Nonetheless, it was in the 1990s that the perspective of humanitarian intervention became the key element in the strategy of the ‘new world order’, making ever stronger claims to ethical and juridical legitimacy. At the same time, there was a growing tendency in the West to refer to ‘international humanitarian law’ rather than the ‘international law of war’. The latter, as is well known, was the outcome of a long process of adaptation and secularization of the ethico-religious principles of the doctrine of the bellum justum elaborated in Catholic theology. The new ‘international humanitarian law’ is presented as legitimizing—through economic measures, interventions of ‘peace- enforcement’, international criminal jurisdictions—situations in which the sovereignty of states may be subordinated to the international safeguarding of human rights.9
The legalization of humanitarian interventions
The theoretical premise for humanitarian intervention is that the international safeguarding of human rights takes precedence over state sovereignty, and indeed over the maintenance of peace and world order. A nation’s ‘external sovereignty’—in common with its ‘domestic sovereignty’ vis-à-vis its own citizens—cannot be considered an absolute, unlimited prerogative, particularly in the context of a planetary society in which the processes of integration are making for ever greater unity and functional interdependence. When a government rides roughshod over the fundamental rights of its citizens or commits crimes against humanity, the international community has the right and obligation to intervene. The upholding of international order requires the imposition of a minimum level of respect for human rights on all states without exception, if necessary through the use of force. This also means establishing severe sanctions to be applied against those countries responsible for persecuting religious, racial or ethnic minorities, as well as for war crimes, mass murder or rape, and indeed wholesale genocide.
In the context of the strategic tenets of the ‘new world order’ and the doctrine of human rights, the practice of humanitarian intervention gained ground rapidly during the closing decade of the last century, thanks to the initiatives of the Western world, and of the United States and Britain in particular. The Gulf War of 1991 brought matters to a head, forcing both supporters and opponents of military action against Iraq to pay attention not only to the question of ‘peace-making’, but also to that of ‘humanitarian intervention’. This practice was reinforced in the immediate post-war phase, thanks to the activism of the US and British governments, which undertook ‘humanitarian interventions’ in both northern and southern Iraq with the tacit consent of the United Nations. This led to a limitation of the sovereignty of the Iraqi state, with the establishment on its territory—and progressive enlargement on the basis of unilateral decisions—of no-fly zones, ostensibly to protect the Kurdish minority in the north and the Shiite minority in the south.
From 1992 to 1994 the policy of humanitarian intervention was applied without any normative reference, ignoring even the UN Charter. The intervention of the United States, with some allies, in Somalia was initially motivated by the need to guarantee aid in the form of food and health provisions, but rapidly 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
