This text formed the introduction speech to a discussion on this topic at a conference of The Hague Institute for Global Justice on 10 September 2013
There is no doubt that for the use of force to be in conformity with international law it must be either authorised by the Security Council or warranted by the inherent right of individual or collective self-defence. This is the only feasible interpretation of Chapter VII of the UN Charter. But on 19 February 2010 professor Peter Kooijmans, for many years this country’s leading authority on international law, wrote in NRC Handelsblad: ‘Naturally, no one in his right mind will claim that when decisions of foreign policy are at hand, international law is the only frame of reference.’
In international politics there is always an unquenchable appetite for debate about the legality question. It is of course proper – and feels good – to be acting in conformity with international law. Yet everybody is aware that this is not always possible. If a country is in consistent non-compliance with Chapter VII resolutions, if the Security Council is unable to take that country to task due to the protection it enjoys from one or two permanent members, and if then, at long last, other countries are prepared to intervene in the defiant country without a Security Council mandate, that intervention would be a clear violation of international law.
But in spite of this, such a scenario is so normal it is almost routine. The described stalemate is untenable, and sane people will recognise that international law is not the only frame of reference. The intervention without a Security Council mandate will always happen in the end and then invariably go unpunished. The legality debate is therefore ultimately inconsequential, and we should not waste our time on it.
That would then clear the way for a much more relevant debate about the ethicaldilemmas our governments are confronted with whenever the use of force comes into play. There will always be choices between right and wrong, or good and bad, but applying our sense of ethic to them is more sensible and rewarding than quarrelling over whether or not an option fits Chapter VII of the Charter.
It is almost 95 years ago that the father of the concept of ethics in modern-day politics, Max Weber, made his famous distinction between two sets of ethical virtues — the ethic of conviction (Gesinnungsethik) and the ethic of responsibility (Verantwortungsethik). The ethic of conviction maintains that the morality of an action is to be judged on the action’s adherence to certain rules and values, whereas the ethic of responsibility claims that the morality of an action is to be judged solely by its consequences. Weber realized that the gap between the two was almost unbridgeable, but he insisted that the two kinds were complementary to each other and would only in combination produce the true human being who was capable of having a ‘vocation for politics’ (which was the theme of his 1919 lecture). This complementarity does not imply that the two ethics are on an equal footing: the ethic of conviction will always make the first move, but then the ethic of responsibility must take charge without delay because on its own the ethic of conviction is an accident-prone creature. Weber’s famous ‘politician by vocation’ is therefore constantly assessing the consequences of the political choices that need to be made.
On this basis I would like to discuss once more the fall of Srebrenica on 11 July 1995. It may be argued that for the Netherlands this painful discussion was concluded once and for all with the parliamentary debate of 18 June 2003, but we have just been reminded by last Friday’s Supreme Court verdict that there are questions that will not go away. The Srebrenica report of the Netherlands Institute for War Documentation of 2002 devotes considerable attention to the existence of the two kinds of ethics and thereby produces a virtual case study of the evil that may ensue when the ethic of conviction is allowed to run amok. It also shows how difficult it is to redress the balance once a government has lost the courage to keep this popular feel-good ethic under control.
I happened to be in New York in November 1999 when the Secretary-General issued his report to the General Assembly on ‘The Fall of Srebrenica’ (A/54/549). The report was critical of the United Nations ‘for its human and institutional failings at many levels,’ but hardly of the Netherlands. That was not surprising: the UN knows better than to offend a member state whose peacekeepers in the early nineties had played an indispensable role in the UN Transitional Authority in Cambodia. This time in Bosnia, things had gone wrong, but the report painstakingly listed all conceivable extenuating circumstances, the most important of which was the fact that the Dutch battalion commander had been told that the risk of confrontation with the Serbs was to be avoided and that the execution of the mandate was secondary to the security of his personnel. But finally, the report hesitantly broached the inescapable question: what if Dutchbat had resisted all the same?
The report recounts how the UNPROFOR troops in Srebrenica never fired at the attacking Serbs. They fired warning shots over the Serbs’ heads and their mortars fired flares, but they never fired directly on any Serb units. Had they engaged the attacking Serbs directly it is possible that events would have unfolded differently. (I continue drawing on the report, and now quote:) ‘It is easy to say with the benefit of hindsight and the knowledge of what followed that the Netherlands battalion did not do enough to protect those who sought refuge in its compound. Perhaps the soldiers should have allowed everyone into the compound and then offered themselves as human shields to protect them. This might have slowed down the Serbs and bought time for higher-level negotiations to take effect.’
I have not met many Dutch who thought this was a realistic suggestion. General Mladic would have given short shrift to these human shields. But Kofi Annan’s report suggests that this would probably not have happened, and I agree with that assessment. Mladic would first have reported to President Milosevic and requested further instructions. It is unlikely that the latter would then have ordered him to massacre 150 UN peacekeepers from a NATO country. But at any rate, Dutchbat’s fateful decision to avoid armed confrontation with the Serbs pales into insignificance compared to the responsibility of all those well-intentioned Dutch politicians (in both government and parliament) as well as journalists who in 1992 and 1993 generated the immense political pressure that made the Netherlands settle for the unsound concept of ‘safe areas’ and accept the task of monitoring the remote safe area of Srebrenica after it had become known that no other government was prepared to let its peacekeepers take on this mission impossible. The UK, France, the Scandinavian countries and Spain had refused, while Canada was frantically trying to be relieved by the Netherlands.
But Ottawa need not have worried, for despite the growing misgivings in The Hague there was no way back for the Dutch government. Canada finally succeeded in handing over the Srebrenica command to the Netherlands on 3 March 1994. The Dutch ethic of conviction had prevailed, and the law of unintended consequences came into force.