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Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals George K

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Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals George K American University International Law Review Volume 18 | Issue 1 Article 3 2002 Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals George K. Walker Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Parker, Elizabeth Rindskopf. "Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals." American University International Law Review 18, no. 1 (2002): 35-162. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. PRINCIPLES FOR COLLECTIVE HUMANITARIAN INTERVENTION TO SUCCOR OTHER COUNTRIES' IMPERILED INDIGENOUS NATIONALS GEORGE K. WALKER* I. ST A T E O F N E C E S SIT Y ........................................................................................ 4 0 II. TH E PRO PO SED PRIN CIPLES ................................................................. 55 A . P R IO R S ITU A T IO N S......................................................................................... 5 5 B. STATE OF NECESSITY: OPPOSING PRINCIPLES AND P OL IC IES ....................................................................................................................... 6 6 C. ANALYSIS OF PRINCIPLES AND FACTORS GOVERNING STATE OF NECESSITY INTERVENTION ................................................ 70 1. Restating the Restatements' Principles........................................ 74 2. Refining the InternationalLaw Commission and the Restatements' Analyses for Collective Humanitarian Intervention Under State of Necessity ........................................... 78 a. Reasonable Knowledge and Information About a Crisis at the Tim e of D ecision .............................................. 79 b. Consensus D ecision M aking ................................................. 85 c. Seriousness of the Situation ................................................. 87 d. N ecessity and Proportionality .............................................. 91 * Professor of Law, Wake Forest University School of Law. B.A. 1959, University of Alabama; LL.B. 1966, Vanderbilt University; A.M. 1968, Duke University; LL.M. 1972, University of Virginia. Member, North Carolina, Virginia Bars. I delivered an early version of this Article as a paper at a Colloquium, Legal and Ethical Lessons of NATO's Kosovo Campaign, August 7-10, 2001, at the Naval War College, Newport, R.I.; parts of it will be published as a chapter in Legal and Ethical Lessons of NATO's Kosovo Campaign (Andru E. Wall, ed., Nav. War C. Int'l L. Stud., v. 78, 2002). My thanks to Howard K. Sinclair, Wake Forest University Worrell Professional Center Reference Librarian, who obtained sources and gave other research help; and to my colleague, Professor Charles P. Rose, Jr., for his thoughts. Errors are my responsibility. A School of Law grant supported research. © George K. Walker. AM. U. INT'L L. REV. [18:35 e. Situations Where International Law Forbids State of N ecessity Intervention ............................................................ 100 f. Self-defense and Other Actions by States in Collective Humanitarian Intervention Under State o f N e c e s sity .......................................................................................... 10 7 g. Notice to the Affected State and Others ........................... 110 h. Time for Completing Humanitarian Intervention U nder State of N ecessity ............................................................. 118 i. Reasonableness Factors Counseling For or Against Collective Intervention Under State of N e c e s s ity ................................................................................................. 1 19 i. L ink a g e ............................................................................................ 12 2 ii. Co n n e c tiv ity ................................................................................. 12 3 iii. Character,Importance, and Acceptance ................ 125 iv. Justified Exp ectations........................................................... 127 v. Importance to the InternationalCommunity ........ 130 vi. Consistency With Traditions of the InternationalSystem .............................................................. 13 1 vii. Interests of Other States and International O rga n izatio n s ............................................................................. 13 3 viii.An Obligation to Evaluate................................................. 136 D . E V A LU A T ION .......................................................................................................... 13 8 III. APPLICATION OF THE LOAC DURING ALLIED F O R C E ............................................................................................................................... 14 3 A. RELEVANCE OF GENERAL LOAC AND NEUTRALITY LAW TO A LL IE D F OR C E ............................................................................................... 14 4 B. NATO's RIGHT TO CONDUCT MARITIME INTERDICTION AS P A RT O F A LLIED F O RC E........................................................................... 14 7 1. NATO Naval Assets Available; Naval Operations Du ring A llied F o rce ................................................................................ 14 7 2. Proposed NATO Naval Interdiction During Allied F orce: A L awfid Op tion ........................................................................ 15 1 C. CAPTURED ARMED FORCES MEMBERS' ENTITLEMENT TO PRISONER OF WAR (PW) STATUS ............................................................ 153 1. NATO-SFRY Aspects of Allied Force......................................... 153 2. The SFR Y-KLA Aspects ofAllied Force................................... 157 IV . C O N C LU SIO N S ......................................................................................................... 16 0 2002] HUMANITARIAN INTER VENTION NATO's 1999 Operation Allied Force, organized to succor Albanian Kosovars and others (e.g., Roma) indigenous to the Kosovo province of the former Yugoslavia' ("SFRY") subjected to brutal actions-including murder, rape and displacement from their homes by Serbian forces under SFRY President Slobodan Milosevic's direction-was a legitimate collective action for humanitarian intervention pursuant to principles of state of necessity under circumstances known at the time.2 The law of international armed 1. See Ian Fisher, Serbia and Montenegro Sign a Plan for Yugoslavia's Demise, N.Y. TIMES, Mar. 15, 2002, at A3 (writing that there would be no "Yugoslavia" in the future if Serbia and Montenegro, the remnants of pre-1991 Yugoslavia, approved a March 14, 2002 agreement that declared that the area of the former Yugoslavia would be known as "Serbia and Montenegro"); see also Ian Fisher, Yugoslavia.- Restructuring Plan Advances, N.Y. TIMES, Apr. 10, 2002, at A14 (reporting that the Parliaments of Serbia and Montenegro formally approved the agreement). 2. What NATO knew, or reasonably should have known at the time of the decision to launch Allied Force, is important. See infra notes 114-134 and accompanying text (explaining that to be found liable for violating the rules of warfare, a decision-maker is judged on what he or she knew or should have known at the time the decision to attack was made); see also Ian Fisher & Marlise Simons, Defiant, Milosevic Begins His Defense by Assailing NATO, N.Y. TIMES, Feb. 15, 2002, at Al (writing that Milosevic raised the issue of the NATO campaign's lawfulness in his opening statement in his genocide and war crimes trial in The Hague); Milosevic, at U.N. Court, Trades Atrocity Charges with Kosovar, N.Y. TIMES, May 7, 2002, at A5 (reporting that Milosevic accused Kosovo Albanians of committing genocide against Serbians in the province, a claim Ibrahim Rugova, the Kosovo leader, denied). Milosevic's claims may be predicates for tu quoque ("you also") defenses. In this case, Milosevic's defense would be that because NATO's Allied Force campaign was unlawful, he cannot be held criminally liable for humanitarian law and genocide charges against him, or that because Albanian Kosovars committed atrocities, he cannot be held criminally liable for these charges. If this is Milosevic's theory, it is unavailing as a complete defense like some defenses, e.g., not guilty by reason of insanity, might be. Tu quoque, like a superior orders defense, may go to mitigation of sentence or a finding of no punishment; it is not a complete defense to liability for war crimes or genocide. Tu quoque only applies when the offense charged and the other side's actions are the same or similar. Thus, unless Milosevic proves NATO committed genocide, he cannot rely on tu quoque as to those charges against him; recent cases suggest the defense might not be available even under those circumstances. See 58 W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS 88 (Naval War C. Int'l L. Stud. 1968); see also Horace B. Robertson, Jr., Submarine Warfare, JAG J. 3, 8 (1956) (commenting on 38 AM. U. INT'L. REV. [18:35 conflict ("LOAC") applied to NATO
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