Victors’ Justice. Danilo Zolo

turned into a bloody military conflict whose aims became further and further removed from the institutional purposes of the United Nations, until they came to coincide with the interests of powerful oil companies. No less ambiguous, and tragically controversial, were the prospects, over many months, for an analogous ‘humanitarian’ intervention on the territory of the former Yugoslavia. In the end, the mission was in practice taken over by NATO forces. This organization, engendered during the Cold War, was made to seem like the military emanation of the United Nations, rather than a politico-military structure designed to safeguard the more or less legitimate interests of Western nations. NATO’s military activity on the territory of the former Yugoslavia during the Bosnian war (1992–95) and above all the war for Kosovo (1999) became increasingly intrusive, with the tacit assent of the United Nations. The latter war definitively sanctioned the practice of humanitarian intervention, taking in the most explicit way possible the humanitarian motivation as justa causa for a war of aggression. In this case, it was argued that the use of international force for humanitarian motives was legitimate in opposition not only to the principle of non-interference in the domestic jurisdiction of a sovereign state, but also the UN Charter, the principles of the statute and sentence of the Nuremberg Tribunal, and indeed international customary law.¹⁰

      Confronted by such a palpable eversion of international law, the United Nations did next to nothing, giving proof of its subordination to, if not patent complicity with, the Western powers. A resolution censuring NATO’s military intervention, presented to the Security Council by Russia, India and Belarus, was naturally rejected by the three Western powers holding the power of veto: the United States, Britain and France. Only three of the fifteen Council members—Russia, China and Namibia—dared to manifest their dissent by voting in favour. So it was that governments representing over two-thirds of the world’s population could find no instrument of ‘international democracy’ able to give effective expression to their opposition to a ‘humanitarian war’.

      After a lengthy silence, UN Secretary-General Kofi Annan finally made a statement in which he endorsed the line of the United States (which, as everybody knew, had been instrumental in getting him elected as secretary-general). He had no qualms about declaring that, in instances of systematic and large-scale violation of human rights, humanitarian intervention could be pursued disregarding the principle of respect for states’ sovereignty and non-interference in their domestic affairs. Indeed, addressing the General Assembly on 20 September 1999, Annan went so far as to justify the military intervention of NATO, in the absence of a mandate from the Security Council, in terms of a ‘state of necessity’. He presented the use of force as the lesser evil in light of the risk of genocide resulting from the inertia of the international community. And, rather than make a stand for the institutional prerogatives of the United Nations as involving an absolute monopoly over the legitimate use of international force, as should have been his elementary duty, Kofi Annan insisted on the primacy of the protection of human rights and on the declining function of nation-states in the era of globalization.¹¹ In practice, the United Nations, through the mouthpiece of its secretary-general, legitimized a war of aggression simply because the aggressors presented it as ‘humanitarian war’.

      And what part did the Hague Court of Justice—the supreme judicial organ of the United Nations—play in all this? As is well known, this Court is not even endowed with an obligatory jurisdiction. It only had to declare its incompetence in order to reject the appeal presented by the Yugoslav Federation against the ten NATO countries that took part in the military attack.¹² Similarly, the International Criminal Tribunal for the former Yugoslavia, created by the Security Council at the instigation of the United States, declined to intervene to censure the aggression being carried out by the NATO countries, since it had no specific competence to judge crimes against peace. Its statute, unlike that of the Nuremberg Tribunal, gave it competence to judge only crimes of jus in bello—meaning war crimes, crimes against humanity and genocide.¹³

       The theoretical debate

      Thus we see how the leading international institutions, starting with the Security Council and General Secretariat of the United Nations, have endorsed or legitimized a posteriori the ‘humanitarian breakthrough’ imposed by the major Western power without raising the slightest objection as to questions of principle—indeed conferring upon it full international legality. And yet the case for considering the safeguarding of human rights as prevailing over the integrity of states’ domestic jurisdiction, such as to justify the use of force, is by no means proven. Doubt persists in situations where the use of force has been authorized by the international institutions, and all the more acutely in those where it has not been authorized, as was the case in the 1999 war for Kosovo. In this instance, the humanitarian motivation was invoked as sufficient grounds for ethical and juridical legitimation of the use of force, even outside the terms of the United Nations Charter and international customary law.

      The fourth section of Article 2 of the Charter obliges member states to refrain from threatening or using force against the territorial integrity and political independence of any nation. There is only one general exception to this prohibition: force can be used if the Security Council, having ascertained the existence of a threat to peace, a breach of peace or an act of aggression, decides that it is necessary, under its direction and control, to have recourse to force in order to re-establish international order (Articles 39 and 42). This general exception is accompanied by a more specific one: the right of a country to react in self-defence if attacked by another state or group of states (Article 51).