A follow-up: forcible humanitarian countermeasures and opinio necessitatis

Abstract

A previous article by the author in this Journal suggested that, in the light of the NATO intervention in Kosovo, a new customary rule might be in the process of formation; namely - subject to certain stringent conditions - a rule legitimising the use of forcible countermeasures by groups of states in the event of failure by the UN Security Council to respond to egregious violations of international humanitarian law. By way of a follow-up, this article examines the views of states expressed during and since the Kosovo crisis. The author concludes that many states have conceded the moral and political necessity of the NATO intervention. This, however, stopped short of the view that such conduct was legitimate in terms of existing international law. So far no consistent usus has emerged. By contrast, opinio necessitatis has been widespread and seems to be in the process of crystallizing; however, this has not gone unopposed. Consequently, humanitarian countermeasures outside the Charter framework are still unauthorized by current international law.