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NATO'S "BRAIN DEATH": A LEGAL PERSPECTIVE
VIRDZHINIYA PETROVA GEORGIEVA, National Autonomous University of Mexico (Mexico City, Mexico)
https://doi.org/10.17589/2309-8678-2020-8-3-32-63
At present, NATO is facing a severe crisis and has showed symptoms of disintegration and polarization of the relations between its Member States. At the last head meeting of the organization's Council, in December 2019, in London, French President Emmanuel Macron qualified NATO's current crisis as a "brain death." From a legal perspective, the main cause of this alleged "brain death" is the organization's special status under international law. In fact, NATO has constantly violated its constitutive treaty and many other international conven tional and customary norms, including ius cogens rules. However, the organization has never assumed any negative legal consequences for its internationally unlawful behavior. This situation has reduced the legitimacy of the institution and has corroded, from the inside and the outside, states' will to cooperate with the fulfilmen t of its objectives. Thus, NATO could only surmoun t its current crisis and con tinue to play a crucial role as a guardian of the in ternational peace and security and as a promoter of the rule of law at the global level, if it accepts to submit its political and military power to international law.
Keywords: NATO; North Atlantic Treaty; collective defense system; international peace and security; international responsibility; immunity from jurisdiction.
Recommended citation: Virdzhiniya Petrova Georgieva, NATO's "Brain Death":A Legal Perspective, 8(3) Russian Law Journal 32-63 (2020).
Table of Contents
Introduction
1. The Violations of the North Atlantic Treaty in NATO's Practice 1.1. The Transgressions of NATO's Constitutive Treaty's Preamble
1.2. The Violations of Articles 1,2,7 and 8 of the North Atlantic Treaty 2. The Lack of Negative Legal Consequences of NATO's Internationally Unlawful Behavior
2.1. The Irresponsibility of NATO
2.2. The Irresponsibility of NATO's Member States
2.3. The International Criminal Irresponsibility of NATO's Personnel
2.4. The Impossibility to Impose Sanctions to NATO and its Member States on the Basis of the North Atlantic Treaty and Chapter VII
of the U.N. Charter Conclusion
Introduction
The post-World War II international liberal order was born with the promise to preserve future generations "from the scourge of war" and to guarantee, beyond all, respect for human rights and fundamental freedoms. This order was constructed on the basis of a complex legal and institutional framework, aimed to foster states' economic, cultural and social development and to promote democracy and the rule of law. To that effect were created, in an extremely short period of time, many international intergovernmental organizations: the United Nations (U.N.), in 1945, the two Bretton Woods institutions-the World Bank (WB) and the International Monetary Fund (IMF)-in 1947, and the North Atlantic Treaty Organization (NATO) in 1949.
More than 70 years after their creation, these institutions suffer a deep structural crisis and are not able to provide efficient responses to the demands of the international community, at the beginning of the 21st Century.
NATO's crisis is particularly significant in this regard, as it has been frequently considered as one of the main institutional foundations of the post-World War II international liberal order.1
NATO is a military alliance, which establishes a collective defense system between the United States (U.S.), Canada and 29 European States, 22 of which are members of the European Union (EU). From a legal standpoint, NATO is an intergovernmental international organization, created by a constitutive treaty-the North Atlantic Treaty-and endowed with international legal personality. During the first 40 years after its creation, NATO's main purpose was to defend the territorial integrity and the sovereignty of its European Member States from the influence and the military ambitions of the Soviet Union. After the end of the Cold War, NATO's military interventions were rather actions taken in the context of internal conflicts
1 Robert Kagan, NATO's Global Peace Is Unraveling and We Can't See It, Brookings, 15 July 2018 (Jul. 2, 2020), available at https://www.brookings.edu/blog/order-from-chaos/2018/07/15/natos-global-peace-is-unraveling-and-we-cant-see-it/.
on the territory of no Member States. NATO actively took part in the civil war in ex-Yugoslavia, through operations in Bosnia and Herzegovina and Kosovo, at the end of the 90's. in response to the terrorist attacks of 11 September 2001, NATO's members put in practice the organization's collective defense system to protect the security of the U.S. and joined this country in its war in Afghanistan, in 2003. in 2011, a military coalition, placed under the authority of NATO, intervened in the civil war in Libya and supported the rebel groups against the Government of General Muammar Gaddafi. Only 5 years later, in 2016, after the arrival of Donald Trump to the White House, the Euro-Atlantic alliance entered in a period of severe crisis and showed symptoms of disintegration and polarization of the relations between its Member States. At the last head meeting of NATO's Council, in December 2019, in London, French President, Emmanuel Macron, qualified NATO's current crisis as a "brain death."2
NATO's crisis has been analyzed mainly by specialist in international politics3 and has received little attention by international law scholars. The North Atlantic Treaty is one of the briefest treaties in international law's history and certainly, the less studied. Almost all the constitutive treaties of international intergovernmental organizations count with an official "commentary," article by article. This is not the case for the North Atlantic Treaty. Even its travaux préparatoires were kept secret for many years and de-classified and published only recently.4 However, the highly political nature of NATO and its constitutive treaty doesn't place its functions outside international law's scope of study and regulation. Quite on the contrary, NATO's intervention in international relations strongly relies on a full understanding of the international legal norms and principles that rule its behavior.
in this sense, the main objective of this article will be to provide a legal perspective on NATO's alleged "brain death." it will argue that the main cause of NATO's current crisis is the organization's special status under international law. in fact, NATO seems to be not only a non-legal subject of study, but also an entity placed "beyond" the respect for international law. As it will be shown in the first part of the research, NATO has constantly violated its constitutive treaty and many other international conventional and customary norms, including ius cogens rules. However, the second part of the article will prove that the organization has never assumed any negative
2 NATO Alliance Experiencing Brain Death, Says Macron, BBC, 7 November 2019 (Jul. 2, 2020), available at https://www.bbc.com/news/world-europe-50335257.
3 Magnus Petersson, NATO and the Crisis in the International Order: The Atlantic Alliance and its Enemies (London: Routledge, 2018); Douglas Lute & Nicholas Burns, NATO at Seventy: An Alliance in Crisis, Report, Belfer Center for Science and International Affairs, Harvard Kennedy School (February 2019) (Jul. 2, 2020), available at https://www.belfercenter.org/publication/nato-seventy-alliance-crisis.
4 Steven Hill, Keynote Presentation, Conference, NAT0@70: The Role of International Law in Collective Security, 27 September 2019 (Jul. 2, 2020), available at https://www.youtube.com/watch?v=sR0YI8 V7NrQ.
legal consequences for its internationally unlawful behavior. It seems that the rules of the post-World War II international liberal order were designed to afford to this institution an almost complete impunity in international and domestic law. This impunity has lessened the legitimacy of the organization and has corroded, from the inside and the outside, states' will to cooperate with the fulfilment of its objectives. Consequently, from a legal perspective, NATO could only surmount its current crisis and continue to play a crucial role as a guardian of the international peace and security and as a promoter of the rule of law at the global level, if it accepts to submit its political and military power to international law.
1. The Violations of the North Atlantic Treaty in NATO's Practice
1.1. The Transgressions of NATO's Constitutive Treaty's Preamble
By virtue of the Preamble of the North Atlantic Treaty,
The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.
They are determined to safeguard the freedom, common heritage and civilization of their peoples, founded on the principles of democracy, individual liberty and the rule of law.
The principles of democracy, individual liberty and respect for the rule of law are not only the core values of NATO's constitutive treaty, but also the axiological foundations of the whole international liberal order. This order was built upon the historical, political, cultural and even linguistic affinity between countries from the so-called "West" (essentially, Western Europe and the U.S.). The end of World War II and the end of the Cold War sealed the victory of these values over other "civilizational" options, such as the envisaged by Nazi Germany, imperialistic Japan and authoritarian Soviet Union, and permitted the consolidation of the Euro-Atlantic leadership over international community's destiny.5 At the same time, the North Atlantic Treaty's references to "democracy, liberty and the rule of law" reveal the central place that the U.S.' domestic political culture occupied in the vertical and hegemonic liberal international order. The U.S.' privileged position after the end of World War II allowed this country to become the main "architect" of the legal and political design of all the international institutions created in this period. The main objective of the recourse to these (western and American) institution building values was to create a global environment where American hegemony and super-power (military, economic and political) could flourish and be maintained. Additionally,
5 G. John Ikenberry, Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order (Princeton: Princeton University Press, 2012).
these values were to serve as a catalyst for the development of strong and stable democratic institutions and human rights protection mechanisms in the domestic legal systems of the countries from the rest of the world.
North Atlantic Treaty's Preamble's values and principles are essential for the cohesion and the cooperation among NATO's Member States, but these values are frequently invoked, as well, towards third countries. NATO's "legal acquis" includes, in the conditions for membership in the organization, a strong commitment to democracy and the rule of law.6 These requirements were put in practice in all the admission processes, including the last ones, for Croatia and Albania, in 2009, and for Macedonia, in 2016.7 Additionally, since 2011, NATO has created a special mission for "rule of law" building during its peacekeeping operations (NATO Rule of Law Field Support Mission),8 in order to assist host countries in strengthening their democratic institutions and commitment to the rule of law.9
Finally, the rule of law standard is used by NATO in measuring the degree of external threats to the principles and values, endorsed by the North Atlantic Treaty's Preamble. In this sense, Russia is frequently considered as the Euro-Atlantic's alliance biggest challenge and the strongest opponent to its security politics. Since its first election, in 2000, as President of the Russian Federation, Vladimir Putin has (re) instituted a strong authoritarian government. The recovery of Russian economy, completely devastated in 1990, paved the way toward the centralization of power in Putin's hands. Russian foreign policy sought (once again) to expand its influence spheres around the world (in Eastern Europe, Middle East, and Latin America, for example) through alliances with other no democratic regimes, like China and Iran. Thus, for NATO, the weakness of democracy and the rule of law at the domestic level, has strengthened Russia's military capacities and traditional hostility towards the western (Euro-Atlantic) principles and values, as foundation of the global order.10
But the violation of the North Atlantic Treaty's Preamble's principles and values doesn't come only from states that are not members of NATO, such as Russia. In fact,
6 By virtue of Article 10 of the North Atlantic Treaty,
"The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty ...
This duty is detailed in the Alliance's 1995 Study on Enlargement, which establishes as conditions for admission of new members to NATO, the existence of democratic political system and a free trade domestic market."
7 North Atlantic Treaty Organization, NATO Enlargement & Open Door, Fact Sheet (July 2016) (Jul. 2, 2020), available at https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2016_07/20160627_1607-factsheet-enlargement-eng.pdf.
8 Id.
9 NATO has put in place this Mission during its operations in Afghanistan, for example.
10 Petersson 2018, at 10.
one of the main causes of the alliance's current crisis is their violation by NATO's members, themselves.
Europe represents no more the most "liberal-democratic" island of the world.11 The financial crisis in 2008 and the current migration crisis have conducted Europe to one of its worst political crisis after the end of World War II. Authoritarian and populist parties have replaced liberal democracy in many countries of Central and Eastern Europe, such as Poland, Hungary, Slovakia, the Czech Republic, and Bulgaria.12 Populist and nationalist parties have also won victories in France, Italy, and Austria.13 Turkey has instituted an authoritarian regime under Recep Tayyip Erdogan's Presidency and has distanced itself from the respect for democracy and the rule of law.14
The no respect for democracy and the rule of law in NATO's European Member States is aggravated by the situation in the U.S., after the election of Donald Trump. His foreign policy has been the most significant "crusade" an American President has ever had against international law and against the (originally American) values and principles of democracy and the rule of law. Emblematic in this respect have been his decisions to leave the U.N. Human Rights Committee, and its position toward the U.S.' European "closest allies," seen less as "partners and friends" and more as "bad countries'-competitors that have taken "advantages of the U.S." The list of aggressions and humiliations against European countries in Trump's foreign policy is large. The elevation of tariffs on European imports and the consequent "trade war" against EU countries, the attacks against the "nuclear deal" with Iran or the decision to recognize Jerusalem as Israeli capital, without taking account of the position of the U.S.' European and NATO allies are just some few examples. As mentioned above, NATO's core principles and values are the result of a historical affinity and a close
11 Petersson 2018, at 24.
12 In Poland, the Law and Order Party, in the Government since 2015, has implemented a robust antimigration domestic policy and has adopted constitutional reforms that has affected the autonomy of the Judicial Branch of the Government and its capacity to control the legality of Executive Power's acts. In Hungary, Viktor Orban's party has transformed itself into a populist, nationalist and conservator party. In Slovakia and the Czech Republic the parties in the Government have developed anti-immigrant, pro-Russian and xenophobic tendencies. In Bulgaria, the "Patriotic Front," in coalition with the Government, has kept racist, xenophobic and anti-immigrant discourses, mixed with discrimination policies towards the principal ethnical minorities in the country (gypsies and Turkish).
13 In France, the Front National party and its leader-Marine Le Pen-have won popularity through a combination of fervent nationalism, opposition to immigration and hostility towards the European Union. In Italy, the populist and Eurosceptic party of Five Star Movement (Movimento 5 Stelle), had an unexpected success in the 2013 elections and arrived to the Government after the general elections in 2018. In Austria, the populist Freedom Party came to power in coalition with another party, even if some of its members have a confirmed neo-Nazi past.
14 Turkey has also developed a very close relationship with Russia. In 2016, President Putin criticized the failed coup d'état in Turkey, while President Erdogan blamed the UE and the U.S. for supporting it. In 2018, without taking account on NATO's warnings, Turkey bought Russian missiles, and in 2019, it invaded the North of Syria, in its intent to fight against the Kurdish separatist movements. Petersson 2018.
cooperation relationship between the U.S. and Europe. The negative consequences of Trump's foreign policy on the Euro-Atlantic partnership have an extremely corrosive effect on these values. Additionally, Trump has attacked not only the European allies, but NATO itself. In many public speeches, the U.S. President has considered that "NATO is as bad as NAFTA," as it is "too costly for the U.S."15 In other occasions, Trump has warned the European countries that if they don't pay and/or increment their financial contributions to NATO, the U.S. will not support their security defense no more.16 In NATO's head meeting in Brussels, in 2018, Trump attacked Germany and denounced its extreme dependence on Russian gas, considering that it has become Putin's "captive client." After this meeting, he threat the European allies that if they don't increment their financial contribution to NATO, the U.S. would "go alone," making allusion to the possibility for this country to retire from the organization.17 Trump's competitive and contractualist vision of international organizations, in general, and NATO, in particular, doesn't seem to consider that North Atlantic Treaty's Preamble's democratic and liberal values are "sacro-saint."
1.2. The Violations of Articles 1,2,7 and 8 of the North Atlantic Treaty
By virtue of Article 1 of the North Atlantic Treaty,
The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.
This Article is a substantial copy of Article 2(4) of the U.N. Charter18 and should be interpreted in conformity with its Article 33.19
The general prohibition to use force in intergovernmental relations, established in Article 2(4) of the U.N. Charter, has acquired a customary nature and has been
Petersson 2018.
According to this provision,
"All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations"
Article 33 states that
"Any dispute that is likely to endanger the maintenance of international peace and security should first be addressed through negotiation, mediation or other peaceful means, and states that the Council can call on the parties to use such means to settle their dispute."
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considered as an iuscogens rule.20 The U.N. Charter provides two unique exceptions to that prohibition- the individual self-defense of Article 5121 and the collective defense system, articulated in Chapter VII of the Charter and operated by the U.N. Security Council.
The"ra/son d'être" of NATO and the principal objective of the North Atlantic Treaty is to establish a regional collective defense system between its Member States, in accordance with Article 52 of the U.N. Charter.22 By virtue of Article 5 of the North Atlantic Treaty,23 NATO's collective defense system should be consistent with the rules governing the use of force (ius adbellum), as established in the U.N. Charter and in general international law. In the same sense, Article 7 of the North Atlantic Treaty states:
This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.
This is because the U.N. Charter's obligations enjoy primacy over those contained in other treaties, including the North Atlantic Treaty.24 Further support for this premise is found in the Vienna Convention on the Law of Treaties (Art. 30), which provides that
When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14.
21 By virtue of Article 51,
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
22 According to Article 52 of the U.N. Charter, it is possible, for U.N. Member States, to create regional collective defense systems if they are consistent with the use of force governing rules of the Charter.
23 This provision establishes that
"The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security."
24 Article 103 states that members' obligations under the U.N. Charter override their obligations under any other treaty.
Consequently, NATO's collective defense system can only be activated if one of its Member States is a victim of an "armed attack," according to Article 51 of the U.N. Charter. The exercise of the right to self-defense should also obey to the Caroline case customary conditions: proportionality, necessity, and immediate character.25 A contrario, if NATO decides to use force, when none of its Member States is victim of an "armed attack," or if its response to that armed attack is not immediate, proportional and necessary, the organization would be committing a violation of the conventional and customary rules governing the use of force, that could amount to an act of aggression, prohibited in international law.
The only other option to use armed force legally, by virtue of international law, is to do so on behalf of the international community, as a whole, acting on the basis of an express authorization of the U.N. Security Council.26 Thus, a military operation, led by NATO, which is not deployed in response to an armed attack against one of its members, can be legal, if the U.N. Security Council has authorized NATO and/or its Member States to "use all necessary measures" (argot of the Council to name the use of armed force) to put an end to a threat to the international peace and security.
In more than 70 years of history, the collective defense clause of Article 5 of the North Atlantic Treaty has been invoked as a response to an armed attack against one of NATO's Member States in only one occasion.27 The other military interventions of this organization constituted violations of the North Atlantic Treaty, the U.N. Charter and general international law.
NATO's intervention in Kosovo, at the end of the 90's, violated Article 2(4) of the U.N. Charter and Articles 1 and 7 of the North Atlantic Treaty. In this case, NATO used military force against the ex-Yugoslavia, without any armed attack of this country against NATO and/or NATO's Member States and without any express authorization to do so by the U.N. Security Council. In fact, in 1998, the Security Council voted Resolution 1199 (1998) in which it considered that the situation in Kosovo is a threat to international peace and security and demanded an immediate cease-fire. However, it didn't authorize U.N. Member States to use military force in the Yugoslavian territory,
25 Caroline affair, 1837.
26 By virtue of Article 43 of the U.N. Charter, U.N. Member States were supposed to put on disposal of the organization military stuffs and other facilities. Nevertheless, in practice when the Security Council has authorized the use of armed force, he has left U.N. Member States or a coalition of U.N. Member States to deploy military operations, by their own.
27 The decision to implement a collective defense operation, based on Article 5 of the North Atlantic Treaty, should be taken by consensus of all NATO Member States. The consensus vote procedure actually grants a veto power to any Member State of NATO, which can block the decision to apply Article 5. Such a decision received the unanimous approval of all NATO members on 12 September 2001, a day after the 9/11 terrorist attacks against the U.S. Even if the armed attacks against the U.S. were perpetrated by a no state entity, the U.N. Security Council considered that they amounted to an armed attack and justified the invocation of Article 51 of the U.N. Charter, and, ipso iure, of Article 5 of the North Atlantic Treaty.
because of an imminent Russian veto on this point. In response, NATO began military air-strikes on civil and military objectives, located on the territory of ex-Yugoslavia.28 By so doing, NATO' Member States violated their duty "to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations" (Art. 1 of the North Atlantic Treaty). NATO's intervention in Kosovo constituted a unilateral use of force and an act of aggression, contrary to Article 2(4) of the U.N. Charter. Consequently, it also constituted a violation of Article 7 of the North Atlantic Treaty. The illegality of NATO's actions in this conflict was supposed to be covered by the concept of "humanitarian intervention," which has nowadays involved into the "responsibility to protect" doctrine.29
The instrumentation of this doctrine and the negative effects of NATO's intervention in Kosovo (increased number of refugees and civil victims of the conflict, intensification of the ethnic depuration, and difficulties to reconstruct a divided nation) were repeated during NATO's military operations in Libya, in 2011. Once again, NATO's actions in a third country constituted a violation of Article 7 of the North Atlantic Treaty, as the use of military force was based on a Resolution of the U.N. Security Council, but NATO clearly exceeded its terms. In fact, Resolution 1973 (2011) determined
that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security
and authorized
Member States ... acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory ...30
At the beginning, the military operation in Libya was led by a coalition of states (France, the U.S., and the UK) and it then passed on the command of NATO. There were many proves that NATO's operations were not limited to protect civilians and included direct participation in the internal civil war, on behalf of one of the parties, through arms deliveries to the rebel groups and air-strikes against Gaddafi's
28 Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10(1) European Journal of International Law 1, 6-7 (1999).
29 Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (2nd ed., Cambridge: Cambridge University Press, 2017).
30 U.N. Security Council, Resolution 1973 (2011), S/RES/1973 (2011), 17 March 2011, paras. 1 & 4 (Jul. 2, 2020), available at https://unsmil.unmissions.org/sites/default/files/SRES1973.pdf.
government's targets.31 China and Russia protested against what they considered as an unlawful interference in the internal affairs of a sovereign state and pointed out that NATO had exceeded the limits of the U.N. Security Council's authorization to use military force.32 Instead of protecting civilians from the atrocities of the civil war in Libya, NATO used the "responsibility to protect" concept as an alibi to overturn the Gaddafi's government and to sum Libya in chaos and no governability.33 The excess of NATO in Kosovo and Libya explains the extreme caution of Russia and China, regarding new possible "interventionists" invocations of the "responsibility to protect" in U.N. Security Council's resolutions, and the no application of this concept to the Syrian34 and/or Venezuelan humanitarian catastrophes.
It is worthy to mention that NATO's interventions in Kosovo and Libya were also contrary to some ius in bello (International Humanitarian Law) rules.
NATO's actions during the Kosovo crisis violated the Geneva Conventions on International Humanitarian Law. In fact, during its bombing over the territory of ex-Yugoslavia, NATO's targets were not only military, but also civilian. Air-strikes were conducted against bridges, hospitals, industrial plants, public and private buildings, as well as the headquarters of Radio and Television of Serbia, killing more than 300 civilians. NATO also bombed chemical plants and oil installations, causing harms to the environment. The targeting of civilian and not only military objectives35 during a military conflict is inconsistent with the principle of distinction, which obligates military commanders to distinguish between military objectives and civilian persons or objects.36 The obligation not to cause harms to the environment is established in Article 35(3) of the Additional Protocol I to the Geneva Conventions37 and Article 55 of
Libyan Rebels Target Gadhafi's Birthplace, CNN, 29 March 2011 (Jul. 2, 2020), available at http://www. cnn.com/2011/WORLD/africa/03/28/libya.war/; Christian Henderson, International Measures for the Protection of Civilians in Libya and Cote d'lvoire, 60(3) International and Comparative Law Quarterly 767 (2011); Ashely Deeks, The NATO Intervention in Libya, Virginia Public Law and Legal Theory Research Paper No. 2017-23 (2011) (Jul. 2, 2020), available at https://ssrn.com/abstract=2966122.
Andrew Jacobs, China Urges Quick End to Airstrikes in Libya, New York Times, 22 March 2011 (Jul. 2, 2020), available at http://www.nytimes.com/2011/03/23/world/asia/23beiijing.html; Deeks, supra note 31.
Thakur 2017.
The most widely accepted definition of "military objective" is the one provided in Article 52 of the Additional Protocol I, which states:
"In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage"
This principle is expressed in Article 57 of the Additional Protocol to the Geneva Conventions which obligates those who plan or decide upon an attack to "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects."
According to this Article,
"It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment"
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the Geneva Convention.38 After the end of the conflict, NATO created a peacekeeping operation in Kosovo. The KFOR was composed by 50,000 persons, from 36 countries, placed upon NATO's command.39 The KFOR personnel was directly involved in forced prostitution and human trafficking.40 Human trafficking is a violation of provisions of International Humanitarian Law41 and of International Human Rights Law,42 and forced prostitution is a violation of the rules of International Criminal Law.43
During NATO's operation in Libya there were indices, as well, of the violation of the ius adbellum principle of distinction, due to the direction of the military air-strikes against areas, with a big density of civilian population.44
To the repeated violations of Articles 1 and 7 of the North Atlantic Treaty in Kosovo and Libya should be added the current violation of Article 2 of this international agreement. According to Article 2,
The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions,
By virtue of this provision,
"1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population."
Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, International Criminal Tribunal for the former Yugoslavia (Jul. 2, 2020), available at https://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal.
David Nauta, The International Responsibility of NATO and its Personnel During Military Operations 24 (Leiden; Boston: Brill Nijhoff, 2018).
Kosovo (Serbia & Montenegro): "So Does That Mean I Have Rights?": Protecting the Human Rights of Women and Girls Trafficked for Forced Prostitution in Kosovo, Amnesty International, 6 May 2004 (Jul. 2, 2020), available at https://www.amnesty.org/download/Documents/96000/eur700102004en.pdf; Barbara Limanowska; United Nations Children's Fund, United Nations Office of the High Commissioner for Human Rights, Organization for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights, Trafficking in Human Beings in South Eastern Europe: 2004 - Focus on Prevention in: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia and Montenegro, and the UN Administered Province of Kosovo (March 2005) (Jul. 2, 2020), available at https://www.un.org/ruleoflaw/files/humantraffickinginSouthEasternEurope.pdf.
Arts. 49 & 146 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV).
In this sense, Article 5 of the United Nations Convention against Transnational Organized Crime obliges states to establish as criminal offences the participation in an organized criminal group and to enact legislation to criminalize the act of human trafficking.
Forced prostitution is a war crime and a crime against humanity, according to Articles 82 and 7(1)(g) of the Rome Statute of the International Criminal Court.
Human Rights Watch, Unacknowledged Deaths: Civilian Casualties in NATO's Air Campaign in Libya, 14 May 2012 (Jul. 2, 2020), available at https://www.hrw.org/report/2012/05/13/unacknowledged-deaths/civilian-casualties-natos-air-campaign-libya; U.N. Human Rights Council, Report of the International Commission of Inquiry on Libya, 8 March 2012, A/HRC/19/68 (Jul. 2, 2020), available at https://www.ohchr.org/Documents/ HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.pdf.
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by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being. They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.
Known as the "Canadian" article, this text gives testimony of NATO's (and other post-World War II international institutions') comprehensive approach to security, as encompassing not only the absence of "war," but also the "economic peace" between nations.
The need to "eliminate conflict" in states' international "economic policies," as a condition for nations' stability and well-being, is an historical legacy of the period prior to the beginning of World War II. In fact, during the decade of 1930, many countries, including the U.S., developed preferential bilateralist tactics in international economy and trade. In this period, discriminatory trade blocs and protectionist trade agreements contributed to one of the most severe global trade contractions in the world economic history.45
Nowadays, these tactics seem to be back in NATO's Member States' international trade policies. In fact, since his arrival at the White House, Donald Trump has favored a more active intervention of his Government in the volume and level of the United States' trade exchanges with the rest of the world. In many of his public statements, Trump blamed his trade partners of "taking advantage" of his country by "huge trade deficits," depredatory and unfair trade practices.46 As response to these practices Trump's Foreign Policy offers a"more aggressive approach," based on a neo-protectionism in some strategic sectors of the U.S.' economy.47 This neo-protectionism seeks to "encourage other countries to give U.S. producers fair and reciprocal access to their markets"48 and relies on the use of the most classical tool of this international
The bourse crack of "the black Thursday" and the devastation "debts" of World War I (hyperinflation, huge foreign debts, and high cost of the reconstruction, political and social instability) precipitated the "Great Depression" in the United States and its sparrow all over the world. In response, the U.S. government adopted the famous Smoot-Hawley Tariff Act in 1930, which increased the duties and tariffs on imports to the United States of more than 20,000 products. Many countries, like Canada, Spain, Italy and Switzerland adopted direct retaliations, imposing tariff, and non- tariff trade barriers to U.S. exports. Other states, particularly, the UK, retailed indirectly and reduced trade barriers with other partners on a discriminatory basis. These protectionists and preferential trade policies conducted to the creation of "economic areas," like the "sterling trade zone," the "dollar bloc," the "gold bloc" and the "Nazi bloc"These blocs' main objectives were to "empoorish the neighbor" and their direct result was a disintegration of international finance and trade. Francisco Comín Comín, Historia Económica Mundial: De los orígenes a la actualidad (Madrid: Alianza, 2011).
2017 Trade Policy Agenda and 2016 Annual Report, United States Trade Representative (Jul. 2, 2020),
available at https://ustr.gov/about-us/policy-offices/press-office/reports-and-publications/2017/2017-trade-policy-agenda-and-2016.
45
46
47
trade policy: the tariffs. Trump's indiscriminate use of tariffs has led the entire world in a global "trade war."49 In a legal perspective, Trump's neo-protectionist tariffs violate many rules and principles of International Trade Law.50 But, at the same time, they constitute a violation to Article 2 of the North Atlantic Treaty, as they only produce "conflict in the international economic policies" of NATO's Member States.
Trump critics on economic and trade multilateralism are also affecting negatively the "economic collaboration between any or all of them" (Art. 2 of the North Atlantic Treaty). Multilateral (economic) cooperation has been the basis for the negotiation of legal rules and principles of International (Trade) Law and their embedment in international treaties, since the end of World War II. Nevertheless, in Trump's Foreign Policy's view, those legal norms are plagued by "bad deals," that serve no more U.S.' national interests and pose an obstacle to"Make America Great Again" One of Trump's principal campaign promises was the re-negotiation and/or withdraw of the U.S. from many international multilateral trade agreements. After winning the elections, Trump has been particularly consistent and has kept this promise.51 Trump's vision of international trade has clashed as well with WTO and the international multilateral trade system, as a whole.52
Finally, it is worth to mention that NATO Member States are also violating Article 8 of the North Atlantic Treaty. According to this Article,
49 Trade Wars, Trump Tariffs and Protectionism Explained, BBC, 10 May 2019 (Jul. 2, 2020), available at https://www.bbc.com/news/world-43512098.
50 The abrupt increase in the tariffs is a direct and clear violation of rules established since the entry in force of the General Agreement on Trade and Tariffs (GATT). In fact, the tariff concessions of WTO Member States figure in legal documents called "Schedules of Concessions," which record members' specific commitments on tariffs and other concessions. These Schedules thus provide security and predictability of market access for goods. WTO rules allow states to modify and renegotiate their tariff schedules under some restrictive conditions laid down in WTO law. However, they can't misapply their schedules without previous modification of their commitments, unless they prove there is a legal reason to do so. Additionally, if states decide to elevate their tariffs regarding some WTO Member States, but not regarding all of them, they can incur in a violation of the most favored nation clause under GATT Article I.
51 Few time after his arrival to the White House, President Trump announced U.S.' withdraw from the Transpacific Partnership (TPP) and initiated the re-negotiation of the North American Free Trade Agreement (NAFTA) with Mexico and Canada. At the same time, Trump blocked the negotiations of the Transatlantic Partnership (TAP) with the EU and the Trade in Services Agreement (TiSA) with 24 other WTO members. Finally, Trump's Administration initiated a real "crusade" against another multilateral agreement, administered by the WTO: the Dispute Settlement Memorandum of Understanding.
52 In many public speeches, President Trump and Robert Lighthizer-the U.S.'Trade Representative-have expressed their "discontent" and "disappointment" with WTO. After the last WTO ministerial meeting in Buenos Aires, in 2017, Lighthizer mentioned that the United States is "concerned" because the WTO is losing its primary objectives and is becoming an organization, centered on disputes. In the same sense, during his official visit in Vietnam, Trump noticed that the U.S., "is not treated correctly" in the WTO. As a consequence, Trump's Administration blocked the nomination of arbiters at the Appellate Body of the Dispute Settlement Mechanism of the WTO. Virdzhiniya Petrova Georgieva, La crisis de la Organización Mundial del Comercio: problemas e (im) posibles soluciones, 1(20) Anuario Mexicano de Derecho Internacional 25 (2020).
Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty.
NATO's constitutive treaty is one the few international instruments that contains a "supremacy clause," similar to the one established in Article 103 of the U.N. Charter.53 However, Article 8 is narrower than Article 103.54
The first current violation of Article 8 of the North Atlantic Treaty concerns the intention of some European NATO Member States to go further with EU's own defense system. Even if the creation of a "European army" failed in 1954,55 the idea has never been abandoned completely and recently, some European leaders, particularly French President, Emmanuel Macron, supported a"strong defense union between the UE Member States" and a further "European strategic autonomy" by the strengthening of the "European pillar of NATO."56 This proposal is based in the already existing legal regulations of a common European defense policy. In fact, according to Article 42(2) of the Treaty on the European Union, such a system can be adopted in the future by the organizations' representative bodies and by its Member States.57
53 By virtue of this Article,
"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
54 First of all, the U.N. Charter uses the expression "international agreement," while NATO's treaty refers to "international engagement." An "international engagement" could create duties on behalf of states, by almost any means (international treaties, soft law arrangements, or even unilateral acts). "International agreement" has a more strict meaning and is generally used as synonym of an internationally binding instrument, such as treaty. On the second hand, Article 103 of the U.N. Charter only applies to already existing conflicts between the Charter and another agreement concluded by U.N. Member States, stating that in such a case, that the Charter will prevail, while Article 8 of the North Atlantic Treaty establishes a more encompassing obligation upon NATO's Member States, prohibiting to them to enter into any future "international engagement" that can contradict their obligations under the NATO's constitutive treaty.
55 A Draft Treaty signed by the Governments of Belgium, France, Italy, Luxembourg, the Netherlands and the Federal Republic of Germany in 1954 was trying to create a European army, placed under NATO's command. The treaty never entered into force, because it was rejected by the French Government. European Defense: The Challenge of Strategic Autonomy, Sénat (Jul. 2, 2020), available at http://www. senat.fr/rap/r18-626-2/r18-626-22.html#fn5.
56 Macron Says NATO Is Experiencing 'Brain Death' Because of Trump, New York Times, 7 November 2019 (Jul. 2, 2020), available at https://www.nytimes.com/2019/11/07/world/europe/macron-nato-brain-death.html.
57 By virtue of Article 42(2),
"The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements."
The same Article contains a direct reference to Article 8 of the North Atlantic Treaty, as it seeks to guarantee the compatibility of a possible EU common defense system with "security and defense policy established" within the framework of NATO.58 Nevertheless, the creation of an EU common defense system will be difficult to reconcile with Member States' obligations under the North Atlantic Treaty and the possibility of future conflicts between the two institutional frameworks should not be under estimated. Even if the EU Member States' don't possess the financial and infrastructural capacities to build their own common defense system and are heavily relying on U.S. military supremacy to defend the security within the EU borders,59 the fact that the "collective security clause," established in Article 42(7) of the Treaty on the European Union60 has already been activated after the terrorist attacks against France in 2015,61 without having any recourse to Article 5 of the North Atlantic Treaty, shows the political will of the EU countries to increase their solidarity and strategic objectives more within the EU and less within NATO.
Another possible violation of Article 8 of the North Atlantic Treaty is Turkey's unilateral "engagements" towards Russia. In fact, Turkey has bought arms from Russia and has showed willingness to further its strategic cooperation with this country in many areas.62 These decisions were taken in complete autonomy and without any consultation with NATO's Member States, even if they clearly represent an engagement that can contradict Turkey's obligations by virtue of the North Atlantic Treaty.
58 According to Article 42(2),
"The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework."
59 As the French Senate has pointed out, the United States devotes 3.4% of its GDP to defense, i.e. $605 billion, which is equal to two-thirds of the military expenditure of all NATO countries combined. Within this gigantic U.S. military budget, spending specifically devoted to the defense of Europe is estimated at $35.8 billion in 2018, or 6% of the total, which is almost as much as the entire defense budget of France (€35.9 billion in 2019). European Defence: The Challenge of Strategic Autonomy, supra note 55.
60 This Article provides:
"If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defense policy of certain Member States. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organization, which, for those States which are members of it, remains the foundation of their collective defense and the forum for its implementation."
61 European Parliament resolution of 21 January 2016 on the mutual defence clause (Article 42(7) TEU) (2015/3034(RSP)) (Jul. 2, 2020), available at https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX%3A52016IP0019.
62 Relations Between Russia and Turkey, Rep. of Turkey Ministry of Foreign Affairs (Jul. 2, 2020), available at http://www.mfa.gov.tr/relations-between-turkey-and-the-russian-federation.en.mfa.
2. The Lack of Negative Legal Consequences of NATO's Internationally
Unlawful Behavior
2.1. The Irresponsibility of NATO
The above mentioned violations of the North Atlantic Treaty, as well as the violations of ius in bello and ius atbellum rules are, in international law, internationally wrongful acts.63 The subjects of international law, i.e. the entities endowed with international legal personality, are internationally responsible for these acts and must repair the damages caused to their victims.
NATO is an international intergovernmental organization that possess international legal personality.64 Although NATO's constitutive treaty is silent about this question,65 its legal personality can be determined according to the "test," developed by the International Court of Justice (ICJ) in the Reparations for Injuries case.66 NATO's capacity to celebrate international treaties with states and with other subjects of international law is another factual proof of its international legal personality.67
63 A violation of an obligation, incumbent to a subject of international law by virtue of a conventional or customary norm or principle of international law constitutes an internationally wrongful act that can compromise its international legal responsibility. By virtue of Article 2 of the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts,
"There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State."
64 Allain Pellet, L'imputabilité d'éventuels actes illicites: Responsabilité de l'OTAN ou des États membres in Kosovo and the International Community: A Legal Assessment 193, 198 (C. Tomuschat (ed.), The Hague: Kluwer, 2002).
65 Other constitutive treaties of international organizations expressly confer international legal personality to the created entity (see Art. 47 of the Treaty on the European Union, Art. 34 of the Asunción Treaty, establishing the Mercosur, Art. 176 of the U.N. Convention on the Law of the Sea, for example).
66 Concerning the international legal personality of NATO, the ICJ considered that
"It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. ... In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane."
In this sense, by the signature of the North Atlantic Treaty, NATO's Member States have entrusted to the organization duties and responsibilities, regarding the establishment of a collective self-defense system within its framework. NATO is, thus, exercising and enjoying duties and rights that are necessary for the fulfillment of its statutory objectives.
67 Thus, for example, NATO has concluded SOFA agreements, regarding the status of its military personnel and headquarters on the territory of Member States or no members of the organization. These agreements set up the general terms and conditions of the cooperation between the alliance and the host countries.
Consequently, NATO can be, in principle, held responsible for its internationally wrongful acts. However, NATO is a legal person-a fiction for (international) law-and it can only act by representation of its organs and agents. Article 6(1) of the International Law Commission's Draft Articles on the Responsibility of International Organizations states:
1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.
Thus, in principle, the internationally wrongful acts committed by agents and organs of NATO can be attributed to the organization.
Although the question of attribution of responsibility is particularly complex in the case of NATO, as many of its agents are also agents of Member States of the organization,68 what is really causing problems is the inexistence of instances where NATO's international responsibility can be invoked.
States' responsibility under international law can be alleged in proceedings before the ICJ. A state, victim of the internationally wrongful act, committed by another state, can bring a demand against the second before the "world court" and try to obtain reparation for the prejudice it has suffered. In contrast, NATO's international responsibility can't be invoked before the ICJ, because the alliance doesn't possess locus standi and can't participate, as claimant or defendant, in the resolution of the contentious cases brought to the Court's jurisdiction. The resolution of this type of disputes by the ICJ is exclusively reserved to states.69
No other international tribunal has competence to pronounce itself on questions relating to NATO's international responsibility.
The international human rights tribunals can hear demands on state's international responsibility in the human rights field. The majority of these demands are initiated by individuals against their national states, but it is also possible for a state to institute proceedings against another state, before a Human Rights Tribunal.70 Few time ago, it would be difficult to envisage cases instituted against international organizations
68 Nauta 2018.
69 By virtue of Article 34(1) of the Statute of the International Court of Justice, "Only states may be parties in cases before the Court."
70 According to Article 33 of the European Convention on Human Rights,
"Any High Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the Protocols thereto by another High Contracting Party."
In the same sense, Article 61 of the American Convention on Human Rights provides:
"Only the States Parties and the Commission shall have the right to submit a case to the Court."
before this type of international judicial bodies. However, the accession of the EU to the European Convention on Human Rights has opened the possibility for individuals to apply to the European Court of Human Rights (ECtHR) to review the legality of the acts of this international organization. In contrast, NATO is not a part to international human rights treaties and has not showed its willingness to submit itself to the jurisdiction of any international human rights tribunal.
The possible breaches of International Criminal Law by NATO can't be submitted to the jurisdiction of the international criminal tribunals. These judicial bodies are only entitled to determine the international criminal responsibility of individuals for the commission of international crimes (war crimes, crimes against humanity, genocide and crime of aggression). Thus, they have jurisdiction over acts, committed by NATO's agents, qua individuals, but not over violations of International Criminal Law, attributed to NATO, qua international organization.
Until now, no state or other subject of international law has presented any demand against NATO, for violations of international law, before an international tribunal. In the same sense, NATO has never brought proceedings against any other international law subject in the fora of an international judicial body.71 NATO seems to be placed completely outside of the scope of justice in international law.
Domestic tribunals are also entitled to act as "international law judges" and to use international law as a legal basis for the resolution of the cases, brought before their jurisdiction. Thus, for example, individuals can demand their national states before domestic tribunals, invoking the violation of an international treaty that affords rights and duties to private persons.72 However an international organization, such as NATO, can't appear in domestic judicial proceedings. NATO (and all the other international institutions) enjoys immunity from jurisdiction for acts performed in the course of
71 Nauta 2018, at 107.
72 There are several areas in which international law grants direct rights and duties to individuals. Many international norms and principles, applicable at the regional and universal level, protect the rights of some categories of individuals (refugees, stateless persons or workers) and the human rights of all private persons. Additionally, some regional human rights courts (like the European Court of Human Rights) have considered companies to enjoy a limited number of human rights. Private persons can invoke their human rights before international bodies (some U.N. bodies are competent in human rights protection) and before specialized regional courts and tribunals (like the European Court of Human Rights, the Inter-American Court of Human Rights or the African Court of Human Rights). All international human rights instruments establish the exhaustion of local remedies as a prerequisite for international judicial protection. Thus the ordinary, and primary, responsibility to protect international human rights belongs to national judges. Domestic judges can act not only as protectors of individual human rights, as granted by international law, but also as guarantors of the international duties of an individual. At present, individuals are active subjects of International Human Rights Law and passive subjects of International Criminal Law. According to the norms and principles of this specialized branch of international law, individuals have the obligation not to commit so-called international crimes, such as genocide, war crimes, crimes against humanity and crime of aggression. All domestic judges are vested with the authority to perform the so-called "universal jurisdiction" and the national tribunals of states that have ratified the Rome Statute are, by virtue of its provisions, complementary judges to the International Criminal Court.
its functions. Unless NATO expressly admits a waiver of immunity, litigants cannot initiate legal proceedings against the organization before a domestic tribunal. This "procedural barrier" is justified by the need to guarantee the efficient fulfillment of the objectives and aims, assigned to the organization by its foundational treaty, and to preserve its neutrality and independence vis-à-vis NATO's Member States. The jurisdictional immunity of NATO is established in Article 5 of the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed in Ottawa in 1951.73 This explains why there are no cases brought against this organization before national tribunals. NATO has only been judged and declared guilty in absentia by a Serbian Tribunal, located in Belgrade, but this case has more a symbolical than a legal value.74
The lack of jurisdiction of international tribunals and NATO's immunity before domestic tribunals produce as result the impossibility for a judicial body (internal or international) to determine NATO's international responsibility. Therefore, NATO's responsibility cannot by established by legal means and the victims of an internationally wrongful act, committed by this organization, don't have access to justice, in order to obtain reparation for the suffered prejudice(s). Even, if in strict terms, NATO is internationally responsible, the lack of judicial mechanisms for the establishment of that responsibility grants to this institution, a de facto, irresponsibility and a secured impunity in international (and domestic) law. In other words, NATO is allowed to violate international law, without assuming any negative legal consequences for its internationally unlawful behavior.
The current legal status of NATO is a severe violation of the "right to trial," as a human right of the victims of its internationally wrongful acts. According to Article 6 of the European Convention on Human Rights:
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
In Waite and Kennedy and Beer and Regan cases,75 the ECtHR considered that the right to trial might suffer limitations in cases presented against an international
73 According to Article 5,
"The Organization, its property and assets, wheresoever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case the Chairman of the Council Deputies, acting on behalf of the Organization, may expressly authorize the waiver of this immunity. It is however, understood that no waiver of immunity shall extend to any measure of execution or detention of property."
74 Andreas Laursen, NATO, the War over Kosovo, and the ICTYInvestigation, 17(4) American University International Law Review 765, 770 (2002).
75 ECtHR, Beer and Regan v. Germany, Appl. No. 28934/95, Judgment, 18 February 1999, para. 59; ECtHR, Waite and Kennedy v. Germany, Appl. No. 26083/94, Judgment, 18 February 1999, para. 68.
organization before a domestic tribunal, only if there are "alternative means" for the protection of the victims' human rights. In the case of NATO, such alternative means don't exist. The only internal judicial body to NATO is its Administrative Tribunal, but its jurisdiction is limited over labor law disputes opposing the organization to its personnel.76
2.2. The Irresponsibility of NATO's Member States
NATO's Member States can also be held responsible for the internationally wrongful acts, committed by their agents and/or organs during the alliance's military (and/or peacekeeping) operations. By virtue of Article 1 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
Every internationally wrongful act of a State entails the international
responsibility of that State.
According to Article 2,
There is an internationally wrongful act of a State when conduct consisting
of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
Thus, the responsibility of NATO's Member States can arise from acts committed by their agents during NATO's military operations. NATO's members voluntarily put these agents under the command of the organization, but they still can exercise some type of control over their activities.77 The generally accepted criteria to determine to whom the acts of NATO's personnel should be legally attributed is the "effective control" test.78 States can only be held responsible for internationally wrongful acts, committed by agents of NATO, during operations lead by this organization, if these agents were placed under states' effective control.
The international responsibility of NATO's Member States' can be determined in such cases by international tribunals.
As mentioned above, the ICJ has jurisdiction over interstate demands on responsibility for internationally wrongful acts, committed by state agents during an official function. In contrast with the number of breaches of international law
76 NATO Administrative Tribunal, NATO (Jul. 2, 2020), available at https://www.nato.int/cps/en/natohq/ topics_114072.htm.
77 Nauta 2018.
78 Nicaragua v. United States of America, supra note 20; ICTY, Prosecutor v. Dusko Tadic aka "Dule," IT-94-1-T, 7 May 1997.
committed by NATO, there is, so far, only one case brought against NATO's Member States on this ground. In the Legality of Use of Force cases, Yugoslavia instituted proceedings against eight NATO's Member States (Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, the United Kingdom, and the United States of America), invoking violations of their obligation not to use force against another State. In particular, Yugoslavia alleged breaches of the prohibition to use military force in international relations, violations of the principle of no intervention in domestic affairs, and of the obligations to protect civilian population and civilian installations during armed conflicts.79 The Court decided to join the eight cases, and finally declared that it lacked jurisdiction to resolve them, as Serbia and Montenegro-the state that succeeded to the ex-Yugoslavia-was not a state party to the Statute of the Court at the time of the institution of the proceedings.80 At the end of its reasoning, the Court added that, irrespective of whether it has jurisdiction over the dispute, the parties "remain in all cases responsible for acts attributable to them that violate the rights of other States."81 This unfortunate consideration shows that the Court was completely aware of the effect of its decision not to exam the merits of the case: the de facto irresponsibility of NATO's Member States for possible violations of international law during NATO's military actions against the ex-Yugoslavia.
The ECtHR has been another international tribunal that had the opportunity to determine NATO's Member States' international responsibility in the human rights field. In the Behrami and Saramati cases,82 a demand against three NATO Member States (France, Germany, and Norway) was brought before the Court, for acts committed by the KFOR in the territory of Kosovo.83 The ECtHR considered that the acts committed by KFOR agents had to be attributed to the U.N., not to NATO, nor to its Member States.84 As a consequence, it didn't review their compatibility with the European Convention on Human Rights. In the same sense, in the Bankovic
ICJ, Legality of Use of Force (Yugoslavia v. France), Application instituting proceedings, filed in the Registry of the Court on 29 April 1999 (Jul. 2, 2020), available at https://www.icj-cij.org/files/case-related/107/ 7159.pdf.
ICJ, Legality of Use of Force (Yugoslavia v. Spain), overview of the case (Jul. 2, 2020), available at https:// www.icj-cij.org/en/case/112.
Id.
ECtHR, Behrami and Behrami v. France, Appl. No. 71412/01, Saramati v. France, Germany, and Norway, Appl. No. 78166/01, Grand Chamber Decision (Admissibility), 2 May 2007, para. 43.
In the Behrami case, two boys were playing with undetonated bombs, placed by NATO in the Mitrovica region. One died and the other was badly injured. In the Saramati case, Mr. Saramati was arrested by agents of UNMiK, by orders of KFOR, in violation of his human rights under the European Convention on Human Rights.
KFOR was placed under the command of NATO, but NATO itself had to submit itself to the Resolutions of the U.N. Security Council, which had the "ultimate authority" over the peacekeeping mission in Kosovo. Behrami and Behrami v. France & Saramati v. France, Germany, and Norway, supra note 82, para. 133.
79
80
81
82
83
case,85 family members of the victims of NATO's bombing over the buildings of the National Radio and Television of Serbia, instituted proceedings against all the European NATO's Member States for violation of the European Convention on Human Rights. The ECtHR considered that it lacked jurisdiction to exam the merits of the case, as the Convention could not be applied extra-territorially and the ex-Yugoslavia was not member of the treaty at the time of the facts.86 Both cases show a lack of political will of the ECtHR to open the merits of cases concerning human rights violations committed by NATO's Member States. The result was the same as the one reached by the ICJ in the Legality of Use of Force case: the, de facto, irresponsibility of NATO's Member States for alleged internationally wrongful acts, committed during its peacekeeping and military operations.
The victims of NATO Member States' violations of international law could seek justice before the domestic tribunals. However, by virtue of the customary principle pars in parem non habet jurisdictionem, states enjoy an immunity from jurisdiction before the domestic tribunals of other states. The immunity is limited to the de iure imperii acts of state-acts that imply the use of state's public and sovereign prerogatives. The decision to participate in an international military operation, commanded by NATO, can be easily categorized as a de iure imperii act, being the defense and security's objectives intimately close to state's sovereignty. If a domestic tribunal of a state accepts to judge a Member State of NATO for alleged violations of international law, the second can bring an international claim against the first, invoking its international responsibility for the violation of the customary rules of international law that recognize its jurisdictional immunity.87
The last option for the victims of NATO's internationally wrongful acts would be to demand NATO's Member States before their own tribunals. In the first place, this would imply additional costs that many victims would not be in conditions to undertake. Additionally, as E. Benvenisti shows,88 when the application of international norms by national courts is sought in an attempt to constrain the activities of the executive branch, domestic judges might be more timid and reluctant regarding their potential in the international arena.89 The tendency for domestic judges to rule
85 ECtHR, Bankovic and others v. Belgium and 16 other Contracting States, Appl. No. 52207/99, Grand Chamber Decision (Admissibility), 12 December 2001.
86 Consequently, the victims were not placed "within the jurisdiction" of a Contracting Party of the Convention and the conditions for its application were not met according to its Article 1.
87 As the Jurisdictional Immunity of the State case (Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99) shows, the ICJ is still considering that states' immunities under international law are essential for the peaceful coexistence of nations, and that they allow no exceptions, even for acts that constitute violations of ius cogens rules.
88 Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4(2) European Journal of International Law 159 (1993).
89 Id. at 161.
on international law issues in favor of the interests of their own government has been a driving force behind the creation of various international dispute settlement mechanisms.90 These elements determine the little chance of success of the demands, brought by victims of NATO's Member States' unlawful behavior before their own domestic tribunals. The Presidency of the Council of Ministers v. Markovic case91 is very significant in this regard. In this case, familiars of the victims of NATO bombing upon the buildings of the National Radio and Television of Serbia instituted proceedings against Italy, alleging violations of the norms of International Humanitarian Law. The Italian Corte di Cassazione found that the choice of methods of warfare was to be regarded as "an act of government" that manifests a political function, with respect to which no judicial review was admissible.92
Finally, it is worthy to mention that if the victims of NATO's Member States' internationally unlawful acts decide to demand not the states themselves, but directly their agents before domestic tribunals, the lawsuits would probably not proceed. In the first place, most part of Member States' personnel, participating in NATO's missions is military and, in domestic legal orders, only subject to the jurisdiction of military tribunals, which can render an exceptional type of justice. In the second place, domestic tribunals of the state could not be independent from their Government. In the third place, NATO's agents also enjoy an immunity from jurisdiction before domestic tribunals. This immunity is recognized in the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, 19 June 1951 (NATO SOFA).93
90 One of the main reasons for the success of international commercial and investment arbitration is the fact that arbiters are not state agents and are supposed to be more independent than national judges are when they apply or interpret international law. In the same sense, the International Center for Settlement of Investment Disputes (ICSID) Convention expressly provides for a non-application of the rule of exhaustion of local remedies in international investment arbitration cases. The NAFTA arbitration system and the creation of international courts and tribunals, casts doubt on the ability of domestic judges to preserve the efficacy of the norms and objectives of international law when it goes against the will of their own government.
91 Corte di Cassazione, Presidency of the Council of Ministers v. Markovic and others, 85 Rivista di diritto internazionale 799 (2002).
92 International Law in Domestic Courts: A Casebook 30 (A. Nollkaemper et al. (eds.), Oxford: Oxford University Press, 2018).
93 According to Article VII of this Agreement, "1. Subject to the provisions of this Article,
a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;
b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.
2.3. The International Criminal Irresponsibility of NATO's Personnel
The International Criminal Tribunals were created in order to bring to justice persons, responsible for the commission of crimes than have shaken the conscience and the core values of the international community, as a whole.94 One of the revolutions of contemporary international law was the establishment of the international criminal responsibility of individuals. Two ad hoc international criminal tribunals-the International Criminal Tribunal for the ex-Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)-received jurisdiction to investigate and prosecute international crimes committed during the conflicts that took place in these countries. In 2003, the Rome Statute created the International Criminal Court (ICC)-a permanent international tribunal-competent to determine the international criminal responsibility of individuals that have committed international crimes in the territory of one of its Member States.
As mentioned above, NATO's personnel has been implicated in the commission of violations of the norms and principles of International Criminal Law. Some of them were committed on the territory of the ex-Yugoslavia and clearly entered in the jurisdiction of the ICTY.95
2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State. b. The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state."
94 According to the famous quotation of the Nuremberg Tribunals,
"International law imposes duties upon individuals as well as upon States; crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international be enforced."
95 According to Article 1 of the Statute of the International Criminal Tribunal for the former Yugoslavia, "The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute."
NATO's personnel's actions were committed on that territory, in 1999. Regarding the tribunal's material competence, Article 2 of the Statute, states the following:
"The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: ... (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."
The destruction of civil property and the civilian victims of NATO's bomb dropping on the territory of the ex-Yugoslavia could be considered as a violation of this Article. In the same sense, by virtue of Article 3,
"The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: ... (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science."
The ICTY established a special committee to review NATO's bombing campaign against the ex-Yugoslavia. In a report to ICTY's Prosecutor, Carla Del Ponte,96 the committee analyzed the existence of possible harms to the environment, due to the bombardment and destruction of industrial and chemical infrastructure and the consequent release of dangerous materials in the environment, and studied their compatibility with the rules of the Additional Protocol I to the Geneva Conventions.97 The Committee also appreciated the legality of NATO's targeting on civil objectives in regard of the relevant rules of International Humanitarian Law and International Criminal Law.98 At the end of its report, the Committee concluded that
On the basis of information available, the committee recommends that no investigation be commenced by the OTP in relation to the NATO bombing campaign or incidents occurring during the campaign.99
Consequently, in 2000, ICTY's Prosecutor, Carla Del Ponte, "decided not to open a criminal investigation into any aspect of NATO's 1999 air campaign against the Federal Republic of Yugoslavia."100 In her memoir, Carla Del Ponte, admits, that her efforts to open an investigation against NATO were "ultimately overshadowed by a sense of futility," and confesses:
This Article's scope encompasses NATO's bombing on historic monuments, such as bridges over the Belgrade's part of the Danube River and the bombardment of the buildings of the National Radio and Television of Serbia.
96 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, supra note 38.
The basic legal provisions applicable to protection of the environment in armed conflict are Article 35(3) of the Additional Protocol I, which states that
"It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment" and Article 55 which states:
"1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited."
In brief, in combat military commanders are required: a) to direct their operations against military objectives, and b) when directing their operations against military objectives, to ensure that the losses to the civilian population and the damage to civilian property are not disproportionate to the concrete and direct military advantage anticipated. Attacks which are not directed against military objectives (particularly attacks directed against the civilian population) and attacks which cause disproportionate civilian casualties or civilian property damage may constitute the actus reus for the offence of unlawful attack under Article 3 of the ICTY Statute. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, supra note 38.
Id.
Prosecutor's Report on the NATO Bombing Campaign, Press Release, International Criminal Tribunal for the former Yugoslavia, 13 June 2000 (Jul. 2, 2020), available at https://www.icty.org/en/press/ prosecutors-report-nato-bombing-campaign.
97
I understood that I had collided with the edge of the political universe in which the tribunal was allowed to function. ... And my advisors warned me that investigating NATO would be impossible.101
In spite of the statutory independence of the ICTY's Prosecutor, the violations of International Humanitarian Law and International Criminal Law allegedly committed by NATO's personnel during the intervention in the ex-Yugoslavia were never investigated by this ad hoc tribunal. The fact that it was created by a Resolution of the U.N. Security Council and that 3 of its 5 permanent members are NATO's Member States settled an unsurmountable political obstacle for the investigation. The result was once again the de facto international criminal irresponsibility of individuals, placed upon NATO's command during the military operation in the ex-Yugoslavia.
Individual members of NATO's personnel, allegedly involved in the commission of international crimes, could also be prosecuted by the ICC. By virtue of the Rome Statute, the Court has jurisdiction over war crimes, crimes against humanity, genocide and crime of aggression. The pre-requisites for the exercise of the ICC's jurisdiction are established in Article 12 of the Statute.102 Even if there have been intents to refer to the ICC the commission of international crimes by NATO's personnel, no investigation has been opened on that ground, because of the difficulty to prove that this requirements are met. In this sense, for example, in 2012, Russia called on the ICC to investigate the commission of war crimes during NATO's bombing campaign in Libya,103 but the investigation was never opened, because Libya, the state on which territory the alleged crimes took place, is not a party to the Rome Statute and some of the States, of which NATO's personnel's members are nationals, are either parties to this treaty, particularly the U.S. In contrast, Judges of ICC's Pre-Trial Chamber I did issued warrants of arrest for Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al-Senussi for crimes against humanity.104 In the same sense, NATO's missions in other countries, such as Afghanistan, had never been submitted to the scrutiny of the ICC. However, this could change in the future, following the recent and historic decision of the ICC to open an investigation
101 Carla Del Ponte & Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity: A Memoir 58 (New York: Other Press, 2009).
102 "1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national."
103 Russia Urges NATO to Investigate Libyan Deaths, RT, 20 December 2011 (Jul. 2, 2020), available at https://www.rt.com/russia/russia-libya-nato-investigation-un-217/.
104 International Criminal Court, Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Jul. 2, 2020), available at https://www.icc-cpi.int/ NR/rdonlyres/D313B617-6A86-4D64-88AD-A89375C18FB9/0/UNSCreportLibyaMay2012Eng.pdf.
against the U.S. and Afghanistan, for the alleged commission of war crimes and crimes against humanity during the U.S. war on Afghanistan, in 2003.105
Finally, it's worthy to mention that a situation, implicating the commission of international crimes can be referred to the ICC, directly, by the U.N. Security Council. However, the paradox of this referral is that the Council can refer the nationals of other states to the ICC, but never the nationals of its 5 permanent members, 3 of which are members of NATO, because of their veto power during the referral proceeding. This paradox is another strong guarantee for NATO's personnel international criminal irresponsibility.
2.4. The Impossibility to Impose Sanctions to NATO and its Member States on the Basis of the North Atlantic Treaty and Chapter VII of the U.N. Charter
As mentioned above, NATO has established strict conditions for the admission of states to the organization. However, the North Atlantic Treaty doesn't contain any type of disciplinary sanctions that can be imposed to a NATO Member State, if it violates this constitutive treaty and/or other international law norms and principles. Other treaties, establishing international organizations, provide mechanisms and sanctions that can be applied in such cases. Thus, for example, the Articles of Agreement of the International Monetary Fund include the imposition of sanctions against Member States that don't respect the obligations incumbent on them by virtue of this agreement. The sanctions include the publication of public reports with sensible information on countries' economic situation,106 the negative to afford financial assistance and credits to the state that has failed to fulfil its international obligations,107 the suspension of its voting rights,108 and, ultimately, its expulsion from the organization.109
105 ICC Authorises Investigation into Alleged Afghanistan War Crimes, Aljazeera, 5 March 2020 (Jul. 2, 2020), available at https://www.aljazeera.com/news/2020/03/icc-authorises-investigation-alleged-afghanistan-war-crimes-200305101406253.html.
106 By virtue of Article XII, section 8 of the Articles of Agreement of the International Monetary Fund, "The Fund may, by a seventy percent majority of the total voting power, decide to publish a report made to a member regarding its monetary or economic conditions and developments which directly tend to produce a serious disequilibrium in the international balance of payments of members. If the member is not entitled to appoint an Executive Director, it shall be entitled to representation in accordance with Section 3(j) of this Article. The Fund shall not publish a report involving changes in the fundamental structure of the economic organization of members."
107 According to Article XXVI, Section 2(a) of the Articles of Agreement of the IMF,
"If a member fails to fulfill any of its obligations under this Agreement, the Fund may declare the member ineligible to use the general resources of the Fund. Nothing in this Section shall be deemed to limit the provisions of Article V, Section 5 or Article VI, Section 1."
108 Article XXVI, Section 2(b) of the Articles of Agreement of the IMF states:
"If, after the expiration of a reasonable period following a declaration of ineligibility under (a) above, the member persists in its failure to fulfill any of its obligations under this Agreement, the Fund may, by a seventy percent majority of the total voting power, suspend the voting rights of the member. During the period of the suspension, the provisions of Schedule L shall apply. The Fund may, by a seventy percent majority of the total voting power, terminate the suspension at any time."
109 Article XXVI, Section 2(c) of the Articles of Agreement of the IMF establishes that
"If, after the expiration of a reasonable period following a decision of suspension under (b) above, the member persists in its failure to fulfill any of its obligations under this Agreement, that member
The silence of the North Atlantic Treaty regarding the possibility to impose sanctions or to expulse a Member State doesn't mean, in the first place, that this country is not allowed to withdraw from the organization and denunciate the agreement.110 In the second place, the silence of the North Atlantic Treaty on this point, could be interpreted in the light of the text of the Vienna Convention on the Law of Treaties. By virtue of Article 60 of the Convention, it is possible to invoke a material breach of a multilateral treaty as a ground for the termination or the suspension of its operation, in whole or in part.111 However, it is necessary to prove that this material breach is resulting from "the violation of a provision essential to the accomplishment of the object or purpose of the treaty" and the decision to suspend or terminate the treaty should be taken by "unanimous agreement" of the parties. In NATO's case, it will probably not be difficult to prove that many Member States have violated essential provisions of the treaty, such as its Articles 1, 2, 7 or 8. However, the "unanimous agreement" of the other Member States would pose much more difficulties.
Finally, it is worthy to mention that the violation of the iuscogens rules that prohibit the use of military force in international law can justify the imposition of sanctions against a state that has violated Article 2(4) of the U.N. Charter. In fact, Chapter VII of the Charter authorizes the U.N. Security Council to impose different types of sanctions on states, in case of threats to the international peace and security.112 But still, the veto power of the 3 NATO's Member States of the Security Council's five permanent members can avoid the imposition of sanctions against their own acts of aggression, or against the acts of aggression, committed as a consequence of their participation in NATO. The
may be required to withdraw from membership in the Fund by a decision of the Board of Governors carried by a majority of the Governors having eighty-five percent of the total voting power."
110 Article 13 of the North Atlantic Treaty states:
"After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation."
111 Article 60(2) of the Vienna Convention on the Law of Treaties establishes: "A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties."
112 According to Article 41 of the U.N. Charter,
"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
In the same sense, by virtue of Article 42,
"Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."
only organ in international law that is capable to act as a Policeman and use coercive power against states is politically unable to impose sanctions on NATO and its Member States, in order to submit their behavior to the respect of the ius adbellum norms and principles. This strong paradox of the post-World War II international liberal order is another impermeable umbrella for NATO's impunity under international law.
Conclusion
NATO's alleged "brain death" is certainly a consequence of many recent events in international politics, but it is also a sign of the organization's lost legitimacy in international law. NATO has repeatedly violated its own constitutive treaty and has also breached many of its obligations under general international law and its specialized branches. However, in practice, it has never assumed any negative legal consequence for its internationally unlawful behavior. The de facto international irresponsibility of NATO, its Member States' and its personnel, as well as the impossibility to impose sanctions to the organization on the basis of its constitutive treaty and/or the U.N. Charter have afforded to this organization an almost complete impunity under international (and domestic) law. This situation creates the impression that NATO is, in fact, a de legibus solutus entity, i.e. an entity unbound by international law, placed above international law and out for itself.
(International) law's primary objective is to establish effective mechanisms to ensure that perpetrators of violations of its norms and principles will not go unpunished. (International) law certainly becomes a mockery when its own rules exempt these perpetrators from responsibility. All (international) law's institutions and mechanisms are (and should be) aimed to promote accountability and respect for the rule of law. In this sense, NATO's current status in international law is legally (intellectually and morally) untenable, as it is a status by which NATO pretends to impose, by the use of force if necessary, respect for the rule of law to others, but doesn't abide rules itself. Thus, NATO's status under international law actually permits to that organization to put in place a coercive system of dominance upon others, using force that is untied to the mutually agreed norms and principles of international law. Under these circumstances, it is clear that states might not accept to cooperate with NATO and will reject NATO's provisions of security. As showed in this article, resistance and opposition to NATO now come not only from the outside, but also from the inside of the organization.
From a legal perspective NATO's impunity in international law is completely unacceptable and should lead not only to its "brain death," but to its death, per se, as an ultimate extra-legal way to put an end to its impunity. Legally speaking, the only way towards NATO's survival is to bind this organization to international law and to provide legal mechanisms for submitting its political and military power to the rule of law. Only that way could NATO legitimate its functions, continue to protect its core principles and values and preserve its privileged position in the maintenance of the international peace and security.
Many legal reforms could be proposed in this sense. Therefore, for example, NATO could become a party to the European Convention on Human Rights (and/or to other international human rights treaties) and submit itself to the jurisdiction of the ECtHR (and/or to that of other international human rights judicial bodies). NATO's Member States could modify the North Atlantic Treaty in order to establish sanctions to parties that violate this agreement or other norms and principles of international law. NATO could accept automatic waivers of its immunity from jurisdiction before domestic tribunals for acts that are contrary to ius cogens rules. This organization could establish its own international ad hoc tribunal, with jurisdiction to hear demands against NATO, its Member States or its personnel, for violations of international law. The institution could provide other mechanisms for the reparation of the prejudices suffered by the victims of its internationally unlawful behavior (such as indemnity funds, for example). It could even envisage to offer public excuses to the victims and their families. NATO could urge France, the U.S. and the UK not to use their veto power in the Security Council when it comes to refer a case involving NATO's personnel's international crimes to the international criminal justice.
However, all these reforms seem to be completely utopic, legally and politically.
Legally, they are completely unrealistic, because of NATO's decision-making mechanisms. All the important decisions within the alliance are taken by its main political body: the North Atlantic Council. These decisions are made on the basis "of unanimity and common accord," as they need to express "the collective will of all member countries of the Alliance."113 The requirement of unanimity in the decision making processes of NATO grants a veto power to every Member State of the organization. Consequently, any legal reform and any amendment of the North Atlantic Treaty could not proceed if one Member State of the organization is opposed to its adoption. The unanimity rule is a "bastion" of states' sovereignty and ensures respect for their national interests at the international level. However, in an organization that has 29 Member States with divergent power capacities and international agendas, this rule is also a source of institutional blockages and decisionmaking paralysis of all types. The Westphalia model of sovereignty that justified the adoption of the unanimity rule in NATO's (and other post-World War II international organizations') legal framework is not adapted to the current multipolar global order, where states' "common accord" is too difficult to achieve.
Politically, these reforms have little hope to succeed, because they would amount to a "political suicide" and would mean the renunciation to exorbitant privileges, gained to a war price, and guaranteeing a source of uncontested power.
However, the adoption of no reforms at all would further NATO's current decline and "brain death" and place it in a very dangerous situation for its survival. Will NATO show the resilience and readjustment needed to endure this period of impasse, or is its regional collective defense system near to be over? Perhaps no, but only future can tell.
113 North Atlantic Council, NATO (Jul. 2, 2020), available at https://www.nato.int/cps/ic/natohq/topics, 49763.htm.
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Information about the author
Virdzhiniya Petrova Georgieva (Mexico City, Mexico) - Professor of Public and Private international Law, Faculty of Law, National Autonomous University of Mexico (Circuito Maestro Mario de la Cueva s/n, Ciudad Universitaria, Coyoacán, Mexico City, 04510, Mexico; e-mail: virginia.geor@gmail.com).
