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Nato & the Thin Red Line

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Nato & the Thin Red Line NATO & THE THIN RED LINE -THE EXPANDING BOUNDARIES OF INTERNATIONAL LAW ON THE USE OF FORCE being a Thesis submitted for the Degree of MASTER OF PHILOSOPHY in the University of Hull by Andrew Akuafo Otchie LL.B. (Hons.)(Lond.) LL.M. (Lond.) NOVEMBER 2014 1 DECLARATION I certify that the thesis I have presented for examination for the MPhil degree of the University of Hull is solely my own work, other than where I have clearly indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. The thesis may not be reproduced without the prior written consent of the author. 2 CONTENTS Abstract PART 1: NATO & THE THIN RED LINE I. INTRODUCTION A. Why NATO? B. A thin Red Line? II. WHAT IS THE PROBLEM? A. The Use of Force, examples from history and the security challenges of the 21st Century B. What it is the difference between War and the Use of Force? III. THE INTERNATIONAL LEGAL FRAMEWORK A. The Prohibition on the Use of Force and exemptions 1. Collective Security 2. Self-Defence and Collective self-defence under Article 51 3. Anticipatory and pre-emptive self-defence B. NATO and the Use of Force against Terrorism C. NATO and Humanitarian Intervention D. NATO and the Responsibility to Protect E. NATO and Cyber warfare 3 PART 2: THE EXPANDING BOUNDARIES OF INTERNATIONAL LAW ON THE USE OF FORCE IV. NATO -FROM FOUNDATION TO RECENT ACTIVITY V. THE WASHINGTON TREATY OF 1949 VI. LIABILITY & LEGAL PERSONALITY A. International Responsibility and accountability for wrongful actions 1. Finding the appropriate test 2. NATO’s legal personality B. Draft Articles on International Responsibility VII. NATO & THE UN VIII. CONCLUSION Bibliography 4 Abstract This study seeks to examine International law on the Use of Force. Specifically, I will attempt to explore the contention that there has been a change in the scope of understanding as to when force may be used. That is, the doctrine on the prohibition on the use of force, must be re-interpreted in light of the security challenges of the 21st century, and accordingly modified, by being expanded. It has been argued that there is a need to meet different and compelling circumstances, which could not have been envisioned at the time of the drafting of the UN Charter and therefore “a loosening of the constraints” to resort to use force is necessary. My thesis is that the law is indeed evolving and NATO is a major driving force in the development of International law. NATO will continue to be instrumental as to how the law meets pressing issues in the contemporary world –such as how far the extent of the prohibition against force applies in fighting a “war against terrorism”, the operation of drones and cyber warfare. This study concurs that, at times, only a thin red line has separated NATO actions, from falling outside of the International legal framework, as other scholars have observed. The lawfulness of Humanitarian intervention is not yet established under International law, although, there are increasing calls for the International community to establish the Responsibility to Protect doctrine in order to act, when moral imperative calls for the use of force. It is NATO’s military power that often presents the best means by which to effectively do so, but this is far from the purpose for which NATO was designed by the Washington Treaty. Moreover, the basis upon which NATO could be held liable for internationally wrongful actions is not well established, and while possessing some degree of legal personality, but not yet fully developed, there is an increasing possibility that NATO could be sued as an International Organisation for an act that is attributable to it. Furthermore, NATO has become less connected to the UN and has developed outside the intention of its original role as a regional organisation, as set out in Chapter VIII of the UN Charter. In light of these factors, this study assesses to what extent NATO can be said to have transgressed a thin red line. 5 PART 1: INTERNATIONAL LAW ON THE USE OF FORCE I. INTRODUCTION There are a number of compelling reasons to want to sustain a peremptory approach to the law prohibiting the use of force, although it is sometimes difficult to reconcile this with the moral imperative to want to use force, in order to bring an end to conflicts, and relieve suffering in humanitarian catastrophe. Moreover, States cannot be denied their important and inherent right of self-defence, and there is merit in the argument that the applicable legal provision which recognises this right, in Article 51 of the UN Charter, is now out of date, or at least, somewhat antiquated by modern challenges. Part 1 of this study attempts to set out what the current law on the use of force is, explaining why its history and definitions are important, the politics and principles that underpin it, objections against and moral philosophy concerning it. I have investigated the contemporary issues that challenge the original understanding of the law. Part 2 focuses on NATO and more recent events which concern how and why it can apply force in the world today. Particular note is taken of the Atlantic Charter and the Washington Treaty, which made clear that NATO was act as a regional organisation, in order to defend its members in the face of a palpable threat to their right of self-existence. The manner in which NATO operations have been conducted “out of area” today calls for concern. In conclusion, I examine whether the legal basis of Article 5 of the Washington Treaty remains sustainable, or justified. A. Why NATO? The manner in which the collective use of military force is exercised in the world today does not accord with the way it was planned. This is because the ambitious system that was originally set out by the United Nations Charter in 1945 envisioned an all-encompassing union of world military power, ready to take on any threat to International peace and security, contributed to by all the members of the United Nations, and being made available to the Security Council to direct and control. This has not been done, although the applicable legal provision that sought to make it so is Article 43 of the Charter, which still remains in place. In reality, a rather different system of International security architecture is at play, which relies on delegations of power from the UN Security Council to a range of powers, namely the Secretary-General, groups of States, UN subsidiary organs, and regional arrangements, such as NATO. 6 Thus, NATO is the focus of this study because of its finds itself coincidentally at the forefront of having responsibility for International peace and security, on a massive scale and in circumstances which can be considered to be an accident of history (the dramatic fall of the Soviet Empire). Close regard must be paid to what NATO has done, and especially so since the historical invocation of Article 5 of its Treaty in the wake of the September 11th attacks. Furthermore, it is worthy to study what NATO believes about itself, whether it has distinctive doctrines and practices that might lead it to take certain positions on continuing debates as to when force can be legally employed1. I believe that NATO’s size and complexity as an organisation, it having to take account of a detailed command structure, the working together of a myriad of different commanders, yet wielding a collective power which is enormous, has not been factored into the legal regime that was created by UN Charter, and the general prohibition on the use of force. This means that NATO does not so easily fit within the confines of the legal construct intended to ban the resort to force, within all but the most limited of circumstances, and wherever it uses force inappropriately, it is very difficult to hold NATO legally accountable. Thinking back to the foundation of the UN in 1945, the supremacy of NATO as a military power in our day, and its use of force in out of area operations, can be construed as an anomaly, which must have implications for the International legal framework which is still in force. In fact, NATO is caught up in the vicious circle concerning the problem whether the world should abide by a strict understanding of the UN Charter and its general prohibition on the use of force, or a more liberal interpretation of International law, which has been shaped by customary practice, and where force may be used in wider circumstances. NATO can issue the threat of using force without being sanctioned by anyone (which is illegal under International law) yet it is the centrepiece in safeguarding International peace and security, and it is continuing to grow in importance and influence. This is despite a trend towards globalisation, the continued significance of national identity, falling political ideologies, and crashing economies. NATO is a global institution and is made 1 NATO’s has not systematically codified its doctrines on when to use force, but it has released the NATO Legal Deskbook, which is intended to reflect, as closely as possible, the policies and practice of NATO in legal matters. However, the Deskbook is not a formally approved NATO document and therefore does not purport to reflect the official opinion or position of NATO. Thus, while the Deskbook is not intended to supplant national guidance on a range of issues, and is a refinement of working practices and experiences gained over the past few years (since its earlier 2008 edition), it can be deemed as a useful compilation for understanding the issues coming before NATO legal advisors.
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