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JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
In connection with the problem of an armed intervention we may again pose
various questions: Was the NATO action e.g. in Kosovo: 1) legal, 2) legitimate? May
an unlawful (illegal) armed action (e.g. intervention) be legitimate? As a rule, the
answer would be mostly positive. In Kosovo NATO decided to act without UNSC
authorization. Is Kosovo now a precedent? Is an armed unilateral or even “collective”
intervention in the case of a “humanitarian catastrophe” legal or only “justified” by
“legitimate” reasons? When does an armed (humanitarian) intervention represent
a breach of international law and when not? In 2003 the war in Iraq was launched
by the US and a number of other states without any authorization of the UNSC.
The political justification was the contention that Iraq possesses weapons of mass
destruction in violation of the UNSC resolutions. These accusations were faulty. The
reports of the UNMOVIC and the IAEA were ignored by the Bush administration.
In 2003 Iraq was not capable of starting an attack on the US.
In the contemporary world the US has an enormous and absolute military
dominance and is ready and willing to use military force to enforce its interests.
It seems that after the collapse of the Soviet Union and the end of the Cold War
the security situation generally changed to worse. We are now facing a tendency
to limit the restrictions on the use of force laid down in the UN Charter. Since
the 1990’s there has been a tendency, mainly by the US and the NATO countries,
to increasingly resort to armed force and to intervene in the “failed” or “rogue”
states. Military interventions have been motivated mostly by humanitarian and
security concerns (mainly to root out terrorism). There is still no clear legal basis
for military interventions outside the authorization of the UNSC. The legal basis
for military intervention without UNSC authorization (e.g. Kosovo, Iraq) remains
highly controversial. Besides, many politicians (and international lawyers) prefer
the use of power in foreign policy, stressing the priority of national and security
interests. The legal status of military intervention poses a serious challenge to
contemporary international law, and, as said by former Secretary-General Kofi Annan,
it presents a “core challenge to the Security Council and the United Nations as
a whole…”
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The legal doctrine of humanitarian intervention, including the new
concept of “responsibility to protect”, remains controversial despite strong efforts
to legalize unilateral humanitarian interventions. We may often hear statements by
the US President and other US officials that in international relations “all options
are on the table,” which means that the US administration feels free to use force
if necessary, irrespective of whether an armed or imminent attack occurs, even
without authorization by the UNSC. Preemptive armed actions are considered to
be permissible.
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31
See UN Press Release SG/SM/7136, Sept. 20, 1999 quoted in AJIL, 2006, No. 1, p. 107.
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US Adoption of New Doctrine on Use of Force.
AJIL
. 2003, No. 1, p. 203-205.