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Right of humanitarian intervention. Interplay between morality, law and politics

Research Paper (postgraduate) 2016 17 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Table of Contents

Introduction

1. The Idea of Humanitarian Intervention
1.1 Human-Rights Approach to Humanitarian Intervention
1.2 Principle of State Sovereignty vs. Human Rights Approach
1.3 Humanitarian Intervention Under International Law

2. Current Debate on HI and the Road Ahead
2.1 The Issue of Intervening States’ Motives
2.2 Humanitarian Intervention and Cultural Imperialism-Relativism Debate
2.3 Suggestions

3. Conclusion

Abstract

This paper aims to examine the so-called doctrine of “humanitarian intervention” in accordance with the changing character of state sovereignty. It focuses on legal and moral challenges posed by this doctrine and considers its justification and legitimacy in practice. I argue that humanitarian intervention cannot be divorced from self-interest of intervening states and that it would be unreasonable to think that these actions come only from pure altruism, but that humanitarian motivation should be prevalent in actions of this kind. I also brielfy consider the uncertain future of humanitarian intervention and how its practical implementation can be amended to better serve humanitarian goals.

Keywords

International Humanitarian Law, Humanitarian Intervention, Human Rights, State Sovereignty, Cultural Relativism

Introduction

Ever since tragedies in Bosnia and Rwanda in the ‘90s, where mass slaughters occurred without adequate response from key humanitarian actors, the international community has produced doctrines of humanitarian intervention (hereinafter: HI) and responsibility to protect (hereinafter: R2P), that reflect public outcries of “never again”. Although the right to military intervention is considered by some justified since the beginning of the ‘90s as legitimized protection of human rights, by others HI have often been described as lacking a valid moral and legal foundation. Its judicial status remains unclear and the practice of peace operations in modern world history opens a door to doubts. The greater public is confused with the double standards of justification for these actions and hesitations of those who command them. This issue is still relevant due to the peace-keeping actions of the UN and the increasing role of regional actors in such actions, as well as for the status of human rights in international law.

The paper suggests that there needs to exist a more principled global vision based on effective human rights protection politics. The main argument is that in today’s world HI is a consequence of political failures to find effective answers to challenges that arise from mass violence before such violence escalates and endangers peace and stability in a region. Humanitarian rhetoric is only a decorative tool, an excuse for unclear consciousness and late military action that could have effectively ended violence, had it been timely. This is where the international community faces a legal and a moral dilemma – to act in order to end human rights violations and by doing so step on another country’s toes, or to refrain from action and go down in history as an ineffective by-stander to mass atrocities and crimes committed in the name of politics.

The first part of the paper explains the idea of HI, its origins and development, its relationship with the principle of state sovereignty and human rights protection, and provides analysis of HI from a legal perspective. In this part I rely on the UN Charter rules, the ICJ judgments in relevant cases as well as natural law theory and the theory of absolute power and state supremacy (works of Thomas Hobbes and Carl Schmitt). The second part of the essay focuses on HI in practice, particularly on political and ideological controversy that follows this issue, where I use and compare arguments advanced by contemporary legal scholars and renowned social commentators and philosophers, such as Noam Chomsky. I reflect on pro and con arguments and end with the conclusion that the HI debate is misdirected; instead of focusing on its deficiencies and pragmatic reasons for its undertaking, efforts should be concentrated on preventing a future Rwanda or Srebrenica and providing more effective emergency responses.

1. The Idea of Humanitarian Intervention

In the summer of 1995, Blue Helmets[1], gazed with impotence as more than 8.000 men and boys were taken to be killed in Srebrenica. A year earlier, more than 800.000 people were brutally murdered in Rwanda in just 100 days as the world stood by. By opinions of some[2], the whole debate about the protection of civilians originates from those particular experiences in the '90s. After these crises, it became evident that the dominant idea in public discourse was that protection of human rights was everybody's business, irrespective of where and in which context human rights violations happened. HI became an ideological tool for advancing such causes. HI is defined as the use of armed force by either a state, a group of states, or an international organization to address widespread suffering or death among civilians in another state affected by grave violations of human rights[3], where such state is either incapable or unwilling to protect its own people, or is actively persecuting them[4]. In his famous defence of humanitarian intervention, Kofi Annan asked: “how (else) should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of HR that offend every precept of our common humanity?[5] ”. This section offers the conceptual and legal overview of HI in order to establish its core elements and legal status today.

1.1 Human-Rights Approach to Humanitarian Intervention

Roots of the idea of humanitarian intervention lie in humanitarianism, the ancient traditions of charity, which was promoted in the Enlightenment era and 19th century through reforms of poor relief, education, prisons, and mental hospitals with the purpose of improving human conditions and contributing to social progress[6]. Today it is focused on the immediate response to human suffering in emergency situations. Another basis for HI are human rights. Improvement of human rights has become a dominant global agenda since WWII. Massacres and instances of savagery in WWII gave rise to a human rights debate. The objective was to set up norms of human dignity that all humans enjoyed, regardless of class, ethnicity, etc., and to constrain arbitrary state power. The concept originates from the natural law theory that all humans possess inherent, equal, universal and inalienable rights. The concept is also enshrined in the Universal Declaration of Human Rights [7], which in its preamble recognizes human rights as “the foundation of freedom, justice and peace in the world” and also observes “that UN member states have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”. However, this human rights-based approach that points that we all, by virtue of being humans, possess equal dignity and rights that should be universally recognized, contradicts the traditional view that each state should mind its own business, and that treatment of human rights is a domestic affair.

1.2 Principle of State Sovereignty vs. Human Rights Approach

Ever since the Westphalian peace in the 17th century[8], the principle of sovereignty has become the cornerstone of international relations. Sovereignty is described as a respect for territorial borders. In Westphalian terms it excludes external actors from domestic authority. It has been understood to belong to ius cogens norms[9], which is to say that it is considered legally binding. This principle clashes with the political reality in the modern era. The idea of neutrality is impossible to sustain, and where complex inter-state influences and interests are inseparably intertwined, then great power's logic is at work.

The principle of sovereignty is in accordance with the principle of non-intervention in domestic affairs[10]. In the beginning of the '90s, the prevalent sentiment was that the principle of non-interference ought to be defended. However, change was about to come. In the 1991 Secretary-General Report[11] on the work of the UN, it was stated that domestic jurisdiction of states cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity, and that states have a 'collective obligation to bring relief and redress in human rights emergencies''. The idea of conditional sovereignty – that is, sovereignty based on states actually protecting their citizens’ human rights, is not a new one. For Hobbes[12], legitimacy of state authority is dependent on the ability to ensure peace. Smith writes that a state which violates the integrity of its subjects forfeits its claims to sovereignty[13]. Similarly, former UN Secretary General Annan argued that no legal principle, not even sovereignty can shield crimes against humanity. However, in the beginning of the ‘90s, the UN was not prepared to push for a clearly defined and explicit HI doctrine. Instead, the UN Secretary-General at that time, Javier Perez de Cuellar, argued for “a higher degree of cooperation and a combination of common sense and compassion between states”[14], which suggests that the international community was still not ready to view sovereignty as subsidiary to human rights. However, things were about to change at the turn of 20th century.

1.3 Humanitarian Intervention Under International Law

The status of HI in public international law is a very complex and controversial topic. The UN Charter is the most important and authoritative international legal source on the use of force. The mandate of the UN itself is to maintain peace and security – that is, to prevent threats to peace, breach of peace and acts of aggression, and the organization itself may take forceful action for these purposes. The Charter is, arguably, non-interventionist[15], but its rules can be interpreted in a flexible manner. In Article 2(4) the Charter contains general prohibition on the threat or use of force against the territorial integrity or political independence of any state. Article 39 in Chapter VII of the Charter enables the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to make recommendations, or decide what measures are needed to maintain or restore international peace and security.

The International Court of Justice (ICJ) rejected doctrines of “intervention” in the Corfu Channel Case of 1949, which concerned explosions of underwater mines planted by the UK in Albanian territorial waters. In the judgment on merits, ICJ states: ''The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as cannot, whatever be the present defect in international organization, find a place in international law. Intervention ... from the nature of things, would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself''[16]. It appears that forty years later the ICJ had not changed this attitude. In 1986, deciding about the US involvement in military and paramilitary activities in Nicaragua, the ICJ stated that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law[17]. This pronouncement was made having in mind a situation where one country intervenes in internal affairs of another country through involvement in activities undertaken against that country's present government. The ICJ deems intervention as wrongful when it uses methods of coercion in regard to collective choices such as the choice of a political, economic, social and cultural system, and formulation of foreign policy, which must remain free ones''.[18] But has the law changed since then? And can treatment of human rights be regarded as a purely 'internal affair' or domestic issue?

[...]


[1] UN's armed forces, famos for wearing blue-colored helmets and berrets

[2] Berdal, Mats. The Use of Force in Defence of Human Rights, available at: https://www.youtube.com/watch?v=pbrLBmAcNOU&list=PL1jpE9IC2WqJ0CCIVElfYFWQtWo_-wdnu&index=43, minute 5.10

[3] Badescu, Christina Gabriela. Humanitarian Intervention and R2P. Routledge 2011, p. 9.

[4] Jayakumar K. Humanitarian Intervention: A Legal Analysis, 2012, p. 1.

[5] Annan K, Millenium Report, The United Nations, 2000.

[6] Institute for International Law and Justice, International Legal Theory Colloquium Spring 2009:Virtues, Vices, Human Behavior and Democracy in International Law, p. 24.

[7] Declaration was adopted and proclaimed on 10th December 1948 by the General Assembly of the United Nations.

[8] The Westphalian system of sovereign states was established in 1648 as part of the Treaty of Westphalia. This treaty was based on equality of states, and prescribed inter-state intervention in religious matters, which later became a more generlized principle of non-intervention per se (according to Stanford Encyclopedia on Philosophy, available at: http://plato.stanford.edu/entries/sovereignty/)

[9] Badescu, id. p. 21.

[10] The principle is provided in Article 2(7) of the UN Charter as follows: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

[11] UN Secretary-General Javier Perez de Cuellar, Report of the Secretary-General on the work of the Organization, September 1991.

[12] Hobbes, Thomas. Leviathan, Chapter XVIII, p. 84.

[13] Smith, Michael J. Humanitarian Intervention: An Overview of Ethical Issues, p. 289, essay adapted from presentation given at Carnegie Council in 1996 and 1997, available at: http://www.nyu.edu/classes/gmoran/SMITH.pdf

[14] Report of the UN Secretary-General on the work of the Organization, September 1991.

[15] Badescu id. p. 55. Article 2 (7) of the Charter reads: ''Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll''.

[16] Corfu Channel case, Judgment of April 9th, 1949 : ICJ Reports 1949, p. 4, 35.

[17] Nicaragua Case, Merits,Judgment. ICJ Reports 1986, p. 14, para 209. Further on, the court concluded that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.

[18] Nicaragua Case, para. 205.

Details

Pages
17
Year
2016
ISBN (eBook)
9783668401051
ISBN (Book)
9783668401068
File size
557 KB
Language
English
Catalog Number
v355048
Institution / College
University of Sarajevo – Center for Interdisciplinary Postgraduate Studies
Grade
9.00
Tags
right interplay

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Title: Right of humanitarian intervention. Interplay between morality, law and politics