I am free, shielded from your severities, yet who am I? ... I haven't killed anyone? Not yet to be sure! But have I not let deserving creatures die? Maybe. And maybe I am ready to do so again.
The 1999 NATO bombing of Yugoslavia was not a typical armed confrontation, and it has raised a challenging set of legal issues. On the day that Operation Allied Force bombing began, NATO Secretary-General Javier Solana claimed the moral high ground when he stated that the goal of the bombing was to "stop further humanitarian catastrophe."(2) Yet unlike the Gulf War, which also involved the use of force on behalf of fundamental principles, the NATO bombing was not authorized by the United Nations Security Council, leaving its legal basis unclear. From the beginning, the NATO Secretary-General was careful to avoid explicitly invoking a right of humanitarian intervention as the legal justification for the mission,(3) and officials in the United States and other NATO countries followed suit. At the same time, NATO leaders made it clear that the moral and political justification for the mission was humanitarian,(4) and no alternative legal justification has been offered so far.(5) Not surprisingly, commentators have raised questions concerning the legality of humanitarian intervention despite NATO's careful attempts to skirt the issue.
This Essay argues that, under an appropriate and narrowly defined set of circumstances, acts of forcible humanitarian intervention can indeed be legal, even without the authorization of the Security Council. The principal focus, however, is on the task facing the United States and NATO now that they have invoked this controversial doctrine.(6) Those who rely upon the right of humanitarian intervention have a responsibility to define its legal parameters. Indeed, when a vague doctrine can be invoked by states to justify the use of force, it offers them a license that is subject to abuse. This justification for the use of force is inherently threatening to other states, particularly when those states claiming this license are the most powerful states in the international community. Without clear legal standards to limit it, the practice of humanitarian intervention threatens to undermine the friendly relations among states and could have an adverse impact upon international peace and security.
This Essay uses the term "humanitarian intervention"(7) narrowly to refer to forcible action by a state on the territory of another to protect individuals from continuing grave violations of fundamental human rights.(8) Cases in which the Security Council or local government authorizes the use of force are excluded from this definition because their legality can be established independently of any right of humanitarian intervention.(9) In most scenarios of humanitarian intervention,(10) the territorial state's government either is directly responsible for the violations or has acquiesced in them.(11)
Although NATO has relied, at least implicitly, upon a right of humanitarian intervention, serious doubts remain regarding both the status of this right under international law and the conditions that would necessarily have to limit it. This confusion stems from the tension between two key aspects of the post-World War II international legal order.
A strict prohibition on the use of force was incorporated into Article 2(4) of the U.N. Charter(12) as the cornerstone of its strategy for promoting order and peace in the international system.(13) The Charter recognizes only two exceptions to this prohibition. The first is that force may be used in self-defense.(14) The second exception applies only when a decision of the Security Council authorizes the use of force to protect or maintain international peace and security.(15) The prohibition, like other parts of the Charter,(16) reinforces the sovereign rights of the state. The Charter also affirms that the United Nations itself lacks the authority to intervene in the domestic jurisdiction of its members.(17) These provisions support the view that state sovereignty should preclude any intrusive international action for the protection of human rights.
On the other hand, the Charter also heralds the emergence of a new international law of human rights that fundamentally challenges the traditional concept of sovereignty.(18) The Charter States that promoting and encouraging respect for human rights is one of the basic purposes of the United Nations.(19) Based on this language, human rights have become a matter of international concern and not merely a question within the domestic jurisdiction of states. The concept of an international law of human rights derogates from the absolute concept of state sovereignty and marks a radical departure from the traditional "state-centric" view of international law.(20)
When the Security Council fails to act to stop a continuing humanitarian crisis, these two basic pillars of the post-World War II legal order come into dramatic conflict.(21) Humanitarian intervention may be the only way to protect innocent civilian victims from genocide and ethnic cleansing, but recognition of such a right threatens to disable the basic peace strategy of the Charter by undermining the prohibition on the use of force.(22) The question of whether forcible humanitarian intervention can ever be considered legal without the authorization of the Security Council therefore remains, and the debate on this issue continues. Regardless of the status of humanitarian intervention under current law, the use of force to assist the Kosovar Albanians has reopened consideration of this issue.
The United States and NATO may not have explicitly claimed a right of humanitarian intervention, but in bombing Yugoslavia they have exercised a prerogative that seems both radical and unprincipled to many outside observers.(23) They can and should remedy this situation by clarifying the limits to the right of humanitarian intervention, which they have effectively claimed. Military action to aid the Kosovar Albanians was the right thing to do, but it is unacceptable that no clear legal justification for that operation has been offered.
NATO countries, which generally base their governments upon respect for the rule of law, have in the past been instrumental in clarifying the rules of international law governing war and the use of force.(24) They should follow that example now by leading efforts to codify the law of humanitarian intervention as it is emerging at the dawn of the twenty-first century.
INTERNATIONAL LAW DOCTRINES
Emerging Outlines of the Clinton Doctrine
The first basic statement of the policy sometimes referred to as the "Clinton Doctrine" came in a speech President Clinton gave to K.F.O.R. troops in Macedonia in June 1999. In this speech, President Clinton noted:
So the whole credibility of the principle on which we have stood our ground and fought in this region for years and years now--that here, just like in America, just like in Great Britain, people who come from different racial and ethnic and religious backgrounds can live together and work together and do better together if they simply respect each other's God-given dignity--and we don't want our children to grow up in a 21st century world where innocent civilians can be hauled off to the slaughter, where children can die en masse, where young boys of military age can be burned alive, where young girls can be raped en masse just to intimidate their families--we don't want our kids to grow up in a world like that.... It is not free of danger, it will not be free of difficulty. There will be some days you wish you were somewhere else. But never forget if we can do this here, and if we can then say to the people of the world, whether you live in Africa, or Central Europe, or any other place, if somebody comes after innocent civilians and tries to kill them en masse because of their race, their ethnic background or their religion, and it's within our power to stop it, we will stop it.(25) The President later confirmed that, in his view, a new "Clinton Doctrine" was emerging.(26) The scope and applicability of the doctrine clearly needs further elucidation, but some of the general outlines have begun to emerge. National Security Advisor Sandy Berger has identified three criteria for the application of this new policy: first, there must be genocide or ethnic cleansing; second, the United States must have the capacity to act; and third, the United States must have a national interest at stake.(27) Despite the sweeping language of the President's initial statement, it is clear that the United States is not committing itself to intervene in every situation.(28) At best, humanitarian intervention will remain an extraordinary practice to be used only in special cases.
Foreign Policy Doctrines and International Law
The Kosovo bombing has raised not only an issue of U.S. foreign policy, but also a very fundamental issue of public international law. The viability of the Clinton Doctrine as a long-term U.S. policy may be largely determined by domestic political considerations in this country,(29) but the rules of international law governing humanitarian intervention cannot be determined unilaterally by the United States or even by all the NATO states together. That being said, the United States can and should take the lead in clarifying this area of law for the future.
The idea of a "Clinton Doctrine" can best be appreciated in the context of the many foreign policy doctrines that preceded it. The best known of all U.S. foreign policy doctrines is the Monroe Doctrine. In 1823, U.S. President James Monroe declared to the European powers that the United States would treat any reextension of European colonial power into the Americas as a threat to the interests of the United States.(30) This doctrine was articulated as a statement of U.S. interests and policy and did not...