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close this bookLaw in Humanitarian Crises, Volume II : Access to Victims: Right to Intervene or Right to Receive Humanitarian Assistance? (ECHO)
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Introduction

Public and scientific debate over the legality of humanitarian intervention was, up to 1991, erratic. From time to time certain events created waves of political and legal arguments for and against a legal justification of humanitarian intervention. The military intervention of one or more states in the affairs of another state is often seen as an example of a publicly justified "humanitarian intervention". Hostage rescue operations undertaken by a military force on the territory of another state which openly or clandestinely supported terrorist activity is another example. After these incidents the debate typically faded away only to be taken up again with the next military intervention justified on humanitarian grounds.

The reactions of states to such incidents were quite similar and can be categorised into three groups. In the first group, states reacted by opposing military intervention through disputing the facts put forward to justify intervention, by criticising the concept that military forces can act on humanitarian grounds and by questioning the existence of the right under existing international law of humanitarian intervention. The second reaction of states was to embrace the humanitarian benefits of military action brought about by the rescue of victims. A third reaction of states was simply to acquiesce the action taken, without expressing a legal position.

Without going into too much detail at this point, it can be safely concluded that humanitarian intervention in the international community has been a topic dictated by the requirements of each individual case. The efforts of some states to argue in favour of the acceptance or establishment of a unilateral right of humanitarian intervention has never been successfully implemented. With some exceptions, most lawyers are also opposed to a unilateral right for humanitarian intervention. However, to avoid a situation whereby states can justify political and military intervention under the auspices of humanitarian intervention, a catalogue was produced laying down certain criteria which needed to be fulfilled before humanitarian intervention through military force could be justified. Amongst states, however, the catalogue was rejected largely because no consensus could be reached over such issues as the circumstances surrounding the right to humanitarian intervention, what the final objective of intervention should be and which specific rules should regulate its execution.

As described above, the debate on humanitarian intervention in the decades following the Second World War concentrated on conforming to the United Nations Charter system. Besides some debate following the United Nations operations in the Congo, practical cases of United Nations military involvement in humanitarian intervention operations did not exist. In this respect the multilateral, organisational and structural aspects of humanitarian intervention did not generate much attention. A United Nations role with regard to humanitarian intervention at that time was not foreseeable. Seen from today's perspective, humanitarian intervention had a retrospective implication.

It must be asked whether the past is relevant to today's discussion. Present cases play an important part in the debate on the legality of humanitarian intervention. The military interventions in Iraq, Somalia, Bosnia, Rwanda and Liberia are the key cases quoted in most recent legal evaluations describing the state of humanitarian intervention today. The present discussions also endeavour to define the rights of individual states or groups of states with regard to humanitarian intervention. Nevertheless, the present debate has two new and distinct features. Firstly, most of the articles concerned with humanitarian intervention now concentrate on the function of the United Nations and states authorised by the United Nations to execute humanitarian interventions. Secondly, as the debate within the United Nations demonstrates, humanitarian intervention is seen by some states as being one of the major internationally based activities within a future concept of the collective security system of the United Nations.

If these observations are correct, we can see that the debate has changed considerably. It appears that the retrospective perspective of humanitarian intervention has been replaced by a vision of an international system able to respond effectively with military forces to situations threatening human beings. In this respect the debate over the legality of humanitarian intervention by an individual state or a group of states without United Nations authorisation is less important than in the past. The real question today is whether the existing legal order is consistent with the expectations of those who advocate the above mentioned vision. Volume II of the series of books on law in humanitarian crises therefore concentrates on some of the most important new aspects of the debate on humanitarian intervention.

Mario Bettati deals with the present debate on droit d'ingnce, discussing traditional as well as new arguments and emphasising their legal and political background. By analysing the most recent state practice with regard to humanitarian interventions in cases such as Rwanda and Bosnia, he outlines the actual international law framework on access to the victims of armed conflicts. The second contribution to the book by Gerard Tanja provides a clarification of terms used in the international debate on humanitarian intervention. Having outlined the present framework of collective humanitarian intervention under the Charter of the United Nations, he discusses in depth the contemporary scope and status of humanitarian intervention, relating it to the nature and scope of humanitarian assistance under present-day international law. Juan Antonio Carrillo Salcedo's essay concentrates on the balance between the obligations of the state receiving humanitarian assistance and the obligations of those providing such assistance within the framework of humanitarian intervention operations. His essay offers food for thought on the question of an erga omnes right of the victims vis-is an obligation of states to assist. In the last contribution to the book Marie-Josomestici-Met concentrates on legal questions related to the term access to the victims and their foundations in international humanitarian law. Her contribution provides an analysis of the basic treaty rules as well as the most recent state practice. In a second part of her essay she focuses on the legal nature of the right of assistance and its foundation under general international law.

We have added some of the most important legal documents with relevance to the concept of humanitarian intervention. Some documents are referred to in the contributions of the authors. Others are most recent documents of international organisations, the results of international conferences and reports about humanitarian operations. The selection of the documents and excerpts does not imply any specific position towards humanitarian intervention.

As the co-ordinator of this book, I would like to express my appreciation for the hard work undertaken by the members of the Institute for International Law of Peace and Armed Conflict (IFHV) of the Ruhr-UniversitBochum. My special thanks go to Mr. Ralph Czarneckei and Mr. Guido Hesterberg for their invaluable and tireless efforts in the editing process.

Horst Fischer
Bochum, October 1995