Of War, Humanity and Justice: International Law After Kosovo

Abstract

When, in 1945, the founding fathers of the United Nations laid down the Charter rules governing the use of force, their paramount concern was the prevention of inter-state violence, acts of aggression and armed invasions which had been the cause of World War II. This is made clear in the language of Article 2 para. 4 (All Members shall refrain in their international relations from the threat or use of force ...), by the focus on self-defence as the sole exception to the unilateral use of force, and, more cogently, by the collective security system embodied in Chapter VII of the Charter. This system is controlled by the veto power of the five permanent members of the Security Council. Whether or not today this system is adequate for maintaining order in a world that has undergone profound transformations since 1945. It is clear that at its inception it was not intended for it to cope with crisis involving large scale violations for human rights within a given state's boundaries. For this type of situation, the Charter does not provide an explicit exception to the general prohibition of armed force. It recognizes domestic jurisdiction (Article 2 para. 7) as a shield against intervention in internal affairs by the Organization, with the sole exception of Chapter VII enforcement measures. It also recognizes the obligation to promote human rights (Arts 1 para. 3 and 55 lit.(c)) as a matter of duty to cooperate individually or collectively with the Organization