Commentary: Harvey Dalton

• Author: Harvey Dalton
• Pages: 463

I think there are three verities that we need to be aware of throughout our discussions in this area. Professor Robertson has already mentioned one-that the use of force is a continuation of political relations by other means. I think another verity is embodied in Article 2(7) of the UN Charter, which provides that domestic matters are the sole responsibility of sovereign States. I think another verity is also embodied in the UN Charter, that is the inviolability of the territorial integrity and political independence of sovereign States.

We've heard from time to time that Operation Allied Force was a humanitarian intervention and that there might be a right of humanitarian intervention. I agree with Professors Roberts and Walker that, at least in my view, there is no right of humanitarian intervention and that the situation in Kosovo was an extraordinary situation dominated by necessity. It was necessary for the NATO alliance to use force. There were no alternative means. All alternative means had been exhausted.

But assuming that Kosovo was a humanitarian intervention, there have been some comments that maybe the rules should be different when we talk about the use of force as a part of humanitarian intervention. My question is why? What makes this so different from an ordinary armed conflict that the rules should be different? If we're going to apply the jus in bello, it should apply on all instances of armed hostilities. In this case, the weapons were no less deadly, the systems were just as effective and just as destructive, the clash of the armed forces was just as deadly, and the effects on civilians were no different.

There seems to be some implicit criticism of NATO's decision to keep its planes above fifteen thousand feet as if NATO was not being quite correct in playing by these rules. I would like to simply point out that the Federal Republic of Yugoslavia (FRY) had one of the most sophisticated integrated air defense systems in Europe. FRY forces did put our pilots and aircraft in harm's way. They shot down two of our aircraft. There's no evidence that I'm aware of that NATO's decision to stay above fifteen thousand feet affected the accuracy of our weapons. We did have outliers (missiles or bombs that drop outside the area they were targeted at). We did have mistakes. But there's no evidence that the fifteen thousand foot restriction or ceiling affected the accuracy. The fifteen thousand foot altitude protected our aircraft...