CYIL 2012

ARMED INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW intervention and success of reconstruction efforts serve as a reason for justification, despite the disputed legality of such intervention. For some states and legal scholars, Kosovo is “an example of an excusable breach” of the UN Charter. 54 UN Secretary– General Kofi Annan refused to condemn NATO’s intervention, stating that there “are times when the use of force may be legitimate in the pursuit of peace”. Also the UNSC rejected a proposal of resolution supported by Russia and China that NATO’s intervention “was a flagrant violation of the UN Charter and a threat to peace and security”. 55 Despite the legal controversy, some states and authors considered that this and other unauthorised interventions were justified. They support the idea of humanitarian intervention in cases of massive and systematic violations of human rights even without UNSC authorisation. For example, T. Franck stated that from the Congolese Katangese war of 1960-2, through UN interventions in Somalia, Haiti and Albania, the “international system may lawfully intervene in situation of cataclysmic civil strife and other massive violations of human rights”. In connection with the planned extermination of Tutsi in Rwanda, he put forth the question: “what would have happened in Kosovo had NATO not acted unlawfully, in the face of a threatened veto preventing forceful measures against the perpetrators?”. With regard to Art. 51 he noted: “The strict letter (of Charter Art. 51) limits the right of self-defence to situations in which an armed attack has already occurred and where the attacker is another state. Such a law might be clear, but it is nonsense in the contemporary context”. 56 UNSC resolution 1244 (1999) only additionally “authorized” an international security action and “international civil presence” in Kosovo. With regard to new trends it is necessary to also mention the controversial concept of a “responsibility to protect” civilians during conflicts, which is contested by many governments (particularly in Asia and Latin America) and many international lawyers. This new “doctrine” emphasises a duty of every state inherent in state sovereignty to safeguard the lives and livelihoods of civilians. If this obligation is not fulfilled, the governments authorised by the UN have the right to act including the use of military force. The Report of the High-level Panel on Threats, Challenges and Change mentioned in 2004 “the emerging norm” of an international responsibility to protect in the case of genocide, other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which governments have proved powerless or unwilling to prevent. 57 The former Secretary General supported this idea in his report 54 See note 48, p. 38, 53-4. 55 Annan K. A., The Questions of Intervention: Statements by the Secretary – General 1999, Res. of the UNSC 1244 (1999), p. 37. 56 Ibid. p. 100. 57 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (ICSS), The International Development Research Center, Ottawa, December 2001; UN Doc. A/60L.1, 2005 World Summit Outcome, 20. Sept. 2005. A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, see http://www.un.org./secureworld/report.pdf.

79