CYIL 2012

ARMED INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW Kosovo as a precedent, relying on humanitarian intervention and so-called implied authorisation by the UNSC. The attempt to condemn the NATO action by resolution of the UNSC failed, yet it was a clear indication of uncertainty and deadlock as to the legality of this action and “humanitarian aims” of high-level bombing. The USA and NATO states clearly prefer collective armed action when faced with extreme humanitarian situations on a large scale. Many states considered the NATO action in Kosovo as illegal. As Ch. Gray said, “the doctrine of humanitarian intervention therefore remains controversial”. 61 Many scholars argue against legalisation of unilateral humanitarian intervention and also many governments oppose this legalisation. But there are also lawyers who contend that “encouraging aggressively minded states to justify force as an exercise of humanitarian intervention can facilitate conditions for peace” and that “legalizing unilateral humanitarian intervention could significantly inhibit recourse to war by such states”. 62 It is not quite clear how to understand the term “unilateral humanitarian intervention”. Is it intervention of one state only? There is the opinion that this notion refers to the “threat or use of force by one or more states acting without SC authorization.” 63 The use of force principle is nowadays challenged mainly through the practice of intervention. International law is indeed non-static. The development in the sphere of international human rights protection generated a tendency to cover even illegal use of armed force by describing it as “legitimate”. The proponents of military interventions predict an international law development towards international legitimation of forcible humanitarian measures, from political legitimacy to legality. A. Cassese even replaced the proverb “Ex injuria jus non oritur” with a modified one: “Ex injuria jus oritur”. 64 This opinion indicates possibility of further development of international law from “legitimacy” to “legality”. This approach supports the argument that the NATO action, even if illegal (Kosovo) was justified from an ethical view. In the Report of the Secretary-General on “Implementing the responsibility to protect” (R2P), it was stated that a precondition for “collective” and “non-peaceful” action was a finding that peaceful measures were “inadequate”. The Report expressed rather cautious position as to the possible use of armed force. 65 Should the UNSC remain inactive the aconcept of responsibility to protect involves the possibility to react, to engage in humanitarian intervention. In the Outcome document of the World Summit in New York in Sept. 2005 it was stated, inter alia: “…we are prepared to take collective action, in a timely and decisive manner, through the Security Council, 61 Gray Ch., see note 25, p. 36. 62 Goodman R., Humanitarian Intervention and Pretext for War, AJIL , Vol 100, 2006, No. 1, p. 106. 63 Byers M. L. Chesterman S., Changing the Rules About Rules 2 Unilateral Intervetion and the Future of International Law, in Holzgrefe J.L. Keohane R.O. (ed.), Humanitarian intervention: Ethical, Legal and Political Dimensions , 2003, p. 177-8. 64 Cassese A. Ex injuria jus oritur:Are we moving Towards International Legitimation of Forcible Humanitarian Measures, EJIL 1999, No.1, p. 23. 65 UN Doc. A/63/677, 12 January 2009.

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