The Thirteenth Waldemar A. Solf Lecture in International Law

• Author: Professor Yoram Dinstein
• Pages: 04

93 MILITARY LAW REVIEW [Vol. 166

THE THIRTEENTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW1

PROFESSOR YORAM DINSTEIN2

It is a distinct privilege for me to deliver the Thirteenth Solf Lecture, inasmuch as I had the pleasure of knowing and, to some extent, collaborating with Colonel Waldemar Solf for almost an entire decade-from the mid-70s to the mid-80s. He was the Department of Defense (DOD) representative to the international conference, which culminated in the two Additional Protocols to the Geneva Conventions of 1949.3 Personally, I was most unhappy with the main outcome of the conference, i.e. Protocol I relating to international armed conflicts. To this very day, when consulted, my advice is to not ratify Protocol I, owing to its intrinsic flaws. All the same, one cannot deny that many of the clauses of the Protocol are incontrovertible and/or reflect customary international law. I met Colonel Solf on numerous occasions in connection with the Protocol. He was always good-natured, usually smiling, and had a tendency to always look at the glass as half full where others (like myself) would see it as half empty. We were having lengthy discussions as to what ought to be done about the Protocol. One of the ideas that emerged from those deliberations is only now materializing. There is a current effort in Geneva to identify those provisions of the Protocol which are either declaratory of customary international law or are otherwise acceptable to countries (like the United States) opposed to the Protocol as a whole. When I participate in the Geneva sessions, striving to produce a consensus along these lines, I often

think of Colonel Solf, who regrettably is not there to contribute to the intellectual exercise. He is sorely missed by all those who knew him.

For this presentation, I have chosen a topic which might have been appreciated by Colonel Solf: the present challenges to the international law of war (the jus in bello). Of course, I cannot cover every aspect of the law of war. I shall therefore focus on only three challenges (with an emphasis on the first): (a) the issue of "humanitarian intervention" in the specific context of Kosovo; (b) the law with respect to non-international

armed conflicts; and (c) the theme of air and missile warfare, especially in the context of targeting.

I shall start with "humanitarian intervention." Under present-day international law, the use of inter-State force is prohibited by Article 2(4) of the Charter of the United Nations.4 As proclaimed by the International Court of Justice, in the Nicaragua case of 1986, Article 2(4) of the Charter must be viewed as a reflection of contemporary customary international law.5 Indeed, the prohibition of the use of force in international relations may be considered the cornerstone of modern international law.

It must be stressed that the proscription of the use of inter-State force is all-embracing and subject only to two exceptions explicitly set out in the Charter: (i) self-defense (under Article 516) in response to an armed attack, and (ii) enforcement action ordained or authorized by the Security Council (pursuant to Chapter VII of the Charter7) in any setting of aggression, breach of the peace, or threat to the peace. Many people refuse to reconcile themselves to the narrow scope of these two exceptions. They argue that if genocide is perpetrated, if human rights are systematically violated by a despotic regime, if minorities are harshly oppressed, there is (or there should be) a right for a foreign state-preferably a group of States-to intervene unilaterally (that is to say, even without a go-ahead signal from the Security Council), using force where necessary to prevent or stop genocide and to terminate other types of widespread violations of human rights. This contention may be impelled by the best of intentions. However, forcible intervention on humanitarian grounds is still forcible intervention. Consistent with the law of the Charter, only the Security Council can unleash the use of force against a sovereign State under any circumstances exceeding the bounds of self-defense in response to an armed attack. The Security Council, and only the Security Council, is the policeman of the world.

Evidently, the Security Council too can act only in compliance with the Charter. Under the Charter, each of the five permanent members of the Council (viz. the United States, Russia, China, Britain, and France) benefits from a veto power, so no resolution can be adopted against its wishes.8

The system of the Charter was formulated in San Francisco in 1945. Both the venue and the date are of consequence. Much of the text of the Charter is based on American proposals. It was the United States that was primarily interested in the creation of the United Nations. Other big powers at the time were either lukewarm or skeptical. It was definitely the United States which was responsible for the crucial role assigned to the Security Council and to the Permanent Members. The time-frame was equally significant: April-June of 1945, when World War II was drawing to a close yet was not quite over. The five Permanent Members were the leaders of the Grand Alliance winning the War. Conversely, Germany and Japan were still enemy States, naturally excluded altogether from the United Nations at that formative stage. Today it is easy to maintain that Germany and Japan (and perhaps one or two other countries like India) should also become permanent members, but this requires a cumbersome-and difficult-to-achieve-amendment of the Charter.

In any event, if one compares the Security Council to other organs of the United Nations-preeminently, the General Assembly (where every Member State is represented and all States have an equal standing in voting9)-the Security Council shines by example. The General Assembly is essentially a debating club, lacking the power to adopt binding resolutions in matters pertaining to international peace and security. The glass UN Building in Manhattan serves as a prism deflecting the rays of light of reality. The General Assembly has become a forum often led by minuscule countries that have managed to coalesce into a political bloc whose might is noticed only within the confines of the UN Building. Frequently, the General Assembly is staging a theatre of the absurd, where leading powers like the United States wield as little or less clout than tiny nations with little or no power in the world in which we live. By contrast, the Security Council by and large mirrors the power politics of our planet, warts and all. Certainly, when the Council can act by unanimous support of the permanent members, its decisions have a cachet that no other international organ can emulate. Legally speaking, these decisions (especially when the Council is acting under Chapter VII of the Charter) can be binding on all member States, in accordance with Article 25.10

What is the advantage inherent in the Security Council system? The advantage lies in the veto power, ensuring as it does that at least here-

where it really counts-the United States (or any other permanent member) has as much say in world affairs as it does outside the United Nations. What is the disadvantage in the system? The disadvantage equally lies in the veto power. It all depends on who is casting the veto. Many Americans are appalled when one or more of the four other permanent members blocks by a veto a resolution advocated by the United States. But it must be observed that the United States itself does not hesitate to exercise the veto power when the need arises. Immoderate use of the veto (mostly by the former USSR) was characteristic of the "Cold War" era. It has been calculated that, over half a century, the veto was cast 242 times as regards 202 proposals (meaning that sometimes more than one Permanent Member voted against a particular proposal); 195 of the 202 proposals defeated by the veto were put to the vote before the collapse of the USSR.11 The number cited, if anything, is understated. In a host of additional cases, the mere threat of a veto had a chilling effect, precluding a formal vote. Thus, the Security Council has been often paralyzed by the use or abuse of the veto. While the number of vetoes has gone down dramatically since the end of the "Cold War," they still constitute an ever-present obstacle frustrating the adoption of Security Council resolutions. It must be further appreciated that, under the Charter, a permanent member is entitled to cast a veto in a matter affecting itself. In other words, it can serve as a judge in its own case. This is why nobody is going to the Security Council to challenge the Russian conduct in Chechnya: everybody knows that such an effort is doomed to failure because Russia is bound to exercise its veto power against any resolution likely to condemn or even deplore its modus operandi.

That brings us to the issue of Kosovo. Undeniably, atrocities were committed in that part of Yugoslavia. Action should have been taken by the Security Council, but it was not-owing to Russian (and Chinese) opposition. What other options were there? The obvious option was diplomacy. The record shows that international intervention can sometimes be carried out by obtaining-through various means of suasion-the prior consent of the State most immediately affected. This is what happened, after considerable international pressure had been brought to bear on Indonesia, in the case of East Timor in 1999.12 In the case of Kosovo, too, negotiations were held in Rambouillet (France). Regrettably, the negotiations

failed. Yet, why did they fail? The...