘peacemaking’ as preferable[23], whereby peacekeepers can use force to enforce ceasefires instead of the traditional monitoring only.[24] Resolution 814 on Somalia created the first Chapter VII peacekeeping mission.[25]


The SC is conferred ‘primary responsibility for the maintenance of international peace and security’ by Article 24(1). The SC is composed of fifteen members, five of which are permanent (P5) (UK, US, China, France and Russia)[26] and the P5 must concurringly vote on SC resolutions, creating a veto power.[27] In the Namibia Advisory Opinion the ICJ confirmed that abstaining from voting does not constitute a veto.[28] Member states are legally bound to carry out SC decisions.[29] The SC explicitly authorised the use of force in the humanitarian catastrophes of Somalia[30] and Bosnia-Herzegovina.[31] Both missions were officially aimed at restoring peace and stability, with no explicit reference to protecting human rights. The SC’s powers to determine a threat under Article 39 have been extended by broadening perceptions of what constitutes a threat.[32] Alston asserts that mass human rights violations can legally constitute a threat because the preamble of the Charter ‘links peace and human rights’ making respect of human rights a precondition of peace.[33] Humanitarian concerns have been linked to international threats to peace and security to satisfy Article 39 by the SC. The SC noted that the humanitarian crises in Haiti ‘including mass displacement of population’ aggravated the threats to international peace and security and expressed concern of repercussions of refugee flows on the region.[34] In resolution 794 on Somalia the SC determined ‘the magnitude of the human tragedy’ equated to a threat.[35] Resolution 688, regarding Iraq, recognised the consequences of the repression, namely the mass refugee flows and cross border incursions, as creating a threat.[36] However in the event of SC failing to authorise a HI other justifications may be sought for intervening.


A further legal tool is The Convention on the Prevention and Punishment of the Crime of Genocide,[37] to which 137 nations are party.[38] Article 1 confirms genocide is a crime under international law and parties confirmed their intention to ‘prevent and punish it.’ Genocide is defined in Article 2 as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’  Intention equates to purposefulness, directly proven by orders or statements or ‘inferred from a systematic pattern of coordinated acts.’[39] The intention does not have to be to destroy the whole group but for government authorities intention to be satisfied a substantial part of that group must be affected.[40] National groups are connected by ‘a common country of nationality or national origin,’ members of an ethnic group are connected by ‘common cultural traditions, language of heritage,’ individuals of a racial group share the same ‘physical characteristics’ and a religious group ‘is defined by common religious creed, beliefs, doctrines, practices or rituals.’[41] Acts constituting genocide are[42];


a. ‘Killing members of the group,’ (‘includes direct killing and actions causing death’[43])
b. Causing them ‘serious bodily or mental harm,’ (including rape and sexual violence [44])
c. Inflicting deliberately ‘conditions of life calculated to bring about its physical destruction in whole or in part,’ (including ‘the deliberate deprivation of resources needed for the group's physical survival’ for example clean water or and the ‘deprivation of the means to sustain life’ for example by confiscating harvests, or forcible relocation.[45])
d. Preventing births within the group
e. ‘Forcibly transferring children of that group.’


Article 3 declares committing genocide, incitement to commit, intention of committing and complicity during genocide are punishable crimes. Article 8 permits UN member states to call upon the SC and GA to take appropriate action ‘for the prevention and suppression of genocide or any action under Article 3.’ The Convention creates a legal obligation on parties to prevent genocide, however wide discretion is afford upon deciding a preventative method. Genocide has the potential to, and should, constitute as a threat to international peace and security and require coercive action for prevention; thus placing the situation in the concern and ambit of the SC.  The SC has discretion to decide the ‘appropriate action’ under Article 8.  The Convention places a legal and moral duty on states to prevent genocide and a moral duty on the SC to authorise a HI when the use of force is the only effective preventative method.


A further potential option is unauthorised humanitarian intervention. Unauthorised humanitarian interventions could only be legal if HI was an established exception to Article 2(4) in customary law. Customary law is created by state practice and opinion juris. In 1971 India invaded East Pakistan, the main justification was self defence but necessity of stopping the genocide and human rights violations, and justifications based on the UNs failure to prevent were also articulated.[46] India received resentment from the international community (IC) who thought India was advancing national interests.[47] Vietnam justified the intervention in Cambodia on the basis of providing humanitarian support,[48] however the French warned of setting a dangerous precedent.[49] Although the US recognised the need to balance sovereignty and human rights protection,[50] the IC was generally suspicious of Vietnam’s motives.[51] When the collation intervened in Iraq (1991) the legal argument was implied SC authorisation, for example the UK justified committing forces ‘in response to the refugee crisis’ and claimed consistency with the objectives SC Res 688.[52] In Nicaragua the ICJ said for custom to be established the practice does not have to ‘show absolute conformity’ but should be generally consistent.[53] For a right of HI to exist ‘fundamental modifications’ to the customary principle of non intervention would be necessary.[54] The ICJ concluded HI was not customary law because states failed to justify the interventions ‘by reference to a new right of intervention or new exception.[55] Nicaragua confirmed there was not an existing customary right to conduct unauthorised interventions however the law could be modified through state practice and opinio juris.

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[2] R. Wallace and O. Martin-Ortega International Law (6^th Edition, Sweet & Maxwell 2009) p.2
[3] found in the states settled practice and opinio juris- the belief that the action is a legal obligation see North Sea  Continental Shelf Cases (Federal Republic of Germany v Denmark and the Netherlands) ICJ Report 1969, p.3 para.77
[4] 15 UNCIO 26 June 1945  All four sources contribute to the assessment of whether the international community is failing in its responsibility to protect.
[5] J.Holzgrefe ‘The Humanitarian Intervention Debate’, in J.L Holzgrefe and R.O Keohane Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Oxford University Press 2003
[6] E.Macdonald and P.Alston ‘Sovereignty, Human Rights, Security: Armed Intervention and the Foundational Problems of International Law’ in Alston.P and Macdonald.E Human Rights, Intervention and the Use of Force (OUP 2008) p.7
[7] Ibid
[8] H.Ruiz Fabri ‘Human Rights and State Sovereignty: Have the Boundaries been Significantly Redrawn?’ in Alston n.5 p.33
[9] Adopted General Assembly resolution 2200A (XXI) 16 December 1966
[10] Ruiz Farbi n.7 p.53
[11] Ibid
[12] 1945 862 UNTS 199 (adopted on 26 June 1945) available at www.un.org/aboutun/charter <last accessed 12/11/10>
[13] Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations UNGA Res 2625 (XXV) 24 October 1970
[14] Definition of Acts of Aggression 1 UNGA Res 3314 (XXIX) 14 December 1974 Article 1 and Article 5(1)
[15] Nicaragua v United States of America (Merits) (1986) ICJ Rep. 4 para.188 Declaration on Friendly Relations n.12
[16] Ibid
[17] Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. Note Pacific Settlement of Disputes is covered in Chapter VI
[18] Charter n.11Article 42
[19] Y. Dinstein War, Aggression and Self-Defence (4^th Ed Cambridge University Press 2005) p.305-306
[20] Ibid p.101
[21] 2011; <http://www.un.org/en/peacekeeping/operations/current.shtml>(last accessed 16/03/11)
[22] C.Gray International Law and the Use of Force (3^rd Ed. OUP 2008) p.282
[23] Agenda for Peace, ILM 1992 953 para.44
[24] Gray n.21 p.282-283
[25] S/RES/814  26 March 1993
[26] Charter n.11Article 23(1)
[27] Ibid Article 27
[28] Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding SC Res 276 (1970)  ICJ Rep 16 (1971) para.22
[29] Charter n.11 Article 25
[30] S/RES/794 3 December 1992 para.16
[31] S/RES/770 13 August 1992 para.1
[32] M.Shaw International Law (6^th Ed  Cambridge University Press 2008) p.1237
[33] Ruiz Fabri n.7 p.49
[34] S/RES/841 16 June 1993
[35] S/RES/794 n.29
[36] S/RES/688 5 April 1991
[37] (1948) 78 UNTS 277 <available at http://www2.ohchr.org/english/law/genocide.htm> (last accessed 13/2/11)
[38] for specific country membership see; <http://www.preventgenocide.org/law/convention/index.htm#ratifications> (last accessed 16/03/11)
[39] Genocide Watch ‘What is Genocide’   <http://www.genocidewatch.org/aboutgenocide/whatisit.html >(last accessed 10/11/10>)
[40] Ibid
[41] Ibid
[42] Genocide Convention n.36 Article 2(a-e)
[43] Genocide Watch n.38
[44] Ibid
[45] Ibid
[46] UNSCOR (XXVI) 1608 Mtg 6 December 1971 para.70,71
[47] Holzgrefe n.4 p.271
[48] UNSCOR (XXXIV) 2108^th mtg 11 January 1978 p.5 para.56
[49] UNSCOR (XXCIV) 2109^th mtg 12 January 1979 p4 para.36
[50] UNSCOR (XXXIV) 2110^th mtg 13 January 1979 p.6-7 para.65-75
[51] Holzgrefe n.4 p.218
[52] 1992 British Memorandum Increased Role of UN 2 Dec 1992, quoted in O.Corten  Human Rights and Collective Security: is there an emerging right of humanitarian intervention in Alston n.5 p.101
[53] Nicaragua n.14 para.186
[54] Ibid para.207
[55] Ibid