U.S. intervention has legal precedents

By Triyogo Jatmiko

JAKARTA (JP): The enforcement measures against Iraq and Yugoslavia for their treatment of the Kurds and of the Albanian Kosovars respectively raises many issues concerning the legality of intervention in conflict which is essentially within the domestic jurisdiction of a sovereign state.

The United States has mounted almost daily raids on Iraqi air defenses since December 1998 when Baghdad started challenging the U.S. and British overflights in northern and southern "no-fly" zones protecting the minority Kurds in the north and Shiite Muslims in the south. The escalation follows the four-day air raids code named Operation Desert Fox. Baghdad refuses to recognize the exclusion zones, which were established without a direct United Nations Security Council (UNSC) resolution.

In the other part of the world, aerial bombardments by NATO are taking place in the effort for peace in Kosovo and, at the same time, to put an end to massive abuse of human rights committed by Yugoslavia. The measure is also being carried out without any UN fiat.

Collective measures by which the charter refers to an exception to Article 2 (4), which forbids the use of force in international relations, involve a number of provisions. Article 2 (7) excludes from UN operation, measures essentially within the domestic jurisdiction of a state. It stipulates that "nothing contained in this charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." However, the article then qualifies this general principle "this principle shall not prejudice the application of enforcement measures under chapter VII".

Under Chapter VII the UNSC has authority to do whatever it sees fit to maintain or restore international peace and security. Chapter VII gives the UNSC broad discretion. The council may decide that a matter exclusively contained within the jurisdiction of one particular state nevertheless constitutes a threat to or breach of international peace and security, and therefore recommend whatever measures it desires.

The UNSC was supposed to have a military staff committee, consisting of the chief of the permanent five members of the council (articles 43 through 48). They would be the principle body responsible for the conduct of operations, and charged with the strategic direction of any armed forces placed at the disposal of the UNSC. The committee, however, has never functioned as envisaged by the charter. It was created by resolution 1 (1946) Jan. 21, 1946, but the permanent members have been unable to agree on its organization. It was only in 1990 that the Soviet Union, in the context of the Gulf War, proposed that the committee be revived. But no agreement was reached and the UNSC still has no military arm of its own to call on with all the concomitant autonomy.

The council therefore relies on indirect forms of implementation.

Hence the UNSC practices of authorizing or mandating one or more states to use force as used in connection with operation Desert Storm in the Gulf War against the invasion of Kuwait by Iraq through resolution 678 (1990). This is in contrast with the picture under the charter, of the council having forces directly under its authority.

However, this does not necessarily imply inconsistency: in providing for a system in which a military staff committee takes action, the charter does not necessarily exclude other forms of military intervention.

In terms of UNSC practice, it is important to note that Operation Desert Storm was the first time the council was able to adopt (without veto) a critical resolution authorizing the use of force in restoring international peace and security. This is in contrast with the situation during the Cold War where the UNSC did not operate in the way intended by Chapter VII. This was mainly due to the fact that during the Cold War, the permanent five members of the UNSC used their veto powers to preclude resolutions authorizing collective force.

Resolution 678 (1990) therefore marked a new era of cooperation among the five permanent members, demonstrating that the UNSC could undertake substantive action to meet its duties and responsibilities under the charter for the maintenance and preservation of international peace and security.

Following the Gulf War, two main practices emerged in UNSC decision-making under Chapter VII with respect to the interpretation of what constitutes a threat to international peace and security. These practices are reflected in the adoption and implementation of a number of recent UNSC resolutions.

First, the UNSC apparently determined that the external repercussions of internal conflicts were sufficiently severe to take them out of the "sacred domain" of purely domestic jurisdiction.

Resolution 688 (1990) concerning northern Iraq was adopted on the basis of the threat to international peace and security via transborder refugee flows across to Turkey and Iran. No enforcement action, however, was explicitly taken by this resolution.

In resolution 751 (1992) concerning Somalia, the UNSC categorized the conflict, which was exclusive to the territory of Somalia, as a threat to international security on the basis that a conflict which claimed heavy loss of human life and widespread damage might create transborder refugee flows.

Similarly, in resolutions 1101 (1997) concerning Albania, the UNSC determined that the hostile acts of violence within the territory of Albania constituted a threat to peace and security in the region because of possible consequences of the conflict for neighboring countries, particularly in the form of refugee flows.

Second, the UNSC would authorize intervention on the ground of gross violation of human rights. In resolution 808 (1993) which established an international tribunal for the former Yugoslavia, the UNSC described crimes against humanity committed in the territory of former Yugoslavia as constituting a threat to international peace and security. Similarly, in resolution 940 (1994) concerning Haiti, the UNSC justified the use of force on the basis of Haitian refusal to allow a democratically elected government to govern and human rights violations.

These resolutions seemed to signal that the UNSC would not require a transboundary issue to justify Chapter VII measures. It seemed to accept the view of human rights proponents that human rights observance should not be regarded as "essentially" domestic, and gross abuse of people's security is ipso facto a threat to international peace and security, thereby overriding the principle of nonintervention in internal affairs.

In sum, from 1991 onward, UNSC authorizations of the use of force have applied a new doctrine and practice of intervention: one which neither seeks nor receives the prior approval of the target state's authorities. Such actions are not explicitly provided for in the charter, and are therefore both novel and controversial.

Returning now to the major features of the intervention in Yugoslavia, suffice to say that the measure being taken evokes a precedent, that of the 1991 western imposed exclusion zones in Iraq. It evokes it in substance because the action is to protect minority rights and the decisive role of the U.S. in dominating the military intervention. It evokes it on legal grounds also. In both cases, the enforcement measure is not covered by UNSC resolution.

Further precedents could be added, that of the intervention of Tanzania in Uganda and Vietnam in Cambodia -- cases in which the intervener put an end to massive assault on human rights.

The nature of interventions is not the same, of course, either in purpose or in scope, but the situation is legally comparable. In those cases, the enforcement measure is not legally defensible because if force must be used, it must only be with the authority of the UN.

Triyogo Jatmiko works at the Ministry of Foreign Affairs. The views expressed in this article are entirely his own.