Introduction
Humanitarian intervention can be described as a new principle in international legal system but it is an ancient phenomenon. It has now become a part of the positive international law and being employed as a mechanism to prevent use of force towards gullible mankind around the world. The humanitarian issue had predominance in the 19th century literature; however, after the World War I, the attention to it has faded for nearly 40 years. In the 1990s, the humanitarian intervention was pushed deliberately to the international arena by western governments mainly for political reasons. The humanitarian intervention has reached its summit during the Kosovo crisis although subsequent events showed that the NATO’s air operation was organised with political aim(Osterdahi & Sulyok 2004:1058-1063).
What we need to clearly understand that states not only intervene for moral concerns as they claim but also to protect or promote their self- interests. Therefore, if we are really serious about assessing the existence of the right to humanitarian intervention in international law; then we need to understand why an x state wants to intervene. Unfortunately, opportunism or selfishness is the principal motivation for such states to intervene or fail to intervene as per saying ‘norms shape interests and interests shape actions (Glanville 2006:155).
It goes without denying that sometimes states act to fulfil their self-interests and in some other times to find a solution to a humanitarian crisis to some extent but is it humanitarian to allow states to act with both intentions? It is hard to avoid the fact that decision makers misuse norms to justify their military intervention or they fail to do so in order to appear socially accepted (Bellamy 2003:7-9). Moreover, according to Shannon, the responses of the international community to humanitarian crisis are ‘anarchic enforcement (Shannon 2005:52).
To me, military intervention by the UN or by anyone else to assuage a humanitarian scenario is a controversial issue since there is a virtual limit to what extent that forces can achieve in the spectrum of humanitarian relief. In this sense, a force of arms connotes to direct military action and not any military support or logistic activities thereby helping others. Such direct military action is likely to achieve very little or no result either in the long term or medium term if no follow-up diplomacy, mediation or any other diplomatic humanitarian support does not happen.
Further, I feel that before any forceful intervention is considered, the military requires a concise strategic and political directives, pragmatic mission objectives and achievable military goals.
It is to be remembered that military forces have been equipped and trained to safeguard their own nation and citizens but they might not rise to the occasion if they have been asked to deal with the intricacies of another state’s internal strife. Military forces would be in great jeopardy in accomplishing their humanitarian mission, where political system is in bedlam and where recognition of friend from foe is arduous.
I feel in humanitarian intervention, there is a challenge of harmonising humanitarian objectives with that of military objectives. The real answer to this issue is that humanitarian objectives should be given first priority and if there is no clear political objectives are in place, direct humanitarian intervention will immediately deteriorate into an eye for an eye exchange between belligerents and interventionists.
Military intervention for humanitarian purpose in Somalia between 1993 and 1994 is the best illustration for this. An international initiative was started in December 1992 in Somalia and had been named as “Operation Restore Hope” mainly to ensure the despatch of humanitarian supplies to the famished Somalia citizens. In May, 1993, UN was given the task of sending its peacekeeping force to Somalia.
However, UN was totally unprepared for such a challenging project even though it wanted to assume more role building traits like disarmament and nation-building. In Somalia, international communities had spent more than two billion dollars and UN lost nearly 130 peacekeepers who had given up their life to achieve the UN mandate. At last, recognising its humanitarian intervention was a failure, UN withdrew from Somalia in March 1995 and the UN mission to Somalia was adjudged as a failure.
Why UN mission failed in Somalia? Why UN peacekeeping force could not bring peace in Somalia? The answer is that UN should not have entertained the notion of peacekeeping or policing until rebels cease the killings and abuse. If there is no cooperation or cease from belligerents, then armed peacekeepers must enter. I feel, to maintain peace in Somalia, UN should not have shown it’s another side of face when it received a blow on one side of its Cheek.
It is really dangerous and unrealistic to expect UN peacekeepers to keep the peace in scenarios where there is deliberate and unrelenting infringement of all the norms of human behaviour. Thus, there is no peace to keep by the peacekeeping forces. It is to be recalled that UN and the humanitarian agencies have been executing long –run contingency planning and solutions for over last six decades but the humanitarian situations have not diminished but heightened (Janzekovic 2006:76)
My concern about humanitarian intervention is that academics tend to ignore the political element in the humanitarian issue which cause a huge gap between their assessment and the law. Academics and legal writers sometimes assume conclusions without going through the prolegomenon of the issue like why x country have really intervened or fail to intervene. I strongly believe that reading humanitarian interventions in the light of its subsequent events is the only way to evaluate whether such norm is available as academics assume or not. Of course, it should be the efforts of commissions and organisations to clarify what the law is on the subject. Therefore, I have illustrated their theoretical arguments as a way to show the reader the downward gap between them and reality.
In this essay, the aim is to evaluate whether humanitarian intervention is an existing norm of international law by considering all possible points of view whether its politics, law or moral. Also, the light will be shown on the intentions and motives of humanitarian interventions and how it can affect the legal process of interventions. The methodology I have used is by examining facts and seeking them in order to reach logical conclusions.
International law and Human rights
Theoretically, the right to humanitarian intervention in humanitarian crisis is well established in international society and widely recognised by international lawyers (Janzekovic 2006:217). Connections between international security and the protection of individual rights have started to be established. It is widely accepted today that severe violations of fundamental human rights can be considered as a threat to international peace and security under Chapter VII of the UN charter.
Accordingly, two legal points of view have appeared. The first is that maintaining peace and protecting human rights in certain states does not clash with the cardinal principle of the sovereignty of states. States start to recognise that respecting and guaranteeing certain fundamental rights goes beyond their national competence which disables states from calling for the principle of non-intervention (Alston & MacDonald 2008:87).
All UN members have accepted the fact that the Security Council should take all necessary measures to preserve peace and security and those serious violations of human rights constitute a threat under Article 2 (7). The other legal point of view is that strengthening the protection of human rights can be viewed as a challenge to the sovereignty of states. It should be noted that the right of humanitarian intervention has recently developed in the human rights area. It has become a hot topic after the NATO member states launched a war in Kosovo for the sake of humanitarianism. (Alston & MacDonald 2008:87).
Footed on the “commitments intrinsic in the concept of sovereignty “ provisions of the U.N Charter ,the international law and the practices developed by some states , the commission has established the following unanimously.
“Sovereign states have a moral obligation to safeguard their own people from preventable catastrophe. However, when they are unable to do so or unwilling, that obligation must be borne by the broader community of states.”
According to UN, the concept of non-intervention yield to the international accountability to safeguard. It should not be considered as a foreign policy right, but as a responsibility. Now, the UN member states have formally hugged this commitment to intervene across borders to safeguard civilians under threat of extreme collective violence.
In 2005, UN adopted the World Summit Outcome document which states as follows;
“We are prepared to initiate combined action, in a decisive and timely style … should peaceful methodology be not sufficient and national authorities are deliberately failing to safeguard their citizens from war crimes, genocide, crimes against humanity and ethnic cleansing.”
The above resolution was reconfirmed by UN Security Council through Resolution 267 (2006) which corroborated the earlier commitments to the safeguard of civilians in an armed conflict (Cahill 2007:88-89).
Many academics and authors claim that the right of humanitarian intervention either already exists as a rule of customary law, or at least exists through a recently emerging norm (Cahill 2007:88-89).
The prohibition on use of force and the emerging right of humanitarian intervention:
Article 2(4) of the UN charter is the central rule on the prohibition of the threat or use of force which is currently a source of disagreement although states consider such rule as Jus Cogens (Gray 2004 :29). It is widely recognised in international law that the use of force against other states without reasonable excuse would be considered as a threat to the international peace and security. Article 2 (4) stipulates that:
‘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.’
According to international indications such as the cold war, Corfu Channel case and the Israel operation in Uganda, article 2(4) could hold a very wide interpretation or narrow one which is something that can play major role in the legality of the humanitarian intervention (Vockel 2005:30-31). For example, in the Corfu Channel case (International Court of Justice 1949), the broad interpretation of article 2(4) was confirmed by the International Court of Justice; rejecting the British argument that launching minesweeping operations (Operation Retail) in the Corfu Channel in Albanian waters cannot be considered as a threat to the territorial integrity nor the political independence of Albania:
‘ the court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to more serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in international law…
… The United Kingdom Agents… has further classified “Operation Retail” among methods of self-protection or self-help. The court cannot accept this defense either. Between independent states respect for territorial sovereignty is an essential foundation of international relations. (International Court of Justice 1949).
On the other hand, Israel took a narrow view of article 2 (4) by intervening in Uganda to rescue the aircraft from the hijackers. The Israeli argument was based on self-defense and since the Security Council was unable to act; Israel had the right to help its nationals. (International Court of Justice 1949)
In the Nicaragua case (International Court of Justice 1984), the international court of justice maintained that article 2(4) reflect a customary law that binds all states in the world regardless of their membership in the united nation (Kaczorowska 2002:330). Both cases have raised the first exception to the general prohibition on the use of force which is in the form of self-defense. The reaction of states to self-defense against an armed attack is considered lawful in international law as stated in article 51 of the UN charter (Cassese 2005 :354).
It has been proposed that there are three explicit conditions where states have the right to respond with force; armed attack, imminent attack and indirect aggression (Arend &Beck1993:196). Also, the UN charter grants member states the right to use force in order to help another state which falls under armed attack. However, member states shall not try to support suffering states without a clear request from the victim’s state as held by the ICJ in the Nicaragua case (International Court of Justice 1984). The ICJ stated that:
“There is no rule of customary international law permitting another state to exercise the right of collective self-defense on the basis of its own assessment of the situation” (International Court of Justice 1984).
Moreover, the Security Council is the only institution entitled to determine whether the humanitarian situation constitute a threat to international peace and security, and can then authorise military action under Chapter VII (International Court of Justice 1984).
The second exception to the general prohibition on use of force is when the Security Council authorises a state member to use force as a respond to unprovoked attack in order to maintain or restore international peace and security as stated in article 42 (Janzekovic2006:109). It has been argued that the right of humanitarian intervention could be considered as a third exception to fundamental principle on the prohibition on use of force. According Eric Stein, the principle on the prohibition on the use of force is no longer in use because of the inconsistent practice of states (Malanczuk 1993:14).
As you are aware that military actions carried out by India in Bangladesh (1971) and Tanzania in Uganda (1979) and Vietnam in Cambodia (1978) were not justified as humanitarian interventions; the intervening states justified their use of force on self-defense. (Malanczuk 1993:14).
Moreover, large number of countries maintained that human rights violations cannot justify the use of force. During the cold war many legal writers argued that the use of force can be justified on the basis of humanitarian cause. (Malanczuk 1993:14).
However, the UK foreign and commonwealth office expressed a reluctant regarding the existence of the humanitarian doctrine (Malanczuk 1993:14). Historically, humanitarian interventions had been always a part of other interventions which indicate that intervening for humanitarian purpose is not commendable. Furthermore, the intervening benefits and advantages are being undermined by not mentioning them or using it as an ex post facto to justify such interventions whenever needed.
Legal writers argue that humanitarian intervention was always part of states’ practice and states such as India ‘could have or should have’ used it as justification for their intervention (Malanczuk 1993:14).What is more that these writers argue that the rejection by ICJ to justify the USA intervention in Nicaragua on humanitarian base was simply a mistake? The point can be made here is that the USA itself did not invoke the humanitarian doctrine or to justify its use of force (Malanczuk 1993:14).
The bilateral operation held by the UK and USA in 1991 to protect Kurds and Shiites’ in Iraq was considered as the first sign for the emerging right of humanitarian intervention (Malanczuk 1993:14). After passing of ceasefire resolution by the Security Council resolution; the coalition states were unable to keep protecting Kurds in northern Iraq and Shiites’ in the south. Immediately after the withdrawal of the Iraqi forces from Kuwait, the Iraqi government began to repress the Kurds and Shiites. (Malanczuk 1993:14).The Security Council viewed the occurring repression as an internal conflict but the pressure exercised by France made the Council agree to pass resolution 688.
The Resolution demanded the Iraqi government to put an end for the repression and allow humanitarian organisations to access but the resolution did not authorise the use of force to help Kurds and Shiites. In this case, the UK and USA intervention to protect and provide safe havens was not based on explicit legal justification. Additionally, they did not invoke the humanitarian doctrine in the Security Council to legalise their military actions. It could be argued that either the humanitarian doctrine did not exist at that time or claiming such cause will not be acceptable. Later on, the UK invoked the humanitarian doctrine and gradually all military actions were justified on the bases of humanitarian intervention. (Malanczuk 1993:14).
The Foreign commonwealth office said regarding the developments of international law:
“We believe that international intervention without the invitation of the country concerned can be justified in cases of extreme humanitarian need. This is why we were prepared to commit British forces to Operation Haven, mounted by the coalition in response to the refugee crisis involving the Iraqi Kurds. The deployment of these forces was entirely consistent with the objectives of SCR 688” (Malanczuk 1993:14).
Conversely, in 1999 when the UK and USA used force against Iraqi missiles sites and air planes they argued that pilots were exercising the right of self-defense. The contradiction in justifying the military actions of the UK and USA shows that such right still arguable. One might say why the international community stood silent in front of the use of force to create Safe Havens or impose No Flying Zone on Iraq?
According to Wheeler, the answer was that ‘no one wanted to be seen criticising an action that was directed against a government that was guilty of appalling human rights abuses. It is hard to consider interventions in northern and southern Iraq as the first sign for humanitarian intervention. The Resolution 688 was far so vague to conclude that there is a right for the coalition states to intervene beside the responsibilities owned by them towards the Iraqi victims after the end of the Gulf war. (Malanczuk 1993:14)
.Moreover, human protection became the only remaining justification for the US led war after the failure to find any weapons of mass destruction in Iraq or to establish clear links to Al-Qaeda (MacFarlane et al 2004)
Humanitarian intervention and opinion juris
In the Asylum case, (International Court of Justice1950) the ICJ has defined customary law as a ‘…constant and uniform usage accepted as a law. It is believed that in order to determine whether a certain practice is part of customary international law or not, it is important to know first whether or not this practice is accepted by the acting state as law. As a result, the Acts will transform to rules of customary international law, (International Court of Justice1950) only if the acting state acts in the belief that this action is required by law.
However, since such knowing is extremely difficult we have to look for other clues to determine whether such act was derived from legal intention or not. It has been alleged that the international community has a responsibility to protect and intervene militarily when local authorities fail to respect or maintain fundamental human rights. (Pattison 2008:395-413).
Cassese argue that the impact of Martens clause cannot be ignored on international law in terms of putting the ‘laws of humanity’ and ‘dictates of public conscience’ on an equal footing with state practice. He goes further to argue that any state’s practice that is based on the law of humanity or the dictates of public conscience should not follow the same criteria of forming any other principle or rule of international law. Besides, he believes that any legal argument represented by states regarding practices that carried out for humanitarian cause should be accepted. Accordingly,.there is a growing consensus among the international community that humanitarian intervention can be justified occasionally on moral bases. (International Court of Justice 1986).
On the other hand, Kegley and Raymond believe that ‘when the ruling hegemony promotes a new set of norms, the code of conduct changes for virtually everyone. What the strongest do eventually defines what everyone should do and when that practice becomes common, it tends to take on an aura of obligation (Kegley & Raymond 2004:41).
Humanitarian Intervention and Customary law
Basically, there is no customary rule in international law which permit humanitarian intervention except arguably in cases involves genocide. The right do not exist in the UN charter but it assumed to be one of the findings and conclusions of chapter VII. (Brunnee & Toope 2004). However, international law is an adjustable system. States can agree to set out new rules regarding humanitarian intervention but this will leave non states parties unbound (Lowe 2000). It is hard to reach a consensus on rules which govern humanitarian intervention in treaties. Therefore, the appearance of customary rule that binds all states is the only hope. For such right to emerge, states have to provide practices or approve interventions as an exercise of legal right. (Kegley & Raymond 2004:41).
Definition
The concept lacks a clear general accepted definition to be the judge on all different kinds of military intervention. For example, the US definition for humanitarian intervention has showed many contradictions from legal aspect. First it was defined as ‘a type of intervention undertaken for the sole purpose or, quite plainly, principle purpose of protecting people from its own government, or from perhaps other entities within the state’ in the same time it was defined as a way to rescue state’s own nationals abroad (Osterdahi & Sulyok 2004:1059).
In addition, it was defined as ‘an intervention undertaken abroad and by military means to protect human rights and, typically today, also to advance or defend democracy as a system of government. (Osterdahi & Sulyok 2004:1059). It could be argued that there is a difference between humanitarian and pro-democracy intervention in terms of the issues that each intervention touch up on (Osterdahi & Sulyok 2004:1060).In modern international law humanitarian intervention has been defined as ‘coercive action by states without other state consent, with or without the authorisation of the Security Council aiming to prevent or stop serious human rights violations. (Will 2004: 387-418).
I personally believe that the concept of humanitarian intervention cannot be described as a part of customary international law because it is hard to find how such a concept can be regarded as a legal obligation. For example, if there is an absolute right violated by x government, does this impose a legal obligation on other states to intervene? The answer is clearly and simply no. Furthermore, within political community relations of states under international law, it is not recommended to intervene militarily for humanitarian cause.
It has been argued that the moral logic concern this right cannot constitute a legal obligation on other governments to intervene in order to sort out the situation. If someone wants to disagree, he has to answer why states intervened in Rwanda but not in Bosnia, why not in Sierra Leone instead of Kosovo and why in Afghanistan but not in Darfur (Moseley & Norman 2002:89).
Further, a clear treaty provisions will override customary international law, a rule of customary law allowing humanitarian intervention will not be able to prevail over Article 2(4) of the UN Charter. (Byers 2005:9). Moreover, the insufficiency of the UN system prevents states from relying on this customary rule to legalise the intervention, unless any right with regard to unilateral action achieves the status of jus cogens. (Will 2004:100).
Scholars have shown that it is self-interest rather than the restrictions imposed by international law and norms of sovereignty and non-intervention that often stands in the way of humanitarian action (Glanville 2006:158) From states perspective humanitarian intervention is not a legal obligation, it is a positive moral action which is not exclusive to specific agents. (Glanville 2006:160)
In Kosovo case, having concluded that there was no legal rationalisation for the intervention within the UN Charter, one may ponder to know whether a right to intervene is available in customary law. However, it is to be observed that since clear treaty provisions triumph over customary international law, a simple customary rule permitting intervention would not have been adequate to overrule Article 2(4). Nor could any defect in the UN system have facilitated NATO to fall back on any such customary rule?
It is to be recalled in Corfu Channel case, in 1949, the UK tried to rationalise intervention in territorial waters of Albania on the fundamentals that none was ready to counter the threat –mines planted in an international sea strait and however, the International Court of Justice did not accept that argument and observed that:
“The court is reluctant to accept this line of defence. The court can only give weight to supposed right of intervention as a policy of force as the same in the past has paved the way to the most serious abuses and cannot , whatever may the current lacunae in international organisation , find a part in international law.”
Thus, under customary comprehension of international law, the only method where Kosovo intervention had somewhat attained the position of jus cogens and thus could have reversed contradictory treaty provisions (Holzgrete & Keohane: 157)
Morality vs. Legality
In 2003, a survey was done by the program on International Policy Attitudes (PIPA) enquiring US citizens about the moral obligation of the government towards humanitarian crisis in Africa. 55% of the voters said that the US does have a moral obligation to intervene in humanitarian crisis (Bellamy 2003:987). However, is morality enough to justify humanitarian intervention? There is no clear answer for such question. The concept had encroachment of states sovereignty with human rights which raise different ground of both rights (human rights based on moral ground while sovereignty is not). Wheeler holds the view that international law should be based on individual rights not states’ rights. In addition, any state which violates fundamental individual rights will be subjected to forcible intervention (Krisch 2002:323-325).
It’s been argued that these attempts to weaken the principle of non-intervention which seem to be unreasonable and may produce complex issues. For example, Hedley Bull convinced that such approach would do more harm than good because implying the right to unilateral humanitarian intervention would allow states to ‘act on the basis of their own moral principles and will jeopardise a peaceful and just international order. (Glanville 2006:323-335). It has been assumed that human rights will prevail over sovereignty since its case is not justice. However, if the matter is as easy as described, then why the UN refused to recognise the right of humanitarian intervention. (Glanville 2006:163).
Humanitarian Intervention and International Peace and Security
Finnemore argues that is it justifiable to consider a humanitarian tragedy alone as a threat to international peace and security and the humanitarian concept in their military actions which raises state’s self-interests to secure their borders etc. (Glanville 2006:323-335).
There is no need to reform that UN charter to place humanitarian intervention under chapter VII. The definition of international peace and security had successfully managed to govern humanitarian intervention( Bellamy 2003:987).Moreover, the concept of international peace and security had successfully extended to cover serious human rights violations whether they occurred in states border or not. (Glanville 2006:363).
Traditionally, the United Nations rules seem to privilege peace and stability over other values such as human rights. In terms of military action, the charter rules aim to preserve stability and order rather than to protect human rights. However, the charter does not clarify and clearly state about the prohibition of intervention although it sets number of rules which as a whole indicate the prohibition of intervention.
For example, article 2(1) of the charter states “sovereign equality of all its members” and article 2(3) emphasise that members should settle their disputes by peaceful means and article 2(7) prohibit intervening in states’ domestic jurisdiction. The absence of clear prohibition against intervention made states to seek the General Assembly resolutions to use them as clarifications. In other words, the UN rules on the prohibition of use of force seem to be against the right of humanitarian intervention (Brysk 2002:205).
The charter shows no means for preventing human rights abuses or enforcing international human rights norms but the UN have developed organisations and procedures to deal with such violations. (Glanville 2006:207).
Host state consent and the lack of it
Host State consent is a supernorm that protects weak states sovereignty from violations. Observance of the state consent supernorm is so subserviently valuable by lessening predation by mightier states upon weaker states that it ought not to be infringed even for the sake of system reform. This concept foots on the empirical evaluation that if the international legal fraternity fails to maintain the formal political fairness of states by sticking to the state consent supernorm, the substantial differences among states will result in predatory conduct and in infringement of individual human rights and rights of self-determination which marauding inevitably involves.
It is true that the state consent supernorm offers valuable safeguard for weaker states. However, there are certain acts of reform that infringe the state consent supernorm which are never regarded as morally reasonable. Acts of reform that likely to offer a noteworthy contribution to making the system more egalitarian which contribute to changing magnitude the major political equality of states, thereby minimising the risk of predation which may be justified morally under certain scenarios ,even if they infringe the state consent supernorm (Holzgrete & Keohane:153).
In some situations, the violations of this supernormal can be justifiable for moral concerns (Jokic 2003:143). Historically, the Security Council did not pay so much significance to state’s consent in humanitarian interventions. However, many state members believe that the Security Council should have attempted to obtain the consent of host states. It is wildly accepted that when gross human rights violations take place and gaining consent is impossible, the Security Council enjoy the total right to authorise interventions. (Brysk 2002:182).
The military intervention in Somalia was carried without the consent of the authority. Resolution 794 was the base for military action to put an end for humanitarian disaster as stated in the massage send by U.K. representative to Somalia ‘ the international community has no wish to intervene in the internal affairs of their country, but that it cannot stand by and permit a humanitarian crisis of this magnitude to continue. (Brysk 2002:182).
The same occurred in Bosnia and Rwanda; the Security Council did not obtain consents from the authorities in question due to the failure of host government to function. Also, in the case of Haiti, the Security Council was not concern about host state consent because the state itself requested the intervention. (Brysk 2002:183). It should be noted that the Security Council does not need to seek state consent when authorise use of force under chapter VII. (Brysk 2002:189).
In the cases of Iraq, Somalia, Haiti and Kosovo, there was a clear decision to establish a humanitarian action without the consent of the host state.On the other five Bosnia, Rwanda, Albania, Sierra Leone and East Timor, the host state had a degree of consent. This is due to the fact that certain actions were taken during the intervention regardless to the consent of the host state. The Security Council resolutions in those cases stated that international activity in third state’s territory which involves other actions and shall be undertaken without the need for the host-state consent. (Welsh 2006:83). In other words, having a degree of consent from the host state’s authority does not mean that the Security Council had obtained a full consent. (Brysk 2002:83).
Actually, state consent is an expression of the people will to undertake x action in its territory (Jamnejad & Wood 2009:345-381).States consent is nothing but the permission of the political leaders of the state in question. These leaders are supposed to be the representative of public who reflect the will and choice of political decision. As a result, for an authority to be considered as legitimate and valid and to act as an agent of their people, it has to be formed in sphere full of democracy and freedom otherwise it is not legitimate (Teson 1998:39-41). In the Middle East, some states adopt policies that undermine human rights in general if not violate them severely.
Human rights are violated on massive scale in these countries starting from deterring people from their basic rights such as political participation and torture and killing opposition leaders. These countries cannot be prescribed as agents of the public because of the absence of will of majority. These countries do not have a binding consent that requires people to act and in such situation how the leaders of such countries can claim the right of state consent.
Thus, such countries do not have valid consent that the intervening force should try to obtain before proceeding to humanitarian intervention (Holzgrete & Keohane: 152). A second condition has to be met in order to view state consent as legitimate as the same is not to be obtained under coercion otherwise it will be considered as a violation for the sovereign will of states which in succession infringe the principle of non- intervention. (Brysk 2002:345-381).
Motives and Outcomes of Humanitarian Intervention
In addition, there are number of factors that influence the legal status of the right itself and both motives and outcomes are considered essential part of the equation. Wil Verwey emphasised the importance of motives in his definition of humanitarian intervention ‘the threat or use of force for the sole purpose of preventing or putting a halt to a serious violation of human rights (Bellamy 2003:221).
He goes further to argue that there is no genuine humanitarian intervention has ever occurred due to the lack of humanitarian motivations and concerns. According to him and other writers classifying prior interventions is legal mistake since all of them were using humanitarian claims to justify unjust actions(Bellamy 2003:221). However, it is hard to deny that some interventions were concern more about humanitarian cause than serving its interests (Bellamy 2003:221 On the other hand, Alex claims that Verwey’s legal view is unrealistic and has been criticised for its restrictive approach. Surprisingly, he states that ‘when it comes to humanitarian intervention, motives tend to be mixed and it is asking too much to expect a state to risk the lives of its own citizens solely to save strangers (Bellamy2003:222).
It seems to me that it is appreciated when a state risks its own citizens for a noble and clear cause but risking them for economic or political interest under the claim of humanitarian intervention is totally unacceptable. Such argument not only just undermines the importance of sole purpose of any intervention but also deny the possibility of the existence of humanitarian intervention without state’s interests. Thus, as per Parekh, there is no obligation on a state to risk its citizen to help stranger country whereas states are obliged to ensure the welfare of its citizen and state’s have to legalise to intervene to serve its interests.
Parekh in his definition for humanitarian intervention accepted the idea that states can carry out humanitarian intervention while serving their own interests. He defined it as ‘an act wholly or primarily guided by the sentiment of humanity, compassion or fellow-feeling and is in that sense disinterested. (Bellamy 2003:221).This definition only requires some sort of feeling for states in order to legitimise all its self-interests behaviour. Apart from that such a feeling or concern is easy to camouflage by the media and clever political leaders can disguise it with real self interest motives to appear it to be humanitarian. (Bellamy 2003:223).
All definitions relate to humanitarian intervention defined it as ‘threat or use of force… for the purpose of protecting the nationals of the target state from widespread deprivation of internationally recognised human rights(Bellamy 2003:223).The failure of these definitions to clarify whether humanitarian purpose should be the only purpose or could it is a primary one. Moreover, the absence of clear difference between motives and purposes in these definitions has made the issue of the right to humanitarian intervention far so complicated (Bellamy 2003:223).
Fernando Teson and Nicholas Wheeler adopt the ‘outcome’ perspective; they believe that it is enough to legitimise any intervention if the outcomes of it have humanitarian benefits even if the intervention was not launched for humanitarian cause which I think constitute an extreme view on the matter (Bellamy 2003:223).Some Scholars believe that the ‘outcome’ approach will overcome the legal difficulty raised by the ‘motives matter’ approach. Also, such approach is aimed to improve the quality of life in the targeted state (Bellamy 2003:223).
However, it could be argued that violating other states sovereignty and using force to achieve some inadvertent humanitarian action can lead to serious violations in international law. Beside, determining whether a region or country is better or not can be easily challenged. Also, it is hard to predict the consequences of military actions in case of humanitarian intervention. (Bellamy 2003:224).
According to Augustine in his letter to Faustus about the ethics of war, he emphasised that wars should not be initiated without proper intention, it should be aimed to spread peace and justice and not to serve some low selfish interests. It could be argued that determining one’s intention is impossible; however, its actions can be signs for its intention. (Bellamy 2003:227). Sometimes acts can expose the true intentions of the actor which make the legitimacy of humanitarian intervention depends on the intent of the intervener as Augustine maintained (Bellamy 2003:227).
Far away from this argument, logically, if we accept that humanitarian intervention is an exception to the use of force for certain reasons such as serious violations of human rights then the intervener must intent to do exactly as the exception says (Bellamy 2003:229).
Double effects:
It can be argued that it is legally acceptable for one action to have more than one effect as in the act of self-defence; it is intended to save one’s life but also mean killing the aggressor as the doctrine of double effects hold (Bellamy 2003:228). However, can such argument justify being humanitarian purpose a primary one, can such argument justify self-interests acts of states? I think we have to look at two different aspects; the effect of certain action which is not under one’s control should not be construed as liability. One the other hand, effects that can be controlled or developed or pursuit by the interveners should be construed as a legal liability.
When it comes to state’s interests, we are talking about effects that can be controlled, developed and pursuit which in other words since interveners are only concerned about their interests, their actions and effects cannot be described by any means as a natural effect and that they should not be held liable for since their primary intention is to sort humanitarian situation. Interveners are under duty to prove that their intentions and the effects of their actions in interventions are for the welfare of humanity. (Bellamy 2003:228).
The second element of the doctrine highlights the objective and consequences of the action which is based on comparing between positive and negative results of the action. The Aquina’s doctrine was an attempt to solve the question of motives and outcomes in balanced way where Augustine tend to care more about the intentions of the interveners (Bellamy 2003:228).
Humanitarian intervention and state sovereignty
Nowadays, states are required to respect fundamental principles of human rights in their internal affairs. As a result, the principle of sovereignty has become limited to states’ practices within its own territories (Charvet 1997:40). The belief ensuring human rights standards have undermined the principle of sovereignty is not far from truth. According to Rousseau, states’ are obliged to adopt the general view of the international community as a whole to achieve the best for humanity (general will). Also, states have private will which show state’s interests in their internal affairs.
Thus, since general will of states are bound by the will international community and private will of the states should reflect this as well. (Bellamy 2003:45). One possible question may be raised regarding this approach as who is the actual constitutional authority in the international society? The answer for this question is states themselves and what states have agreed upon to be binding on them. (Bellamy 2003:46).
It should be noted that the laws of United Nations are derived from the laws of nature and reasons which make them binding on all states without their consent contrary to normal rules of customary international law. (Bellamy 2003:46). However, that does not mean that custom rules are not binding or does not have authority but states may dispute on their interpretations. Therefore, if there is a general view on an interpretation of customary rule; individual states are bound to follow it. (Bellamy 2003:46).Under international law, individual states cannot claim sovereignty over the international society except in its jurisdictional sovereignty. However, still the content of laws in individual states has to reflect the general agreements of all states as well as the general will of the international society as a whole. (Bellamy 2003:46).
The rule of non-intervention basically forbids any state or number of states to interfere in the domestic affairs of other states. However, this rule should be interpreted in the light of state obligations under international law. For example, states are obliged to treat fairly both alien civilians and prisoners of war and cannot engage in slavery or genocide to fulfil their own interests. When states violate the widely known rules of international law, then they cannot invoke the principle of non-intervention. (Bellamy 2003:46).
Moreover, the adoption of human rights conventions has amounted to a reasonable degree of restriction on states’ sovereignty. However, it cannot be claimed that the protection of human rights have deactivated completely by the principle of non-intervention since most of human rights conventions have not been enforced by the international community (Bellamy 2003:47).Also, the intervention to protect human rights still does not have a clear statue under international law and whether it is permissible or not which in many cases depends on the interpretations of the court of appeal. (Bellamy 2003:47).
After the post-cold war, debate started to rise in the international arena which has restricted the principle of sovereignty of states. This norm permits and allows other states to use force in order to put an end to ongoing gross human rights violations. (Glanville2006:155).
The increased attention given to humanitarian intervention has either decreased or undermined the concept of state sovereignty in international law. In the past, the principle of sovereignty was emphasising the freedom of states in their internal affairs and to adopt any kind of policies inside their borders. The principle has undergone a through change and instead of granting freedom to states’, it’s now imposing responsibility on states. In 2001, a report made by the international commission on intervention and state sovereignty (ICISS) concluded that if any state has violated its citizen basic human rights by conducting Genocide, ethnic cleansing or any crimes against humanity, it will be considered as it has engaged in a temporary suspension of its sovereignty. (Cahill 2007:395-413).
Military operations in East Timor, Yugoslavia and Rwanda do not challenge states’ sovereignty or domestic jurisdiction. States have the prime responsibility to stop ongoing human rights violations and international jurisdiction is not but a secondary step to deal with humanitarian crisis when states are unable or unwilling to act (Chinkin2000:910-925).
International Responsibility to protect
The report of the international commission on intervention and State Sovereignty (ICISS) viewed the principle of sovereignty as a conditional right. It basically implies responsibility rather than right on states to respect and protect human rights. States will be waiving their right of sovereignty if they conduct serious human rights violations due to the constitution of international responsibility to protect targeted citizens. (Bellamy 2003:978).
However, scholars and policy analysts look at the idea of responsibility to protect as a clever way to rename the right of humanitarian intervention to ‘responsibility to protect’ in order to shift the focus to certain cases and the use of force to protect human rights. They argue that the new term ‘responsibility to protect’ did not solve the fundamental problems of the norm such as the absence of the political will sometimes to carry out humanitarian intervention.
Also, the term did not provide a realistic plan in order to oblige states to react to humanitarian crisis. (Bellamy 2003:980).Apart from that the ICISS was criticised for its findings which do not reflect the universal consensus on humanitarian intervention. On the other hand, optimists view the responsibility to protect as the best attempt to balance between the issue of sovereignty and humanitarian intervention (Bellamy 2003:981).
However, it should be noted that China and Russia had objected on the ICISS agenda by stressing on the principle of non-intervention. There was a fear that these countries will be subjected for humanitarian intervention due to the human rights violations occurring in these states. Therefore, one might ask is their approval is important? (Bellamy 2003:981). The concept suffers from many flaws such as the vagueness surrounds it which makes it hard to distinguish from the rejected traditional humanitarian intervention in 1999.
Many states believe that the concept ‘humanitarian intervention’ represent the domination of powerful states over the weak ones like countries like Pakistan, Algeria, Egypt, Colombia, Vietnam, Venezuela, Iran, Cuba, Syria and Tanzania. According to them it is nothing but a license for strong countries to intervene in the domestic affairs of weak states by undermining the concept of sovereignty in the name of protecting human rights. In the same time, they reach a consensus on the importance of protecting human rights from massive violations. Also, they totally agree on the necessity of military interventions especially in Genocide, Ethnic cleansing and Crimes against humanity.
However, the responsibility to protect was set to enable powerful states to decide where and when to intervene in order to promote their own interests. One objection may rise in front of gloomy view, where the authority of the Security Council has gone since any military intervention has to be authorised by it? According to them the system has been proved unreliable due to its flaws and ineffectiveness in many cases not to mention that it is controlled by the five strong members who can be used sometimes as a scapegoat to legalise interventions when it is necessary like what had happened in the cases of Iraq and Afghanistan.( Focarelli 2008:191:213 ).
Nowadays, states around the world are fully aware that providing, respecting and protecting human rights are essential due to the existing norms of international law regarding human rights. However, concluding that the notion to call for military humanitarian intervention seem to be unreasonable. Besides, the doctrine does not determine the role of states toward human rights violations nor who should intervene to sort humanitarian situations or the authority that entitled to authorise military actions. Moreover, it is not clear whether individual states can act as a last resort when the Security Council fail to do so (Bellamy 2003:191-213).
Humanitarian Intervention and Politics
In general, states have the ability to manipulate and change the facts of any case and squeeze humanitarian claims in order to avoid norms, violations and social rejection as Shannon claims. I think that Shannon believes that legal writers sometimes miss the true intention behind any intervention. I believe that the political aspect has been deliberately or accidentally neglected which made the issue of humanitarian intervention ambiguous and confusing.
Historically, the international community had contributed to the Kurd’s suffering in Iraq in many ways. For example, in the early 90s the UK asked the Kurds in Iraq to facilitate the British to access to oil resources in their part. However, the British operation failed and instead of securing protection for their ally, the UK left the Kurds to be repressed violently by the Iraqi government. In 1970s, the west and USA encouraged the Kurds to protest and repeal against Iraq’s oil nationalisation programme by seeking support from USA’s ally Shah of Iran. Surprisingly, when the Shah resolved his border dispute with Iraq in 1975, the Kurds were left to face their deadly fate.
In the 1980s, the western governments were concern to provide military assistance to the Iraqi government in order to face the Iranian threat. After the outbreak of war, the US government started to support both the Iranian side and the Iraqi side (McEnteer, 2006:169). Consequently, the Iraqi government used this assistance to invade Kuwait and to repress Kurds in Iraq. After the end of the Iraq and Kuwait conflict, the Kurds suffered a brutal retaliation by Saddam Hussein. In the beginning, the western government did not do more than watching while they were the main reason behind their rebellion against their government (Harriss 1995:169).
The United States was cognised about Saddam cruelties for decades and chooses to turn a blind eye to his brutality, crimes and dictatorship regime. The US’s plan was to supply him with the necessary weapons in order to extinguish US enemies whether they were Iranians, Kurds and Shiites. The question that should be asked after all US support and unmindful on his crimes, how can US suddenly claim a moral outrage towards the Kurds? (Bellamy 2003:59).
The logical explanation for such a claim is that the Bush administration made it up. Similarly, when they wanted to invade Iraq in 2003, they claimed that Saddam possessed weapons of mass destruction which was also a lie. It is alleged that even the Iraqi -Kuwaiti conflict was planned by the Bush administration otherwise;
‘Why didn’t the United States discourage Saddam’s planned Kuwaiti invasion? Why did the United States tell the Saudis that Satellite photos showed an Iraqi build up at their border when there was none? Why did the U.S. President reject negotiations and Snub all peace initiatives? Because, as in Panama, Bush wanted a pretext for American military intervention in the region (Bellamy 2003:44).
The US intervention in reality has nothing to do with humanity, it was all about US interests in the region and controlling oil resources as Henry Kissinger stated in the film made by the US media about the Desert Storm “oil is too important to be left to the Arabs”. Keeping Saddam Hussein was US policy to justify their presence in the region not to mention that the oil for food programme was a sever stab in the back of humanitarian intervention.
Chandler claims that western governments have always resorted to force pretending the protection of human rights while in fact they were chasing their own national interests. Likewise, Reiter claims that ‘democrats are as reluctant to go to war on the grounds of humanity as Republicans’ he added his observation that ‘American people are more sympathetic to humanitarian goals than their political leaders (Osterdahi & Sulyok 2004:1061).
“An actor who proclaims to have humanitarian goals but employs arbitrary weapons or strategic bombardment cannot be said to have a humanitarian intervention” (Bellamy 2003:229).
The Indian intervention in East Pakistan which ended in establishment of the independent state of Bangladesh offers an instance of humanitarian intervention.In 1971, India intervened in East Pakistan which is commonly referred as one the more promising illustrations of alleged humanitarian intervention. According to Teson, it is an almost a perfect illustration. According to Fonteyne, it is perhaps tantamount to the forceful individual humanitarian intervention during this century. According to Bowett, it is the only possible examples of the practice that happened in the period between 1945 and 1986. In Untied Nations discussions, there were debates over such humanitarian concerns that seem to have tempered criticism of India but were not accepted as a rationalisation for its intervention. (Chesterman Simon 2003:64).
Though India’s intervention in East Pakistan (now Bangladesh) is commonly cited to as one of the best example of humanitarian intervention, there are comparatively few writers who actually assert that it was legal for this purpose. India’s claim of self defense and assistance to a new government was not accepted by the International Commission of Jurists but observed that India’s armed intervention would have been considered as legal if she acted under the guise of humanitarian intervention.
Though India initially relied on humanitarian intervention later it relied on the more customary ground of self-defense. Bangladesh liberation spotlighted a cleavage in the attitudes of international jurists to the right of humanitarian intervention. Some described it as though illegal but still moral. However, only very few critics have censured the issue as illegal.
India claimed that its humanitarian intervention was essential for the safeguarding of Bengalis from persistent and gross infringement of human rights by Pakistani army as it had to address the issue of over ten million Bengali refugees that crossed the into its territory. India alleged that there was oppression, genocide, extinction of civil rights and refugees’ plight that compelled it to intervene.
Humanitarian intervention and resources
The international system of humanitarian relief is not a system at all as John Seaman argued. (Bellamy 2003:4). It is a military operation influenced by different factors such as the large number of organisations involved and the quantity of resources. It is sad but true that the UN effectiveness have been minimised by its reliance on the powerful western countries (Bellamy 2003:4).A good example for that is the case of Rwanda as the US rejection to not involve in Rwanda was the main reason behind the UN failure. (Bellamy 2003:21).
Therefore, the question which could be raised here is why would one of these superpower countries launch a military operation in the guise of saving the humanity keeping in mind the sever losses they could suffer. The idea of setting up of such operation without achieving any political or economical objectives either in the short or long term appears to be illogic. The uncertainty about the true objectives of these powers is the reason behind the endless debate on the right of humanitarian intervention. (Bellamy 2003:7). ‘The notion of an independent rapid reaction force to stop major humanitarian catastrophes is economically, logistically and politically infeasible. (Bellamy 2003:987).
Unilateral or Unauthorised humanitarian intervention
During the 1990s, writers such as Sean Murphy and Matthlas Pape announced that there is no unilateral right in both the UN charter and state practice even after the cold war. ‘Gray, Chesterman and Wheeler agree that neither the examples during the cold war (especially India/Pakistan, Vietnam/Cambodia and Tanzania/Uganda) nor more recent cases such as the intervention in Northern Iraq or Kosovo reflect an acceptance of such a right by state practice. Both obligations and justifications of states show the absence of unilateral humanitarian intervention. States were emphasising the right of self-defence to justify the use of force. (Glanville 2006:155)
To Parekh, it was flexible in terms of unilateral act and being one of the ‘motive matters’ and was agreed on the approach that states’ should be allowed to fulfil their self interests otherwise it will be holding back military actions when its needed to save lives (Bellamy 2003:223). However, this is only one part of the coin because if we submit to the argument that any state can intervene to stop serious violations of human rights without any restrictions that will eventually lead to violate other’s rights such as the right to self-determination or controlling natural resources of the victim country.
Both professor Simma and judge Cassese hold the view that the NATO unilateral intervention in Kosovo is not permissible under international law. While Casses’s confirm the moral duty to resort to armed force, Simma presumes that there is a ‘thin red line between the legality and illegality of the intervention. (Glanville 2006:362). All unauthorised unilateral intervention such as the ones in Kosovo, no-fly zone in Southern Iraq and Liberia were linked to Security Council resolutions under chapter VII. This approach basically may constitute a claim to implement Security Council Resolutions without being bothered about its authorisation. It can be argued that such approach may lead to serious violations to the principle of non-intervention in the other states’ rights. (Glanville 2006:363).
The habit of linking unilateral interventions with Security Council resolutions in all cases rather than relying on customary international law demonstrates the need for clear authorisation from the Security Council. (Glanville 2006:373).
It has been argued that ‘unilateral measures are regularly taken for reasons that have little to do with ethics and values (Chandler2004). Accordingly, the moral goals can be achieved through multilateral means. Therefore, it has been described as illogic to believe that unilateralism is the major problem confronting humanitarian intervention while states focused on unilateralism rather than multilateral is the problem (Glanville 2006 ).
It should be noted that since the responsibility to protect is universal, there is no unilateral right where each state decide for itself whether to intervene or not (Kegley& Raymond2004).Furthermore, the NATO action in Kosovo should not be viewed as unilateral action since it was consistence with the Security Council findings. (Gray 2002:1-19). At the same time, ‘…a collective process serves as a check on an individual state’s tendency to intervene for self-interested purposes’ (Rosenthal & Barry 2009:80).
It goes without saying that entailing the Security Council to intervene in humanitarian crisis had found wild acceptance in the 1990s. (Glanville 2006:323-335).
Take the Gulf War as an example, when the Security Council authorised states to use all necessary means. It did not initiate a procedure for monitoring pursuit of the objectives, and the same can be said for Somalia, Rwanda and Bosnia. These precedents are like a ‘blank cheque’ from the Security Council for conducting actions without the need for UN consent which can lead to other rights violations (Bellamy 2003:96). Therefore, if a right of intervention exists, it will be in the limit set by the UN Charter (Chapter VII) as most states wants to define it (Bellamy 2003:97).
On the other hand, while some authors think that we need to deal suspiciously about unilateral intervention, due to the self-interest component involve in it till such assumption can be overridden. True intended humanitarian intervention should be justifiable even if it is unilateral because in multilateral approval of humanitarian intervention, there is no guarantee that atrocities will be stopped immediately as what had happened to Kurds in Iraq.
For example, Rwanda was a case of “well, I’ll do it if you do it” with everyone waiting for someone to take the lead. Many people would have been saved if one state had intervened and stopped that humanitarian crisis. Therefore, it would seem unreasonable to rule out unilateral action, especially when a lot of people are facing death. (Glanville 2006:79). Multinational intervention can be described as the ideal intervention according to international law. However, the flaws of the UN raise the necessity and need for an effective solution to help those who are in need for immediate help. It may be necessary for a state to declare its humanitarian intentions for intervening which may lead to collective intervention. In some cases the unilateral interventions can be justifiable, even if its motives are mixed. (Moseley & Norman 2002:92).
Cases
Different humanitarian interventions have occurred in foreign states’ territories in the 1990s. For instance, Liberia (intervention in August 1990), Iraqi Kurdistan (Provided Comfort operation April 1991), Somalia (Restore Hope operation, December 1992), Rwanda (operation Turquoise, July 1994) and Bosnia-Herzegovina (operation Resolute Force, August 1995). All cases demonstrate the right of intervention where human rights have been severely violated. States all over the world have taken various positions toward humanitarian intervention. Some precedents were based on explicit authorisation from the Security Council while others were not. (Bellamy 2003:90-91).
Authorised interventions by the Security Council
The military interventions in Somalia, Rwanda and Bosnia-Herzegovina were based on explicit authorisation from the Security Council. Almost the same can be said about Haiti and Zaire; however, these two cases are different because authorisations were followed by military action. Moreover, the Haitian precedent cannot be deemed as a humanitarian intervention because the aim was to restore a legitimate government (Bellamy 2003:91).The governments of Haiti and East Timor have explicitly agreed to deploy troops to sort out the situations in their countries. (Osterdahi & Sulyok 2004).
It could be argued military operations in Somalia, Rwanda and Bosnia-Herzegovina indicate that the emergence of humanitarian right to intervention. However, no state has undertaken unilateral military operation to stop human suffering by invoking the right of humanitarian intervention. Legally speaking, the operations are based on Chapter VII of the UN Charter, which permits the Security Council to use force and enable states to implement it. (Bellamy 2003:94).
The principle of non-interference cannot be invoked by states member when the Security Council authorise interventions. However, an act of aggression has to exist in order to invoke Security Council authorisation. As described in the UN Charter, aggressions constitute a breach of peace or a threat to international peace and security and that explains why Resolutions refer to Chapter VII. In Somalia, Rwanda and Bosnia-Herzegovina, the situation was a mix of humanitarian targets and other factors such as the loss of authority. (Bellamy 2003:95).
Somalia
The case of Somalia as Finnemore believes is ‘the clearest example of military action undertaken in a state of little or no strategic or economic importance to the principal intervener. However, constructivists such as Finnemore did not realise that the US has decided to withdraw from Somalia after the unexpected number of casualties which made the US to quit from its moral commitment. It is quite striking that the US has considered its interests in such case otherwise it will not stop until the end of the crisis. (Wheeler 2000:202).
The intervention in Somalia from 1992 to 1995, has taught the intervening countries a harsh lesson about the costs and difficulties involving intervention, especially when trying to take down strong opponents. The US announced that it would not interfere in conflicts that did not constitute a threat to its national interests, which is a narrow definition for humanitarian intervention (Seybolt 2007:60-61).
The failure in Somalia may be attributed to lack of knowledge about the country of operation by the interveners. A humanitarian intervention may fail if external agencies are inadequately not informed about another state and the culture and behaviour of its population to arrive at good decisions. The outcomes of a number of interventions lend corroboration to this finding. To me, the UN intervention in Somalia was ill-informed as very few enough Somali advisors were engaged.
Further, UN officials were not briefed the real ground situations and about Somali culture and society. The wide gap between American high-tech and traditional Somali methods of dealings with foreigners put a majority of UN mission staff at a greater difficulty in their local engagements. UN engaged in wrong educative prospects in Somalia as it had dropped leaflets from helicopter to a population who would have responded well if it had been reached through radio broadcastings instead of air droppings. (Caney Simon 2006:241).
Cambodia and Rwanda
Massive violations of human rights like the ones occurred in Cambodia and Rwanda captured the world’s attention and raised the concern about the protection of human rights. (Steiner, Alston & Goodman 2008:672).
The cases of Cambodia and Rwanda showed that the legitimacy of humanitarian intervention can be challengeable when the intention is a primary one. Violations of human rights and massive killing did not stop even after the Vietnamese intervention. To make the matter worse, it did cause a refugee crisis in Southeast Asia and the same can be said about the situation in Rwanda, the French intervention did not put an end to the ongoing genocide. (Bellamy 2003:228).
The Clinton administration showed reluctance in naming the ongoing crisis as ‘Genocide’ because it will place the administration under an obligation to put an end and penalise those who are responsible according to the Genocide Convention. However, since the norm is not so strong enough to constitute an obligation on states to intervene, the US did not showed any interest to intervene since the intervention will not contribute positively to its national interests.
The administration was careful in explaining the term of handling the violation of the norm to avoid social objection which indicate the weakness of the norm. The congress made it clear that engaging in operations that do not serve the national interests of the United States will not be acceptable. The UN military force was affected by member states that were reluctant to face the costs and risks where aggressive action would have been required. The extreme violation of human rights in Rwanda aroused the need to reassess the limits and obligations of a state sovereignty (Osterdahi & Sulyok 2004:77-78).
East Timor
East Timor case is so specific that its lessons may be difficult to generalise. In previous chapter, I have mentioned that the key aspect of the legal characterisation of humanitarian intervention is the lack of host-state consent. The case of East Timor represents a correlation between intervention and sovereignty that is striking dissimilarity to the intervention in Kosovo. In the case of Kosovo, NATO stepped in over a claim to autonomy that it would prolong to recognise. However, UN and lion’s share of its member states had not recognised the Indonesia’s claim to sovereignty over East Timor. Still, the international community considered Indonesia’s consent to be an indispensable stipulation for intervention. However, Indonesia represented its strong opposition to any international security presence in East Timor.
Until 1974, East Timor was a colony of Portugal. After the “Carnation Revolution” that took place in 1974, Portuguese left the East Timor. In 1975, Indonesia made a full –scale invasion when pro-independence party Fretilin had established a complete dominance in the territory. The aggression by Indonesia was strongly deplored by UN Security Council and called Indonesia to withdraw from the territory of East Timor immediately thereby respecting the inalienable privilege of the East Timorese to self-determination.
Meanwhile, the civilian population of East Timor were subject to endless sufferings. A large chunk of population died due to disease and famine and about 200,000 citizens were displaced. Large scale human rights violations were unleashed by the armed forces of Indonesia against pro-independence activists and their loyalists. (Welsh 2006: 140).
The intervention in East Timor was both humanitarian and political. It was launched to support the freedom of political choice on the part of the population. In this case, the UN Security Council authorised the Australian-led coalition to intervene, bringing this intervention into the legal field. The INTERFET intervention showed that governments have started to understand the importance of acting promptly to save unarmed civilians. Also, an important point in this case is that the government gave its consent for the intervening powers, while there was no official consent in the case of Somalia (Osterdahi & Sulyok 2004:92-93).
Unauthorised intervention by the Security Council
The military interventions in Liberia in 1990 and in Iraq in 1991 and the Russian intervention in Georgia or in Tajikistan, and even the intervention of the West African states in Sierra Leone, was not based on humanitarian motivations.
Sierra Leone
In fact, the Economic Community of West African States Monitoring Group or ECOMOG operations is an regional peacekeeping institution according to experts, and were not viewed as a form of humanitarian intervention. ‘The practical basis of the action was the need to restore order in a state without an effective Government. (Bellamy 2003).The difference between humanitarian intervention and peacekeeping is noticeable. The peacekeeping operations are authorised by the Security Council under chapter VI of the UN charter. Consent, neutrality, and the non-use of force except in self-defense is the frame of peacekeeping operations.
It is aimed to provide safe sphere for political negotiations and to cease-fires in order to solve disputes peacefully. Good example for such operations, the unarmed military observers in Western Sahara and the armed infantry-based forces in Cyprus. Another distinction is that humanitarian intervention involves war fighting because the objective is to throw out the violators like the NATO’s air campaign in Kosovo in 1999 (Weiss & Evans 2007:1920).
Sierra Leone is renowned for diamond mines and this was the chief reason for the civil war that is being waged since 1992 which devastated its economy and resulted in widespread starvation and poverty. Due to ongoing civil war that is mainly waged to take control of the diamond mines by the rebels who took control over many of the Sierra Leone diamond mines.
African diamonds from conflict areas cause blood shed and hence it is nicknamed as “Blood Diamonds”. Blood diamonds are commonly referred to diamonds that are mined, extracted and sold from specific regions of sub-Saharan Africa that are still devastated by fierce armed conflicts. It is to be observed that these civil wars and atrocious armed conflicts normally instigated by stubborn warlords, defected militias and rebel groups that relied on the illegitimate sale of blood diamonds in exchange for guns ,weapons , fuel and assorted war materials like land mines. Blood diamonds represent about 4 to 16% of the global annual diamond production amounting to $ 7 billion.
The superfluity of armed conflicts, atrocious struggles and civil wars mainly waged to take control over financial incomes and areas of ‘blood diamonds’ have worsened sub –Sahara Africa post-colonial, socio-economic and political problems. These military combats and cross-border radicals have let loose a catastrophic humanitarian disaster on innocent citizens who have never seen a diamond in their life and for the bordering countries like Democratic Republic of Congo, Angola, Liberia and Sierra Leone.
The net effect of these armed conflicts – triggered, fuelled and financed by mineral mafias have been the propagation of persistent regional insecurity, the escalation of Border States conflict and the acute political instability of many states in western, southern and central African sub-regions. In a nutshell, the post-cold war era has resulted new disputes and intricacies, stimulated more contradictions and augmented both serious regional security quandary and political unsteadiness for several disruptive contemporary African countries.
UNO was obsessed with Sierra Leone all over the year 2000. Sierra Leone can be regarded as most controversial and biggest UN mission. UN force was initially allowed to employ limited force chiefly for self-defense and to safeguard civilians under instantaneous menace of physical violence. UNO SC was of the view that situations in Sierra Leone continued to act as a peril to international security and peace in the region but emphasised that obligation for the success of the peace process finally rests with the leaders and citizens of Sierra Leone.
To curb the blood diamonds, UNSC imposed a ban on exports of rough diamonds that do not have certificate from Sierra Leone’s elected government. Despite of dispatch of massive UN peacekeeping forces in Sierra Leone, the situation continued to be a threat to international security and peace in the region. UN also expressed its concern on the part played by the illicit commerce in diamonds in prolonging the conflict in Sierra Leone.
Through UNSC Resolution 1315, Security Council of UN expressed its grave concerns at the very grave crimes perpetrated within the territory of Sierra Leone against the citizens of Sierra Leone and armed forces of United Nations. Further, it warned those perpetrators who indulge or commit serious infringement of international humanitarian law are individually accountable and responsible for those crimes and international community will take all possible steps to book those who are responsible for unleashing of such brutal violence to justice as per international standards of justice, due process of law and fairness. (Fischer 2000:212)
Kosovo
During 1990s, the Albanian majority population of Kosovo was being placed in acute danger by actions initiated by Milosevic government of Yugoslavia. Oppression policies by Milosevic government involved denial of fundamental human rights like the right of self-determination to a section of people. These denials of fundamental rights were mainly designed to terrorise Albanian Kosovars or to intimidate their mass exit there by ensuring the dominance of Serb with clear primary goal of ethnic purging (Jokic Aleksandra 2003:37).
From Theoretical point of view, lawyers believe the military intervention by NATO in Kosovo as a big change in both international relations and international law. It seems that the right of humanitarian intervention and the protection of human rights have prevailed over state sovereignty (Bellamy 2003:108).
However, the legal reasoning for the intervention seems to be concern about political aspects more than moral and ethnic aspects. The statement made on 1999 by the Secretary General of NATO regarding the case of Kosovo had stressed the political side more than anything else, not to mention the absence of any legal basis. (Bellamy 2003:110).
This intervention would be hard to achieve through the usual UN channels because of the veto right which was announced by Russia and China even though NATO was compassionate towards the humanitarian tragedy (Osterdahi & Sulyok 2004).
It should be noted that the US have material self-interests to intervene in Kosovo. The North Atlantic Treaty Organisation (NATO) was trying to protect stability in Europe (Glanville 2006:169).
Finnemore admitted that the military intervention in both Bosnia and Kosovo was not but a way ‘to protect NATO’s credibility and maintain stability in Europe( Glanville 2006:163)One might disagree on this gloomy view but can he explain the selective approach of states to intervene in certain cases and pass on the others otherwise. Can they explain why intervening in Bosnia not in Rwanda, why in Kosovo but not in Sierra Leone? This confirms the point that states deal with human rights from pragmatic perspective. In other words, as long as intervention serves some sort of self-interest it can be carried to end human rights violations (Glanville 2006:163) Politicians were clever to blend humanitarian interest with traditional states interest under the claim to maintain security and promote stability ( Glanville 2006:163)
The outcomes of humanitarian act do not necessarily reflect the strength of the norm. In many times the outcomes of certain intervention comes less than it was expected but that should not be the issue as long as intentions and motives were sincere (Glanville 2006:163).
According to Kofi Annan , the sad quandary of dealing with the international community when UN Charter rules pertaining the lawful employment of force are in strain with human rights imperatives in special scenarios such as Kosovo. Annan was of the view that one side, military intervention without authorisation of Security Council may erode the legal structure concerning the employment of force and challenge the Security Council’s authority by establishing possible perilous precedents. However, on the other side, if Security Council acted just a watch dog of the horrific atrocities, then it will definitely undermine the human rights codes of the Charter and erodes admiration for the UN as an institution.
Thus, to thwart such issues in the future, UN is to ensure that Security Council should rise to occasion and accept on effective action in safeguarding the human rights.
Thus , Annan was of the opinion that the core confront to the United Nations in the coming century is to create unity on the principle that systematic and massive infringement of human rights wherever they occur should be snubbed at its budge. (Holzgrefe, Keohane &Robert 2003:233)
The Security Council has determined that the situation in Kosovo constitute a threat to the international peace and security. Thus, under the UN charter, it requires the Security Council to authorise the use of force to sort the humanitarian situation. (Kegley & Raymond 2004).
This case shows the conflict between the requirement of the humanitarian intervention and what the norm of protection implies. The convergence of humanitarian concern with material self-interests produced an intervention that had advanced the prescriptive humanitarian norms to an unprecedented degree. (Glanville 2006:169).
Others argue that the NATO action cannot be considered as humanitarian intervention because the military operation was based on chapter VII or chapter VIII. From this perspective, it can only be considered as individual or collective self-defence (Byers 2005:910-925).
Kosovo was akin to every 20th century military intervention in which the US was directly associated except its Second World War intervention. While many supported the intervention on humanitarian grounds, a noteworthy critic from across the political gamut was of the view that no security interest was at stake in the Balkans.
According to Henry Kissinger,
“the planned intervention in Kosovo does not concern with any threat to American security as originally thought of. We must keep in mind not to treat a humanitarian foreign policy as a magic recipe for the fundamental issue of giving precedence in foreign policy. Hence, to me, there is no requirement for American ground forces in Kosovo.”
However, the then American president Bill Clinton was of the view that
“We do have a clear national interest in making sure that Kosovo is where the trouble ends… and if we do not put a full stop to the ethnic conflict now, it definitely will spread. And then, we will not in a position to stop it, except at far higher risk and cost.”
Later, Clinton emerged from the war with buoyancy that Kosovo had set a new precedent – a ‘Clinton Doctrine’ for humanitarian intervention to stop ethnic purging and genocide (Buckley, Mary & Cummings: 63).
Kosovo Intervention and International Law
I wish to analyse the legality of the Kosovo intervention in the light of interpretation of the UN Charter as per the rules on interpretation that was laid out in Vienna Convention particularly Article 31(1). The main provision of the Charter is Article 2 (4) which runs as follows.
“All Member states shall cease in their international relations from the use of force or threat against the territorial integrity or political sovereignty of any State or in any other style not consistent with the objects of the United Nations.”
Thus, the general meaning of Article 2 (4) is very obvious: the employment of force across border is simply not allowed. This connotation is corroborated by the UN Charter’s object, context and purpose – an international initiative to thwart one-sided determinations of just war by providing solitary authority for the non-defensive employment of force in the Security Council.
There are only two exceptions to the Article 2 (4) which has been set out by the Charter and these are not applicable to the intervention in Kosovo. Thus, the Security Council may permit the employment of force by explicitly referring through resolution passed under Chapter VII. However, in Kosovo case, no such authorisation to use force for humanitarian causes was made in any of the resolutions passed by the Council.
On 24 October 1998, UN passed Resolution 1203 which specifically asserts that in the case of any emergency, action may be required to make sure the freedom of movement and safety. There is no mention about humanitarian intervention and terminates by expressing that the Council remains “seized of the issue.” Thus, the above UN resolution was unambiguous that any verdict to employ military on humanitarian purpose was to be decided by the Council alone by passing a resolution in this regard at a succeeding meeting.
However, in Kosovo, military action by NATO was commenced without subsequent involvement of the Council. Agitated by such action, Russia immediately after bombardment started submitted a draft resolution which sought to censure NATO’s action beyond their authority. However, the draft resolution submitted by Russia was defeated by five NATO members and this did not tantamount the positive permission required by the Charter.
It is to be noted that Resolution 1244 of 10 June 1999 which was partial to establishing a civilian administration to deal with outcomes of intervention and also an international security presence in Kosovo. Further, the scenery was analogous in much as Resolution 687 which in no way substantiated Iraq invasion of Kuwait. Likewise, Resolution 1244 also in no way approved the NATO’s bombardments in Yugoslavia.
The second exception to the Article 2(4) is the ban to the privilege of self –defense. This privilege is reliant upon an armed attack on the state claiming the right, and restricted to actions initiated in self-defense that both essential and proportionate. In Kosovo case, NATO could not use self-defense exception as Yugoslavia was never planning to attack any NATO nations. Further, Kosovo people had not extended any invitation to NATO nations to intervene on humanitarian grounds. The crux of the issue here was that Kosovo is not a state which is the fundamental need for self-defense especially under international law. (Holzgrefe, Keohane &Robert 2003:182)
Obstacles in front of the emergence of the right of humanitarian intervention
It is hard to predict the future of humanitarian intervention due to the power shitting process at the moment. However, the emergence of new power such as China raises many questions regarding applying the right to intervene due to the negative position taken of China in different cases. The five permanent member of the Security Council would lack the political will for undertaking humanitarian intervention since China and Russia had objected on the agenda of the ICISS. (Bellamy 2003:983).
One of the drawbacks in front of humanitarian intervention and makes it exposed to bad conducts is the absence of legitimate institution which is able to determine and initiate humanitarian intervention. The UN’s failure to act effectively in Rwanda and Bosnia raises the necessity to create an agent or an institution that able to act immediately in emergencies (Cahill 2007:399). Moreover, the European failure in establishing military forces with the capacity to intervene in case of humanitarian intervention made a huge burden on the US. With the US military stuck in Iraq and the current financial crisis, it would be hard for the US to respond fast to humanitarian crisis in near future (Bellamy 2003:986).
One possible solution for the lack of action in humanitarian crisis is creating an organisation or agent with volunteer soldiers. In return, the international community as a whole will be financially responsible to remunerate any damages or loses to the military.
The most important role of the Security Council is to determine whether there is a threat to international peace and security under article 39 of chapter VII. (Glanville 2006:205). However, the Cold War had proved that the system suffer from many problems even after the war the disagreement between five permanent members regarding issues involve the use of force raised the question of effectiveness of this body.
The best example of such disability is the failure of the Security Council to prevent the severe violations of human rights in Kosovo while it seemed that the General Assembly has filled the space. The General Assembly adopted the peace resolution 1950 which resulted to recommend collective measures. This incident was the trigger for the need to reform the system in a way to be able to deal effectively with the maintenance of peace and security for any such crisis that may emerge in future (Glanville 2006:169).
The right to veto
As a right obtained by few members of the Security Council, the right to veto has always been an obstacle in front of humanitarian intervention. There was a proposal to reform the Security Council system to allow the majority of the members to decide on humanitarian disasters instead of the minority. ‘States such as Russia and China are acutely sensitive to such propositions, because they fear that their consent to such actions, and the fact of the actions themselves, may contribute to subsequent legal justification for future international involvement in their own domestic affairs or foreign interests or in the affairs of their allied and client nations’. (Brysk 2002:345-381). However, these fears are far from truth because customary international law does not constitute based on the Security Council decisions and for other reasons.
One possible solution can be invoked when one of the permanent members block humanitarian interventions is to entail the majority to overcome the veto. Second possible solution is to entail the Council to have “Second Consideration” if the military actions were jammed by one of the permanent members. However, for such changes to become active all five permanent members have to approve it and ratify it. (Joyner 2002:587-619).
The General Assembly is not entitled to authorise humanitarian interventions even Regional organisations rely on Security Council as stated under article 53 of the UN charter. However, some authors argue that the General Assembly can replace the veto when it is needed. (Bellamy 2003:191-213).
To me, under an approach footed on fundamental ethical principles, it is not legally tolerable for regional organisations or states to intervene on humanitarian grounds without authorisation from UN Council. This legal finding, however, is morally disturbing in the background of political veracity that some permanent members of UN Security Council have of late tried to employ their veto privilege or even the threat of veto, to thwart humanitarian intervention missions.
I wish to recall here how Russia has tried to block the intervention in Kosovo through its efforts against NATO members. This give rise to legal finding that human rights victims must acknowledge the legal justnesses of the Charter –and in specific, the valuable veto rights of permanent members, conjugated with the restrictions in Articles 2 (4) and 53 –are morally permitted to undergo either death or torture without hope of rescue?
Thus, a clear distinction between the status of law as it is (the lex lata) and fundamental ethical principles which is not ideal law as it ought to be (lesx ferenda) have to be made. The evaluation of veto power in UN Chapter 10 makes it obvious that the veto is morally challenging and that every attempt ought to be made to modify its usage, especially with respect to issues pertaining to humanitarian interventions. In respect of the ethical code of consultation, an appropriate revision in this chapter would be more appropriate than acknowledgement of veto and codification of criteria for legally entitled humanitarian intervention without the authorisation of the Council.
At the same juncture, the present law is what it is. There will be incidences of massive and egregious infringement of fundamental human rights where the employment of force is, logically, the only avenue to a put a full stop to the infringement and yet, because of veto, the Security Council could not move forward. The issue then happens whether or not, morally, it would be acceptable in such scenario for a regional organisation or a state to infringe the legal restrictions in Articles 53 and in 2(4).
However, in Chapter 2, while basic ethical codes demand observance to legal norms, even those that are not morally perfect, they inform that there are instances where infringement of legal principles is morally honoured if abiding by the law as it would gravely aggravate basic ethical codes and if every possible effort has first been attempted to achieve those codes through available legal channels (Lepard Brian 2003:363).
Conclusion
There is no doubt that humanitarian intervention can be used as a weapon to enforce human rights. It is true that states sovereignty is not absolute right anymore and states in general respect human rights to some extend due to the existing norm of international law. However, there is always a gap between laws and reality which made most of the conventions and commissions nothing but only as theoretical ideas. The aim of this dissertation was to clarify the different factors that affect humanitarian intervention which most writers tend to disregard for unknown reasons.
Most legal writers argue that humanitarian concerns are one of many other factors that influence the legality of humanitarian intervention but at least they should have it as primary consideration. However, interventions with primary intentions to restore international peace and security and stop gross violations of human rights should not be regarded as totally illegal due to the necessity to save lives (Bellamy 2003:228). However, political and military leaders are under a duty to explicitly declare the true humanitarian intention behind going to war. Also, they have to adopt measures to reduce the chances of killing non-combatants and innocent people (Bellamy 2003:227).
Moreover, realising the negative impact of military actions on non-combatants should be the indicator of humanitarian intervention. If such military action would cause more harm than good then it must not be carried at all. (Bellamy 2003:229).
The bottom line is since humanitarian organisations cannot influence military decisions and since there is no agent in the international community entitled to undertake it; thus, this leaves military actions and decisions to politicians who mostly care about their state’s interests. (Glanville 2006:323-335). Even the opponents of the right to unilateral intervention were arguing that approving such norm would open the door for arbitrary interventions based on states interests. (Bellamy 2003:229).
However, it could be argued that if the situation as described rolling out unilateral intervention when it is necessary as there is a crime against humanity and if states cannot do it without serving its self-interests then so be it. There is nothing vital more than life of the people and if a state is willing to sacrifice its local resources to rescue them then they should not be so bothered about whether state in question served its interests or not.
According to article 51 of the UN charter, every case of humanitarian intervention either looks like self-defense or measure based on Chapter VII. The different dimension tackled by humanitarian intervention is the protection of human rights of citizen of other states which most cases is nothing but illusion. (Bellamy 2003:31-38)Beside, the Security Council has a prime responsibility for the maintenance of international peace and security as stated under article 24 of the UN Charter. It has also the ability to apply diplomatic, economic or other sanctions under article 41 of the UN charter. In addition, the Security Council can take military sanctions if sanctions under article 41 failed to restore international peace and security (Cahill, 2007:420).
On the other hand, it is vital to understand the importance of the public opinion in generating the political will to undertake humanitarian intervention. Also, the media has an important role in covering the crisis and preparing states to invoke humanitarian intervention. (Bellamy 2003:988).
Thus, humanitarian intervention could only be initiated in retort to actual flagrant and rampant infringement of fundamental human rights or a scenario in which infringement on such a large scale seems to be rationally imminent. Such restriction is essential since the extraordinary nature of unauthorised intervention and the significance of honouring both the non-abetment of force and those codes of supporting the sovereign of states. Interventions in retort only to “threats” of future mass scale and grave human rights that appears to be imminent is, given the Charter provisions, morally best considered as the exclusive area of Security Council.
Last but not the least that such an unauthorised humanitarian intervention would only be rationalised morally if it adhered with all of the restraints both legal and moral on Council –authorised employment of force which is illustrated Chapter seven. If these criterions are met, then an unauthorised intervention may be justified morally footed on the fundamental ethical principles but it would still not be legal.
For facilitating humanitarian intervention in future, the UN law should be reformed more uniformly to adhere with basic ethical codes, most significantly, by eliminating or restricting the veto and also by constantly pursuing the necessary reforms necessary for increasing the UN capability for humanitarian intervention whenever necessary.
To curtail the power of Security Council if it uses veto frequently to obstruct humanitarian intervention, the General Assembly might invoke the Uniting for Peace Resolution. Such resolution would provide that “ if the Security Council , due to paucity of unanimity of the permanent members who fails to exercise their principal duty for the maintenance of international security and peace in a given case ,if there seems to be a peril to peace , infringement of peace or act of aggression , the General Assembly will consider the issue instantly with a purpose to make proper recommendations to Members for collective decisions including the use of armed force wherever necessary to restore or maintain international security and peace. (Lepard 2003:364).
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