U.S. intervention has legal precedents

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.