Working Paper 01-2
Penelope Simons has an LLB from Dalhousie Law School, and an LLM and PhD in International Law from Cambridge University. She is a Director and Vice-President of both Lawyers for Social Responsibility and The Simons Foundation.
Table of Contents
International Law and Humanitarian Intervention
The Charter Regime on the Prohibition Against the Use of Force
Unilateral or Unauthorised Humanitarian Intervention
Kosovo and the Question of the Legality of NATO’s Unauthorised Use of Force
Is there an Emerging Legal Right of Unauthorised Intervention?
International Relations Theory and Humanitarian Intervention
Moral Arguments for and against Humanitarian Intervention
Practical/Political Arguments for and against Humanitarian Intervention
Is there an Emerging Norm of Humanitarian Intervention?
Points for Discussion
Notice and Refusal to Comply
Exhaustion of Peaceful Means to Resolve the Situation
Recourse to the United Nations
Unauthorised Humanitarian Intervention
Conditions for the Conduct of Legitimate Intervention
It is estimated that civilian casualties now constitute ninety per cent of the victims of armed conflict (Weiss 1999, p. 1). The civil wars which are raging in many parts of the globe are mainly the result of intra-state conflict and/or ethnic violence and are often characterised by the collapse of state institutions and the breakdown of law and order (UN 1995; Shawcross 2000, p. 28).1 In these wars, which former United Nations Secretary-General, Boutros Boutros Ghali, describes as a “new breed” of civil war (UN 1995, note 2), civilians have become the main targets and combatants employ “starvation, slaughter, and various civilian and military technologies to expel or kill civilians, including ‘demonstration killings and maimings’”(Meron 2000, p. 276).2
These wars have often created and perpetuated devastating humanitarian crises. The international community has, on occasion, responded to some of these crises for a variety of reasons, such as increased public pressure on governments to address human suffering, the potentially destabilising effect of transborder refugee flows, or other political and practical imperatives. States have acted both unilaterally and within the United Nations system to address these crises and such action has included the provision of humanitarian assistance, peacekeeping, and the use of force to provide such assistance or to prevent or stop gross and widespread violations of human rights and international humanitarian law.
The North Atlantic Treaty Organization’s ‘humanitarian war’ in Kosovo in 1999 has once again brought to the fore the longstanding legal, political, and moral debate surrounding the doctrine of humanitarian intervention3 and in particular the right of states to intervene militarily in another state, without Security Council authorisation, in order to prevent gross violations of fundamental human rights and international humanitarian law.
This paper reviews a selection of international law and international relations literature on humanitarian intervention and in particular on NATO’s intervention in Kosovo. It is not intended to be an exhaustive analysis. Rather, its purpose is to provide an overview of some of the important issues surrounding unauthorised humanitarian intervention with a view to facilitating a discussion of policy options for the Canadian government. It addresses the following questions: Is there a legal or moral right or obligation on the part of states to respond to situations of gross violations of human rights? Is there an emerging legal right or norm that allows humanitarian enforcement action outside of the Charter regime? What are the possible criteria for humanitarian intervention which could inform governmental decision-making in a situation where the Security Council is unable to take action?
The first task is to determine a working definition of “humanitarian intervention.” It is acknowledged that a comprehensive and proactive approach to dealing with grave humanitarian crises is essential.4 However, the object of this paper is to explore the issues surrounding non-consensual military humanitarian intervention. Therefore while some recent international relations literature defines humanitarian intervention as a range of actions including humanitarian assistance and forcible military intervention,5 this paper will take an international law approach to defining this, such as that developed by Sean Murphy (1996, pp.11-12), who defines humanitarian intervention as the
threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.
According to Murphy (1996, p. 18), the latter phrase is a broad formulation “used to capture the myriad of conditions that might arise where human rights on a large scale are in jeopardy” and includes acts committed by both state and non-state actors.
What underlies the humanitarian intervention debate is a perceived tension between the values of ensuring respect for fundamental human rights and the primacy of the norms of sovereignty, non-intervention, and self determination which are considered essential factors in the maintenance of peace and international security (Danish Institute of International Affairs 1999, pp. 14-15). These values are set out in the United Nations Charter as fundamental purposes of the United Nations. However, while there are mechanisms within the Charter for the protection and enforcement of peace and international security (i.e., Article 2 and Chapter VII), there are no equivalent provisions or mechanisms in the Charter for the protection of human rights (Peterson 1998, pp. 872, 879).
While many developing states and their academics do not agree with the Western emphasis on the individual in current human rights doctrine,6 it has been put forward by many Western states and academics that the development of international human rights norms and international humanitarian law has modified the traditional concept of sovereignty.7 Thus, it has been suggested that human rights can no longer be considered a purely domestic concern and the concept of sovereignty cannot be used by governments to shield themselves from responsibility for gross violations of these rights, or from shirking their obligations with respect to the protection and treatment of civilians in situations of intra-state conflict.
The UN System and Humanitarian Intervention
The suggestion that respect for sovereignty is conditional on respect for human rights has been reflected in the practice of the Security Council. Article 2(7) of the United Nations Charter prohibits the UN from intervening “in the domestic jurisdiction of any state.” Nevertheless, since the end of the Cold War,8 the Security Council has “availed itself of a right of humanitarian intervention” by adopting a series of resolutions which have progressively expanded the definition of a “threat to international peace and security” under Article 39 of the Charter to allow for Security Council-mandated military intervention to respond to grave humanitarian crises, even where such crises have been purely domestic in nature (Guicherd 1999, pp. 22-23; O’Connell 2000, pp. 68-69).9 It is noteworthy that even where these internal conflicts have had international repercussions, the Security Council has not always made reference to these repercussions in defining a “threat to international peace and security”(Danish Institute Report 1999, p. 63). Murphy argues that the Security Council has a legal right to intervene (or to authorise intervention by a group of states or a regional organisation) in a target state to protect the latter’s citizens from widespread deprivations of internationally recognized human rights and that such a right is now generally recognized in international law (Murphy 1996, pp. 287-288; Gordon 1996, p. 48; Greenwood 1993, p. 40; Guicherd 1999, p. 22; O’Connell 2000, pp. 67-69; Tesón 1997, p. 225; Danish Institute Report 1999, p. 64).
While there are those who contest this idea,10 it is arguable that UN-authorised military humanitarian interventions over the past decade reflect an emerging consensus in the international community that respect for fundamental human rights is now a matter of international concern. At the same time, however, the instances of Security Council inaction or lack of timely action in the face of humanitarian crises over the same period show that this “international concern” is often outweighed by political and structural obstacles.
First, the Security Council is hampered by a lack of political will among its members. The issue of political will was tragically evident in the crisis in Rwanda. An independent investigation of the genocide in Rwanda commissioned by the Organisation of African Unity recently condemned the Security Council and its members for having the opportunity to prevent the genocide but failing to do so and, among other things, pointed to the role of the United States in blocking the deployment of a more effective intervention force during the genocide (OAU 2000, Chapter 10, para.10.16).
Second, effective and consistent humanitarian intervention is made unlikely by the geopolitical realities of relations between the Permanent Five members of the Security Council, leading to the use of the veto and inconsistent action in the face of humanitarian crises. Such difficulties were revealed, for example, when Russia launched its attack on Chechnya to crush the rebellion (killing and displacing thousands of Chechen civilians in the process) and the Security Council took no action.11 Further, as the ethnic conflict in Kosovo intensified in 1998 and early 1999, it became clear that, while the Security Council had classified the situation as a “threat to peace and security in the region”(UN 1998), Russia and China would exercise their power of veto on any resolution authorizing the use of force in Kosovo (Simma 1999, p. 7).
Third, there is a crucial gap in international law with respect to humanitarian intervention. NATO’s ‘humanitarian’ campaign in Kosovo is particularly significant because it not only highlights the deficiencies of international legal mechanisms when faced with potentially devastating humanitarian crises, but, as noted above, it has brought the question of the right of states to intervene for humanitarian purposes without the authorisation of the Security Council back into public debate.12 As UN Secretary-General Kofi Annan (1999) stated:
this year’s conflict in Kosovo raised equally important questions about the consequences of action without international consensus and clear legal authority…. On the one hand is it legitimate for a regional organization to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences, continue unchecked?
The issues raised by NATO’s intervention in Kosovo pose a challenge to the framers of Canadian foreign policy. When faced with a situation like Kosovo – a humanitarian crisis where the Security Council is paralysed – how can Canada respond in a way that does not risk marginalizing the Security Council and undermining the international rule of law?
International Law and Humanitarian Intervention
Forcible intervention in another state is prohibited in international law under Article 2(4) of the United Nations Charter which states:
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.
This general prohibition on the use of force has been confirmed by the International Court of Justice in the Corfu Channel Case (1949) and the Case Concerning Military and Paramilitary Activities In and Against Nicaragua (1986)13 and is considered to be a rule of jus cogens – that is, a peremptory norm of international law from which no subject of international law may derogate (O’Connell 2000, p. 58). The two main exceptions14 to this general prohibition are: the right of a state to use force in self-defence or collective self-defence under Article 51 of the Charter, and the right of the Security Council under Article 42 to authorise the use of force “to maintain or restore international peace and security.”
In legal terms, “international peace and security” has traditionally been narrowly defined as the maintenance of inter-state order. However, as stated above, the practice of the Security Council can be seen to have modified this concept to include grave humanitarian crises and it is generally recognized among Western legal scholars that the Security Council now has an exclusive right to authorise the use of force for the purpose of preventing or stopping widespread deprivations of internationally recognised human rights.
Whether or not there is an obligation on the part of the Security Council to take such action is another question. According to Bruno Simma (1999, p. 2), acts of genocide as defined in the Genocide Convention may trigger an obligation to act to prevent or stop such actions. However, Murphy (1996, p. 295) argues that “[t]o date … the notion of a ‘duty to intervene’ by the United Nations, regional organizations, or states does not appear present in international law.” The Secretary-General of the United Nations has suggested that where crimes against humanity are being committed “and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community”(Annan 2000, para. 219, emphasis added).
Military action taken with the authorisation of the Security Council by a state or group of states against another state to prevent gross and widespread violations of fundamental rights is referred to as collective intervention. Unilateral intervention involving the threat or use of force refers to military action taken by a state without the authorisation of the Security Council. The term unilateral intervention can also refer to unauthorised military intervention by more than one state and, for the purposes of this paper, will be used interchangeably with the term “unauthorised intervention.”
Broadly speaking there are two schools of thought on the legality of unilateral or unauthorised humanitarian intervention.15 Those who argue in favour of the right to unilateral humanitarian intervention maintain that the evolution of international human rights law and the Charter have had a revolutionary effect on the international legal system. From a “deontological” moral perspective,16 it is the individual, and not the state, that lies at the centre of international law. States receive their legitimacy from the will of the people. Hence, sovereignty is not an inherent right of states but, rather, derives from individual rights. Thus, when sovereignty comes into conflict with human rights, the latter must prevail. Fernando Tesón (1997, pp. 173-174), a leading proponent of the legal right to unilateral humanitarian intervention, argues as follows:
The human rights imperative underlies the concepts of state and government and the precepts that are designed to protect them, most prominently article 2(4). The rights of states recognized by international law are meaningful only on the assumption that those states minimally observe individual rights. The United Nations purpose of promoting and protecting human rights found in article 1(3), and by reference in article 2(4) as a qualifying clause to the prohibition of war, has a necessary primacy over the respect for state sovereignty. Force used in defense of fundamental human rights is therefore not a use of force inconsistent with the purposes of the United Nations.
The underlying assumption is that human rights constitute self-evident truth and a natural law which has primacy over any notion of state sovereignty or positive international law.
On the other hand, those who argue against the right of unilateral humanitarian intervention do so from a positivist perspective. These writers maintain that, based on the accepted rules of treaty interpretation – textual analysis and an examination of the travaux préparatoires of the Charter – Article 2(4) was meant to be a watertight prohibition against the use of force (Simma 1999, pp. 2-3; Murphy 1996, pp. 71-75; Charney 1999, pp. 1234-1235),17 and any customary right of unilateral intervention which may have existed was extinguished by the United Nations Charter.
These writers argue that certain fundamental human rights18 are obligations erga omnes, that is, obligations every state is bound to observe vis-à-vis all other states. However, although each state has the right to take action to ensure respect for these fundamental rights, this does not entail a right to use force (Cassese 1999, p. 26) without Security Council authorisation for such a purpose. Although the purposes of the Charter are to maintain international peace and security, to develop friendly relations among nations based on respect for equal rights and self-determination, and to promote and encourage respect for human rights, some of these writers suggest that “any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor” (Cassese 1999, p. 24). Thus while respect for human rights is considered important to a just international legal order, it is argued that neither the Charter, current state practice, nor scholarly opinion conclusively supports the view that there is a right of unilateral, unauthorised intervention to stop or prevent widespread deprivations of internationally recognised human rights (Murphy 1996, p. 356ff; Gordon 1996, p. 47; Charney 1999, p. 1247; Builder 1999, p. 161).
Following NATO’s intervention in Kosovo, a survey of many of the legal scholars writing on the subject suggests that a majority of these writers adhere to the positivist argument which rejects the right of unilateral or unauthorised humanitarian intervention. Thus, while there is an obligation on the part of states to ensure respect for fundamental human rights, there is no legal right to threaten to use or to use force to compel such compliance. Yet, while these writers maintain that the NATO intervention was formally “illegal” – because NATO did not obtain the required Security Council authorisation before or after the campaign (Simma 1999, p. 11; Cassese 1999, pp. 23-24; Charney 1999, p. 1247; Chinkin 1999, p. 842; Guicherd 1999, p. 19; O’Connell 2000, pp. 88-89) – most also suggest that a purely legal analysis is inadequate to assess the legitimacy of the NATO intervention (Simma 1999, p. 6; Cassese 1999, pp. 25-26; Chinkin 1999, pp. 842-843; Falk 1999, p. 853; Guicherd 1999, p. 19).
According to the Danish Institute Report (1999, p. 24), the question of legitimacy is determined primarily based on moral or political considerations but may also involve legal considerations which may have important political consequences. Determining whether or not a particular intervention is or was justifiable involves the application of criteria such as:
… the overall respectability and legitimacy of the countries involved in a given action, the procedures and the modalities of the action, whether the action enjoys the explicit or implicit support of a considerable number of countries and international organisations, whether the action is deemed necessary and proportionate etc.
According to this view, in any assessment of a particular instance of humanitarian intervention the legal analysis is only one part. Thus, with respect to NATO’s intervention in Kosovo, Richard Falk (1999, p. 853) observes:
It is correct that normal textual readings are on their side, and that the Charter system cannot be legally bypassed in the manner attempted by NATO. Yet it is equally true that to regard textual barriers to humanitarian intervention as decisive in the face of genocidal behavior is politically and morally unacceptable, especially in view of the qualifications imposed on the unconditional claims of sovereignty by the expanded conception of international human rights.
The current recognition of international humanitarian and human rights law as international concerns, then, while not providing a legal right to forcefully intervene without Security Council authorisation to prevent widespread deprivations of internationally recognised human rights, may provide a moral right and perhaps even a moral obligation to do so.
In a similar vein, other writers have argued that the legality of an incidence of humanitarian intervention would have to be weighed against a state or group of states compliance with international law in all other aspects during the conduct of a particular humanitarian campaign. As Bruno Simma (1999, p. 6) states:
‘humanitarian interventions’ involving the threat or use of armed force and undertaken without the mandate of the authorization of the Security Council will, as a matter of principle, remain in breach of international law. But such a general statement cannot be the last word. Rather, in any instance of humanitarian intervention a careful assessment will have to be made of how heavily such illegality weighs against all the circumstances of a particular concrete case, and of the efforts, if any, undertaken by the parties involved to get ‘as close to the law’ as possible. Such analyses will influence not only the moral but also the legal judgment in such cases.
With respect to NATO’s intervention in Kosovo, Simma argued that at the time of writing (the initiation of the bombing campaign), the Alliance made every effort to remain “close to the law” by closely following and linking its efforts to the resolutions of the Security Council and by stating that the action taken was an urgent measure to prevent a larger humanitarian crisis (Simma 1999, p. 22; UK House of Commons 2000, para. 134).19
However, certain writers have suggested that the requirement of staying “as close to the law as possible” means more than tying actions to Security Council resolutions. First, international law requires that states settle their disputes by peaceful means and that recourse to the use of force be a last resort, once all avenues of peaceful resolution of a situation have been explored.20 Except in circumstances of self-defence, the threat or use of force is the domain of the Security Council. According to Falk, NATO did not pursue what he refers to as “flexible diplomacy,” which he argues may have allowed the situation in Kosovo to be resolved without recourse to war.21 For Falk, the fact that NATO failed to exhaust the peaceful means to resolve the situation in Kosovo further undermines the legitimacy of its initiative. He writes (1999, p. 855):
… a recourse to force should be clearly presented as the consequence of an energetic, good faith attempt via flexible diplomacy to find a peaceful solution. The failure to make this attempt severely compromises the normative status of the NATO initiative, and does so regardless of the legal rationale selected to justify the action. NATO’s way of proceeding also weakens the argument for bypassing the United Nations and the restrictive constraints of international law.
Second, where force is used for humanitarian reasons the legal requirements of necessity and proportionality with respect to that use of force are even more important (Falk 1999, p. 855; Chinkin 1999, p. 844). As Ruth Gordon (1996, p. 45) states, “a humanitarian operation must be executed at a level commensurate to the evil it seeks to curtail.” Thus, a use of force for humanitarian purposes, whether it is authorised or unauthorised by the Security Council, must comply with the principles of international law applicable in armed conflict and in particular the rules of international humanitarian law.
Under international humanitarian law, civilians and civilian objects may not be directly targeted and all feasible precautions must be taken to prevent civilian deaths.22 Incidental injuries caused to civilians or civilian objects are required to be proportionate to the purpose of the attack (Green 1993, p. 120). Moreover, an attack is deemed indiscriminate which “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (Protocol I, Article 51[b]). In addition to strict compliance with the requirements of international humanitarian law, Christine Chinkin (1999, p. 844) argues that human rights law imposes an obligation on the part of the intervenors:
Human rights give rise to responsibilities in states (acting individually and collectively) and in people. These must encompass a duty not to make conditions worse for a threatened population and the obligation to respect the civil, political, economic, social and cultural rights of all civilians.
Thus, the means of enforcement chosen must be effective to protect the vulnerable civilian population and must not endanger them or their way of life further.
In the context of Kosovo, NATO’s actions were subject to strong criticism in the face of several widely publicized bombings of non-military targets, such as urban telecommunications towers, major and minor bridges, heating plants, electric power stations, water supplies, and, mistakenly, civilian convoys. Reports published by Amnesty International (2000a, 2000b) and Human Rights Watch (2000), which investigated these bombings, note that according to Yugoslavian figures, some 400-600 civilians were killed. The reports suggest, respectively, that these killings of civilians could constitute violations of the laws of war or violations of humanitarian law. In addition, the Amnesty Report (2000a, Section 4) suggests that NATO’s “means and methods of attack,” including its high altitude bombing policy, caused unlawful civilian deaths and that its use of certain weapons such as cluster bombs and depleted uranium ordinance may also “have contributed to causing unlawful deaths.”
Thus, where a state or group of states acts without the authorisation of the Security Council, the legitimacy of its actions will likely be judged on how closely its conduct follows the principles of international law in every other aspect, as well as whether or not it has moral or political justifications for its actions (although such justifications will affect the determination of legitimacy). A NATO campaign which had adopted a method of warfare which would have protected the vulnerable population (i.e., using ground troops, setting up safe havens and safe corridors) and which, among other things, had not targeted civilian infrastructure may have been seen by its critics as more legitimate although technically illegal.
Is there an Emerging Legal Right of Unauthorised Intervention?
As discussed above there appears to be agreement among the legal scholars surveyed that the Security Council has the legal right to authorise the use of force to prevent widespread deprivations of internationally recognised human rights. In addition, a majority of writers surveyed appear to agree that unilateral or unauthorised intervention by a state or group of states for such a purpose is currently illegal. However, it is not impossible that a customary rule permitting unauthorised intervention could develop in the future.
Customary laws derive from a general and consistent practice of states which is accompanied by a belief in, and sense of, legal obligation (opinio juris). The requirement of general and consistent practice is not absolute. There are examples of customary law emerging from a single action where there is widespread support for that action. However, as Mary Ellen O’Connell (2000, p. 82, note 150) points out, such instances are rare. “Whatever the arguments, international legal rules are not easily changed. One act not in conformity with the rules does not eliminate a legal regime, unless one finds overwhelming support for the change”(O’Connell 2000, p. 82).
Antonio Cassese has argued that the NATO action in Kosovo could lead to the development of a customary rule allowing unilateral humanitarian intervention. Writing at the initiation of NATO’s bombing campaign, Cassese (1999, p. 29) states:
… this particular instance of breach of international law may gradually lead to the crystallization of a general rule of international law authorizing armed countermeasures for the exclusive purpose of putting an end to large-scale atrocities amounting to crimes against humanity and constituting a threat to the peace.
However, writing at a later date, Cassese (2000, p. 796) finds that while “it is premature to maintain that a customary rule has emerged,” there was a strong and widespread sense among governments that NATO’s unauthorised use of force was morally necessary. He argues that this sense of moral obligation or opinio necessitatis would constitute the required psychological element for the formation of a customary law except that it did not yet possess “the requisite elements of generality and non-opposition”(Cassese 2000, p. 798). It is not clear, however, on a positivist analysis whether a sense of moral obligation can be equated with a sense of legal obligation (opinio juris).
While there is a sense that NATO’s unauthorised use of force in Kosovo has to varying extents undermined the Charter regime on the use of force with respect to intervention (O’Connell 2000, p. 82), NATO’s campaign in Kosovo has been described among other things as a “study in failed diplomacy”(O’Connell 2000, p. 80, note 136) and a “badly flawed precedent for evaluating future claims to undertake humanitarian intervention without proper UN authorization” (Falk 1999, p. 856). Many of the legal scholars surveyed argue that the NATO intervention should be treated as a single incident which constitutes an illegal intervention and does not lay the ground for an emerging legal right of unilateral intervention in international law (Simma 1999, pp. 14, 20; O’Connell 2000, p. 88; Charney 1999, p. 1247).23
With respect to state practice and opinio juris, it is significant that both Russia and China openly criticised the fact that NATO acted without authorisation of the Security Council.24 In addition, most of the NATO member states who participated in the intervention have maintained that the unauthorised use of force in Kosovo was a singular incident and should not be seen as modifying the use of force regime (O’Connell 2000, p. 83; Guicherd 1999, p. 20; Cassese 2000, p. 794; Builder 1999, p. 181). This is reflected in statements made by several NATO member states, including the US, France, Germany, and Belgium where they insisted
… that they had never stopped attaching crucial importance to the central role of the Security Council. The armed attack was initiated only as an exceptional measure justified by the failure of that body to act. However, as soon as the Security Council was in a position to take the issue into its own hands, they would discontinue any military action (Cassese 2000, p. 794).
The German government, in particular, was strongly opposed to the idea that NATO’s use of force without Security Council authorisation would lead to the development of a right to unilateral intervention (Simma 1999, p. 20). In addition, it is significant that neither NATO nor its member states (with the exception of Belgium25) justified the use of force in Kosovo in legal terms (Charney 1999, pp. 1238-1239; Cassese 2000, p. 792; NATO 1999).26
With respect to the question of a moral right of states to intervene in such situations where the Security Council is unable to act, both the legal literature and the statements of NATO governments reveal a high level of agreement that there was moral and political justification for taking military action (Falk 1999, p. 854; Cassese 1999, p. 25; UK Fourth Report 2000, para. 137).27 As Cassese (1999, p. 6) observes, “There is a widespread sense that [fundamental human rights] cannot and should not be trampled upon with impunity in any part of the world.”
In addition, it is significant to note the language used by then Secretary-General of NATO Javier Solana in justifying the intervention. At the time the bombing began, Solana (NATO 1999, note 72) stated that “[t]his military action is intended to support the political aims of the international community…. We must halt the violence and bring an end to the humanitarian catastrophe now unfolding in Kosovo…. We have a moral duty to do so. The responsibility is on our shoulders and we will fulfil it.”
However, as Chinkin (1999, p. 847) rightly points out, the moral justifications for use of force in Kosovo are undermined by the fact that ethnic cleansing and other gross violations of fundamental human rights are occurring in many other countries such as Sudan, Afghanistan, and Ethiopia, to name a few. Thus,
… the commitment to human rights that humanitarian intervention supposedly entails does not mean equality of rights worldwide. The human rights of some people are more worth protecting than those of others.
The issue of the selectivity of the intervention notwithstanding, the opinio necessitatis described by Cassese may be evidence of a moral right and perhaps even a moral obligation to act. However, it would appear that the NATO campaign in Kosovo does not reflect the emergence of a customary legal right of unilateral humanitarian intervention. This suggests that a state or group of states is still legally obliged to gain Security Council authorisation for any use of force that is not for the purpose of collective self-defence (O’Connell 2000, pp. 88-89; Cassese 1999, p. 25; Charney 1999, p. 1247; Guicherd 1999, p. 29).
International Relations Theory and Humanitarian Intervention
Moral Arguments for and against Humanitarian Intervention
Like the legal arguments surrounding humanitarian intervention, the moral or ethical arguments in international relations theory also reflect a tension between concepts of order and concepts of justice. According to Ramsbotham and Woodhouse (1996, p. 57), the core of the debate surrounding the issue of humanitarian intervention
… lies in the tension between the two clusters of values reflected in the UN Charter, which ‘intersect with each other and which may sometimes work at cross-purposes’. These are state system values and human rights values. The two main components of the non-intervention norm can be recognized here: reciprocity and mutual recognition of juridical equality representing the first cluster, popular sovereignty and the self-determination of peoples the second.28
However, while most of the legal authors surveyed accept the legality and legitimacy of humanitarian intervention undertaken by the Security Council, there is no such agreement among the international relations scholars surveyed.
Broadly speaking, the moral arguments for and against humanitarian intervention fall into two categories: the realists and pluralists, on the one hand, for whom intervention undermines international order; and the solidarists and cosmopolitanists, on the other, for whom intervention may be a moral obligation stemming from membership in a cosmopolitan community of humankind.29
For realists, who perceive relations among states as anarchic, and for pluralists who view international society as a community of sovereign and independent entities, humanitarian intervention is not an option. The realists argue that the state is the only sphere of morality. Thus states and their citizens have no overriding obligations to the citizens of other states and governments should not risk their soldiers’ lives except for the security and interests of the nation. The pluralists may accept that there exists a universal minimum moral code of which genocide is a breach (Walzer 1992, p. 106); however, they both argue that any intervention undermines the foundational norms of the current world order. Moreover, both schools point to a lack of consensus on the universality of human rights and on the principles guiding such interventions as providing no clear legal basis for such action. Thus, Michael Walzer (Ramsbotham and Woodhouse 1996, p. 59) argues:
… even though the fit between government and the political life of its people may be bad, this is no justification for humanitarian intervention. We must act as if governments are internally legitimate, because to do otherwise threatens the autonomy necessary for the natural, if painful, emergence of free, civilized polities.30
The concern here is that intervention may present an insurmountable challenge to autonomy and self-determination, which would preclude a people’s determining their own political destiny (Walzer 1992, pp. 86-90).
On the other hand, the solidarists or internationalists perceive human rights as universal norms and justice as an important component of international order (Ramsbotham and Woodhouse 1996, p. 60). Hence, “[h]uman rights values are given as much weight as state system values” (Ramsbotham and Woodhouse 1996, p. 60). Sovereignty is conditional. It is linked to internal legitimacy and requires governments to respect at least minimally the well-being and human rights of their citizens. According to Smith (1999, p. 289):
It follows, then, that a state that is oppressive and violates the autonomy and integrity of its subjects forfeits its moral claim to full sovereignty. Thus, a liberal ethics of world order subordinates the principle of state sovereignty to the recognition and respect of human rights…. The principle of an individual’s right to moral autonomy, or to put it differently, to the human rights enshrined in the Universal Declaration on Human Rights, should be recognized as the highest principle of world order, ethically speaking, with state sovereignty as a circumscribed and conditional norm (also Abiew 1998, p. 61; Wheeler and Morris 1996, p. 140; Hoffman 1996, pp. 21-22; Weiss 1999, p. 21; Donnelly 1993, pp. 615-616; Annan 1999).
Thus, the principles of sovereignty and non-intervention cannot shield governments or other perpetrators of gross violations of human rights. It follows that where widespread deprivations of internationally recognised rights entail a moral obligation on the part of the international community to take action, the principles of sovereignty and non-intervention are not a moral bar to such action.
Practical/Political Arguments for and against Humanitarian Intervention
The different ethical schools, which are based on particular understandings of the nature of international relations, yield diverse views, not only of the moral obligations of states with respect to humanitarian intervention, but of their practical and political obligations as well.
In this regard, Wheeler and Morris identify a number of practical and political objections to humanitarian intervention. First, they argue that because states will continue to act in their perceived national interest, they will intervene where it serves that interest. This selectivity means that target states and those states “wedded to the concept of sovereignty” will view the interventions with suspicion (Wheeler and Morris 1996, p. 137). Second, it follows that states will never act for primarily humanitarian motives which is why “most of the cases which can plausibly be regarded as examples of humanitarian intervention involve mixed motives: that is, they are cases in which humanitarian objectives and self-interest coincide, and both serve to drive policy” (Wheeler and Morris 1996, p. 138). Finally, there is no impartial mechanism for deciding when such intervention is permissible nor is there international consensus about what constitutes widespread deprivations of internationally recognised human rights which would trigger a humanitarian intervention. Thus the international community is “better served by upholding the principle of non-intervention” (Wheeler and Morris 1996, p. 139).
In addition, to the above objections can be added the high cost of, and the difficulty in gaining universal support for, such interventions; the lack of financial and military resources of the United Nations and the decision-making process of the Security Council; as well as the reality that most states are unwilling to support the long-term commitment to such interventions which may be necessary to their success.
On the other hand, there are a number of practical and political arguments which favour humanitarian intervention. First, the fact that states may have mixed motives for intervening is not necessarily an objection to intervention. On the contrary, Jean Daudelin (2000, p. 18) argues that “an interventionist regime needs mixed motives.” Harnessing national interest is key to the success of interventions; it “gives staying power to interventions and it greatly facilitates the mobilization of resources” (Daudelin 2000, p. 17).
Second, according to Abiew (1998, p. 65), “states have begun to redefine national interest more broadly, in ways which acknowledge the relationship between humanitarian crises, national, political and economic security.” National security is now coming to be identified with threats other than military threats such as cross-border refugee flows, environmental degradation, and competition for natural resources, to name a few. Canada’s human security policy is a good example of this broader view of national security which entails a broader view of national interest.31 On this view, the self-interest of a state may coincide with humanitarian motivations for intervening to prevent widespread deprivations of internationally recognised human rights.
Is there an Emerging Norm of Humanitarian Intervention?
The international relations scholars surveyed are not in agreement as to whether there is a norm of humanitarian intervention resulting from Security Council practice, let alone a norm with respect to unauthorised humanitarian intervention. For example, Wheeler and Morris (1996, p. 162) maintain that none of the post-Cold War Security Council-authorized interventions can be viewed as model examples of humanitarian intervention. In addition they argue that states have been reluctant to participate in what is coming to be seen as a generalised erosion of the principle of non-intervention. This reluctance has forced the Security Council to underline the “unique and exceptional circumstances” of each forcible intervention.
Further, they maintain that any shift in the international community with respect to humanitarian intervention is confined to Western liberal democratic states.
Many non-Western states question the West’s (and especially US) motives in advocating humanitarian intervention, seeing it as a new form of ‘imperialism’ which will leave the weak vulnerable to the cultural preferences of the strong…. Hence they may oppose legitimizing humanitarian intervention for fear of setting precedents which might be employed against them in the future… (Wheeler and Morris 1996, p. 162).32
Williams (1999, p. 1), on the other hand, argues that the Security Council resolutions on the conflict in the former Yugoslavia demonstrate a “significant shift in the attitude of the Council in favour of recognizing universal human rights and granting them greater weight in promoting and protecting international peace and security.” He adds, however, that “this is an incremental rather than fundamental transformation,” which “remains hamstrung by the absence of consensus on the relationship of human rights to international peace and security, demonstrated by the Council’s preference for the existence of agreements between the parties before consistently making such a connection” (Williams 1999, p. 1). This observation is supported by Smith (1999, p. 277) who notes that the Security Council has not yet developed a general doctrine of humanitarian intervention but proceeds as is required on a case-by-case basis. Because of this, Smith argues, “the normative scene is still cloudy, and the extent to which we have moved beyond traditional norms is dubious.”33
However, Weiss (1999, p. 21) acknowledges a fundamental but subtle change in political attitudes towards the concepts of sovereignty and domestic jurisdiction. He notes that:
The concept of domestic jurisdiction has changed in substance, if not in law.… [T]he two dominant norms of world politics during the Cold War – namely, that borders were sacrosanct and that secession was unthinkable – no longer generate the almost universal enthusiasm and acceptance that they once did. The automatic and almost reverential respect for nonintervention in the internal affairs of states has made way for a more subtle interpretation according to which, on occasion, the rights of individuals take precedence over the rights of repressive governments and the sovereign states they represent.
Hoffman (1996, p. 13) too finds that “there is a growing discrepancy between the norms of sovereignty and the traditional legal organization of the international system on one hand, and the realities of a world in which the distinction between domestic politics and international politics is crumbling.” These authors seem to be suggesting that changing attitudes towards sovereignty may signal a more widespread acceptance of the doctrine of humanitarian intervention.
There appears to be general agreement among many of the international relations scholars surveyed who view humanitarian intervention as a legitimate course of action, that interventions ought to be authorised and implemented collectively by the international community. As Hoffman (1996, p. 21) argues, “[t]he old [Cold War] presumption against unilateral intervention ought to stand.”34 There remains, however, ambivalence as to whether a regional organization is a sufficiently broad and representative collectivity.
Richard Caplan (2000, p. 25), for his part, suggests that many states, particularly European, are “rethinking historical prohibitions against humanitarian intervention in the wake of NATO’s actions over Kosovo.” For Caplan (2000, p. 27), the 1991 unauthorised intervention in Iraq led by the United States and the United Kingdom, the ECOWAS intervention in Liberia, along with the NATO intervention in Kosovo
… are part of a larger trend that has seen states give increased weight to human rights and humanitarian norms as matters of international concern – to the extent that the Security Council may now choose to characterize these concerns as threats to international peace liable to enforcement measures under Chapter VII of the UN Charter. Indeed, in the space of less than five years from 1992, the Security Council authorized interventions of a humanitarian nature in Somalia, Bosnia, Rwanda, Haiti, and Albania. Since many of these interventions were launched only after a crisis had assumed catastrophic proportions and were therefore judged by critics to be “too little, too late,” states have come under considerable pressure to take more effective measures in advance of humanitarian disasters – as NATO arguably did in the case of Kosovo.
In addition, Caplan (2000, pp. 24-25) notes that the international community has taken many significant steps to give international humanitarian law greater substance, and that “[a]longside these developments and the broad shift in international concerns, NATO’s enforcement actions in Kosovo, although unauthorized, begin to look somewhat less irregular. Still the challenge remains no less urgent for states to find a way to reconcile effectiveness in defense of human rights and humanitarian law with legitimacy of process.”
In sum, the international relations literature reveals that there has been normative movement on the issue of humanitarian intervention since the end of the Cold War; however, there remains a lack of consensus regarding the legitimacy of and appropriate circumstances under which both UN-authorised and unauthorised humanitarian interventions may take place.
Criteria for Unauthorised Humanitarian Intervention?
Although humanitarian intervention without Security Council authorisation is currently contrary to international law, as noted in the Danish Institute Report (1999, p. 103), “it is hardly realistic in the foreseeable future that states should altogether refrain from such intervention if it is deemed imperative on moral and political grounds.”35 It may therefore be important for the international community to develop guidelines for legitimate (if illegal) intervention which may serve to limit the potential for abuse as well as to provide a code of conduct against which such interventions can be assessed. On the other hand, as Murphy (1996, p. 384) notes, “developing criteria might serve less to restrain unilateral humanitarian intervention and more to provide a pretext for abusive intervention.”
For the Danish Institute (1999, p. 104), the development of criteria on the conditions and conduct of humanitarian intervention could serve only two purposes:
1) to justify ad hoc (case by case) intervention in extreme cases on moral-political grounds only (thus recognising in principle the existing rules concerning non-intervention and non-use of force) or 2) to justify intervention by asserting a new right of intervention (thereby contributing to the possible development of such a right in international law, in fact, a doctrine of humanitarian intervention).
Under the first scenario, unauthorised intervention would remain illegal while under the second, it might eventually become a legal right of states and regional organisations in certain circumstances.
While many scholars have attempted to devise criteria for legitimate humanitarian intervention, as Caplan (2000, p. 32) rightly observes, “[i]n the absence of major-power support … these efforts have had no palpable impact on international policy.” However, he notes that recently, the UK government has “begun exploratory discussions with its partner states in the hope of gaining agreement among the permanent five (P5) members of the Security Council as well as the Group of 77 in the General Assembly for some statement of policy guidelines” (Caplan 2000, p. 33).
In addition, the Canadian government has set up an independent International Commission on Intervention and State Sovereignty (ICISS) with a mandate to promote “a comprehensive debate on the issues surrounding the problem of intervention and state sovereignty,” “to contribute to building a broader understanding of those issues, and to fostering a global political consensus.”36
However, despite this progress, it is important to note that it is likely that there will be resistance in the international community to developing general principles on unauthorized humanitarian intervention since, as Roberts (1999, p. 120) observes:
… most states in the international community are nervous about justifying in advance a type of operation which might further increase the power of major powers, and might be used against them; and … NATO members and other states are uneasy about creating a doctrine which might oblige them to intervene in a situation where they were not keen to do so.37
Moreover, as the Danish Institute Report (1999, p. 105) notes, Russia, China, and the developing countries would likely not be inclined to sanction guidelines on this issue. “Thus, it is not reasonable to expect in the foreseeable future the adoption, for instance, of a declaration within the framework of the UN on such criteria.”
According to the Report (1999, p. 105), since the formalisation of such criteria is unlikely, the legal status of such a declaration without the support of a large majority of states would be questionable and such a declaration could “provoke international tension and challenge the existing international legal order.” Thus, it would be preferable to leave development of any criteria to “professional discussion among international lawyers, and to general public debate.” Such criteria could then be used by states to justify their unauthorised intervention on an ad hoc basis (Danish Institute Report 1999, p. 125). This would leave the formalisation of such criteria to state practice.
On the other hand, it can be equally argued that the development and formalisation of such criteria could also have the effect of reducing the resistance of certain states to humanitarian intervention as a violation of sovereignty by providing for checks and balances against which legitimate intervention could be judged.38
The following represent selected considerations and criteria for humanitarian intervention developed by various scholars surveyed and are set out as points for discussion. This list is not exhaustive and does not deal with the more practical questions of cost, ability to intervene effectively, etc.
Only a series of events or a developing situation of a certain threshold should trigger the need to resort to force to prevent or stop a humanitarian crisis by the Security Council or by a group of states without the authorisation of the Security Council. Thus, in his recent report to the Security Council on the protection of civilians in armed conflict, Secretary-General Kofi Annan (UN 1999) stated that the Security Council, in deciding whether or not to intervene, should consider, among other things, “the scale of the breaches of human rights and international humanitarian law including the numbers of people affected and the nature of the violations.” This threshold needs to be more precisely defined.
Most of the writers surveyed who suggested criteria or general principles for intervention agreed that in order for military intervention to be considered, one of two conditions must exist: a) the government must be committing, supporting, or aiding and abetting widespread violations of internationally recognised human rights; or b) there must have occurred a total breakdown of law and order resulting in such widespread deprivations of human rights which the government of the target state is incapable of preventing.
However, a precise definition of these violations is necessary. As stated in the Danish Institute Report (1999, p. 106),
[t]he definition of violations which may justify humanitarian intervention should be narrow in order to avoid abuse and to establish clearly its moral and political legitimacy. Although a broad definition may be suggested by Security Council practice under Chapter VII (cf. Haiti), there is no parallel. Humanitarian intervention without Security Council authorisation lacks the clear legal basis of Security Council action under the Charter as well as the institutional guarantees against abuse inherent in the Security Council procedure.
The definition of what constitutes widespread deprivations of internationally recognised human rights varies among writers. Murphy (1996, p. 322) (whose general principles are for Security Council action) suggests the existence of widespread deprivations “such as occurs from systematic and indiscriminate attacks on civilians by a central government or a system-wide breakdown of law and order producing the starvation and dislocation of the civilian population.”
Cassese (1999, p. 27), on the other hand, specifies “gross and egregious breaches of human rights involving loss of life of hundreds or thousands of innocent people, and amounting to crimes against humanity.” Abiew (1998, p. 79) suggests “situations of gross, persistent and systematic violations of human rights, including imminent threat of widespread loss of life resulting from mass killings, starvation or other activities.” Both Charney (1999, p. 1243) and the Danish Institute Report (1999, p. 107) suggest using the definitions of genocide, crimes against humanity, and war crimes which are set out in the Statute of the International Criminal Court. Using these definitions would be useful since there is already international consensus on their meaning.39 However, there may be gross violations of human rights which do not fall into these categories and thus reference to the major human rights treaties may also be useful.
Having evidence of widespread deprivations of internationally recognised human rights is necessary not only in terms of the decision of whether or not to intervene, but of the decision of how to intervene. Charney (1999, p. 1243) argues that there must be publicly available evidence that would establish that such crimes are actually being committed.
In conflict zones it is often difficult to substantiate allegations of violations of human rights and the urgency of the situation may demand rapid action. Therefore it is crucial that some sort of mechanism be established to enable the timely gathering and transmitting of reliable evidence.
The question then arises as to what entity or body should be responsible for gathering the evidence and assessing the situation. The Danish Institute Report (1999, p. 107) suggests that those states contemplating the intervention should make the initial assessment. In addition:
Prior statements by UN organs or agencies would certainly enhance the legitimacy of the intervention as would reports from other international organisations and independent human rights NGOs. Subsequent recourse to the UN, possibly the International Court of Justice, for confirmation of the assessment made could be envisaged.
Peacekeeping forces which may be in the area – as was the case in Rwanda – may be able to provide reliable evidence or an observer force such as the Organisation for Security and Cooperation in Europe observer force in Kosovo. In addition, non-governmental organisations working in the field may be utilised as part of an early detection system.
Notice and Refusal to Comply
The government of the target state must be called on by members of the international community to stop its violations of fundamental human rights. In situations where the acts are not being committed by the central authorities, the target government must be asked to take steps to prevent the commission of such acts or to allow international organisations into the state to assist in preventing such acts and resolving the humanitarian crisis.
Once again the question arises of what entity or body should call for such cooperation by the government of the target state. Charney (1999, p. 1243) recommends that the appeals be made by the relevant regional organisation. Once again the legitimacy of any intervention would be enhanced if the United Nations were to call on the government in this regard as well as other internationally recognised NGOs working in the area.
Cassese (1999, p. 27) points out that evidence is also needed that the government of the target state has consistently withheld its “cooperation from the United Nations or other international organizations, or has systematically refused to comply with appeals, recommendations or decisions of such organizations.”40 Where there has been a breakdown of law and order in a state there must be proof “that the central authorities are utterly unable to put an end to those crimes, while at the same time refusing to call upon or to allow other states or international organizations to enter the territory to assist in terminating the crimes” (Cassese 1999, p. 27). Again, a mechanism for gathering reliable evidence to this effect may be necessary.
Exhaustion of Peaceful Means to Resolve the Situation
As stated above, there is a legal obligation – and according to Falk (1999, p. 855), a moral and political commitment as well – “to make recourse to war a last resort.” Thus, before force is contemplated there must be a good faith pursuit of what Falk refers to as “flexible diplomacy” by the states contemplating the intervention. For Falk (1999, p. 856), “there is a strong burden of persuasion associated with the rejection of the United Nations framework of legal restraint on the use of force.” While this standard “can be initially met if there is a credible prospect that a humanitarian catastrophe will otherwise occur,” “such a burden cannot be discharged fully if diplomatic alternatives to war have not been fully explored in a sincere and convincing manner.”41 However, Cassese (1999, p. 27) qualifies this requirement by stipulating that all peaceful means of resolving the situation “consistent with the urgency of the situation” must be pursued. Thus, Cassese maintains that “military action would not be warranted in the case of a crisis which is slowly unfolding and which still presents avenues for diplomatic resolution aside from armed confrontation.”42
It may also be necessary to consider whether certain non-military means, such as economic sanctions, are appropriate in the circumstances since, as Murphy (1996, p. 385) observes, “such measures can be blunt instruments that harm the very people they seek to protect with little effect in inducing the local authorities and factions to curtail human rights abuses.”
As stated above, states are obliged under international law to resolve their disputes by peaceful means (UN Charter, Article 2). Article 37 of the Charter requires states, once they have exhausted the peaceful avenues to settle a dispute, to refer the dispute to the Security Council.
The issue, therefore, must be formally brought before the Security Council. Cassese (1999, p. 27) specifies that failure to act by the Security Council includes the Council’s confining “itself to deploring or condemning the massacres, plus possibly terming the situation a threat to the peace.” According to the Danish Institute Report (1999, p. 108), “[i]naction on the part of the Security Council is generally accepted as an indispensable condition for the legitimacy of [unauthorised] humanitarian intervention.”43 The Report (1999, p. 108) also suggests that the concomitant of this condition is the requirement that states undertaking unauthorised humanitarian intervention are required to “report to the Security Council on their plans of intervention and its progress.”
Charney (1999, p. 1244) suggests that the issue should also be formally brought before the General Assembly on an emergency basis and, assuming the Security Council has failed to approve the military intervention, and neither the Council “nor the General Assembly adopts a resolution expressly forbidding further action … recourse to a U.N.-based remedy will be deemed to be exhausted.” For Cassese (1999, p. 27) the unauthorised intervention must have “the support or at least the non-opposition of the majority of the Member States of the UN.”
Unauthorised Humanitarian Intervention
Who Can Legitimately Take Action?
The question of what entity or body can legitimately undertake the unauthorised intervention is also crucial. Most writers agree that the intervention must be a multilateral action. The Danish Institute Report (1999, p. 108) notes that an intervention by one state may still be considered legitimate “if the humanitarian emergency is apparent, but no other states than the neighbouring states want to make the effort.” In addition, the Report (1999, p. 108) states that while the fact that an intervention is a multilateral endeavour does not make it legal, where “more than one state has participated in a decision to intervene for humanitarian reasons … the chance that the doctrine will be invoked exclusively for reasons of self-interest [is reduced].”
Cassese (1999, p. 27) argues that such action should be taken by a group of states rather than “a single hegemonic Power” or “such a Power with the support of a client state or an ally” no matter how strong that Power’s “military, political and economic authority.” Hence, the question of what entity can legitimately undertake such an endeavour and which entity has the resources to mount a military intervention should be separated. However, from a practical perspective this is not always possible and the history of United Nations humanitarian interventions shows that the humanitarian campaigns are usually led by the powerful states with the necessary military and economic resources.
Charney (1999, p. 1244), on the other hand, suggests that the unauthorised intervention should be undertaken by the relevant regional organisation. Regional organisations constituted under Chapter VIII of the Charter are prohibited from taking enforcement action without the authorisation of the Security Council (Article 53). However, because they have a mandate of dealing “with such matters relating to the maintenance of international peace and security as are appropriate for regional action,”44 the involvement of the respective regional organisation as the principal actor in an unauthorised humanitarian intervention would enhance the legitimacy of that intervention. Practically speaking, however, “most regions do not have sufficient capabilities and security organisations with the capacity to carry out major peacekeeping and peace enforcement operations” (Danish Institute Report 1999, p. 38).
Humanitarian Aims and National Interest
Some writers argue that humanitarian intervention should only be conducted by states who do not stand to gain either politically or economically from the intervention. However, the Danish Institute Report (1999, p. 111) states that while complete disinterestedness of the interveners is the ideal, from a practical perspective, “states may need more than humanitarian motives to be willing to intervene in a substantial way – be it a desire to avoid cross-border refugee flows into the intervening state or even strategic or economic interests in reestablishing order in the target state.” In addition, Abiew (1998, p. 80) argues that so long as there is “an overriding humanitarian motive … [c]onsiderations of national interest should not of themselves, render illegal or illegitimate an armed intervention so long as the motive for the action is the protection of the most fundamental human rights.”45
Conditions for the Conduct of Legitimate Intervention
Once the above conditions have been satisfied a regional organisation or a group of states could then legitimately intervene provided the conduct of the intervention satisfies the following conditions.
According to Charney (1999, p. 1244), the target state must be “notified in advance of the impending use of force.” The Danish Institute Report (1999, p. 109) calls for an “ultimatum” to be given to the government of the target state (unless there is a breakdown of law and order) “insisting on the termination of gross and massive human rights violations.”
Accountability of Intervening States
Charney (1999, p. 1244) also makes the suggestion that states pursuing unauthorised intervention be obliged to consent
both to suit in the ICJ by any directly injured state for violations of international law committed in the course of the humanitarian intervention, and to the jurisdiction of the international criminal court (once established) over their nationals for crimes within that court’s reach that might be committed in the course of the intervention.46
While this is a good idea, it is not likely that states would agree to do so. However, acceptance of the jurisdiction of the courts over these issues would likely have the effect of keeping the intervening states and the individuals in charge of the intervention on the right side of the law as well as enhancing the legitimacy of the unauthorised intervention. At the very least the group of states or the regional organisation should have a mechanism to ensure that all actions taken by the members on behalf of the coalition or organisation comply with international humanitarian law.47
Compliance with International Humanitarian Law and Human Rights Law
No intervention will be legitimate where the states do not adhere strictly to the laws of armed conflict and in particular the principles and rules of international humanitarian law. As discussed above, the laws of armed conflict require that the use of force is both necessary and proportionate to the goal to be attained. Most of the writers surveyed maintain that the use of force for humanitarian purposes, that is to stop or prevent widespread deprivations of internationally recognised human rights and international humanitarian law, must be limited to that goal (Chinkin 1999, p. 844; Danish Institute Report 1999, p. 109; Ero and Long 1995, p. 152; Gordon 1996, p. 45; Duke 1994, p. 44; Abiew 1998, p. 79; UN 1999). In the words of Cassese (1999, p. 27), in the case of unauthorised humanitarian intervention,
armed force is exclusively used for the limited purpose of stopping the atrocities and restoring respect for human rights, not for any goal going beyond this limited purpose. Consequently, the use of force must be discontinued as soon as this purpose is attained. Moreover, it is axiomatic that use of force should be commensurate with and proportionate to the human rights exigencies on the ground. The more urgent the situation of killings and atrocities, the more intensive and immediate may be the military response thereto.48
Some authors have stated that the principles of necessity and proportionality in the case of humanitarian intervention also require the means of warfare to be tailored to the goal of protecting the vulnerable population and not endangering them further. Thus, Falk (1999, p. 856) states that in the case of unauthorised intervention for humanitarian purposes the legitimacy will be
sustained or undermined by the extent to which the tactics of warfare exhibit sensitivity to civilian harm and the degree to which the intervenors avoid unduly shifting the risks of war to the supposed beneficiaries of the action so as to avoid harm to themselves; and the humanitarian rationale is also weakened if there were less destructive means to protect the threatened population than those relied upon.49
In addition, a number of authors surveyed argue that since the purpose of the humanitarian intervention is to put an end to the widespread deprivations of human rights, the intervention should not target, or at least have only a minimal effect on, the political structures of the target state and that the territorial integrity of the target state should be preserved (Danish Institute Report 1999, p. 110; Chinkin 1999, p. 844; Ero and Long 1995, p. 152). The Danish Institute Report (1999, p. 110) also makes the argument that, practically speaking,
if a humanitarian catastrophe is likely to be prevented only by an intervention striking against the political system which deliberately caused it, only such an intervention is suitable and therefore necessary and proportionate from a humanitarian point of view.50
While this may be a valid argument for an intervention authorised by the Security Council, it is suggested that where unauthorised intervention is concerned, the goal should be strictly limited to reduce the risk of abuse and to enhance the legitimacy of the intervention.
Limited Military Engagement
Many of the authors surveyed maintain that any unauthorised military intervention should be limited and once the goal is attained, the intervening forces should withdraw (Cassese 1999, p. 27; Danish Institute Report 1999, pp. 109-110; Charney 1999, p. 1244).51 Murphy (1996, p. 323) suggests that the goal of ending the widespread deprivations of human rights “may include creating the conditions necessary for national reconciliation.” Murphy (1996, p. 323) also argues that if a lengthy engagement is necessary then “it may be useful for the intervening forces to be under the command and control of the United Nations if the United Nations is provided sufficient financial and military resources.”
There are also issues relating to the reconstruction of the target state which need to be addressed. Falk (1999, p. 856) suggests in his analysis of the NATO campaign in Kosovo, that the legitimacy of a humanitarian campaign will also depend on the responsibility taken by the intervening states or organisation to provide assistance with social and economic reconstruction and if necessary the reconstruction of the civilian infrastructure. In the situations of failed states, or where a civil conflict results in secession of a part of a state, provisional government institutions will need to be established. In this regard, Tonya Langford (1999, pp. 71-73) argues that trusteeship-like arrangements are no longer legitimate under current international norms of equality, self-determination, nationalism, democracy, and human rights. Thus, institutions established should be established under indigenous leadership.
The above suggestions for criteria to guide unauthorised intervention should be regarded as a starting point for a discussion and should be considered in light of the following conclusions:
First, the international law literature reveals a recognition among legal scholars that the Security Council has the legal right, but no legal obligation (although there may be a moral obligation) to use force to intervene to prevent widespread deprivations of internationally recognised human rights. However, there currently is no legal right or emergent right of states or regional organisations to forcefully intervene in another state for such a purpose without the authorisation of the Security Council, although there may be a moral right to forcefully intervene in such circumstances.
Second, the international relations literature surveyed indicates that in the last decade there have been normative developments on the issue of humanitarian intervention. However, there remains a lack of consensus regarding the legitimacy of and appropriate circumstances under which both UN-authorised and unauthorised humanitarian interventions may take place. Hence it cannot be concluded that there is an emergent norm supporting such action.
Third, while a strong argument can be made in favour of developing guidelines for both UN-authorised and unauthorised humanitarian intervention, there is currently no consensus among scholars as to the content of such guidelines and there is likely to be resistance in the international community to developing and formalising such criteria. It is significant, however, that a) the UN Secretary-General in his report to the Security Council on the Protection of Civilians in Armed Conflict has recommended that the Council consider certain criteria when contemplating enforcement action in situations of humanitarian crisis (UN 1999);52 and b) the Security Council has responded to the Report in resolution 1265 (1999), expressing, among other things a “willingness to respond to situations of armed conflict where civilians are being targeted” and resolving to establish a mechanism to review the recommendations in the Report (UN Doc. S/RES/1265 1999, September 17).
Fourth, the use of force to prevent widespread deprivations of internationally recognised human rights is a highly contested issue on many levels. Developing international consensus on criteria to guide such interventions, and in particular unauthorised interventions, will require extensive discussion and debate in a wide variety of fora with input from, among others, academics, diplomats, policy framers, and non-governmental organisations with expertise in the area. In addition, the use of military force in humanitarian crises is a strategy of last resort and should be discussed as one facet of many in a comprehensive and proactive approach to dealing with such crises.
Finally, in discussing the above criteria with respect to Canadian policy, it may be important to consider whether Canada is in a position to promote such criteria when it currently lacks the capability both in terms of military equipment and troops to participate effectively in humanitarian and peacekeeping missions (Sallot and Campbell 1999, pp. A1, A14; Koring 2000, pp. A1, A10).
The author would like to thank Heather Owens for her extensive research assistance on the international relations aspects of the paper as well as for her insightful editorial comments and suggestions. She would also like to thank Marcus Shantz for research assistance and Georgette Gagnon for her comments and suggestions.
1 Shawcross writes: “By the mid-nineties, the International Committee of the Red Cross judged that the human costs of disasters – mostly man-made, were overwhelming the world’s ability to respond. There were fifty-six wars being waged around the world; there were at least 17 million refugees and 26 million who lost their homes….”
2 Meron cites the National Intelligence Council report, Global Humanitarian Emergencies: Trends and Projections, 1999-2000, p. 12.
3 The debate about humanitarian intervention can be traced as far back as the seventeenth century to the works of Alberico Gentili and Hugo Grotius. See for example Theodor Meron, 1991, “Common Rights of Mankind in Gentili, Grotius and Suarez,” American Journal of International Law 85, 110-116; see also Oliver Ramsbotham 1997, “Humanitarian Intervention 1990-1995: A Need to Reconceptualize?” Review of International Studies 23, 445-468, at 446.
5 Ramsbotham and Woodhouse (1996, pp. xii-xiii) argue that the term “humanitarian intervention” has a wide variety of meanings and contexts and that military intervention is only one option in the humanitarian intervention repertoire.
6 According to Simon Duke (1994, p. 26), “several Asian and Islamic countries challenged the universality of human rights in the preparatory conference to the 1993 Vienna conference on Human Rights, charging that human rights more often than not reflect western ethical and moral standards.” See also the Danish Institute Report (1999, p. 39), which notes that developing states often doubt the motivation behind humanitarian intervention and see traditional notions of sovereignty “as a defence against the dynamics of an unequal world.”
7 However, there is still no international consensus on how and to what extent the concept of sovereignty has been modified. See Patrick O’Halloran (1995, p. 12) where he argues that the lack of co-operative action necessary to effectively respond in cases of genocide such as that in Rwanda is due in large part to the existence of “divergent definitions and contested concepts including international law, human rights, sovereignty and democracy.”
8 The end of the Cold War signaled fundamental changes in international relations, brought about by the collapse of the Communist Bloc and the Soviet Union and the consequent fundamental changes in East-West relations which reduced the ideological tension and strategic concerns, as well as by the advancements in media technology which have increased public awareness and, consequently, public pressure on governments to act. See also Weiss (1999, p. 1).
9 According to the Danish Institute Report (1999, p. 51), developments in international law from the Universal Declaration of Human Rights (1948) to the Convention on the Rights of the Child (1989) “have reduced the relevance of Article 2(7) with regard to the protection of fundamental human rights.”
10 Ero and Long (1995, p. 153) argue that there is no consensus, either in scholarly opinion or state practice on a legal right to humanitarian intervention and that the most that can be said is that “the UN has shown itself willing to take enforcement action in the last resort to assist victims of a humanitarian emergency where there was no existing government (as in Somalia) or where the existing government refused to consent to UN action despite the scale of emergency (as in Iraq).”
11 According to journalist Marcus Gee (1999, p. A15), the Russian attack on Chechnya was “every bit as brutal as the Serbian offensive in Kosovo.”
12 According to O’Connell (2000, p. 71), since the US and United Kingdom’s intervention in northern Iraq and until NATO’s campaign in Kosovo, no government had argued in favour of a right of unauthorized humanitarian intervention.
14 See Murphy (1996, pp. 361-362), for a discussion of possible exceptions with respect to rescue of nationals and humanitarian aid drops.
15 Duke (1994, p. 33) takes a slightly different approach by arguing that there are “three broad approaches to the issue of the legality of humanitarian intervention: the restrictionists, who argue that humanitarian intervention is a violation of territorial integrity and political independence of the state; those closer to the natural law tradition, who argue that such action is permissible under the UN Charter since the UN has made an explicit commitment to the protection of human rights and such use of force falls below any threat to the territorial integrity of the state; and finally, those who accept humanitarian intervention provided it is conducted in a collective manner that expresses the will of the international community.”
16 On this view, the moral motives of the actor are relevant and acting on principle takes precedence over the consequences of the action. According to Thomas Donaldson (1989, p. 137), “it is common to define deontological theory as ‘agent-centred’, i.e., as placing emphasis on an agent’s moral motives, and as allowing principles and precepts to override the consideration of consequences.”
17 Tesón (1997, p. 149ff) argues, on the other hand, that “conventional methods of treaty interpretation, when applied to article 2(4), are incapable of yielding a solution to the hard case of humanitarian intervention.” Thus, neither a textual reading of Article 2(4) nor an examination of the travaux préparatoires of the Charter is determinative of whether or not there is a right to humanitarian intervention.
19 The UK House of Commons Select Committee on Foreign Affairs comes to the very dubious conclusion “that, faced with the threat of veto in the Security Council by Russia and China, the NATO allies did all they could to make the military intervention in Kosovo as compliant with the tenets of international law as possible.”
21 But see, for example, Cassese (1999, p. 28) who argues that “peaceful means of settling disputes commensurate to the unfolding of the crisis had been tried and exhausted by the various countries concerned, through the negotiations promoted by states comprising the Contact Group for the Former Yugoslavia, and later Rambouillet and at Paris.”
22 See the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Articles 48, Article 51(2), and 57.
23 See also Guicherd (1999, p. 29) who agrees that there is no legal right to unauthorised humanitarian intervention but argues that the “political and moral consensus that intervention is sometimes necessary to prevent human-rights violation on a major scale has not been formalised into a set of rules of international law. It is now urgent that this consensus should be transformed into law.”
24 Guicherd (1999, p. 29) points out that both Russia’s and China’s voting statements on Resolution 1203 make it clear that “they opposed the use of force in Kosovo, whatever the scenario.”
25 “As regards the intervention, the Kingdom of Belgium takes the view that the Security Council’s resolutions which I have just cited provide an unchallengeable basis for the armed intervention…. But we need to go further and develop the idea of armed humanitarian intervention. NATO, and the Kingdom of Belgium in particular, felt obliged to intervene to forestall an ongoing humanitarian catastrophe, acknowledged in Security Council resolutions. To safeguard what? To safeguard, Mr. President, essential values which also rank as jus cogens.… Thus, NATO intervened to protect fundamental values enshrined in the jus cogens and to prevent an impending catastrophe recognized as such by the Security Council” (ICJ 1999, cited in O’Connell 2000, p. 81, note 144; Charney 1999, p. 1239, note 28).
26 Cassese (2000, p. 795) also points out that a few states have subsequently discussed the Kosovo intervention in legal terms. “In particular, the Netherlands has pointed out that ‘the Charter is not the only source of international law’, thus implying that general norms may exist, or be in a nascent state, outside the Charter. The same state has noted in particular that ‘a gradual shift [is] occurring in international law’, whereby ‘respect for human rights [is] more mandatory [than in the Charter] and respect for sovereignty less absolute’. As a result there now exists a ‘rule, now generally accepted in international law, that no sovereign state has the right to terrorise its citizens.’” Cassese notes that the statements of certain state delegates in the Security Council support this position and that this view may be shared by a few other states, including Canada. However, Abraham Sofaer (2000, p. 20) argues that the US and NATO did not justify the intervention in legal terms because “they are uninterested in attempting to demonstrate that the circumstances satisfy particular artificial categories deemed exclusive despite overwhelming political consensus and international practice to the contrary.”
27 The UK Fourth Report states, “we conclude that NATO’s military action, if of dubious legality in the current state of international law, was justified on moral grounds.”
28 See also Pasic, Amir and Weiss, Thomas 1999, p. 301.
29 Smith (1999, pp. 280-283) frames the debate as being between realists and liberals while Ramsbotham and Woodhouse (1996, pp. 57-61), identify four ethical schools in international relations theory. See also Donnelly (1993, p. 616ff.).
30 Walzer (1992, p. 107) does argue that “humanitarian intervention is justified when it is a response… to acts that ‘shock the conscience of mankind.’”
31 The Canadian Department of Foreign Affairs (1999, p. 6) states that “[h]uman security does not supplant national security. A human security perspective asserts that the security of the state is not an end in itself. Rather, it is a means of ensuring security for its people.… From a human security perspective, concern for the safety of people extends beyond borders. Although broadening the focus of security policy beyond citizens may at first appear to be a radical shift, it is a logical extension of current approaches to international peace and security. The Charter of the United Nations embodies the view that security cannot be achieved by a single state in isolation. The phrase ‘international peace and security’ implies that the security of one state depends on the security of other states. A human security perspective builds on this logic by noting that the security of people in one part of the world depends on the security of people elsewhere.”
32 Donnelly (1993, p. 648) notes that the persistence of the norm of non-intervention rests “on the fact that it continues to correspond to the true level of the development of the international community. For better or worse, states remain the terminal locus of political loyalties for most people.” See also Abiew (1998, p. 67) and Jackson (1993, p. 583).
33 See also Hoffman (1996, p. 29).
34 See also Donnelly (1993, pp. 628-630) and Wheeler and Morris (1996, p. 166) who maintain that “state practice indicates that the international community remains resolutely opposed to codifying a legal right of unilateral humanitarian intervention. The weakness of the normative claim in support of a right of unilateral humanitarian intervention is that in focusing on individual cases of human suffering it fails to see that issuing a licence for humanitarian intervention is likely to bring about a generalised erosion of the norms of non-intervention and non-use of force, and with it a long-term reduction in general well-being. The logic of this rule-consequentialist position is that even if military intervention could prevent or stop genocide, the absence of Security Council approval renders such an action not only illegal, but also illegitimate.”
35 NATO officials and certain NATO member states including Canada have made statements indicating that NATO might be willing to use military force for humanitarian reasons without Security Council authorisation. See for example Simma (1999, p. 16) and Koring (1999, p. A14).
36 The Commission is an independent body intended to support UN discussion and action on this issue. It will focus on “the appropriate international reaction to massive violations of human rights and crimes against humanity, as well as address the question of preventive action through an international work program of consultation and outreach.” See the Commission website at http://www.iciss.gc.ca.
37 Murphy (1996, p. 322) argues that despite resistance of the member states it is appropriate to develop general principles for United Nations humanitarian intervention.
38 Duke (1994, p. 47) argues that “[c]oncerns that humanitarian intervention is an open invitation for meddling in one another’s affairs, especially by the developed western countries into the affairs of the Third World, can be assuaged by codification and the framing of general principles conditioning humanitarian intervention. Abuse of humanitarian intervention may also be alleviated by strict UN control over humanitarian intervention and scrupulous observance of a voting system that ensures decisions are made on a collective basis…. [I]t is of paramount importance that humanitarian intervention take place only as an expression of the collective will of the international community.” See also Abiew (1998, p. 73).
39 According to Haas (1993, p. 33), there is international consensus for, among other things, multilateral coercive action to prevent genocide.
40 See also Duke (1994, p. 44).
41 See also Duke (1994, p. 44), who calls for all other recourse beneath the level of intervention to be exhausted; and Annan (UN 1999) who calls on the Security Council when contemplating Chapter VII action to consider a number of factors, including whether peaceful or consent-based efforts to address the situation have been exhausted.
42 See also the Danish Institute Report (1999, p. 109).
43 The report cites the authority of the International Law Association, Scheffer and Verwey. See also Charney (1999, pp. 1243-1244).
44 Under Article 52(1) of the Charter, states may make regional arrangements or create regional bodies to deal “with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.” O’Connell (2000, pp. 63-67) notes that the regional organisations which have “expressly declared themselves Chapter VIII organizations include: The Organization of American States (OAS), the Organization for Security and Cooperation in Europe (OSCE), and the Commonwealth of Independent States (CIS).” In addition, the OAU, while not having the same security apparatus as the OAS, “has been treated by the Security Council as a regional agency,” as has the League of Arab States. The ECOWAS peacekeeping campaign in Liberia (ECOMOG) and its subsequent intervention in Sierra Leone were both approved after the fact by the Security Council under Chapter VIII of the Charter.
45 See also the discussion of this issue in Murphy (1996, pp. 323-324).
46 Weiss (1999, p. 211) sees enhanced accountability for actions undertaken on behalf of the international institutions as an issue which needs further research: “[A]ccountability means the ability to ensure that a mission subcontracted by the international community to a powerful state or a coalition reflects collective interests and norms and not merely the national imperatives or preferences of the subcontractor.”
47 See the recommendations made with respect to NATO (AI 2000a, note 55).
50 Murphy (1996, pp. 323, 314) states that “the intervention should interfere with the ruling structure of the target state only as necessary to provide for an enduring peace” and that actions which “have the effect” of altering the ruling structure “cannot per se be considered disproportionate or unnecessary.” See also Ero and Long (1995, p. 152).
52 Kofi Annan (1999, note 24) argues elsewhere “that it is essential that the international community reach consensus – not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom.”
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Project Ploughshares Working Papers are published to contribute to public awareness and debate of issues of disarmament and development. The views expressed and proposals made in these papers should not be taken as necessarily reflecting the official policy of Project Ploughshares.