Hillary Clinton calls for a NATO force in Darfur: But is it Legal?

With the NATO summit only 8 days away, in a speech in Germany yesterday, Senator Hillary Clinton called for a direct role for NATO to stop the killing in Darfur. (For the foreign policy wonks out there, it is interesting to note that she made public the fact that she got help on the speech from Richard Holbrooke, Sandy Berger and Jeffrey Smith, who each held senior foreign policy jobs under her husband’s administration, and Brent Scowcroft, who was national security advisor to Bush 41.) I am, of course, relieved that a prominent US politician has finally said what needs to be said about Darfur, particularly as she seems to agree with positions I have laid out previously here and here.

But that leaves us with Julian’s question to me last week: Is it lawful for a regional organization like NATO to use force without Security Council authority? The answer, I believe, is yes — with certain qualifications. The UN Charter specifically contemplated the existence and necessity of regional organizations and defense alliances in carrying out collective security. This was due, in part, to the initial unavailability of the military committee that envisioned member states contributing troops to a permanent US force. Article 53 of the Charter, therefore, states that regional organizations can undertake any enforcement actions of the UN and also engage in collective self-defense of that organizations members. This has traditionally been interpreted as requiring prior Security Council authorization for any mission that is not self defense. The question raised by Darfur is one of a purely humanitarian mission, outside NATO (or the EU), and which is not yet authorized by the Security Council. In short, it is the NATO intervention in Kosovo all over again.

In Kosovo there was no Security Council resolution prior to the intervention, but after the intervention the SC passed Resolution 1244 that arguably legitimized/legalized the operation. Indeed, the commission that was tasked with investigating the Kosovo operations concluded:

[T]he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.

Some international law scholars have subsequently argued that, in light of the Kosovo Commission’s conclusion, it is consistent with international law (through the emergence of a new”custom”) to intervene on behalf of protecting human rights, so long as certain other elements are present (exhaustion of other avenues, legitimation through broader “internationalization” of the intervention after it occurs, etc.). For a helpful discussion, see Christine Gray’s treatise, International Law and the Use of Force, and Antonio Cassese’s 1999 comment in the EJIL.

Julian’s other question was whether the conclusion by the UN that “crimes against humanity,” but not genocide, have been committed in Darfur should have any effect on the decision to intervene on humanitarian grounds. Applying the humanitarian intervention principles derived from the Kosovo example, the answer is no. Genocide is a unique and important construct in international law, but it cannot be said to offer the sole justification for humanitarian intervention.

Humanitarian intervention is a rich subject that, in addition to having profound impact on international law, touches on theories of moral philosophy and international relations, and I feel somewhat constrained by the format here. (For those interested in delving further, I recommend Nick Wheeler’s book, Saving Strangers.) We will no doubt be returning to the subject often in the months ahead.