GeoJournal 34,2 167-175

167

© 1994 (Oct) by Kluwer Academic Publishers

A Cautionary Note on Humanitarian Intervention Whitman, Jim, Dr., University of Cambridge, Faculty of Social and Political Science, Global Security Programme, Free School Lane, Cambridge CB2 3RQ, England AB STRACT: In the Post-Cold War environment, the role of the military has been extended to include intra-state peace enforcement on humanitarian grounds. This raises issues of legality. In this paper, four arguments are advanced that a right of states to intervene in humanitarian emergencies now exists. Problems contingent upon such intervention are then examined.

Introduction It is not difficult to share in the expressions of outrage at our impotence in the face of certain humanitarian emergencies and our failure to address some of the most appalling violations of h u m a n rights. A n d while British Foreign Secretary Douglas Hurd can speak of trying to find a middle path between "the saloon bar and Gladstone, "1~ a "damn the consequences" attitude, fuelled by anger and indignation, continues to find expression in many quarters. Here, a Professor o f the Yale Law School, speaking in 1986, confronts international law on the issue o f starving children in Biafra: I don't know much about the relevant law. My colleagues here, who do, say that it's no insurmountable hindrance, but I don't care much about international law, Biafra or Nigeria. Babies are dying in Biafra .... We still have food for export. Let's get it to them any way we can, dropping it from the skies, unloading it from armed ships, blasting it with cannons if that will work. I can't believe there is much political cost in feeding babies, but if there is let's pay it; if we are going to be hated, that's the loveliest of grounds. Forget all the blather about international law, sovereignty and self- determination, all that abstract garbage: babies are starving to death "'2~ More succinctly, there is George Bush, on the eve o f the G u l f War: " . . . If it's right, it's gotta be done "'3~ It may be a kindness to consider this the moral imperative colloquially rendered, particularly in view o f the earlier invasion o f Panama - " O p e r a t i o n Just Cause". Moreover, the G u l f War was not a humanitarian intervention, nor was there any significant obstacle in the way of its legal sanction by the United Nations (UN). Nevertheless, Bush's utterance can be taken as shorthand for what for m a n y is the

unsatisfactory tension between the prohibitive Article 2 (4) 4) o f the U N Charter and large-scale h u m a n suffering or gross abuses of h u m a n rights where the state is incapable, negligent or is itself the perpetrator. In c o m m o n with popular sentiment, the theoretical debate which addresses the quandary o f how to balance the claims of justice against the claims o f international order is suffused with an aggrieved sense o f urgency which naturally arises from our consideration of subjects so morally charged. "Humanitarian intervention" has taken on something of the character of a clarion call in some quarters, but the legal and practical difficulties which lie in wait just beyond our impulses should give us pause. There is no question as to whether acts such as genocide and forced migration are the moral, legal, political and practical concern of the international c o m m u n i t y - they must be if the term "international community" is to have any meaning at all but the urgency to act should alert us to the importance of taking care with the means we employ and the structures which we set in place. Of course, whatever the depth o f popular feeling or the supposed strength of the " C N N factor", the deployment o f military forces abroad is always founded on a hard-headed calculation of risk, and there is nothing to preclude humanitarian objectives on an agenda framed by more determinedly self-interested motivation. The point here is that the practical constraints on state action which were a feature of the Cold War are no longer operative, and a combination o f other factors, by no means all media-driven, have created a climate of opportunity which has persisted in spite o f - or perhaps because - the "old world order" has re-asserted itself. The risks are less obvious. "Humanitarian intervention", whether manifested

168

as a rallying cry, political justification, military mission or in other forms, is wonderfully satisfying in prospect; the reality is more problematic. The first section will consider the proposition that a right of states to intervene in humanitarian emergencies now exists, can be deduced or can be codified. The argument is contingent, of course, on the assumption that international law is not, as some would have it, a disposable abstraction. After an argument favouring law enforcement under a UN purview, the paper outlines a number of practical issues pertinent to any discussion of humanitarian intervention - principally by way of "conceptual unpacking". Although it may appear that legal and practical issues are an odd pairing, the concern here is that a largely instrumental approach to the question of humanitarian intervention is likely to be a poor servant of justice, particularly if international order and the Rule of Law are undermined, or if through ill-considered and precipitate action a bad situation is made even worse. Good intentions (a scarce enough commodity in international relations) are insufficient.

Is there a Right of Humanitarian Intervention?

Following the intervention in Iraq to assist the Shi'ites, the British Foreign Secretary Douglas Hurd claimed that "recent international law recognises the right to intervene in the affairs of another state in cases of extreme humanitarian need'@ Given the context of his remark, and the fact that the relevant Security Council resolution (688) was not framed under the Chapter VII (enforcement) provisions of the UN Charter, the "right to intervene" which Mr. Hurd asserted must be a right of states. 6~.Let us then first examine whether and by what means a right of state intervention can be determined in cases of extreme humanitarian need. There are four approaches to the question, "Is there a right of humanitarian intervention?" The first, only partmischievous, is the naive - that is, to ask it literally. The second is to abandon the search for a clarification of codified international law which has hitherto escaped the attention or interpretive skills of lawyers, and to consider whether a number of separate instances of state intervention for broadly humanitarian purposes can be construed as lawful if, taken together, they suggest the development of customary international law (Greenwood 1993). The third is to ask whether specific instances can be justified; that is, to concede the breach of an operative, prohibitive law, but to argue mitigating circumstances, against which intervention by a state can (or should) be judged. The fourth approach is to argue for codification of a right of state intervention. The Naive Approach. This is advanced not for its plausibility, but because a certain category of state justification for intervention is tantamount to a literal treatment of the question. For example, in October, 1983,

GeoJournal 34.2/1994

the US Ambassador to the UN, Jean Kirkpatrick, attempted to give a legal justification for the American use of force in Grenada. Before the UN Security Council, she argued that "The prohibitions against the use of force in the United Nations Charter are contextual, not absolute. They provide ample justification for the use of force in the pursuit of the other values also inscribed in the Charter - freedom, democracy, peace...-7) But if something more precise than peace, freedom and democracy is not codified, then what agent - or in this case, which state - is to do the pursuing, and under what circumstances? It is difficult to understand how the legal prohibitions in the Charter provide "ample justification" for their violation by states - however ambiguous they may appear to certain readers. Are we to have a right to "make the world safe for democracy"? Without a consideration of authority and agency, this kind of argument - which attempts to solve the problem by dissolving it - yields the rather unhelpful answer, "Yes, sometimes "We are then left with arguments from custom, from circumstance and the possibility of codification. The Argument from Custom. The attempt to discern nascent customary international law on this matter is difficult on the grounds of definition, and both the generality and consistency of practice. (Dixon 1990). More importantly, even if sufficient guiding principles could credibly be drawn from quite disparate cases, it is far from clear how these could operate beside the general prohibition of Article 2 (4). 8) While law constrains action, action itself also informs the formulation and interpretation of law. However, establishing custom in this field is made difficult by the fact that there is little redress against states which violate Article 2 (4). In what instances and by what means are we to establish that the international community has "condoned" a state intervention? Is a failure to condemn the same as to condone? Could one or more such instances so "condoned" be shown to possess common humanitarian features so as to provide a reliable and clearly-defined guide to future action? And while it may be plausible to assert that certain instances of humanitarian intervention have been condoned, a general right of humanitarian intervention does not necessarily follow. The larger the differences between the cited incidents, the more plausible it is to assert that each is a special case - which leads to the argument from circumstance. There is a parallel in civil law: there have been a number of cases recently of domestic killing, with the plea of provocation in mitigation. Some such pleas are more credible and draw a more sympathetic response than others - much as arguments before the General Assembly or the Security Council over state interventions - but it would be surprising if one were to hear calls for the codification of lawful killing under provocation. The designation "lawful killing" is an act of judgement which takes place within a legal framework that prohibits the taking of human life. The parallel is inexact, but telling for legal purposes. The international community

GeoJournai 34.2/1994

may condone - or fail to condemn - an illegal intervention, but this is not in itself sufficient reason or basis for pursuing the formalisation of a legal "permissive pragmatism". In any event, humanitarian intervention as customary international law would most likely be permissive in character, however much it could also be said to embody custom. As Rodley and Franck warned, "The selective way humanitarian intervention has been applied in the past, when its legality was merely alleged, is a guide to how the right would be applied if it were recognized: recognition would presumably expand, not alter, existing practice" The Argument from Circumstance. All instances of state intervention which can credibly be advanced as precedents would first need to be generally accepted as having established a reasonable justification for what is at least nominally an illegal action. That is, the state or states concerned will have defended intervention, in whole or in large measure by asserting an humanitarian motivation. It is a reasonable expectation that the international legal system should be sufficiently flexible to accommodate specific instances of law-breaking which clearly serve the interests of justice, particularly those which address serious and large-scale humanitarian emergencies. Of course, there are many instances of state intervention which are plainly illegal, claims to humanitarianism notwithstanding. Indeed, there is sufficient in the UN Charter and in numerous affirmations by the UN General Assembly 1°) to suggest that all such instances are illegal. Without a reasonable prospect of enforcement it is hardly surprising that Article 2 (4) has so often been flouted; however, state behaviour suggests that this is not because of a widespread belief that the prohibition of article 2 (4) is either undesirable or dispensable, but that in the absence of any sanction, a calculation of interests and risks may indicate that there is more to be gained than lost by violating the proscription. It has been frequently noted, for example, that in the three most credible instances of genuine humanitarian intervention of recent times (India/ Bangladesh, 1971; Vietnam/Cambodia, 1978; Tanzania/ Uganda, 1979), the intervening states have defended their actions as self defence under Article 51 of the UN Charter (Roberts 1993). Seen in this way, the number and kind of state interventions since 1945 are less suggestive of a "postCharter paradigm" (Arend & Beck, 1993) than of a legal regime frequently honoured in the breach - the point being that even those nations which have violated article 2 (4) have had recourse to cite it in other instances. And when they do transgress, they deploy a variety of arguments and/ or offer a number of mitigating circumstances which are scarcely evidence of contempt for article 2 (4), at least in their estimation of its place in maintaining or restoring international order. If instead, instances of postwar state intervention are construed to constitute a "post-Charter paradigm", its most troubling feature is that it is not legal one. And if the bounds of state practice are determined by custom in the non-legal sense, then right collapses into

169

might and enforcement - no longer enforcement of law- is the prerogative of the relatively powerful. It is plainly unsatisfactory to have codified law and state practice frequently at variance; and to have a system in which states act and afterwards plead their cases, with little fear of sanction should their protestations of humanitarianism be judged disingenuous. The situation is compounded by the fact that some measure of national interest will inevitably coincide with more strictly humanitarian motives (much as with national participation in peace support operations sanctioned by the UN). The difficulty with appeals both to custom and to circumstance is that, whatever the strength of individual cases, the general approach may test to destruction the elasticity of the prohibitive norm. Both also have weak claims to legitimacy in that the appeal to custom is likely to be self-reinforcing for a small number of states, while the appeal to circumstance is post-facto and open to the perception that for intervening states at least, law, like art for Andy Warhol, is anything you can get away with. The question posed by Thomas Franck 23 years ago seems all the more pertinent now: "(The) demise (of Article 2 [4]) does raise a serious question for the nations: Having violated it, ignored it, run roughshod over it, and explained it away, can they now live without it? ''n) Codification. On first sight, this approach is not only the most sensitive to legal considerations but also the most practical. However, it is worth considering whether the codification of a right of states to humanitarian intervention isn't the right road to the wrong destination. There are two points here. Firstly, any right of state intervention, however clearly delineated, would in fact and perception further empower the already powerful, not least in respect of its less than universal application. (And would the codification of a right of states be universal? If not, limited to how many, which ones and on what basis?) On the matter of further strengthening the strong, consider: What happens if we turn the question on its head: Is there an obligation of humanitarian intervention? Of course, states would balk at such a concept; in practical terms, it would have an even dimmer prospect of implementation than the UN Charter's Article 43. But from the point of view of creating a legal framework, would it be any more difficult? Indeed, aside from a prescriptive coda, would it be any different at all? The extent to which states encountered difficulty in codifying the conditions under which an obligation would become operative would tell us much, not only about the practical difficulty of trying to establish humanitarian intervention as a right, but also of the sincerity of the motive, stripped of its permissive possibilities. Secondly, in addition to the likely perception that the humanitarian impulses of intervening states are merely coincident with more self-interested reasoning, there is a crucial difference between a pre-ordained right of states to intervene in humanitarian emergencies and individual determinations by the UN Security Council of a "threat to international peace and security" arising, say, from refugee

170

flows or threatened regional instability. If the codification of a right of state intervention was framed in such a way as to provide third party determination of its valid application - (to ensure that what Article 2 (7) t e r m s "matters essentially within the jurisdiction of states" is not violated) - it is difficult to see what advantages might accrue to the international community since such a check is already integral to the UN system. On the other hand, if a codified right of state intervention was framed so loosely as to allow a determination of right and necessity solely within the counsels of government(s), the UN would be undermined, both practically and legally, since it is far from clear how a general right of state intervention could be reconciled to Articles 2 (4), 2 (7) and the Chapter VII enforcement powers. The difficulties which attend the relationship between international law and enforcement cannot be addressed by resort to legal or practical expediency. On this point, the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (Roberts & Guelff 1989) is instructive. While Article IV of the Convention holds that "constitutionally responsible rulers, public officials or private individuals" may all be punished for the crime of genocide as previously defined, Article V requests the contracting parties to enact appropriate legislation, while Article VI holds that persons charged with the crime will be tried by a "competent tribunal of the State... in which the act was committed". The incidence and kind of genocide which has punctuated the second half of this century - that is, largely intra-state - is a mockery of the letter of the law and the spirit which informed it. But would a codified right of humanitarian intervention be a feasible and practical instrument for preventing or addressing such a crime? Of feasibility, the reservations of some states which qualify their accession to the Genocide Convention are anything but promising: the number of reservations to Article IX, which provides for International Court of Justice (ICJ) adjudication between states upon the request of one, 12) is hardly encouraging of the possibilities of codifying a right of states to intervene. On the practical side, it is interesting to speculate whether a codified right of state intervention would, for instance, have \ been employed in Kampuchea in the 1970s. Finally, it is unclear how a codified right of state intervention could accommodate - or even reconcile questions which arise from any consideration of its place in international order: Who determines what is extreme humanitarian need? What sanction (if any) would be required? Who determines the nature and scope of the action to be undertaken ("humanitarian intervention" being generic)? Who acts? Who retains political control of the action? And by what means is an intervention determined to have concluded? The question of whether there is a right of states to humanitarian intervention, and whether consensus can be achieved on grounds of custom, circumstance or codification is essentially the approach from expediency. We might paraphrase the impetus which informs these approaches as follows: "If we are confronted with a truly

GeoJournal 34.2/1994

gross violation of human rights - say, many thousands of starving innocents; if we have the means to redress the situation; if the matter is time-critical as well as morally urgent; and if the law is obstructive, we should proceed without hesitation" Whatever its deficiencies as an argument, such an approach is not without nobility, and can be very compelling. However, there is a danger in regarding international law as a Gordion Knot, despite the widely-shared impulse to swing the sword in the name of justice. In addition to the considerable difficulties inherent in these individual approaches, the following summary objections apply to any assertion of a right of states to intervene in humanitarian crises: Authority and Agency. It is difficult to see how a state or states could be said to be acting on behalf of the international community in the absence of specific and collective sanction, determination of goal(s) and control. Without this, if the sovereignty of an offending state is at issue (as it is so frequently), can states be the legitimate agents of redress? Consistency. Without codifying an obligation to intervene, state intervention will inevitably follow the contours of national interest. The defence of human rights is not likely to be well-served either by so close a pairing of national interests and prudential considerations, or by a potential conflict of interest between two states in possession of a right to intervene. International Order. A right of states to intervene, however framed, would weaken the general prohibition on intervention while not curbing either the power or (in all probability) the willingness of states to act unilaterally in other spheres. The Core Issue is Unaddressed. Systematic violations of human rights, especially those perpetrated by states within their borders, are not only practical problems, but issues of the organisation of political community. The tension between peace and justice and between sovereignty and human rights (Chopra & Weiss 1992) that is so clearly visible in the U N Charter, cannot be addressed by pragmatic measures determined by humanitarian emergencies, whether past, immediate or anticipated - that is, by custom, circumstance, codification. Concentrating on whether there is a right of states to intervene in such emergencies has the effect of collapsing (or simplifying) structural dilemmas into individual problems. However well-meaning our intentions, humanitarian intervention, like war, must be viewed as a failure of policy. The emphasis on legal and political instrumentalism obscures, and to a certain extent obstructs the more fundamental considerations that cluster around the incorporation of human rights into a stable international order. We might all agree that "the supremacy of sovereignty over law in untenable"m but an Alexandrian disdain for prohibitive international law, however righteous, can only exacerbate the problem. The task before us is not to gauge or enlarge the sphere of activity open to states, but to construct an international order which - to the extent that some states cannot or will not

Gee Journal 34,2/1994

internalise the most basic tenets of human rights - offers redress which is codified as legal, perceived as legitimate, unbiased and proportional in application, and effective. What is required is not a legal or quasi-legal empowerment of states to assert that their interventions are undertaken on behalf of the international community, but a range of measures (including intervention when appropriate) which are collectively determined, sanctioned and controlled. In other words, not expediency and pragmatism, but law enforcement. This holds good for dealing with immediate humanitarian emergencies. It is both inappropriate and short-sighted to diminish the scope or force of UN Charter Article 2 (4); instead, the aim should be to interpret Articles 2 (7) and 39 more broadly, so as to bring international human rights laws within the compass of the enforcement powers of the UN. I dispute the claim that recent events - notably Security Council resolution 688 and the imposition of Western troops in Iraq following the Gulf War- are a watershed in terms of the right of states to intervene for humanitarian purposes, m Rather, we are witnessing a halting movement toward bringing human rights infringements of the largest and worst sort under collective - that is, UN - purview. This impetus behind this movement is less than universal; nevertheless, the indications are generally hopeful) 5) Article 2 (7) contains two important qualifications "essentially" with respect to the bounds of domestic jurisdiction, and the over-riding applicability of Chapter VII enforcement provisions) 6) The first is open to redefinition and extension; the second is an outcome of the politico-legal deliberations of the Security Council. The degree of contention over the extent of domestic jurisdiction is a fair barometer of the wider political climate. During the 1945 Senate hearings on the UN Charter, US Secretary of State John Foster Dulles testified, "(Article 2 [7]) is an evolving concept. We don't know fifteen, twenty years from now what in fact is going to be within the domestic jurisdiction of nations. International law is evolving, state practice is evolving. There's no way we can definitively define in 1945 what is within the domestic jurisdiction. Let's just let this thing drift a few years and see how it comes out.'~7) In one sense at least, the intervening 48 years has seen anything but drift: international law concerned with human rights has burgeoned in the period, and the Universal Declaration of Human Rights, while not a legally binding document, may be seen as a milestone in the making of international society. Yet the substance of international human rights legislation remains curiously distant from enforcement measures. Article 56 of the Charter enjoins "All Members (to) pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement o f . . . purposes..." which include "universal respect for, and observance of, human rights and fundamental freedoms for a l l . . . " (Article 55 [cD. International law has indeed evolved, as Mr. Dulles predicted, but the other half of the equation - state

171

practice - has been quite resistant to change. The norms are admirable, but not prescriptive; the laws are detailed, but with little or nothing in the way of effective enforcement provisions. What remains, however, are the enforcement powers of Chapter VII of the Charter - which are contingent on a determination by the Security Council of a "threat to the peace, breach of the peace or act of aggression." Can the language of Article 39 be interpreted to bring gross violations of human rights within the remit of the Chapter VII provisions, thereby giving substance to Articles 55 and 56? ~8~ It would certainly appear so. In November 1977, the Security Council invoked Chapter VII by adopting Resolution 418, imposing a mandatory arms embargo against South Africa, asserting that "the acquisition by South Africa of arms and related material constitutes a threat to the maintenance of international peace and security..." and further citing "massive violence against and killings" of its own people. 19~ However, the Council was not unanimous and the argument was advanced that the "threat" posed by apartheid could not be accommodated within the meaning of the term as intended by the drafters of the Charter. And however the South Africa resolution is interpreted, it is not unambiguously permissive in terms of other situations, nor is it without politico-legal difficulties. In the much earlier case of Spain's Franco regime, a Security Council sub-committee was established to determine the applicability of Charter law to conditions there. The sub-committee warned: "... a very sharp instrument has been entrusted to the Security Council by the United Nations under Chapter VII of the Charter, and the Security Council must be careful that this instrument is not bIunted nor used in any way which would strain the intentions of the Charter or which would not be applicable in all similar cases."2°) The warning has a particular salience in a climate which is generally less protective of sovereign jurisdiction, and in a world in which the range and seriousness of threats to international and indeed, global security have expanded beyond what could reasonably have been conceived in 1945. Thus when the Security Council's heads of state met in session in January 1992, their joint declaration included the following assertion: "The absence of war and military conflicts among states does not in itself ensure international peace and security.The nonmilitary sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security. The United Nations membership as a whole.., needs to give the highest priority to the solution of these matters?'21) This is not in itself a contentious observation, and the recent, considerable growth of international regimes and mechanisms for the peaceful settlement of environmental disputes has been an encouraging if largely unheralded phenomenon. (Sands 1993) But what of situations or actions which are perceived to be urgent, of regional or global import, and are not amenable to peaceful settlement? The legal determination of threats to

GeoJournal 34.2/1994

172

international peace and security over so broad a canvass and their practical enforcement is deeply problematical and in individual cases is unlikely to be greeted with meek compliance by "target" states. For enforcement purposes, the relative levels of actual and perceived threat posed, for instance, by rainforest destruction and the dumping of high-level radioactive waste will be determined by political as well as scientific factors. Likewise, the continuing suffering of the people of Tibet at the hands of a Permanent Member of the Security Council suggests that enforcement under a humanitarian mandate could scarcely be consistent. The same could be said about global structural inequalities in the economic field, from which the larger and more powerful nations benefit, regardless of whether they are Members of the Security Council. An expansion of Article 39's compass and the consequent diminution of the "domestic jurisdiction" is not then without dangers. But nor is it without possibilities. And unlike the marginalisation of Article 2 (4), a cautious expansion of the scope of Article 39 could enhance the enforcement of existing law rather than undermine it. Amongst the possibilities suggested by Maria Chedid are non-binding General Assembly consultation over difficult cases and the involvement of the ICJ in relevant Security Council procedures. 22~ Although neither is without difficulty, the former would greatly enhance the legitimacy of some Chapter VII (enforcement) resolutions which might otherwise leave the Security Council open to the accusation that it was a Great Power condominium; whilst the latter is of interest not least because it is hardly novel: "At Dumbarton Oaks, the principle of non-interference was deemed to apply solely to domestic matters as defined by the international law. The US State Department advocated that the International Court of Justice would determine whether a conflict was a domestic matter or not. The White House objected and the State Department backed down, as did Congress."23> At least in cases of truly gross and/or systematic abuse of human rights, there is little difficulty in referring violations of customary or codified international law to the Security Council; nor, in legal terms, would there be much difficulty in determining that they fall within the purview of Chapter VII. But even when what we might call the moral imperative is widely championed and there are few obstacles in the way o f a UN sanction, there remain a host of practical problems that confront any call to humanitarian intervention.

Practical Problems Humanitarian intervention is a splendidly fuzzy term. "Employing military means for humanitarian ends under a UN sanction" improves things very little. The term may include, for example, any combination of the following: suppressing air flights or ground movements by opposing military forces; creating "safe havens" or "corridors of tranquility"; establishing or restoring democratic

government; enforcing a cease-fire; disarming insurgents; mine clearing and infrastructural civil engineering; protecting or escorting displaced persons, refugees or aid convoys; feeding the starving. The geographical area and the size and density of the target population may vary enormously. Conditions may range from remote countryside to devastated urban environments; from tending the suffering innocent in a relatively unthreatened area to situations for which the term "civil war" is scarcely adequate. It might be argued that such a list falls within a reasonable standard of military preparedness for any of the large military powers and that many humanitarian tasks are or could be undertaken by them. Indeed such forces often prove a mainstay in the relief of domestic natural disasters. Outside of the "warrior culture" of elite forces, we now ask more of our militaries than the capacity to achieve victories in battle - an expectation reflected in Dag Hammarskj61d's observation that peacekeeping is not a job for soldiers but only soldiers can do it. 24) For example, Operation Haven in Northern Iraq was a rapid and successful response to an humanitarian emergency of considerable physical and logistical difficulty. Surely, then, it is all too easy to exaggerate the difficulties? But perhaps more worryingly, it is also possible to adopt an anomaly as a model. Operation Haven was not Somalia, still less Bosnia, both of which it preceded; the operation followed closely on the heels of the Gulf War which in large part explains the relatively compliant Iraqi military; the displaced Kurds were both isolated and in desperate need, so negotiation was effectively reduced to establishing trust; and the situation was amenable to a clearly definable political goal from which an achievable military plan could be derived, and at a cost the force contributors were willing to pay. Finally, while the legal device that was employed was pragmatically imprecise, it is also open to some question whether outside the special circumstances of that time and place, such an operation is repeatable. Without understating the scale of the achievement of Operation Haven, there are many situations in the world today Angola, Liberia, Burundi, to name but a few - where the scale of human suffering merits a similar response; none, however, are similarly tractable. For the purpose of a general consideration, one must take the prudential considerations of governments national interests - as a given, although such factors are neither uniformly inhibitive or supportive of humanitarian intervention in individual cases. It must also be assumed that if humanitarian action takes the form of intervention, then it might well be met by opposition; the role of the military will therefore not be confined merely to providing logistical support. The points which follow are largely qualifying and cautionary observations on a type of enthusiasm for humanitarian intervention which is undifferentiated, or less kindly, a problem canvassed as a solution. 1. Military force is of limited efficacy. Those nations which are currently supplying troops in Bosnia possess the

GeoJournal 34.2/1994

means to apply overwhelming military force anywhere in the country, locally or at a strategic level. Yet there are no clearly definable political goals for which the application of such coercive force would be the appropriate military means, whether it is shooting through a roadblock or bombing Belgrade. Humanitarian intervention is not oxymoronic, but equally, victory is not possible. This is not to diminish the importance of military protection and logistical support of food and medical convoys, but to indicate the deeply embedded nature of the human problems being addressed. In Bosnia, local militia are the first to benefit from the food convoys: whether effectively to assist the continuance of the war as the price for feeding the desperate innocent is a horrible moral dilemma to which superior firepower can add nothing. 2. Intervention is the easy part. The impetus to address humanitarian crises tends to emphasise the immediate, at the expense of longer-term consequences: "We came to your country for one reason only," President Bush reassured the Somalis, "to enable the starving to be fed." In that case, all of the elements seemed to be in place: a UN legal sanction under Chapter VII of the Charter, unanimously endorsed, and a clear political goal from which a military mission could be developed. (Under Resolution 794, the principal objective was to "establish a secure environment for humanitarian relief operations in Somalia?') But a humanitarian brief does not confer impartiality on the intervening force. On the ground, the politics of any situation that requires humanitarian intervention is not only usually more complex and impacted than preengagement assessments indicate, but is further complicated by the intervening force itself} 5> And the greater the number of parties to a dispute in the relief area, the more likely it is that the interveners will be seen by one or more elements as partial and therefore hostile. Once a humanitarian mission becomes hostage to fighting, the national elements involved in the intervention must give increasing attention to establishing a "secure environment" for themselves, while their governments are faced with a dilemma - whether to further enhance the military means or abandon the humanitarian end. This they are likely to do by calculating the political, financial and human costs. In addition, it is unlikely that any large military power will commit capital, resources and personnel for a humanitarian intervention which promises to be an openended commitment. Unexpected military casualties and/or a deteriorating situation will be viewed as a black hole. Nations currently contributing troops to peacekeeping operations (which generally have a lower level of military risk than enforcement) often specify limits of duration, tactical employment and even location. In humanitarian interventions, such tactics may be a politically expedient hedge against miscalculation, but it is hardly likely to enhance the viability and coherence of the humanitarian objective. If a nation wants to undertake or participate in humanitarian intervention but at all costs to avoid

173

"entanglement", what are the practical possibilities of humanitarian intervention? This will vary with each situation, but none of the more obvious candidates leaves much room for optimism. 3. "Whatever happened to civil war?" asked a sceptical delegate at a conference session on humanitarian intervention. I took her to be an advocate of the "let's mind our own business and tend our own affairs" school of international relations, but the straight answer is of some interest. What has happened to civil war is that the weaponry has become both more sophisticated and more readily available, 26> while the politics has become more atomised - which become mutually reinforcing. What this means is that contending factions may be under little or no political control, which makes negotiation extremely difficult and very unreliable. This places military personnel dedicated to supporting the humanitarian effort in an invidious position: they can neither fulfil their remit nor use coercive force, because this may escalate the situation, endanger personnel elsewhere, and/or prejudice the humanitarian objective. 4. Coordination and political control are largely unmapped territory. A U N humanitarian intervention of any scale would involve several UN agencies as well as those of participating governments and the NGOs. To this, add effective coordination with multilateral or multi-national military forces. "Everyone reveres coordination;' says Larry Minear, "but few wish to be coordinated - for legitimate as well as selfserving purposes. Coordination can involve significant opportunity costs, impede quick action, centralise functions that are better decentralised, and politicize aid."27) To which the all too common reverse is, as described by M6decins Sans Fronti~res, that "everyone and no one is in charge?' The nature of the political control of a collectively sanctioned humanitarian intervention operation is directly pertinent to its perceived legitimacy, both within the broader U N and on the ground. Enhancing political legitimacy without jeopardising either military effectiveness or efficient coordination across functions is entirely possible, without engaging the stale debate over whether and how the UN Military Staff Committee might be revitalised (Whitman & Bartholomew 1994). However, the very large task of enhancing coordination and cooperation within and between the specialised UN agencies, the civilian relief organisations and the national militaries still beckons despite some progress and the commendable efforts of individuals "on the ground" in emergency situations. 5. What happens when we leave?This question is related both to coordination and to the assertion made earlier, that humanitarian intervention should be regarded as a failure of policy. Checking forced migration, unblocking food relief or putting a halt to genocidal gangs are activities different in kind - and almost certainly in duration - from those required to secure the conditions

GeoJournal 34.2/1994

174

from which a m e a s u r e o f stability and prosperity might one day emerge. 6. Logical limits. Much as with peacekeeping, the practical limits on the number, size, complexity and duration o f h u m a n i t a r i a n interventions is likely to be reached well before the impulses o f h u m a n e decency are satisfied. Even putting aside the m o r e narrowly conceived b o u n d s o f national interest, the scale and complexity o f s o m e o f the worst examples o f intra-state chaos w o u l d in all probability soon exhaust our capabilities. To say as much is an outrage to the h u m a n spirit, b u t there is little good to be served by ignoring reliable reports from Bosnia, while it is s o m e t h i n g o f a failure o f the i m a g i n a t i o n to suppose that i m p r o v e d logistics can address fratricidal slaughter - although even incremental i m p r o v e m e n t s in our practical abilities will be o f s o m e service. There are also logical limits to the kinds and extent o f actions which "intervening" nations can u n d e r t a k e as part o f a foreign policy which is consistent with the principles that will at least occasionally inform a call to h u m a n i t a r i a n intervention. Consistency m a y n o t be highly prized in the conduct o f foreign relations, b u t it is m o r a l l y odious as well as practically irresponsible for g o v e r n m e n t ministers to have authorised the sale o f weapons to Iraq, post-Halabjah. N o n e of the above is i n t e n d e d to suggest that a U N h u m a n i t a r i a n intervention cannot be legally based, clearly defined and successfully p r o s e c u t e d in s o m e instances. But a final cautionary qualification is appropriate. In combination with peacekeeping, humanitarian intervention can easily obscure the essential, d e v e l o p m e n t a l functions o f the U N . The U N is n o t only in the business o f fighting m e t a p h o r i c a l forest fires; it is also in the business o f planting trees. A n d while one activity does n o t m a k e sense without the other, prevention, through the d e v e l o p m e n t a l work o f the Organisation, is a m u c h easier and considerably m o r e beneficent way o f fulfilling our h u m a n i t a r i a n obligations. Those with a distaste for the abstractions o f international law might usefully lobby their g o v e r n m e n t s to fulfil their financial responsibilities to the U N .

Notes

1) Hansard, 23 February, 1993. 2) Professor Arthur Left, NewYork Times, October 4, 1986, p. 46 col. 3 and cited in Michael J. Bazyler, "Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia" 23 Stanford Journal of International Law, (Summer) p. 570 (1987) 3~ Tom Matthews, "Road to War," Newsweek,28 January, 1991, p. 58 and cited in Frederick S. Calhoun, Uses of Force and Wilsonian Foreign Policy, Kent: Kent State University Press, p. 134, 1993. 4) Article 2 (4) of the UN Charter: "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."

Conclusion

I f it's right, it's gotta be done in conformity with the law. Expressed m o r e formally: "It is the ineluctable fate of every man to be caught fast by the force-based relations on which life depends. Such is the inevitable culpability of all, the culpability of mankind. An endeavour will be made to overcome it by striving for the advent of the force that establishes law and human rights. To neglect to contribute towards building the structures on which the force-based relations are founded, towards the establishment of force in the service of law, is to commit a serious political and also a moral crime. Political culpability becomes moral culpability when force suppresses the justification for force - the upholding of law and of the ethos and integrity of the people. For when force imposes no limits on itself, violence and terror reign and, finally, both life and spirit are destroyed."28) M u c h o f the distance b e t w e e n the arrogance o f p o w e r and the a b r o g a t i o n o f responsibility is occupied by m o r a l d i l e m m a , whatever appeal the "iron fist/velvet glove" m e t a p h o r o f R o n a l d Reagan m a y hold. We do have legal and moral duties to address gross abuses o f h u m a n rights; at the same time, military officers c a n n o t act professionally in the absence o f a clear political directive; we look to our politicians n o t to place our soldiers in h a r m ' s way w i t h o u t g o o d cause and a r e a s o n a b l e expectation o f success; and there is a limit to the courage and c o m m i t m e n t we can expect from N G O h u m a n i t a r i a n aid workers. In the general e n t h u s i a s m to provide h u m a n i t a r i a n assistance, it is easily o v e r l o o k e d that in s o m e cases, what is required is s o m e t h i n g less than intervention. It m i g h t sharpen our thinking to ask by what m e a n s we might best help redress the h u m a n rights abuses in Tibet, where n e i t h e r unilateral action nor U N activity is possible. There is always a danger that in w o n d e r i n g h o w best to sanction and e m p l o y military force, we might lose sight o f the object - or o f places and situations which are no less in n e e d o f h u m a n i t a r i a n aid, b u t o f an essentially n o n - i n t e r v e n t i o n i s t character. Barbarism is with us yet, b u t so also is the horror and outrage which attends it. It is to be h o p e d that our anger will inform rather t h a n supplant our deliberations.

5~ "US Isolates Major over Iraq," The Guardian (August 20, 1992) and cited in Richard Falk, "Human Rights, Humanitarian Assistance, and the Sovereignty of States;' in Kevin M. Cahill, M.D. (ed.), A Framework for Survival: Health, Human Rights, and Humanitarian Assistance in Conflicts and Disasters London: Basic Books for the Council on Foreign Relations, p. 36, 1993. 6) I have been unable to obtain clarification from Mr. Hurd's office as to which particulars of "recent international law" support his case, nor whether codified or customary international law had informed his judgement (personal correspondence). 7) Department of State Bulletin 74 (1983) and cited in Edward Gordon, "Article 2 (4) and Permissive Pragmatism," in "Law and Reciprocity," Proceedings of the American Society of International Law, 78th Annual Meeting, Washington, DC, 12-14 April, 1984, p. 92. It is of note that the US delegate at the San

GeoJournal 34.2/1994

Francisco Conference stated that the ban on the use of force was an "absolute alMncIusive prohibition?' Cited in Antonio Cassese, International Law in a Divided World, Oxford: Clarendon p. 137, 1986. In 1986, the ICJ rejected the US invocation of Nicaragua's human rights record as justification for its military activities, which would appear to further undermine Ms. Kirkpatrick's assertion. See also Nigel S. Rodley, "Human Rights and Humanitarian Intervention: The Case Law of the World Court" International and Comparative Law Quarterly, Vol. 38, April, pp. 321-33 (1989) 8)

9)

In the Nicaragua v. United States case, the ICJ ruling stated that "In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule?' ICJ Reports, i986, p. 14, cited in M.N. Shaw, International Law, Cambridge: Grotius Publications p. 65 1991. Franck & Rodley, op. cit., p. 290.

10/ General Assembly Resolution 2131 (XX), December 21, 1965; G.A. Res. 2625 (XXV), October 24, 1970; G.A. Res. 36/103, December 9, 1981. Note that the first of these states unequivocally, "No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State?' See also Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations, Oxford: Oxford University Press 1963 and her assertion that General Assembly resolutions provide "a rich source of evidence about the development of customary law." (p. 5) 11) Thomas M. Franck, "Who Killed Article 2 (4)? Or: Changing Norms Governing the Use of Force by States," American Journal of International Law 64, 809-10 (1970) 12) Article IX reads: "Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." 13) Chopra & Weiss, p. 106. 14) See Christopher Greenwood's careful judgement on this point (Greenwood 1993). 15) Security Council Resolution 688 (1991) formally acknowledges Article 2 (7) of the Charter but, more importantly, characterises the Iraqi suppression of the Kurds as a "threat to international peace and security"- the language of Article 39, the first of the Charter's enforcement provisions. However, it is probable that the Security Council did not proceed formally under Chapter VII because of the likelihood of a Chinese veto. Similarly, China has long argued that "it is not within the purview of the Security Council to handle human rights issues?' See Maria Chedid, "What is a Threat to the Peace Under Article 39?: The Extent of Legal and Prudential Authority of the Security Council Under Chapter VII," Background Paper, Conference on the Future of UN Collective Security, Center for International Studies, New York University School of Law, January, 1993, p. 29, f.n. 107; see also Thomas M. Franck, "The Security Council and "Threats to

175

the Peace": Some Remarks on Remarkable Developments," produced for the same Conference.

Recent

16) Article 2 (7) reads: "Nothing contained in the present Charter shall authorise 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." 17) Cited in David Scheffer, "Humanitarian Intervention versus State Sovereignty," in United States Institute of Peace, Peacemaking and Peacekeeping: Implications for the United States Military - Special Middle East Program in Peacemaking and Conflict Resolution Washington, DC, p. 12, 1993. 18) Note that the 1948 Genocide Convention, Article VIII states that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide..." Under terms of both the Convention and customary international law, the Security Council would presumably need only to satisfy itself that an accusation of genocide was authentic, after which the invocation of Article 39 would be a legal formality. i9) UN SCOR, 35th Session, UN Doc. S/RES/418 (1977) 20) UN SCOR, 1st Session, Report of the Sub-Committee on the Spanish Question, may 31, 1946, Special Supp. 1-6 (1946) and cited in Maria Chedid, op. cir., pp. 3%40. 21) Statement by Prime Minister John Major on behalf of the Security Council, UN SCOR, 47th Session, 3046th Meeting, UN Document S/PV 3046 (1992). 22) Maria Chedid, op. cit., pp. 51-5. 23) David Scheffer, op. cit., p. 11. 24) Although humanitarian intervention is not peacekeeping - at least as Hammarskj61d conceived it. See Summary Study of the Experience Derived from the Establishment and Operation of the Force: Report of the Secretary General (UN Document A/3943, October 9, 1958). 2s) "The humanitarian organisations which arrived in Somalia in 1991 had to recruit armed guards not only for their protection but simply to function . . . . The (subsequent) increased insecurity has made the humanitarian organisations increasingly dependent on the protection afforded by the foreign forces without allowing them to forgo Somali armed protection and break the cycle of racketeering that goes with it .... The confusion between military and humanitarian is ever greater in the minds of Somalis and could prove disastrous ?' Francois Jean, Life, Death and Aid: The M6decins Sans Fronti6res Report on World Crisis Intervention London: Routledge 1993 p. 101, 1993. 26) One Cold War legacy in Somalia is the presence of an estimated 100,000 hand-held automatic weapons. 27) Larry Minear,"Making the Humanitarian System Work better," in Kevin Cahill, op. cit., p. 236. See also Jan Eliasson, "The World Response to Humanitarian Emergencies," in the same volume. 28) Karl Jaspers, Die Schuldfrage (1946) quoted in Jeanne Hersch, Birthright of Man, United Nations: UNESCO p. 449, 1969.

References

Arend,A.; Beck, R.: International Law and the Use of Force: Beyond the UN Charter Paradigm. Routledge, London 1993.

Roberts, A.: Humanitarian War: Intervention and Human Rights. International Affairs 69, 3, 429-449 (1993)

Chopra, J.; Weiss, T.: Sovereignty is No Longer Sacrosanct: Codifying Humanitarian Intervention. Ethics & International Affairs 6, 95-117 (1992)

Roberts, A.; Guelff, R. (eds.): Documents on the Laws of War. Clarendon, Oxford 1989.

Dixon, M: Textbook on International Law. Blackstone Press, London 1990. Greenwood, C.: Is There a Right of Humanitarian Intervention? The World Today 49, 2 (February, 1993)

Sands, P.: Enforcing Environmental Security. International Affairs 46, 2, 367-390 (1993)

Journal

of

Whitman, J.; Bartholomew, I.: Collective Control of UN Peace Support Operations: A Policy Proposal. Security Dialogue 25, 1 77-92 (1994)