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1 Contemporary humanitarian intervention in theory and practice
⢠The long and winding road of saving strangers
⢠Humanitarian interventionâprevention form or failure?
⢠Do intent and motives matter?
⢠Humanitarian intervention as an oxymoron
⢠Is humanitarian intervention a duty, a right, both, or neither?
⢠Conclusion
Emerging slowly, but I believe surely, is an international norm against the violent repression of minorities that will and must take precedence over concerns of State sovereignty. 1
This chapter focuses on how humanitarian intervention is defined, and a review of its evolution as a legal, ethical, and political concept. Scholars currently use a wide range of definitions for humanitarian intervention, reflecting the fact that it is a highly politicized and contentious concept both in its abstract and in operational forms. Humanitarian intervention is generally differentiated from other forms of intervention by the status of the actors involved, the objectives of the action taken by the intervener rather than the act of using force itself, the issue of consent, the means utilized, and the legality of the action.2 It has been defined by some as âinterference by a sovereign state, group of such states, or international organization, involving the threat or use of force or some other means of duress, in the domestic jurisdiction of an independent state against the will or wishes of its government.â3 I use the following definition: âmilitary action taken by a state or group of states, in the territory of another state against that state or its leaders, without that state's consent, which is justified partially or in whole by a humanitarian or protective concern for the population of the host state.â4
The long and winding road of saving strangers
So, why do states intervene in the domestic affairs of other states, without the host state's consent and ostensibly to save the lives of strangers? In particular cases, morality may demand it. In other cases, strategic national interest may compel it. When the greatest danger a civilian population faces comes from its own government, a pressing dilemma of international politics is whether people in such danger should be rescued by military forces from outside.5
While the tension between sovereignty and human rights sits at the heart of the debate over the legitimacy and legality of contemporary humanitarian intervention, the ascendance of liberalism during the latter half of the twentieth century brought with it the expansion of commitments to individuals as both subjects and objects under international law, especially in the realm of human rights. The obligations states have to others outside their borders, the individual accountability of perpetrators of mass atrocity crimes (including sitting leaders), and shifts in the absolute nature of territorial (or national) sovereignty have all contributed to what is an unsettled debate concerning the use of military force for humanitarian protection purposes.
The moral foundations of humanitarian intervention are said to have been established before the birth of Christ in the era of St Ambrose, who claimed âfulsome is the justice that protects the frail.â6 Humanitarian intervention also featured prominently in medieval Christian theology and politics, and has close links to the Just War tradition.7 Prior to the Second World War, customary international law provided the precedent to justify humanitarian intervention, thus permitting states to âintervene in situations where another state mistreated its own citizens in a way falling so far below the âgeneral standards recognized by civilized peoplesâ as to âshock the conscience of mankind.ââ8 However, the potential for abuse of the norm led policy makers to oppose any emerging doctrine of humanitarian intervention.
While forming a bedrock principle of the post-Westphalian global order, sovereignty has never truly been inviolable or sacrosanct. Indeed, there is ample empirical evidence to confirm that by the early twentieth century, the social purpose of the use of force had begun to expand to include the possibility of legitimizing extraterritorial intervention on the basis of human rights norms and the global interest (which include the kinds of human rights and humanitarian norms that are transgressed by mass atrocity crimes), thus signaling a new idealism in humankind's use of war.9 Such actions were not without their critics. Often, the motives of interveners came under heavy scrutiny, including assertions that the humanitarian label was used to mask other economic, political, or geostrategic interests. It was not until the 1945 adoption of the UN Charter, however, that the political and legal prohibitions on the use of force converged, and the Security Council emerged to embody formally âright authorityâ through its legitimating function concerning interventions of any kind, including those labeled âhumanitarian.â10
There are, however, three justifications for overriding the principle of non-intervention that may expand the legal and political space to legitimate humanitarian intervention: 1 express consent by one state allowing another to transgress its sovereign boundaries; 2 preservation of international peace and security; and 3 humanitarianism.11 Humanitarianism, however, has always been the most tenuous form of justification. During the Cold War era, states rarely appealed to human rights or humanitarian norms, or the protection of civilian populations from abuses by their governments to legitimate the use of force against other states.12 Rather, most interventions from this period were justified by appealing to norms of self-defense, as provided for by Article 51 of the UN Charter. Attempts to legitimate intervention using the language of humanitarianism were generally condemned. For example, in the 1980s the United States attempted to justify its paramilitary activities in and against Nicaragua on the grounds that it had the right to assist a rebel movement seeking to defend themselves from human rights abuses as well as to come to the defense of neighboring countries facing cross-border military attacks from Nicaragua. However, US motivations also were shaped in large part by a desire to punish Communist-sympathizing regimes as well as to deter and prevent such regimes from securing a foothold in Central America.13 The International Court of Justice (ICJ) agreed with the latter interpretation, rendering judgment against the United States. Thus, in the absence of Security Council approval, humanitarian interventions may well be considered illegitimate and will almost certainly be deemed illegal.14
The seeming inviolability of sovereignty was brought into focus again following the conscience-shocking failures of the international community to respond to the 1994 Rwandan genocide and the Security Council's initial paralysis in responding to the 1999 crisis in Kosovo. Then UN Secretary-General Kofi Annan reintroduced the idea that sovereignty is not absolute, not even in UN Charter provisions, when it constitutes an immunity shield from intervention or to give âlicense for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power.â15 Moreover, he emphasized that in cases where international peace and security were seriously breached or fractured, or in cases of wars between states, the UN under Article 2(7) may well have a responsibility to intervene. The 2011 Security Council authorization of the North Atlantic Treaty Organization (NATO)-led intervention in Libya is a case in point.16
Alongside reconsideration of the norm of sovereignty, evolving perceptions of the importance of international human rights and accountability of states to their populations, along with advances in international criminal justice have all contributed to changes in the way states think about intervention, the use of force under the UN Charter, and altered expectations concerning appropriate conduct on the part of states and other actors.
During the last decade of the twentieth century, debate over humanitarian intervention has centered around two issues representing evolving normative shifts and changes in state practice in the wake of the Holocaust and the Second World War, as well as the growth and development of an international human rights regime. The first is whether such interventions can be justified by elevating respect for human rights and self-determination above the rights imbued in state sovereignty, thus weakening the norm of non-intervention by one sovereign authority in the domestic affairs of another.17 Under this view, the new âinternational ethicsâ treats sovereignty as merely an expression of the values of individual life and communal liberty that undergird the international system.18 Thus, in such cases, consensus exists that humanitarian intervention is justified in cases of genocide and ethnic cleansing.
Additional support for this position has been fostered by the widespread belief that human rights are no longer considered to rest exclusively within state jurisdiction. Certain non-derogable rights (security, subsistence, liberty) have become institutionalized in multilateral treaties and organizations, mandate correlative duties among states, and are understood to be erga omnes of the international system.19 This consensus has rendered less relevant the principle of non-intervention as embodied in Articles 2(4) and 2(7) in cases where gross violations of human rights occur. Relatedly and because many states have historically poor track records protecting the rights of their citizens, a corollary justification for humanitarian intervention centers on the norm of self-determination (e.g. cases of liberation from colonial domination).20 However, governments are typically wary of intervening in such cases because they may fear future self-determination claims within their own borders.
The second issue is whether humanitarian intervention can be justified by the fact that complex humanitarian emergencies can constitute threats to international peace and security.21 For example, the UN Security Council elevated the âstatusâ of the Somalia crisis from a âpotentialâ threat to international peace and security in resolution 746 to an âactualâ threat in resolution 794. The latter resolution went on to authorize use of force to redress the situation and protect humanitarian operations on the ground.
The early 1990s, in particular, found many states embracing the promotion of liberal values and universal rights, including compelling others (through use of force if necessary) to uphold certain duties to their populations, lest they become failed or weak states.22 Expectations grew that the UN, in particular, could contribute to resolving complex humanitarian emergencies where mass atrocities were occurring. Alongside these trends, the growth of the international media, the emergence of the 24-hour news cycle, and the rise of advocacy-minded nongovernmental organizations (NGOs) meant that no part of the planet was too far off the beaten path to become a household word, as Mogadishu, Kigali, and Freetown have illustrated. By the mid-1990s, however, both ardent supporters and opponents of humanitarian intervention became highly sobered by the international community's experiences in Rwanda and Srebrenica, as well as the international community's âexperimentationâ with humanitarian intervention.23
Following these notable mass atrocity response failures, Annan delivered a series of speeches drawing on common themes related to the need to universalize human rights standards and protections; articulate and agree upon the duties of states in cases of mass atrocity crimes; and the need to rethink the absoluteness of sovereignty in such situations. He repeatedly emphasized that in the face of grave abuses, the international community must always speak out. To do otherwise would be a dereliction of duty as members of the global constituency. To say that rights are relative or that what occurs within a state's borders is of no concern to the UN was, in Annan's view, simply unacceptable: â[A] United Nations that will not stand up for human rights is a United Nations that cannot stand up for itself.â24 He urged the Security Council to consider elevating human rights protections for civilians in armed conflict, and within months that body formally endorsed this idea, articulating a willingness to ârespond where civilians are being targeted or humanitarian assistance is being deliberately obstructed, including through the consideration of appropriate measures at the council's disposal.â25
Perhaps most importantly, Annan called upon the General Assembly to find a way out of the false choice between standing idly by while civilians were being slaughtered or taking military action that ...
