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Defined
as the cross-border use of force taken to prevent or stop crimes
against humanity or other atrocities, "humanitarian intervention"
is a term that evokes a range of passionate views and often-contradictory
images. For advocates, the "right" or "duty" of intervention is
clear: where massive violations of international law occur—for
example, when governments set out to massacre their own populations,
the international community under the 1948 Genocide Convention and
the 1949 Geneva Conventions has an obligation to act.
At
the same time, this notion of intervention comes smack up against
the doctrine that for centuries has been at the heart of contemporary
international law: state sovereignty. Thus, for opponents, the doctrine
of "the right to intervene" is in direct conflict with the doctrine
of non-intervention in the affairs of states. Moreover, opponents
argue that intervention motivated by humanitarian concern can become
an abusive use of force that simply enables a stronger power or
group of powers to assert their will.
The
succession of violent conflicts around the globe—in Croatia,
Bosnia, Sierra Leone, Chechnya, Rwanda and elsewhere—during
the first post-Cold War decade challenged the international community
to define a new framework for organizing the international political
system. It was the Kosovo crisis in particular that brought the
humanitarian intervention debate into sharp focus.
Arguably
the most significant, observable shift may be support for the idea
of intervening in order to prevent or punish what is—or appears
to be—a massive violation of humanitarian law. In the past,
humanitarian intervention was typically linked to the emergency
nature of the need; Secretary General Annan's recent statements,
as well as NATO's action in Kosovo, tends to support the notion
that humanitarian intervention is linked to the law.
The
statements and passages below fall roughly into two categories:
speeches and statements by world leaders—including U.S. President
Bill Clinton, British Prime Minister Tony Blair and UN Secretary
General Kofi Annan—and articles from newspapers and journals
that take issue with arguments made by these leaders. This list
is not exhaustive but is intended to serve as a framework for the
continuing debate.
Excerpts
from Recent Major Statements on the Development of Humanitarian
Intervention
In
an article entitled "Two Concepts of Sovereignty," UN Secretary
General Kofi Annan explores the tension that exists between traditional
state sovereignty and the state's responsibility to observe and
uphold human rights norms:
(Originally
published September 18, 1999 in The Economist-http://www.un.org/Overview/SG/kaecon.htm)
In
the following excerpt from the Secretary General's Annual Report
to the General Assembly in September 1999, Kofi Annan identifies
a "developing norm in favor of intervention to protect civilians
from wholesale slaughter." He considers the implications of inaction
to prevent genocide in Rwanda as compared to the action taken "in
the absence of complete unity on the part of the international community"
in the case of Kosovo:
(September
20, 1999)
...while the genocide in Rwanda will define for our generation the
consequences of inaction in the face of mass murder, the more recent
conflict in Kosovo has prompted important questions about the consequences
of action in the absence of complete unity on the part of the international
community...is there not a danger of such interventions undermining
the imperfect, yet resilient, security system created after the
Second World War, and of setting dangerous precedents for future
interventions without a clear criterion to decide who might invoke
these precedents and in what circumstances?...this developing international
norm in favor of intervention to protect civilians from wholesale
slaughter will no doubt continue to pose profound challenges to
the international community...in response to this turbulent era
of crises and interventions, there are those who have suggested
that the Charter itself — with its roots in the aftermath of
global interstate war — is ill-suited to guide us in a world
of ethnic wars and intrastate violence... I believe they are wrong...
In
response to the Secretary General's assertion of a "developing norm
in favor of intervention," Algerian President Abdelaziz Bouteflika
argues that the doctrine of national sovereignty must remain paramount
in interstate relations:
(September
20, 1999)
...interference can only occur with the consent of the state concerned...we
do not deny that the United Nations has the right and duty to
help suffering humanity. But we remain extremely sensitive to
any undermining of our sovereignty, not only because sovereignty
is our last defense against the rules of an unequal world, but
because we are not taking part in the decision-making process
of the Security Council...
In
a speech entitled "Reflections on Intervention," given a year before
NATO's campaign over Kosovo, Kofi Annan argues that "even national
sovereignty can be set aside if it stands in the way of the Security
Council's overriding duty to preserve international peace and security":
The
Secretary General's remarks can be viewed in their entirety at:
(http://www.un.org/News/Press/docs/1998/19980626.sgsm6613.html)
Ditchley
Foundation lecture
June 26, 1998
...The Charter of the United Nations gives great responsibilities
to great Powers, in their capacity as permanent members of the
Security Council. But as a safeguard against abuse of those powers,
Article 2.7 of the Charter protects national sovereignty even
from intervention by the United Nations itself. I'm sure everyone
in this audience knows it by heart. But let me remind you —
just in case — that that Article forbids the United Nations
to intervene "in matters which are essentially within the domestic
jurisdiction of any State".
That prohibition is just as relevant today as it was in 1945:
violations of sovereignty remain violations of the global order.
Yet in other contexts the word "intervention" has a more benign
meaning. We all applaud the policeman who intervenes to stop a
fight, or the teacher who prevents big boys from bullying a smaller
one. And medicine uses the word "intervention" to describe the
act of the surgeon, who saves life by "intervening" to remove
malignant growth, or to repair damaged organs. Of course, the
most intrusive methods of treatment are not always to be recommended.
A wise doctor knows when to let nature take its course. But a
doctor who never intervened would have few admirers, and probably
even fewer patients.
So it is in international affairs. Why was the United Nations
established, if not to act as a benign policeman or doctor? Our
job is to intervene: to prevent conflict where we can, to put
a stop to it when it has broken out, or — when neither of
those things is possible — at least to contain it and prevent
it from spreading. That is what the world expects of us, even
though — alas — the United Nations by no means always
lives up to such expectations. It is also what the Charter requires
of us, particularly in Chapter VI, which deals with the peaceful
settlement of disputes, and Chapter VII, which describes the action
the United Nations must take when peace comes under threat, or
is actually broken.
The purpose of Article 2.7, which I quoted just now, was to confine
such interventions to cases where the international peace is threatened
or broken, and to keep the United Nations from interfering in
purely domestic disputes. Yet even that article carries the important
rider that "this principle shall not prejudice the application
of enforcement measures under Chapter VII". In other words, even
national sovereignty can be set aside if it stands in the way
of the Security Council's overriding duty to preserve international
peace and security. On the face of it, there is a simple distinction
between international conflict, which is clearly the United Nations
business, and domestic disputes, which are not. The very phrase
"domestic dispute" sounds reassuring. It suggests a little local
difficulty which the State in question can easily settle, if only
it is left alone to do so...
This year we celebrate the fiftieth anniversary of the Universal
Declaration of Human Rights. That declaration was not meant as
a purely rhetorical statement. The General Assembly which adopted
it also decided, in the same month, that it had the right to express
its concern about the apartheid system in South Africa. The principle
of international concern for human rights took precedence over
the claim of non-interference in internal affairs. And the day
before it adopted the Universal Declaration, the General Assembly
had adopted the Convention on the Prevention and Punishment of
the Crime of Genocide, which puts all States under an obligation
to "prevent and punish" this most heinous of crimes. It also allows
them to "call upon the competent organs of the United Nations"
to take action for this purpose. Since genocide is almost always
committed with the connivance, if not the direct participation,
of the State authorities, it is hard to see how the United Nations
could prevent it without intervening in a State's internal affairs...
Can we really afford to let each State be the judge of its own
right, or duty, to intervene in another State's internal conflict?
If we do, will we not be forced to legitimize Hitler's championship
of the Sudeten Germans, or Soviet intervention in Afghanistan?
Most of us would prefer, I think — especially now that the
cold war is over — to see such decisions taken collectively,
by an international institution whose authority is generally respected.
And surely the only institution competent to assume that role
is the Security Council of the United Nations. The Charter clearly
assigns responsibility to the Council for maintaining international
peace and security. I would argue, therefore, that only the Council
has the authority to decide that the internal situation in any
State is so grave as to justify forceful intervention...
Kofi
Annan's remarks on the fiftieth anniversary of the Universal Declaration
of Human Rights, December 1, 1999
(http://www.un.org/News/Press/docs/1998/19981201.sgsm6815.html)
In
his seminal law review article "Toward a Modern Doctrine of Humanitarian
Intervention," David Scheffer, U.S. Ambassador-at-Large for War
Crimes Issues, foresaw eight years ago that in the post-Cold War
order a new framework for humanitarian intervention was needed:
"Toward
a Modern Doctrine of Humanitarian Intervention" by David Scheffer
(published in the University of Toledo Law Review — Vol. 23
U Toledo L Rev, Winter 1992)
...there is a critical need to re-examine humanitarian intervention
in the context of contemporary events. There was a time prior
to World War II when unilateral military intervention for strictly
humanitarian purposes was regarded as legitimate by a large community
of international law scholars and was arguably embodied in customary
international law. Following World War II, the U.N. Charter's
prohibition on the use of force except in cases of self-defense
or at the direction of the Security Council had the effect of
generally de-legitimizing humanitarian intervention in the view
of many legal scholars. In the post-Cold War world, however, a
new standard of intolerance for human misery and human atrocities
has taken hold. This intolerance will not necessarily translate
into humanitarian intervention to end such misery or atrocities.
But something quite significant has occurred to raise the consciousness
of nations to the plight of peoples within sovereign borders.
There is a new commitmentãexpressed in both moral and legal termsãto
alleviate the suffering of oppressed or devastated people. To
argue today that the norms of sovereignty, non-use of force, and
the sanctity of internal affairs are paramount to the collective
human rights of people, whose lives and well-being is at risk,
is to avoid the hard questions of international law and to ignore
the march of history...
In
the following excerpts from his address to the nation at the outset
of the NATO bombing campaign, President Clinton justifies the US-led
military intervention over Kosovo. Among other factors, the President
cites the genocide in Bosnia as an imperative for acting in Kosovo:
President
Clinton's remarks can be viewed in their entirety by clicking
here.
(March
24, 1999)
My fellow Americans, today our Armed Forces joined our NATO allies
in air strikes against Serbian forces responsible for the brutality
in Kosovo. We have acted with resolve for several reasons. We act
to protect thousands of innocent people in Kosovo from a mounting
military offensive. We act to prevent a wider war; to diffuse a
powder keg at the heart of Europe that has exploded twice before
in this century with catastrophic results. And we act to stand united
with our allies for peace. By acting now we are upholding our values,
protecting our interests and advancing the cause of peace...We learned
some of the same lessons in Bosnia just a few years ago. The world
did not act early enough to stop that war, either. And let's not
forget what happened — innocent people herded into concentration
camps, children gunned down by snipers on their way to school, soccer
fields and parks turned into cemeteries; a quarter of a million
people killed, not because of anything they have done, but because
of who they were. Two million Bosnians became refugees. This was
genocide in the heart of Europe — not in 1945, but in 1995.
Not in some grainy newsreel from our parents' and grandparents'
time, but in our own time, testing our humanity and our resolve.
At the time, many people believed nothing could be done to end the
bloodshed in Bosnia. They said, well, that's just the way those
people in the Balkans are. But when we and our allies joined with
courageous Bosnians to stand up to the aggressors, we helped to
end the war. We learned that in the Balkans, inaction in the face
of brutality simply invites more brutality. But firmness can stop
armies and save lives. We must apply that lesson in Kosovo before
what happened in Bosnia happens there, too... Do our interests in
Kosovo justify the dangers to our Armed Forces? I've thought long
and hard about that question. I am convinced that the dangers of
acting are far outweighed by the dangers of not acting — dangers
to defenseless people and to our national interests. If we and our
allies were to allow this war to continue with no response, President
Milosevic would read our hesitation as a license to kill. There
would be many more massacres, tens of thousands more refugees, more
victims crying out for revenge. Right now our firmness is the only
hope the people of Kosovo have to be able to live in their own country
without having to fear for their own lives. Remember: We asked them
to accept peace, and they did. We asked them to promise to lay down
their arms, and they agreed. We pledged that we, the United States
and the other 18 nations of NATO, would stick by them if they did
the right thing. We cannot let them down now...
In
a speech to the Chicago Economic Club in April 1999, British Prime
Minister Tony Blair asserts that the "most pressing foreign policy
problem we face is to identify the circumstances in which we should
get actively involved in other people's conflicts." He sets forth
five major considerations for deciding when and whether to intervene:
Prime
Minister Blair's remarks can be viewed in their entirety at: (http://www.pbs.org/newshour/bb/international/jan-june99/blair_doctrine4-23.html)
(April
22, 1999)
... now we have to establish a new framework. No longer is our existence
as states under threat. Now our actions are guided by a more subtle
blend of mutual self interest and moral purpose in defending the
values we cherish. In the end values and interests merge. If we
can establish and spread the values of liberty, the rule of law,
human rights and an open society then that is in our national interests
too. The spread of our values makes us safer. As John Kennedy put
it "Freedom is indivisible and when one man is enslaved who is free?"
The most pressing foreign policy problem we face is to identify
the circumstances in which we should get actively involved in other
people's conflicts. Non — interference has long been considered
an important principle of international order. And it is not one
we would want to jettison too readily. One state should not feel
it has the right to change the political system of another or foment
subversion or seize pieces of territory to which it feels it should
have some claim. But the principle of non-interference must be qualified
in important respects. Acts of genocide can never be a purely internal
matter. When oppression produces massive flows of refugees which
unsettle neighboring countries then they can properly be described
as "threats to international peace and security". When regimes are
based on minority rule they lose legitimacy — look at South
Africa.
Looking around the world there are many regimes that are undemocratic
and engaged in barbarous acts. If we wanted to right every wrong
that we see in the modern world then we would do little else than
intervene in the affairs of other countries. We would not be able
to cope.
So how do we decide when and whether to intervene. I think we need
to bear in mind five major considerations
First, are we sure of our case? War is an imperfect instrument for
righting humanitarian distress; but armed force is sometimes the
only means of dealing with dictators. Second, have we exhausted
all diplomatic options? We should always give peace every chance,
as we have in the case of Kosovo. Third, on the basis of a practical
assessment of the situation, are there military operations we can
sensibly and prudently undertake? Fourth, are we prepared for the
long term? In the past we talked too much of exit strategies. But
having made a commitment we cannot simply walk away once the fight
is over; better to stay with moderate numbers of troops than return
for repeat performances with large numbers. And finally, do we have
national interests involved? The mass expulsion of ethnic Albanians
from Kosovo demanded the notice of the rest of the world. But it
does make a difference that this is taking place in such a combustible
part of Europe.
I am not suggesting that these are absolute tests. But they are
the kind of issues we need to think about in deciding in the future
when and whether we will intervene.
Any new rules however will only work if we have reformed international
institutions with which to apply them.
If we want a world ruled by law and by international co-operation
then we have to support the UN as its central pillar. But we need
to find a new way to make the UN and its Security Council work if
we are not to return to the deadlock that undermined the effectiveness
of the Security Council during the Cold War. This should be a task
for members of the Permanent Five to consider once the Kosovo conflict
is complete...
In
the following excerpts published in The New York Review of Books,
Czech President Vaclav Havel argues that in the twenty-first century
"the idea of noninterference — the notion that it is none of
our business what happens in another country and whether human rights
are violated in that country — should also vanish down the
trapdoor of history":
"Kosovo
and the End of the Nation-State" can be viewed in its entirety at:
(http://special.northernlight.com/kosovo/end_nationstate.htm)
(June
10, 1999)
...Clearly, blind love for one's own country-a love that defers
to nothing beyond itself, that excuses anything one's own state
does only because it is one's own country, yet rejects everything
else only because it is different — has necessarily become
a dangerous anachronism, a source of conflict and, in extreme
cases, of immense human suffering. In the next century I believe
that most states will begin to change from cultlike entities charged
with emotion into far simpler and more civilized entities, into
less powerful and more rational administrative units that will
represent only one of the many complex and multileveled ways in
which our planetary society is organized. With this transformation,
the idea of noninterference — the notion that it is none
of our business what happens in another country and whether human
rights are violated in that country — should also vanish
down the trapdoor of history...The alliance to which Canada and
now the Czech Republic belong is waging a struggle against the
genocidal regime of Slobodan Milosevic. This struggle is neither
easy nor popular and we can differ on its strategies and tactics.
But there is one thing no reasonable person can deny: this is
probably the first war that has not been waged in the name of
"national interests," but rather in the name of principles and
values. If one can say of any war that it is ethical, or that
it is being waged for ethical reasons, then it is true of this
war. Kosovo has no oil fields to be coveted; no member nation
in the alliance has any territorial demands on Kosovo; Milosovic
does not threaten the territorial integrity of any member of the
alliance. And yet the alliance is at war. It is fighting out of
concern for the fate of others. It is fighting because no decent
person can stand by and watch the systematic, state-directed murder
of other people. It cannot tolerate such a thing. It cannot fail
to provide assistance if it is within its power to do so.
This war places human rights above the rights of the state. The
Federal Republic of Yugoslavia was attacked by the alliance without
a direct mandate from the UN. This did not happen irresponsibly,
as an act of aggression or out of disrespect for international
law. It happened, on the contrary, out of respect for the law,
for a law that ranks higher than the law which protects the sovereignty
of states. The alliance has acted out of respect for human rights,
as both conscience and international legal documents dictate.
This is an important precedent for the future. It has been clearly
said that it is simply not permissible to murder people, to drive
them from their homes, to torture them, and to confiscate their
property. What has been demonstrated here is the fact that human
rights are indivisible and that if injustice is done to one, it
is done to all...
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In
an article published one week into the NATO bombing campaign over
Kosovo, The Economist magazine examines the legality of the
NATO action:
(Originially
published in The Economist, April 3, 1999)
When they don't fit together
Whether or not NATO's bombing of Serbian targets makes military
and political sense, is it legal? The United States and Britain
claim it is, arguing that the use of force to prevent an overwhelming
humanitarian catastrophe — especially one caused by a dictator
manifestly pursuing undemocratic goals, as Slobodan Milosevic is
doing in Kosovo — is permitted under international law. This
claim has provoked a lively debate among legal experts. Most have
reluctantly come to the conclusion that, at any rate in terms of
international law as it stands at the moment, the Americans and
the British are wrong.
There is little dispute that the government of Mr. Milosevic, and
probably Mr. Milosevic himself, have broken many international laws.
The behavior of Serb forces in Kosovo is a breach of the Geneva
Conventions and, if the ethnic cleansing continues, arguably the
Genocide Convention of 1948. Mr. Milosevic's government has repeatedly
defied resolutions on Kosovo by the UN Security Council, which all
UN members are supposed to obey.
But, under existing international law, Yugoslav crimes do not make
the bombing legal. According to the UN's charter, the use of force
is allowed in only two circumstances: self-defense against a direct
attack, and in carrying out a specific mandate by the Security Council
for the maintenance of international peace and security.
Even the NATO countries do not claim that the Serbs' behavior in
Kosovo constitutes a direct attack on any neighboring sovereign
state, much less an attack on them. Although in its resolutions
the Security Council has labeled the crisis in Kosovo a threat to
peace and security in the Balkans, it has pointedly not authorized
the use of force against Yugoslavia. The American and British governments
have long known that any resolution authorizing force would be vetoed
by Russia and China, both permanent members of the council. Therefore
NATO's bombing seems to be a clear breach of the UN charter.
It also seems to be a clear breach of NATO's own founding document,
the 1949 North Atlantic Treaty. Articles 1 and 7 of the treaty explicitly
bind NATO countries to act within the UN charter, and Article 5
endorses the use of force only to repel an armed attack against
a NATO member.
Given these prohibitions, is there really no case to be made that
using force to save innocent civilians from massacre is legal? There
are two recognized sources of international law: international treaties
and what is known in the parlance as "customary" law. The latter,
of course, is more difficult to decipher. But, if it can be shown
by the actual behavior of states that a rule is widely enough accepted,
such rules can attain the status of law, and be so recognized by
courts and governments. The only plausible argument that NATO's
bombing is legal is one of customary international law.
One of the most outspoken advocates of this view is Christopher
Greenwood, a law professor at the London School of Economics. He
points out that the extension of human-rights law and a series of
humanitarian interventions over the past few decades, some authorized
by the Security Council, have challenged the old notion of national
sovereignty as inviolable. But he goes further, arguing that there
are enough precedents to justify the claim that armed humanitarian
intervention is now accepted by most states as legal.
In the 1970s, India's invasion of Bangladesh, done partly to halt
some appalling atrocities, and Tanzania's invasion of Uganda to
put an end to the barbaric rule of Idi Amin, were widely accepted
by the outside world. The same was true of the 1990 intervention
by a group of West African countries to stop mass killing in Liberia.
The allied intervention in northern Iraq in 1991 to save the Kurds,
and the imposition of a no-fly zone in southern Iraq to save the
Shia Muslims there, were undertaken without explicit authorization
by a Security Council resolution, but were also widely accepted
as legitimate.
Mr. Greenwood goes on to point out that a resolution put before
the Security Council condemning the NATO bombing in Serbia was defeated
by 12 votes to three on March 26th, implying acceptance of the action
as legal. Moreover, the doctrine of humanitarian intervention would
not free any country to use force whenever it likes. To be lawful,
there would have to be impartial determinations of three facts:
that a catastrophe was occurring; that it was a threat to international
peace; and who was responsible. Security Council resolutions on
Kosovo have established all three, he says, and thus make the NATO
bombing legal.
Most international-law experts dismiss Mr. Greenwood's reasoning
as wishful thinking. The precedents he cites are all disputable,
they argue, and do not override the prohibition against the use
of force in the UN charter, the strongest and most explicit rule
in international law and one vigorously supported in the past by,
among others, the United States and Britain. Three of the countries
that spoke in favor of the Security Council resolution condemning
the bombing — Russia, China and India — contain 40% of
humanity (though the governments of two of them, at any rate, do
not necessarily speak for their people).
One day humanitarian intervention may be accepted as legal, say
the optimists. If NATO's action in Kosovo succeeds, it may be seen
as a big step in that direction. But, right now, NATO countries
— albeit with the best of motives — have put themselves,
like Mr. Milosevic, outside the law.
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