|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|
Gerard J. Tanja
In his Annual Report to the General Assembly of 1991 the Secretary-General of the United Nations, Dr. Boutros Boutros-Ghali made a most interesting and important, though quite often wrongly interpreted, observation on the preferred attitude of the international community towards systematic violations of fundamental human rights by a State. He stated in rather unambiguous terms:
"[i]t is now increasingly felt that the principle of non interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated without impunity. The fact, that in diverse situations, the United Nations has not been able to prevent atrocities cannot be cited as an argument, legal or moral, against the necessary corrective action, especially when peace is threatened [...] The case for not impinging on the sovereignty, territorial integrity and political independence of States is by itself indubitably strong. But it would only be weakened if it were to carry the implication that sovereignty, even in this day and age, includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling strife or insurrection ".
This statement goes to the core of an issue which has attracted much scholarly attention over the last 600 years: the doctrine of humanitarian intervention, its (il)legality, scope and contents in international law. Or, in other words, whether and when, and in which situations, is it permitted to use armed force by a State, or group of States, against another State or States, in order to intervene for humanitarian reasons (i.e. in situations of continuing atrocities and when gross violations of fundamental human rights occur), in the internal affairs and domestic jurisdiction of the latter State(s) without the consent of the government(s), thereby knowingly violating the territorial sovereignty and political independence, in order to protect the civilian population of the target State.
The question of the legality and scope of humanitarian intervention, therefore, is in fact a discussion on the relationship and frictions between sovereign equality, territorial integrity, political independence and the prohibition on the use of force on the one hand - generally regarded as fundamental principles of the present world order and the international legal system -, and the requirements and obligations imposed by international law to effectively protect fundamental human rights in situations of extreme and systematic violations, on the other. As such, it concerns questions of international peace and security.
In the post-1945 or UN Charter era, the doctrinal interest was at its height in the seventies and eighties following interventions in, inter alia, the Congo (Belgium and the United Kingdom, 1964), the Dominican Republic (United States, 1965), East Pakistan (India, 1971), East Timor (Indonesia, 1975), Zaire (Belgium, 1978), Grenada (combined forces of six East Caribbean States and the United States, 1983), Panama (United States, 1988), whereas in the first half of the 1990s international lawyers, again, showed an increasing engagement with the topic after the military interventions of the Allied Forces in Iraq and the ensuing actions to protect the Kurds in northern Iraq and the Shiites in the south (establishment of the two no-fly zones; 1991), the intervention in Somalia (1992-1993) and the - still continuing - tragic events in the Former Yugoslavia and Rwanda.
However, as a consequence of the end of the Cold War and the corresponding change of atmosphere in the UN Security Council, the debate at the end of the 1980s and early 1990s has also touched upon a different and, within the context of humanitarian intervention, hitherto unknown and unrelated feature of that concept proper: aspects and features related to what is generally described in doctrine as the concept of "humanitarian assistance".3 The recent practice of the Council has further stimulated this debate (see infra).
During the early years of the 1990s various authors, inspired by an explosion of civil and interstate strife, ethnic and religious violence, and "micronationalism", have introduced new terminology like "intervention for humanitarian purposes ", "intervention on humanitarian grounds", "the law of democratic intervention", or refer to a "droit d'ingnce" or right to humanitarian assistance and "emergency humanitarian protection and assistance", or speak of an "obligation" to provide this assistance, even when the consent of the government of the affected State has not been obtained, when serious and systematic human rights violations take place.
In the words of one prominent commentator those heated debates have only resulted in "unproductive polemics".
As has been indicated above, the doctrine of humanitarian intervention as such is, despite this renewed interest and the recent flow of information on humanitarian intervention, a very "classic" one in public international law. But it cannot be denied that the already controversial issue of the meaning, scope and contemporary status of humanitarian intervention in international law, has received an extra dimension with the emergence of the concept of humanitarian assistance and "emergency relief operations" in state practice and in academic discussions. This has not only contributed to a further legal complexity, but has also caused confusion and misunderstanding among international scholars, relevant non-governmental organizations and governmental representatives.
The purpose of this contribution is, therefore, to attempt to identify the issues at stake, to determine as far as possible, and necessary, the legal scope and contents of the concepts involved by means of an analytical investigation, with the aim being to develop a conceptual framework within which the underlying concepts - humanitarian intervention and humanitarian assistance - operate and will develop in the future. Only then it is possible to determine the relationship between humanitarian intervention and humanitarian assistance in present-day international law and to make a correct distinction between the two. This is, furthermore, important because different sets of legal and normative principles have to be applied in and result from different situations.
In doing so, this contribution will focus primarily on the contemporary scope and status of humanitarian intervention and assess the nature and scope of humanitarian assistance under present-day international law in the light of these findings.
In this context some preliminary observations must be made with regard to the term "humanitarian assistance" as used in this study.
Most of the confusion and inconsistent, or even incorrect, use of "humanitarian intervention" as a legal concept in relation to "humanitarian assistance", results from situations in which humanitarian operations take place involving the use of armed force and/or in situations of armed conflict (ius in bello).
For this reason, the attempt to develop a practical, clear and transparent conceptual framework is limited to such situations.
It will be argued that the two concepts are of a fundamentally different nature and should therefore not be confused and have, in both theory and state practice, very little in common.
At the same time it is concluded that the doctrine of humanitarian intervention, as it is commonly understood and defined in legal literature and referred to in state practice, is becoming less relevant in international relations as a result of the changes which took place within the framework of the United Nations system after the end of the Cold War and, more specifically, after the adoption of the famous, but often incorrectly understood, "humanitarian" Resolution 688 of 4 April 1991 of the Security Council and its ensuing practice.
The large majority of writers on the issue of humanitarian intervention have nowadays accepted the idea that in the pre-Charter period there was no customary norm on humanitarian intervention, in the absence of consistent state practice and opinio iuris. Since both humanitarian intervention and humanitarian assistance necessarily have to operate within the context of the UN Charter, this will be the legal framework from which to commence the investigation. This is important, as it will be shown that this determination has a fundamental impact on the conceptual and legal framework.
It seems, secondly, rather futile and unproductive to try to define humanitarian intervention in exact legal terms in the light of the abundant but rather inconsistent literature, the broad range of views on this topic and the absence of consistent, uniform and transparent state practice. is
Hence the purpose of this article is not to search for an "authentic" definition or to attempt to develop criteria or conditions necessary to determine the "legality" of a humanitarian intervention. It is, therefore, not the intention to determine the legal relation between hitherto "sacrosanct" principles of international law like the prohibition on the use of force, territorial integrity, sovereignty etc. and the nowadays generally accepted opinion that gross and systematic violations of human rights are no longer exclusively within the domestic jurisdiction of a State (according to some commentators the reason for speaking of the emergence of a right to humanitarian intervention). The intention is to provide a conceptual framework.
A third fundamental restriction is to acknowledge that humanitarian intervention by definition implies the use of armed force and the absence of valid consent by the lawful government for the humanitarian actions undertaken by a third State or groups of States. These legal requirements, or constitutive elements, are cumulative. If one of those elements is missing, the operation may, however, still qualify as one providing humanitarian "assistance" (see infra), but not be characterized as humanitarian intervention.
This means that, legally, at least five situations are not covered by the doctrine of humanitarian intervention, even if humanitarian concerns are present within the context of such operations:
a) actions Involving the Use of Armed Force on the Invitation of the Lawful Government (Including Those Based on Agreements);
b) actions which occur within the framework of a traditional peacekeeping operation of the United Nations;
c) military operations which are undertaken by a State in order to rescue its own nationals abroad from an imminent danger to their lives and/or serious injury;
d) coercive actions not involving the use of armed force; and
e) operations involving the use of armed force undertaken in the absence of the consent of the lawful government, but without having predominant . humanitarian motives.
Actions qualifying under category a. do not, in principle and from a theoretical point of view, violate the territorial integrity and political independence or sovereign equality of States, as the consent of the government has been obtained. It should be observed that there are situations in which it will be difficult to ascertain what the lawful government is or whether the consent has been validly given, but this aspect is, as such, unrelated to the concept of humanitarian intervention.
So far, the peace-keeping operations of the United Nations have always been undertaken with the consent of the host State and on the basis of an agreement with the United Nations. The tendency within the UN Secretariat to introduce notions like "UN cease-fire and/or enforcement units" not only go beyond traditional peace-keeping, but have also not yet been sufficiently developed in UN and state practice and would, furthermore, be based on a previous cease-fire agreement reached by the respective parties.
Military rescue operations to save the lives of nationals abroad, do not fall under the concept of humanitarian intervention as those operations are based on the right of self-defence as formulated under Article 51 of the UN Charter. Neither the question of the scope and legality of such rescue actions under the UN Charter, nor the situation in which military operations are undertaken which involve both the rescue of own nationals and measures to protect citizens of the affected country against imminent danger to their lives, will therefore be touched upon.
Actions qualifying under the fourth category which involve coercive measures short of armed force, like economic and political measures, are unrelated to humanitarian intervention, as this aspect is related to the issue of the prohibition on the use of force under the UN Charter, its scope and contents.
Which actions qualify under the fifth category is, as has been proven in state practice and doctrine, always very difficult to ascertain, since it depends upon the (subjective) interpretation of "political" facts and diplomatic declarations and the prevailing political relation between the actors involved. But, for our purpose, the relevant point at stake is that here we are confronted with military operations in the context of, for example, assisting a people with the realization of their right to self-determination, actions to counteract aggression or to assist the government in an internal war (sometimes on the explicit invitation of the lawful government and, hence, possibly also falling under category a., or military operations undertaken without the consent of the lawful government but directed towards maintaining or strengthening economic and/or political interests. The nature of this type of military operations and the legal questions involved, however, are of a fundamentally different kind than the questions which must be answered in relation to humanitarian intervention.
Fourthly, sometimes the term "humanitarian intervention" is used to denote situations in which, actually, humanitarian assistance to a population is urgent because large-scale natural disasters have taken place, or a similar emergency situation exists, which cause great human suffering and result in the loss of human life, the destruction of property and the mass displacement of populations.
This issue has for the first time been comprehensively dealt with at a global level in the Third (Social, Humanitarian and Cultural) Committee of the General Assembly in 1988 and has resulted in GA Res. 43/131 of 8 December 1988, called "Humanitarian assistance to victims of natural disasters and similar emergency situations". After having recognized the responsibilities of the international community towards the victims of such disasters and emergency situations, the General Assembly went on to stress that the access to the civilian population and the supply of food, medicines or health care and other forms of rapid relief, may avoid an increase in the numbers of victims. Access to victims is open to both governmental and non-governmental organizations.
However, the General Assembly made it absolutely clear that in such situations the consent of the State concerned is a prerequisite for any relief operation, irrespective of whether those actions are undertaken at a governmental or non-governmental level:
"Reaffirms also the sovereignty of affected States and their primary role in the initiation, organization, co-ordination and implementation of humanitarian assistance within their respective territories;[...]".
Such relief operations, once commenced, must be undertaken in a neutral and impartial way.
The requirement of the consent of the State was furthermore confirmed in an Annex to GA Res. 46/182 of 19 December 1991 on the "Strengthening of the co-ordination of humanitarian emergency assistance of the United Nations".
"3. The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country".
This type of humanitarian assistance, or humanitarian relief operations, for which the politico-legal framework has been determined by the relevant resolutions of the General Assembly and appropriate programmes, agencies and departments of the United Nations, however, falls outside the scope of this contribution, as it bears no relation whatsoever to the concept of humanitarian intervention as used in international law, nor does it involve the type of humanitarian assistance which is covered by our investigation. For neither is it dependent upon the consent of the affected country, nor is it in itself a response to gross and systematic violations of fundamental human rights in this affected country, nor does it involve the use of armed force, and neither is it applicable in a situation of armed conflict.
It may, therefore, be preferable to describe this type of operation in legal terms as a "humanitarian emergency relief operation", given its already rather well-defined and delimited legal framework, and to reserve the term "humanitarian assistance" for operations undertaken in situations as indicated in the Introduction (armed conflict situations).
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".
The concept of "humanitarian assistance", as frequently used in international law, is in fact neither a legal concept, nor has the concept a well-defined meaning, scope and contents, although the principles which operate and which are applied within the framework of "assistance" are not alien to international (humanitarian) law and are, quite often, legal principles. In the context of our research and the two questions formulated above, it thus seems that there may be two situations in which humanitarian "assistance" may be invoked (as was stated under II., peace-time assistance or "emergency humanitarian relief operations" fall outside the scope of this contribution).
The first situation is a situation in which the 1949 Geneva Conventions and the Additional Protocols of 1977 to these Conventions are applicable. In those treaties the term "humanitarian assistance" does not appear and is not used, but the various principles involved - all with certain restrictions and in varying terms - are familiar to the international lawyer and are related to the regulation of "humanitarian actions and operations" (like health issues, food, or the supply of other forms of relief, like those mentioned in Article 23 of Convention IV or Article 70 of Protocol I) in order to alleviate the suffering of the victims of an armed conflict
Both States and the ICRC "or any other impartial humanitarian organizations" are addressed by the Conventions and Additional Protocols in this respect, "subject to the consent of the Parties to the conflict concerned".
Under international humanitarian law as laid down in those international agreements the provision that the High Contracting Parties to the Geneva Conventions will "respect and [...] ensure respect for the present Conventions", this is not to be interpreted as an authorization to intervene by force as this falls outside the scope of ius in bello.
It is not the intention to describe the various principles involved which operate within situations of armed conflict covered by international humanitarian law. What is important from a conceptual point of view is to recognize that humanitarian "assistance" used under international humanitarian law is in fact a description of a multitude and variety of legal principles belonging to international humanitarian law (ius in bello); a generic and fluid term without a specific legal connotation, scope and contents. It has nothing in common with the legal concept of humanitarian intervention.
The second situation where the term "humanitarian assistance" is quite often used, is a situation as referred to under III.1.- III.3. This is a relatively new use of the term "assistance" and it may be useful to enumerate the various manifestations of "humanitarian assistance" as they appeared in the Security Council's practice since the adoption of SC Res. 688.
For practical reasons this overview will be limited to the resolutions mentioned above.
The concept of "humanitarian assistance" appeared in various manifestations; some of the resolutions mentioned the concept of "humanitarian assistance" without further qualifications (SC Res. 767, SC Res. 794, SC Res. 819, SC Res. 836), others referred to "humanitarian relief assistance" or "humanitarian relief operations/activities", (SC Res. 794, SC Res. 814), or simply to the "delivery of humanitarian relief" (SC Res. 836) and "assistance" (SC Res. 688). In some resolutions not adopted under Chapter VII the element of "co-operation" between the State (SC Res. 688; Iraq) and with the United Nations, or with the various parties and factions on the one hand and the United Nations, its specialized agencies, intergovernmental and non-governmental organizations and the ICRC on the other, was stressed (SC Res. 767).
With regard to the manifestations of "humanitarian assistance" - the rather consistent used generic term by the Security Council -, various "types" of assistance may be distinguished.
In some resolutions the problems relating to "access" or obstruction to the delivery of humanitarian assistance were dealt with, like, inter alia in SC Res. 688 ("access to all those in need',), SC Res. 824 (access to "safe areas'') and SC Res. 836 ("obstruction " to the delivery of humanitarian assistance.
Other resolutions demanded the need for an urgent delivery of the humanitarian assistance to the civilian population (SC Res. 767) and indicated that impediments to such activities, in particular the delivery of food and medical supplies, would not be tolerated and are a violation of international humanitarian law (SC Res. 794, SC Res. 819).
The safety of the personnel engaged in the delivery of such humanitarian assistance (both UN personnel, intergovernmental and non-governmental as well as ICRC personnel) and the ensuing obligation to "take all measures necessary byby the target State and/or parties, was repeatedly stressed by the Security Council (SC Res. 794, SC Res. 814, SC Res. 819, SC Res. 824). SC Res. 836 indicated that this extended to so-called 'protected convoys".
Three resolutions contained language indicating that the humanitarian "assistance" also extended to operations relating to the protection and repatriation of refugees and resettlement of displaced persons (SC Res. 688, SC Res. 929, SC Res. 814), whereas another three resolutions were devoted to the creation of "safe areas" (SC Res. 819, SC Res. 824, SC Res. 836) in Bosnia and Herzegovina. It was demanded that those areas be given full respect by the warring parties, whereas the areas would be protected by UNPROFOR "with the agreement of the Governments contributing forces" (SC Res. 836).
It follows from this enumeration that the scope and limits of the concept of humanitarian assistance have not been fully defined. Under the rather recent enforcement measures of the Security Council various manifestations of humanitarian assistance have appeared; sometimes already existing under international humanitarian law, sometimes hitherto unknown in international law.
The concept of humanitarian assistance is still developing and it may still be too soon to draw firm conclusions about possible new manifestations of "assistance". It is, however, beyond any doubt that the concept offers promising prospects for the future.
The recent practice of the Security Council, which commenced to a certain extent with SC Res. 688, to address internal human rights violations as falling within the scope of Article 39 of the Charter and to indicate the Council's willingness to take enforcement measures under Article 42 of the Chapter to redress such purely internal situations, is an enormous improvement of the United Nations collective security system. Continuation of the practice of the Security Council would offer various opportunities for a further development of the concept of humanitarian assistance and may, furthermore, lead to a more effective implementation of principles of international humanitarian law, as far as such principles can be described as manifestations of humanitarian assistance. Such principles are already well known and have been laid down in various treaties like the Geneva Conventions of 1949 and the Additional Protocols of 1977. Whether it is preferable to refer to those accepted principles instead of using the generic term "humanitarian assistance" within the concept of enforcement measures, is of course another question.
At the same time it must be acknowledged that the Security Council has taken the liberty to explore new avenues and has introduced new notions of assistance which were hitherto unknown in international humanitarian law. It is still too early to assess these developments and to evaluate the usefulness of the generic term "humanitarian assistance", but it cannot be denied that in a relatively short time, new trends have emerged. This practice seems, furthermore, to have been accepted by the public at large.
On the other hand, the Security Council should work towards a more consistent use of terminology and reserve terms like "humanitarian relief operations" or "emergency relief action" for peace-time operations.
Another, almost inescapable, conclusion is that with the recent Security Council practice on humanitarian assistance and the Council's willingness to consider purely internal human rights violations as a threat to the peace, the prospect for the doctrine of humanitarian intervention seems rather bleak: if one accepts the difference between humanitarian intervention as it is generally understood in international law and enforcement measures under Chapter VII, it may very well indeed become an echo from the past.