One of the greatest problems with the UNSC (United Nations Security Council) role in regulating conflict and in resolving disputes such as those that arose over the Kosovo bombing lies in the nature and origins of the Security Council. Established at the end of the Second World War, it was an extension and refinement of the meetings of the 'big three' in Teheran, Yalta and Potsdam.

Such meetings were essentially executive in nature, as the prosecution of the war had called for leaders able to commit to joint and/or immediate action. There was no time for 'judicial review'. In any case, when the great powers could agree, no further safeguards were seen to be required. However, the constitutional principles to which the Western powers were committed, envisage that all executive actions be subject to the rule of law and that their exercise of power be subject to external review by an impartial body sworn to determine whether it is within power. The executive powers of the Security Council are too great to be exercised without the oversight of an essentially judicial body capable of determining whether the action is within relevant international law.

Where a Security Council decision has been made and a mandate given, questions may arise as to the extent of the mandate. The natural place to resolve such an issue is the Council itself. However, if a permanent member of the Security Council acts beyond its mandate, they could veto any motion affirming that the action went beyond the mandate. This reverses the basic principle underlying the UNSC that enforcement action is only taken if the permanent members do not oppose it. It would also mean that the permanent member would be a judge in its own cause. If mandates are abused, the Security Council will no doubt be more careful in the authority they give to member states and will create mechanisms to ensu
re that authority is not exceeded, prolonged and used for purposes other than those for which the authority was originally delegated. However, it would be much better to give the power to review to an independent judicial authority -presumably the International Court of Justice (with streamlined procedures for the issue of the equivalent of injunctions and advisory opinions) -than leave such arrangements to the results of particular negotiations.

The question is, again: 'who is to decide and by what process is the justification established?'

Without legal sanction, it is premeditated mass murder. The only way that it is not premeditated mass murder is if its legality can be established. The only way to effectively establish legality is through a court. If there were no court available to establish its legality, then it would be a matter of public debate between the legal champions of the protagonists. But there is a court available. To refuse to argue a case in court does not make someone innocent. It destroys the only basis for effectively establishing that people are engaged in a just war rather than mass murder and terrorism.

When it comes to aerial bombardment, it is 'one strike and you are out if you cannot establish your case'. The international community should have zero tolerance for war without the sanction of international law. Those who avoid having their legal arguments being tested in court are not clever, they are merely making themselves international outlaws - international outlaws because they are acting outside international law.

No country may intervene unless it submits itself, at least for that particular intervention, to the jurisdiction of the International Court of Justice and the International Criminal Court (when established). No country should engage in any intervention without so subjecting itself, no country should support such intervention without this proviso and no international body should endorse or authorize such intervention without it.