Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?

Abstract

Caesius comments on the article by Simma, also in this issue, on the legitimacy of the use of force by NATO in the Kosovo crisis. The author agrees with Simma that NATO's action falls outside the scope of the United Nations Charter and, by that token, is illegal under international law. This breach is not a negligible one and it is not to be countenanced merely by referring to its exceptional character and by stating that it should not be seen as setting a precedent. The author explores the notion that NATO's action may nevertheless be taken as evidence of an emerging doctrine in international law allowing the use of forcible countermeasures to impede a state from committing large-scale atrocities on its own territory, in circumstances where the Security Council is incapable of responding adequately to the crisis. The author argues that where a number of stringent conditions are met, a customary rule may emerge which would legitimize the use of force by a group of states in the absence of prior authorization by the Security Council. This is subject to various caveats, including the need to bear in mind the threat to global security which is inevitably involved in the use of force without such authorization