|Law in Humanitarian Crises, Volume II : Access to Victims: Right to Intervene or Right to Receive Humanitarian Assistance? (ECHO)|
|Humanitarian Intervention and Humanitarian Assistance: An Echo from the Past and a Prospect for the Future|
In the light of the current position of the law and within the framework of the Charter of the United Nations there thus seem to be two theoretical - situations in which humanitarian intervention could be applicable.
The first involves the use of armed force in a situation in which a government systematically and massively violates human rights or, to put it in different terms, where a government subjects its own population to a systematic policy of terror (e.g. the former Khmer Rouge regime in Cambodia). The second may be described as a situation in which a population is confronted with a collapsed government and total chaos and anarchy results from this collapse in the country, leading to ethnic, religious and/or civil strife as a consequence of which human rights are grossly violated (i.e. "failed state").
Independent of whether we are confronted with the first or the second situation, the relevant means - in this context: types of armed action - to redress this tragic situations are, as Malanczuk has correctly observed in his study on the legitimacy of the use of armed force, twofold:
"[...] intervention as a collective action by, or authorized by, a competent global or regional organization and, second, multilateral or unilateral action by states without such authorization".
1. Armed Intervention by, or Authorized by, the United Nations
The legality and nature of the use of armed force under the collective security system of the UN Charter in order to protect fundamental human rights must be determined and evaluated in the light of the well-known Charter provisions and the relatively recent UN practice.
Article 2 (4) provides that:
"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations ".
There are two exceptions to this absolute prohibition: Article 42 and Article 5 1.
Article 51 confirms the "inherent right of individual or collective self defence" and falls outside the scope of this study.
Article 42 permits the use of force by the Security Council, once the Council has decided on the basis of Article 39 of the Charter that a situation constitutes a "[...] threat to the peace, breach of the peace, or act of aggression". On the basis of Article 24 of the Charter, only the Security Council can determine the existence of a threat to the peace, breach of the peace or act of aggression and is, therefore, the only organ under the UN collective security system to decide "[...] what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security". Article 39, therefore, legally authorizes and sanctions the Council to exercise its political discretion with a view to determine measures to maintain or restore international peace and security. It is, as Verwey has correctly stated, the exercise by the Security Council of a "right of auto-interpretation " to determine which situations constitute a threat to the peace, breach of the peace, or act of aggression and what enforcement measures should, in the light of such a decision, be taken under Article 42, if the Council decides that this is necessary and appropriate.
Are there legal barriers for the Security Council to be found in the provisions of Article 2 (7) of the Charter? It does not seem so, since Article 2 (7) explicitly states:
"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII".
Apart from our earlier observation that it is generally accepted in state practice and doctrine that systematic and gross violations of fundamental human rights no longer belong to the domain rrvf the State, the last sentence of Article 2 (7) leaves no room for ambiguity: the Council has the power to indicate enforcement measures under Article 42 if it has determined under Article 39 that atrocities and other systematic or gross violations of fundamental human rights within a State, constitute a threat to the peace or affect the maintenance or restoration of international peace and security.
The Council has two options under Article 42: it may adopt enforcement measures authorizing military action by the Council, or it may authorize Member States to resort to armed force. Because of the absence of the special agreements envisaged in Article 43 of the Charter, the Council will not decide upon military enforcement directly by the Council itself, unless ad hoc arrangements prove feasible, efficient and politically possible.
If, however, an authorization, or mandate, is given to the Member States, an individual State is neither obliged nor under a duty, to individually resort to armed force to redress the situation in the target State (although the enforcement measures are binding on both the target and the other States); it is a "recommendation which justifies in law the use of armed force otherwise prohibited by Article 2 (4) of the Charter, [...]".
A further question is whether the Security Council is, in practice, inclined to decide upon enforcement measures under Articles 39 and 42 in situations described at the beginning of this paragraph. This will be examined under the next heading.
2. Recent Security Council "Enforcemen tMeasures"
In the aftermath of the Second Gulf War the Security Council adopted by ten votes in favour, three against (Cuba, Yemen and Zimbabwe) and two abstentions (China, India), the "humanitarian" SC Res. 688 of 5 April 1991. For many commentators this resolution constituted a landmark in the Council's practice under Chapter VII; in their view the resolution provided a sound legal basis for the intervention by the allied forces, the creation of "safe havens" and the imposition of the "no-fly zones". According to those opinions the resolution authorized the first truly Chapter VII operation for humanitarian purposes: egregious human right violations and barbaric acts against the civilian population (primarily the Kurdish population in the north of Iraq) by the Iraqi Government had been proven superior to the hitherto sacrosanct principle of sovereignty.
Upon reflection it is questionable, however, whether the intervention, the creation of safe havens and the imposition of the no-fly zones of the allies could indeed be based on the resolution. In other words, the views on SC Res. 688 still reflect the old discussions between the "realists" and the "academics" or, between the proponents of a right to humanitarian interventions and those arguing that such a right does not exist under international law in the Charter era.
It has already been observed that "only" ten members of the Security Council voted in favour; at least four members, particularly Yemen and India, made it very clear that they considered military enforcement measures under SC Res. 688 illegal. China expressed the view that an operation involving "military enforcement " measures under SC Res. 688, would be vetoed. Those States considered it a non-binding resolution.
The language of SC Res. 688 neither mentioned Chapter VII, nor did it repeat the language which appeared in SC Res. 678, which had called upon all Member States of the United Nations to "use all necessary means ° to "restore international peace and stability in the area°. Furthermore, in the Preamble of the resolution, Article 2 (7) is explicitly inserted, whereas the sovereignty, territorial integrity and political independence of Iraq and of all States in the area, is expressly referred to.
In the operative part of the Resolution it is the Secretary-General of the UN who is requested to 'pursue his humanitarian efforts" and "to use all the resources at his disposal" to address urgently the critical needs of the Iraqi civil population. Nowhere in the resolution there is an authorization by the Council for the Member States to intervene by means of armed force, nor is there any reference to collective enforcement measures under Article 42.
The view that the resolution did not provide the legal basis for the actions which would follow, is not only evidenced by the travaux prratoires and actual language of the resolution but, furthermore, confirmed by the opinion of the Legal Office of the United States' State Department when it was explained that the no-fly zones were nonenforceable; the resolution was "[...] humanitarian in intention and not enforceable, since it did not cite Chapter VII of the UN Charter ".35
The factual situation also indicates that it was not the intention of the drafters (Belgium and France, later co-sponsored by the United Kingdom and the United States) to place a binding resolution before the meeting, since the United States accepted the idea of the creation of safe havens five days after the adoption of the resolution.
What is true, however, is that in the operative part of the resolution the "repression of the Iraqi civilian population" is condemned and the Council insists that Iraq must "allow immediate access by international humanitarian organizations". There are, however, "consequences" to this situation; i.e. the "massive flow of refugees towards and across international frontiers" and "cross border incursions", which threaten international peace and security in the region. One can, therefore, only agree with Malanczuk who concludes that the resolution:
[...] cannot be cited as a precedent for the proposition that the Security Council views massive, but purely internal human rights violations as such, without transboundary effects, as a direct threat to international peace and security. For cases with such external effects of human rights violations it is indeed an important precedent".
Firm conclusions can also not be deduced from the Council's practice with respect to the Yugoslav crisis.
It seems that specific enforcement measures were not primarily based on the atrocities and serious human rights violations in the Former Yugoslavia and, later, in Bosnia and Herzegovina. Although the Council condemned the atrocities many times, enforcement measures under Article 42 solely on this basis were not foreseen. This is aptly illustrated by SC Res. 770 of 13 August 1992. The resolution recognized in its Preamble that the situation in Bosnia and Herzegovina constituted a threat to international peace and security and that gross violations of human rights continued to take place. The Council also recognized that the 'provision of humanitarian assistance D was an important element in the "efforts to restore international peace and security in the region" (see infra). But apart from "demanding" under Chapter VII that unimpeded and continuous access to camps, prisons and detention centres be granted to the ICRC and other humanitarian organizations, the Council was not prepared to take the next step: military enforcement measures to redress the internal human rights situation in Bosnia and Herzegovina. It is also not without importance that the first preambular paragraph reaffirms the "need to respect the sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina ", a phrase which has, since then, been consistently inserted in every resolution on Bosnia and Herzegovina.
SC Res. 771 (also of 13 August 1992) condemned the practice of "ethnic cleansing" and expressed:
[...] grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia and especially in Bosnia and Herzegovina including reports of mass forcible expulsion and deportation of civilians, imprisonment and abuse of hospitals and ambulances,impeding the delivery of food and medical supplies to the civilian population, and wanton devastation and destruction of property ".
But despite those "widespread violations" the Council, acting under Chapter VII, again, did refrain from deciding upon enforcement measures. Instead, the Council indicated that in case of non-compliance it "will need to take further measures under the Charter". Such further measures, however, were also not decided upon in SC Res. 787 of 16 November 1992 concerning the enforcement of economic sanctions against Serbia and Montenegro. States were authorized to take measures to enforce the embargo, but the Council refrained from authorizing the Member States to take measures in the context of the gross violation of human rights and the on-going practice of ethnic cleansing. A weak response also came from the Council when atrocities occurring in detention camps and women's camps ("mass-rape") were detected: the Council condemned these "acts of unspeakable brutality" and decided to "remain seized of the matter".
Compared with SC Res. 688, the Council did change, however, its attitude with respect to purely internal human rights violations; it seems that with respect to the continuous and gross violations of human rights in Bosnia and Herzegovina, the Security Council has accepted, although not unequivocally, that this situation as such may constitute a threat to international peace and security. This becomes clear from the "safe havens" or "safe area" resolutions of the Security Council, most notably SC Res. 815 of 30 March 1993 on the mandate of UNPROFOR, SC Res. 819 of 16 April 1993 and SC Res. 824 of 6 May 1993. In SC Res. 824 the Council, furthermore, seemed prepared to take the next step, if considered necessary:
"Declares its readiness, in the event of the failure by any party to comply with the present resolution, to consider immediately the adoption of any additional measures necessary with a view to its full implementation,[...]".
Although not using the already well known formula "all necessary means", this came very close to indicating its readiness to decide upon military enforcement measures to address an internal human rights situation.
However, the Council's ambiguity again became apparently obvious when it adopted SC Res. 836 of 4 June 1993, where it observed that the concept of safe areas was adopted "to respond to an emergency situation ° which could make a "valuable contribution" to a lasting peace on the basis of the Vance-Owen plan, but "should not in any way be taken as an end in itself, but as a part of the Vance-Owen process [...]". In the same Resolution, however, the Council took the final step and authorized UNPROFOR, "acting in self-defence ", to use force in reply to:
"[...] bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys".
More important, operative paragraph 10 authorized Member States, in close co-ordination with the Secretary-General and under his authority, to take "all necessary measures " to support UNPROFOR.
Compared to the Iraqi question it seems that the Council is now prepared to accept the idea that an internal human rights situation may constitute a threat to international peace and security, independent of external effects. Whether the Council has also accepted in unequivocal terms the idea that military enforcement measures may be undertaken by the Council, is still not sufficiently clear. After all, the various relevant resolutions with humanitarian contents affirmed the sovereignty and territorial integrity of Bosnia and Herzegovina and must be appreciated in the context of the comprehensive picture of the conflict. Most important, however, it should be remembered that the Bosnian authorities have repeatedly and explicitly asked for military enforcement measures to protect the safe havens; the implicit consent of the Bosnian government in the event of the use of armed force was therefore obvious.
The unwillingness of the Security Council to decide upon enforcement measures including the use of armed force and the consistent careful balancing of human rights protection against the principle of sovereignty, indicate that the Council is, although it has the authority, still rather hesitant to sanction enforcement measures under Article 42 in answering internal human rights situations in order to restore international peace and security.
If the situation was still rather ambiguous in the case of Bosnia and Herzegovina, the Council acted swiftly and determinedly in the situation of Somalia culminating in the adoption of SC Res. 794 of 3 December 1992.45 After the Council had determined that
"[...] the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security",
the resolution unequivocally authorized Member States, co-operating with the United Nations, to use armed force ("use all necessary means ") to "establish a secure environment for humanitarian relief operations in Somalia".
A clear precedent for the proposition that the Security Council views massive, but purely internal human rights violations as such, without trans-boundary effects, as a direct threat to international peace and security. Furthermore, the Somali case study shows that the Council is prepared to accept the use of military enforcement measures (permissible use of force) to redress such situations.
There may be one disclaimer in the Somali situation:
"Recognizing the unique character of the present situation in Somalia and mindful of its deteriorating, complex and extraordinary nature, requiring an immediate and exceptional response".
This paragraph was inserted on the insistence of African States, afraid of a too broadly formulated precedent. On the other hand, the concept of a "failed state" is an exceptional situation par excellence. It seems inevitable, however, to conclude that the Council has indeed set some remarkable precedents, enlarging the hitherto known scope of both Articles 39 and 42 and implicitly elevating human rights norms vis-is sovereignty, territorial integrity and non-intervention.
An almost identical step was taken by the Security Council in respect of the situation in Rwanda. In SC Res. 929 of 22 June 1994 the Council, be it in rather abrupt language, recognizing the uniqueness of the Rwandan situation and determining that the magnitude of the humanitarian crisis constituted a threat to the peace and security in the region, Member States were authorized, co-operating with the Secretary-General, to conduct a military enforcement operation ("using all necessary means to achieve the humanitarian objectives [...]").
3. Evaluation of UN Practice
What is important from a conceptual point of view is that the actions within the framework of the UN collective security system as laid down in the UN Charter, indeed indicate and confirm that enforcement measures under Articles 39 and 42 (Chapter VII) may and will be taken by the Security Council in order to redress human rights violations, once it has been determined that such an internal situation constitutes a threat to the peace or affects international peace and security. The Security Council has this authority and does, therefore, not act ultra vires under such circumstances.
But such binding measures decided upon by the Security Council under Chapter VII may not be characterized as falling within the doctrine of humanitarian intervention. Instead, we deal with enforcement measures under Articles 39 and 42 of the Charter. One could argue that in situations where the Security Council authorizes Member States to use armed force in order to intervene in another State for humanitarian purposes, such intervention could be described as "enforcement measures for humanitarian purposes". Legally and conceptually, however, this is not to be preferred since binding enforcement measures, whatever their scope, contents and nature, are directed towards the maintenance and/or restoration of international peace and security. They are not undertaken for humanitarian purposes and the introduction or use of this terminology might contribute to further misunderstandings and ambiguities.
It may be preferable to speak of enforcement measures under Article 42 of the Charter to ensure humanitarian assistance in order to contribute to a restoration of the peace and security. The measures as such are just one form of enforcement measures under Chapter VII of the Charter; it is neither a specific legal category, nor has the concept of humanitarian assistance as used in the Security Council's practice a specific legal scope and contents (see infra).
4. Humanitarian Intervention Outside the Scope of the Charter
The observations with regard to the question whether international law sanctions a right to humanitarian intervention in the Charter era can be rather brief. Such a right does not exist. For the sake of clarity, here we deal with international humanitarian intervention proper or, in other words, "classic" humanitarian intervention:
"The threat or use of force bya state or states abroad, for the sole purpose of preventing or putting a halt to a serious violation of fundamental human rights, in particular the right to life, of persons, regardless of their nationality, such protection taking place neither upon authorization by relevant organs of the United Nations nor with permission by the legitimate government of the target state".
As has already been noted in the introduction, quite extensive literature exists on this topic. However, it has not been possible to bridge the gap between the proponents (for example, D'Amato, Chan Leng Sun, Duke, Gallant, Helton, Lillich, McDougal, Reisman, Simon, Teson and others) and the opponents (for example Farer, Henkin, Malanczuk, Ofodile, Rodley, Suy, Verwey and others). But doctrine, being a "secondary" source of international law, does not make law, and no definitive conclusion can be drawn from legal writings!
Legally more convincing, however, are the findings of the International Court of Justice (ICJ) in the Nicaragua Case, where the Court determined that international law does not sanction a right to intervention when exercised without the blessing of the Security Council. The Court did not accept the unauthorized use of force by a State to redress serious human rights violations in another State. Further evidence can be found in GA Res. 2625 and GA Res. 3314 concerning the definition of aggression.
This also seems to be the position taken by the large majority of writers on this subject.
Malanczuk cites from an official British FCO document:
"But overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons:
First, the UN Charter and the corpus of modern international law do not seem to incorporate such a right; secondly, state practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues against its creation".