Study Guide for the United Nations Human Rights Council IEM MUN 16 Topic: Legitimacy of Humanitarian Intervention

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1 Study Guide for the United Nations Human Rights Council IEM MUN 16 Topic: Legitimacy of Humanitarian Intervention Chairperson Andre Jaggi Vice-Chairperson Baibhav Raj

2 Respected Delegates, Welcome to the UNHRC being simulated at IEM MUN 16! I look forward to chairing each and every one of you, and I hope that, together, we can make this committee a success. I believe that one of the key elements that contribute to the success of an MUN Committee is a holistic understanding of the topic being discussed and this study guide should lead you in the direction of understanding the multi-faceted topic we are discussing. It should not serve as the only research you do; it should rather serve as the guide to your research and help you to understand the key aspects of the topic at hand. Please do not hesitate from contacting me for clarifications on the agenda, or any sort of help with respect to country policy, rules of procedure or anything else that you find relevant. Best of luck for your research! Thanking you, Andre Jaggi Chairperson, UNHRC

3 What is the United Nations Human Rights Council? All victims of human rights abuses should be able to look to the Human Rights Council as a forum and a springboard for action. - Ban Ki-Moon, UN Secretary-General, 12 th March 2007, Opening of the 4th Human Rights Council Session The Human Rights Council is an inter-governmental body, within the United Nations, responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and making recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. The Human Rights Council replaced the former United Nations Commission on Human Rights when the General Assembly adopted a resolution (A/RES/60/251) on 15 th March Mandate of the United Nations Human Rights Council The mandate of the UNHRC is primarily to review and discuss various instances of human rights violations that occur all over the globe, and make recommendations that would help in solving such crises and preventing them from occurring in the future this mandate, in itself, is broad and this is for a very important reason. It is inclusive in nature, and therefore, does not limit its horizons on what can be discussed, a very important factor when we deal with human rights across all boards. Therefore, as a committee, the HRC can discuss violations of human rights as well as any and all causes for the same, and can evaluate whether a certain action can be considered as an action causing grave human rights abuse to any segment of the world s population. This aspect of the HRC is particularly important when we

4 discuss our topic that discusses the legitimacy of an action. To discuss something such as the legitimacy of an action, we must understand that we, as the representative body of the United Nations dealing with human rights, are taking a collective decision on the legal, ethical or moral, and political aspect of such an action. Another key element of the mandate that delegates must understand is the recommendatory role of the HRC. We do not implement and take action but we do play an extremely important part in bringing out issues that must be taken into account by the decision making bodies. Our job is to portray and represent those strands of opinion that do not have a voice and suffer silently, and bring that suffering to the notice of the international community.

5 Humanitarian Intervention: Analyzing the Definition Owing to the very subjectivity and the wide canvas of interpretation that humanitarian intervention provides, it is difficult to arrive at any one definition that encompasses all aspects of the term. J.L. Holzgrefe defines humanitarian intervention as- It is the threat or use of force across state borders by a state (or a group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied. In defining humanitarian intervention in this way, Holzgrefe has excluded two types of behavior which other political philosophers sometime also associate with the term. They are: non-forcible interventions such as the threat or use of economic, diplomatic, or other sanctions; and forcible interventions aimed at protecting or rescuing the intervening state s own national tapped in the intervened state. A broader definition of the term is forwarded by the political philosopher Bhikhu Parekh, who believes Humanitarian intervention, as the term is used today is an act of intervention in the internal affairs of another country with a view to ending the physical suffering caused by the disintegration or the gross misuse of the authority of the state, and helping create conditions in which a viable structure of civil authority can emerge. Humanitarian intervention is not the same as humanitarian aid, which is only concerned to relieve suffering and not to create peace and order, nor is it to be confused with political intervention, which seeks to impose a specific structure of civil authority and was all too familiar during the cold war and is not altogether absent today. Humanitarian intervention is intended to help create conditions conducive to the creation of a structure of civil authority acceptable to the people

6 involved. It differs from other forms of intervention in that it aims to ensure that the structure is evolved by or in cooperation with the affected parties and not externally imposed. The line is not easy to draw. Even if the intervening parties are genuinely disinterested, they have their own ideas on what is good for the country concerned, what is likely to last and what general political principles a new polity should satisfy; these might all be in conflict with those of the warring parties, as has proved to be the case in both Bosnia and Somalia. The intervening parties might then give in or, as is more likely, press their ideas. However disinterested they might be, most acts of humanitarian intervention cannot but involve at least some element of external imposition. Even after visiting these two definitions of humanitarian intervention it is natural for the reader to raise two questions, namely what constitutes intervention, and what sorts of considerations count as humanitarian? An act counts as intervention if it satisfies the following four conditions. First, the state that is the object of intervention must be widely acknowledged to be sovereign. Intervention is a violation of a state's autonomy, and presupposes that the state in question enjoys the right to autonomy. To disperse a stray group of people who have declared themselves a state on a desert island is not an act of intervention, for the group is not recognized by other states as enjoying the right to autonomy and the concomitant right to their non-interference. Nor is it intervention if a state interferes with the affairs of a section of its own citizens who have unilaterally declared their independence from it. Second, intervention implies that the act is designed to influence the conduct of the internal affairs of a state, and not to annex or to take it over. Hitler's invasion of Poland and the Soviet Union was a case not of intervention but war; European colonialism in Asia and Africa was not intervention, not even war, but con-quest. The line between intervention on the one hand and conquest on the other is not always easy to draw nor is it fixed and stable. In some cases, such as British rule in

7 India, colonialism began as trade but soon escalated into intervention, involved wars, and later led to the altogether different activity of annexing parts of India and eventually conquering the whole country. Broadly speaking intervention, as different from war and conquest, involves influencing the internal affairs of a state in a specific direction without either taking it over or seeking to defeat it in a military confrontation. Third, an act amounts to intervention if the country concerned is opposed to it. If it invites or welcomes outside help, then it is a case of giving support to a willing party and not an act of intervention. Difficult questions do arise as to the authority of the party inviting external help and how voluntary the invitation is. The government but not its subjects might invite external help, or vice versa. If the government is legitimate and enjoys broad popular support, then its attitude deserves to be considered decisive; however when the civil authority is a subject of deep and widespread dispute, or when there is no structure of authority, it is the popular attitude that best decides whether or not the external act amounts to intervention. Civil authority has no other basis than the fact that those subject to it acknowledge, accept and respect it; if they stop doing so, it becomes illegitimate, a usurper, with no right to speak and act for them. An equally difficult situation arises during times of civil war, when one faction might invite external help but others might condemn it. The decision as to whether or not an intervention has occurred would depend on which faction has a better legal title or a greater political authority to speak in the name of the fragmented community. If no such determination is possible, it is an intervention in the eyes of one but not the other parties to the civil war. If the various factions control clearly demarcated areas, whether or not it is an act of intervention depends on the attitude of the faction controlling the relevant areas of the country. When the civil authority has completely disintegrated and the country does not even have the fractured vertical order created by the warring factions claiming to represent and eventually to take over the entire country, the state may be said to have ceased to

8 exist and the concept of intervention makes little sense. The people concerned are in a quasi-state of nature until such time as they reconstitute the state or become part of an-other. Fourth, even as human beings constantly influence each other, so do states. Their immigration, trade, fiscal, foreign and other policies directly or indirectly influence the lives of the citizens of other states, sometimes with profound effects. We would be wrong to say that this amounts to interference in other states' internal affairs. Interference occurs when the influence is not inadvertent but intended, not incidental but direct and targeted, and pertains to areas in which the affected state is entitled to enjoy autonomy. Thus, bribing politicians or journalists in another state, secretly funding its political parties, infiltrating the ranks of dissidents, requiring it to follow a specific set of policies on pain of economic sanctions, etc., are all acts of interference. Intervention is a form of interference, and occurs when an external agency violates a state's territorial integrity by using physical force in one form or another. It usually involves military force, but it need not. If a million unarmed Muslims from all over the world had entered Bosnia and mounted a Gandhian type of nonviolent resistance in support of a fair deal for their fellow religionists that would have been a case of intervention. The method of action is totally different from military intervention, but not its intentions, implications and mode of interference. Although its conceptual boundaries are necessarily fuzzy, an act of intervention can be said to have occurred when an external agency, be it a state, an international body or a group of individuals, forcibly interferes with the internal affairs of another state with a view to reordering its internal affairs in a specific way. An intervention is humanitarian when it satisfies two conditions. First, it should be wholly or primarily guided by the sentiment of humanity, compassion or fellowfeeling, and in that sense disinterested. If a state sought to relieve suffering in another country with a view to establishing a government of its choice, or to

9 acquiring control over its natural resources, its action would be motivated by selfish, not humanitarian, considerations. Obviously, all human actions, especially those of a state, have mixed motives. States often use the language of humanitarianism, even when they act out of self-interest, and their real motives, like those of individuals, are not easily ascertainable. However, no act of intervention can be called humanitarian if the desire to promote the well-being of another state, and the willingness to make the required sacrifice of one's own interest, does not play a decisive or at least an important part in it. Second, a humanitarian act is intended to address what is regarded as a violation of the minimum human rights that is due to human beings. Since the views on the latter are culturally conditioned, no definition of humanitarian intervention can be culturally neutral. Francisi de Vitoria, Hugo Grotius and other Christian writers thought that European states had a duty to intervene in the internal affairs of other countries to end such practices as human sacrifice and cannibalism. They also thought that saving souls was a humanitarian act, and that a society that denied the freedom to propagate Christianity, harassed missionaries, or followed "barbaric" religious practices merited humanitarian intervention. It is striking that while Vitoria, Grotius and others felt worried about cannibalism, human sacrifice and paganism, they were not in the least troubled by poverty and starvation in the way that we are. For our part we are just as intolerant of slavery, cannibalism, and so forth, but do not think that their abolition justifies external intervention. Our conception of humanitarianism is culturally specific and has its own biases. It is secular and indifferent to the other-worldly fate of the human soul. Even so far as physical distress and suffering are concerned, we stress their most acute forms, such as starvation, imminent death, utter wretchedness and so on. Slow death through poverty, malnutrition, and economic and political mismanagement do not generally form part of our conception of humanitarian concerns. These are classified as forms of social injustice and inequality requiring a radical internal restructuring of the prevailing social and economic order, but as of no concern to

10 outsiders. By and large our conception of humanitarian intervention is distinctly political in nature and centered on the state. For us distress, suffering and death become a matter of humanitarian intervention only when they are caused by the breakdown of the state or by an outrageous abuse of its power. The state might have been destroyed or paralyzed by a secessionist movement or a civil war, or it might have declared a war on or be engaged in acts of genocide against a section of its citizens, leading in both cases to such consequences as indiscriminate murders, mass expulsions, ethnic cleansing and widespread starvation. We feel deeply troubled by the resulting distress and suffering, and urge outside help. We expect every state to look after its citizens and to provide order, security and a decent standard of life. If it mismanages its affairs and causes acute poverty, starvation, disorder and gang warfare, it is up to it and its citizens to sort out their af-fairs. When the state breaks down or turns tyrannical and predatory, we feel that its citizens are rendered political orphans and become the responsibility of the rest of the "international community," which is then expected to subdue the warring parties, to put an end to anarchy, and to help create conditions conducive to the emergence of an acceptable structure of civil authority. Its job is not to favour a specific party or group, nor to impose a specific form of government, nor to insist that the country should remain whole and undivided, but solely to introduce a measure of peace and civility and to help the people of the country concerned to decide their political destiny themselves. Different Strands of Philosophy Humanitarian Intervention: Utilitarianism has been one school of thought that has debated at length on the prospects of humanitarian intervention. Simply understood, Utilitarianism is a doctrine that believes that an action is just if its consequences are more favourable than unfavourable to all concerned. It believes in the principle of greatest happiness of greatest numbers. For Utilitarians, an action s consequences are everything. Conduct is never good or bad in itself. Only its effects on human well-

11 being make it good or bad. They argue that the justice of any humanitarian intervention depends entirely on its consequences. If its effect is to increase aggregate well-being, then it is just; if its immediate and direct effect is to decrease aggregate well-being, then it is unjust. Crudely put, Utilitarians argue that a humanitarian intervention is just if it saves more lives than it costs, and unjust if it costs more lives than it saves. They would argue that Tanzania s intervention in Uganda was just because, by overthrowing the Amin dictatorship, it saved more lives than it cost. However, they would also argue that India s intervention in Bangladesh was unjust because more people died in Bangladesh during the two or three weeks when the Indian army was liberating the country than had been killed previously. Utilitarianism however becomes problematic because it does not prohibit some actions that seem intuitively wrong. Its supporters claim that any sort of military action is permissible if it saves more lives than it loses. Thus, for example, NATO s killing of ten civilian employees of Radio Television Serbia (RTS) in Belgrade during Operation Allied Force could be justified if destroying a source of propaganda that s pro-longing this war and causing untold new suffering to the people of Kosovo saved more lives than it cost. A branch of Utilitarianism which identifies itself as rule-utilitarianism differs from the above proposition of giving emphasis on the ends. They rather claim that rules unlike ends are the proper objects of moral evaluation. Thus for them, the justice of a humanitarian intervention depends, not on its consequences, but on whether it is permitted or required by a rule (law) that, if followed by everyone, produces the best consequences for all concerned. However there is no common agreement as to which rules meet this criterion. Opponents of humanitarian intervention have argued that the use of force for humanitarian ends more often than not has become self-defeating; increasing the human misery and loss of life it was intended originally to relieve. Humanitarian

12 interventions, they argue, reduce general well-being by increasing the likelihood of international society collapsing into a state of war. Violations of human rights are indeed all too common and if it were permissible to remedy them by external use of force, there would be no law to forbid the use of force by almost any state against almost any other. If humanitarian intervention were legal, powerful states would receive an almost unlimited right to overthrow governments alleged to be unresponsive to the popular will or the goal of self-determination. Apart from the Utilitarian prism, humanitarian intervention has also been analyzed through the angle of social contract. This doctrine believes that moral norms derive their binding force from the mutual consent of the people subject to the contract. This mutual consent, however, is not between real people in real choice situations. Rather, it is between ideal agents in ideal choice situations. For social contractarians, norms are morally obligatory only if free, equal and rational agents would consent to them. However there is no agreement on the identity of the contracting parties. Some social contractarians contend that norms are just if the citizens of a state would consent to them. Others claim that they are just if the states themselves would con-sent to them. Still others argue that they are just if all human beings would consent to them. The identity of the contracting parties is important because it is the factor which largely determines which norms are morally binding. For example, if the citizens of a state were the contracting parties, then a duty to maximize the national interest would become morally binding. National interest in itself now is an umbrella term which can include things like humanitarian intervention, war on terror, strategic propaganda, arms race, neoimperialism and so on. The renowned legal philosopher John Rawls contend that international norms are morally binding if states would consent to them. He argues that international norms are morally binding if the rational representatives of states deciding behind a veil of ignorance - a hypothetical situation in which the contracting par-ties are not aware of the particular circumstances of their own society, its power and

13 strengths, its national interest in comparison to other nations- would consent to them. In the original position the contracting parties, in this case representatives of states, are allowed only enough knowledge to make a rational choice to protect their interests but not so much that the more fortunate among them can take advantage of their special situation. This original position is fair between nations; it nullifies the contingencies and biases of historical fate. Justice between states is determined by the principles that would be chosen in the original position so interpreted. Rawls concludes that the right of a people to settle their own affairs without the intervention of foreign powers is an international norm that state representatives would consent to if deprived of this information. Other social contractarians disagree. They reject the collectivist assumptions of Rawls argument, claiming instead that international norms are just only to the extent that they would be assented to by human beings deciding behind a veil of ignorance. These scholars argue that a duty of humanitarian intervention is just because human beings deciding behind a veil of ignorance (i.e. deciding in ignorance of the type of state in which they lived) would consent to it. The next major school of philosophical thought in this chain is Legal Positivism. It is a normative doctrine that believes that norms are just if they are lawful; that is, if they are enacted according to accepted procedures. The content of the norm is irrelevant to its binding force. This means that if humanitarian intervention is codified as a law through an accepted procedure which is legitimate, then the international commit-tee is bound to accept it. This means that the provisions of the UN Charter (Article 39, 40 & 41) which in their content provide ample space for humanitarian intervention must be followed irrespective of the con-tent of these articles because they were codified through a legitimate and accepted procedure.

14 This position is vigorously contested because it gives importance only to the procedure and fails to reflect upon the content. This means that if adopting an accepted method a draconian law which is against the very spirit of democratic and human rights is somehow codified, then states in international community would still be bound to accept that law because it has been formulated through a legitimate procedure. This in fact provides fertile grounds for establishment of constitutional dictatorships across the world! Joel Feinberg questions, Why should I have any respect or duty of fidelity toward a statute with a wicked or stupid content just because it was passed into law by a bunch of men (possibly very wicked men like Nazi legislators) according to the accepted recipes for making law? However, there is still merit in the argument that laws must be abided because they are formulated by just legislative procedures. But the question arise is what exactly are just legislative procedures in international law? To this question there are no meeting points. For example, if a country A in order to further its own political and economic interests manipulates the representatives of countries B, C and D in such a manner so as to get a sanction of humanitarian intervention on country X passed in the Security Council and then launches a military intervention in a mineral rich country so as to destabilize the political regime therein and replace the same with a puppet regime who would benefit them economically, would this be justified? In this example the resolution would have technically been passed by an accepted legislative procedure (may even involve voting) but is it just, if not, should other member states be free not to obey the said move. Is there a Right of Intervention? The International Court of Justice noted in the Corfu Channel case (1949) that The court can only regard the alleged right of intervention as the manifestation of a policy of force such as, has in the past, given rise to the most serious abuses and such as cannot, whatever be the defects in international organizations, find a place

15 in international law. From the nature of things, intervention would be reserved for the most powerful states and might easily lead to perverting the administration of justice itself. The right of self defence became a talking point in customary international law after the Caroline Case in It laid down that there must exist a necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation. Not only were such conditions necessary before self-defence became legitimate, but the action taken in pursuance of it must not be unreasonable or excessive, since the act, justified by the necessity of self-defence must be limited by the necessity and kept clearly within it. These principles are now accepted as part of customary international law. Article 51 of the Charter provides that: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. The ICJ (in the Nicaragua Case, 1989) has clearly established that the right of self defence exists as an inherent right under customary international law as well as under the UN Charter. It was stressed that: Article 51 of the Charter is only meaningful on the basis that there is a natural or inherent right of self-defence and it is hard to see other than of a customary nature, even if its present content has been confirmed or influenced by the Charter It cannot, therefore, be held that article 51 is a provision which subsumes and supervenes customary international law.

16 There is ambiguity as to what extent of force may be used for self defence, as there is no clear definition, as such, for excessive force. The US has in the bombings of embassies in Kenya and Tanzania in 1998 and in a series of missile attacks in Afghanistan and Sudan in the same year caused loss of over 250 lives and appreciable damage to property. However, amidst protests from several circles, they justified their actions as acts of self-defence in accordance with Article 51 of the Charter. Also, whether the use of force against non-state actors falls under the right of self-defence and whether national sovereignty should take a backseat in times of international terrorism are important question that should be considered. Responsibility to Protect The intent of providing guidance to the UN in a situation of a humanitarian crisis gave rise to the Responsibility to Protect (R2P) in the year R2P is a norm and not a law; however it is grounded in international law. It acts on the assumption that the sovereignty of a nation constitutes a responsibility towards the governed, stating that the international community may use military force as a last resort in cases where nations " manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity ", but must do so in accordance with principles of the UN Charter. The R2P has mainly three fundamentals or 'pillars': - Pillar I stresses that States have the primary responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Pillar II emphasises the commitment of the international community to provide assistance to States in a building capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and in assisting those which are under stress before crises and conflicts break out.

17 Pillar III focuses on the responsibility of international community to take timely and decisive action to prevent and halt genocide, ethnic cleansing, war crimes and crimes against humanity when a State is manifestly failing to protect its populations having the responsibility to intervene through coercive measures such as economic sanctions with military intervention considered as the last resort. The R2P works on certain criteria, which are aimed at not only justifying legitimate situations wherein the R2P is applicable but also works towards limiting and nullifying the scenarios in which there might be an attempt to abuse the R2P. The criteria are divided into: 1) The Just Cause Threshold - implying that the reason or "cause" behind the intervention must be legitimate enough to call for an intervention, for it cannot be curbed or dealt with in any other way anymore. The threat must be serious causing "irreparable harm" to human beings. 2) The Precautionary Principle - These principles further help one decide on the legitimacy of the intervention for they have four sub criteria that must be fulfilled. The criteria being i) Right Intention - the main motivation behind the deployment of forces must be to prevent human suffering and must not carry forth a hidden agenda. ii) Last resort - As mentioned before, military intervention must be the last resort for every other measure has to be taken into account before intervention. (This does not necessarily mean that every measure has to be tried and failed, but simply that there should be reasonable grounds to believe that the way to reach a solution is via intervention, for only it would work in the situation). iii) Proportionate Means - There shall not be an excessive amount of troops nor shall there be too less, but the minimum necessity required for the protection of the civilians.

18 iv) Reasonable Prospect - It should be more than likely that the military action will succeed in protecting human life to a great extent, and moreover that the consequences of the action must not be worse than no action at all. Even though the R2P doctrine was almost unanimously welcomed at the UN World Summit, many scholars have expressed concerns about its discrepancies with the R2P doctrine promulgated by the ICISS (Gareth Evans Commission). It has been applied in several cases recently, and even amidst controversies related to this doctrine, its acceptance continues to increase. UN Charter and Humanitarian Intervention: The term humanitarian intervention does not find any direct reference in the UN Charter as such. However, the issue has been significantly addressed in it. The following are some of the articles of the UN Charter that deal with the theme of humanitarian intervention Article 1(1): To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Article 2(4): 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. Article 39: The Security Council shall determine the existence of any threat to the peace, or act of aggression and shall make recommendations, or decide what

19 measures shall be taken in accordance with Articles 4 and 42, to maintain or restore international peace and security. Article 42: Should the Security Council consider that measures provided in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations. It is intentional on the part of the executive board to have not provided the various interpretations of the UN Charter by legal scholars. This is done primarily with the intention to encourage the reader to think and interpret these legal positions themselves and relate it to their respective foreign policies. However, a suggestive reading in this regard that encapsulates the debate on UN Charter and humanitarian intervention is being provided at the end of this background guide. Nonetheless, the United Nations Charter represented a new stage in the discussion of the relations between states in international politics in the background of humanitarian intervention. The novelty was three-fold. First, it extended the doctrine of non-intervention to all states and abolished the privileged position the Western states had long claimed for themselves. Second, it permitted intervention in the internal affairs of a state only when international security was threatened. And, third, all such acts of intervention had to be authorized by the United Nations acting as a representative of the international community. The first principle established the equality of all states and recognised their claim to nonintervention; the second principle limited intervention to a clearly specified purpose, and placed the internal affairs of the state outside external interference; and the third principle regulated the mode of intervention. Thanks to the United Nations Charter the principle of non-intervention became a universal legal norm for the first time in history.

20 Although this was a desirable development, it also created problems. The United Nations Charter and the United Nations Declaration of Human Rights required all states to respect human rights, thus raising the question of how one could both demand such respect and insist on non-intervention. During its fifty years of existence the United Nations has often been called upon to end acute human suffering caused by such things as genocide, brutal civil wars, and ethnic cleansing, and in each case it was confronted with the moral dilemma posed by its commitments to both the statist paradigm and respect for human rights, to both the inviolability of the state and some conception of universal human community. These dilemmas are acutely highlighted by what has come to be called humanitarian intervention, a concept that both resembles and significantly differs from the earlier ideas of just and justified intervention. Case Study: Kosovo, 1999 It was the first time that NATO used military force without the approval of the UN Security Council and against a sovereign nation that did not pose a threat to members of the alliance. This operation closely follows the 1995 NATO bombing campaign in Bosnia and Herzegovina. The strikes lasted from March 24, 1999 to June 10, The 1999 bombings led to the withdrawal of Yugoslav forces from Kosovo, the establishment of UNMIK (a peacekeeping mission), a U.N. mission in Kosovo and put an end to the Yugoslav Wars of the 1990s. Air strikes were aimed at government buildings and other critical infrastructural facilities. The Kosovo bombings have been criticized as they were clearly in violation of the UN charter as it was neither in self defence nor approved by the Security Council. It is argued however that the action brought to an end the ethnic cleansing of Kosovo's Albanian population, and that the bombing campaign hastened the downfall of Slobodan Milošević's government, which they saw as responsible for the international isolation of Yugoslavia, many war crimes, and gross human rights

21 violations. In 2000, Amnesty International accused the NATO forces of damaging civilian property and endangering the lives of civilians. The Kosovo Crisis of 1999 raised squarely the issue of humanitarian intervention. The justification for the NATO bombing campaign, acting out of area and without UN authorization, in support of the repressed ethnic Albanian population of that province of Yugoslavia, was that of humanitarian necessity. The UK Secretary of State for Defence stated that, In international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it was on that legal basis that military action was taken. The Security Council, by 12 votes to 3, rejected a resolution condemning NATO s use of force. It can be concluded that the doctrine of humanitarian intervention in a crisis situation was invoked and not condemned by the UN, but it received meagre support. It is difficult to characterize the legal situation as going beyond this. Case Study: Rwandan Issue Was Humanitarian Intervention the solution? On 6 April 1994, President Habyarimana of Rwanda and several top government officials were killed when their plane was shot down by a surface-to-air missile on its approach to Kigali airport. Within hours, members of the Hutu-dominated government, presidential guard, police, and military started rounding up and executing opposition politicians. The army set up roadblocks at 50 to 100 meter intervals throughout Kigali. The airport was surrounded and sealed. Telephone lines were cut. Military intelligence distributed lists of the government s political opponents to death squads: every journalist, every lawyer, every professor, every teacher, ever civil servant, every priest, every doctor, every clerk, every student, every civil right activist were hunted down in a douse-to-house operation. The first targets were members of the never-to-be0constituted broad-based transitional government.

22 Once the Tutsi leadership and intelligentsia were killed, the army, presidential guard, and the Interahamwe Militia, the youth wing of the ruling Hutu party, began executing anyone whose identity cards identified them as Tutsis. When checking identity cards became too time-consuming, they executed anyone with stereotypical Tutsi features. On 9 April, the Interahamwe Militia directed by presidential guards hacked to death 500 men, women and children who had taken shelter in the Catholic mission in Kigali. In another incident, the Interahamwe shot 120 men and boys who had taken refuge in St. Famille Church in Kigali. Soldiers killed any wounded Tutsis who made it to hospital. Massacres such as these became commonplace throughout Rwanda. An estimated 43,000 Tutsis were killed in Karama Gikongoro, a further 100,000 massacred in Butare. Over 16,000 people were killed around Cyangugu; 4,000 in Kibeho; 5,500 in Cyahinda; 2,500 in Kibungo. Other examples are not hard to find. By early may, one journalist observed that one bloated and mutilated body plunged over the Rusomo Falls on the Kagera River every minute. Hundreds and hundreds must have passed down the river in the past week and they are still coming A terrible genocidal madness has taken over Rwanda. It is now completely out of control. So many bodies littered the streets of Kigali that prisoners were detailed to load them into dump trucks. As one eyewitness recounted: Someone flagged [the dump truck] down and dragged [a] body from under the tree and threw it into the truck which was almost full and people were moaning and crying, you could see that some were not dead. The sub-perfect of Kigali prefecture later admitted that 67,000 bodies were disposed of in this way. In three short months, as many as 1 million Tutsis were shot, burned, starved, tortured, stabbed, or hacked to death. The international community did nothing to stop the Rwandan genocide. A complete holocaust was only prevented by the military victory of the Rwandan Patriotic Front- a Tutsi guerrilla army based in the north of the country.

23 But what, if anything, should the international community have done to stop the carnage? Did it have a moral duty to intervene? Did it have a legal right to do so? What should it have done if the United Nations Security Council had refused to authorize a military intervention? If it had a duty to intervene, how could it have overcome the political barriers to intervention? And, most importantly, what measures should be taken to prevent similar catastrophes in future? Important Questions to be Researched What is humanitarian intervention? Also, are non-military modes of intervention such as economic blockade, diplomatic pressure etc. also a part of humanitarian intervention? Does the United Nations have a legitimate authority to sanction intervention on any State? Do you believe that the stamp of UN authorization effectively removes all doubts of legitimacy of an intervention? Does the Universal Declarations of Human Rights impose a duty to help on the international community to rescue victims of genocide, ethnic cleansing and acts of widespread human rights violation? Do you believe that the R2P doctrine provides legitimate reasons to justify third party involvement in cases of human rights violations? What are the differences between R2P and Humanitarian Intervention? If at all humanitarian intervention is required then what are the conditions under which intervention can be justified? Should such an intervention be codified and should there be principles that must guide the conduct of intervention? Which authority should be the appellate authority in case these principles are violated and what shall be the jurisdiction of such an authority?

24 Are the activities of non-state actors such as Multinational Companies, Transnational Companies, missionary works and state-sponsored terror groups also part of humanitarian intervention? Can the benefits of humanitarian intervention overshadow the collateral damage (involving thousands of innocent lives) involved in it? Suggested Readings Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States (1965), GA Res. 2131, UNGAOR, 20th sess., UN Doc. A/6220 (1965). No state has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), GA Res. 2625, UNGAOR, 25th sess., UN Doc. A/8028 (1970). Armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law. Declaration on Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations (1991), GA Res. 46/182, UNGAOR, 46th sess., UN Doc. A/RES/46/182 (1991). 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. GA Res. 54/172, UNGAOR, 54th sess., UN Doc. A/RES/54/172 (1999)

25 Legality of Use of Force (Yugoslavia v. Belgium) a case in the International Court of Justice where Belgium was the lone NATO member to claim that Operation Allied Force was a legitimate exercise of a customary right of humanitarian intervention. Corfu Channel Case (Merits), ICJ Reports, 1949, p.35; Nicaragua v. US (Merits), ICJ Reports, 1986, p ter ventionpretextsforwar.pdf Simon Chesterman, Legality Versus Legitimacy: Humanitarian Intervention, the Security Council, and the Rule of Law SAGE Publications (2002)