SOVEREIGNTY OR HUMANITARIAN INTERVENTION: THE DECISIVE DECISION

By:
DANISH MUKHTAR*

Introduction

The essence of State is that of its sovereignty. This was recognized as back as in 1648 when world powers of that time met in Westphalia to sign the famous treaty of Westphalia. It was once again reaffirmed in Montevideo Convention on the rights and duties of State. Article 1 defines State as having the following characteristics a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. Further, the Art 2(7) of UN charter upholds the State Sovereignty by stating, “nothing should authorize intervention in matters essentially within the domestic jurisdiction of any State”. However, after World War II, human rights have undergone great development. Documents such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights provides extensive rights to Citizens. The result of this development has somewhat an adverse effect on State Sovereignty. The emergence of human rights as a major value in international law has challenged State Sovereignty, an old value of international law. Both these values are incompatible but the question is which has an overriding effect. Whether State is absolutely Sovereign within its territories and can treat its citizen the way it pleases? Or human rights of citizen supersede State Sovereignty? Does the International Community have the right to intervene in another State to stop the violations of human rights? If yes then why, where, and how? These are the questions, which I shall try to answer in this paper. Moreover, we shall look at the role of International Community, particularly of UN in Kosovo and Rwanda. 

Changing norms: Protecting Human Rights at the Cost of State Sovereignty.

Kofi Annan, former Secretary General of United Nations, during the 54th session of General Assembly speaks in favor of human rights. He said, “If States bent on criminal behavior know that frontiers are not the absolute defense, if they know that Security Council will take actions to halt crimes against humanity, then they will not embark on such courses of action in expectation of State impunity”[1]. It is to be noted that international law forbids unilateral use of force to rescue victims of humanitarian catastrophe. As a matter of treaty law, United Nation charter does not exempt the humanitarian intervention from the prohibition of use of force. As a matter of customary international law, notably the International Court of Justice in Nicaragua V. United States[2] concluded that custom does not permit humanitarian intervention[3]. The result was that State Sovereignty was considered superior till 1990’s. However, event like Tiananmen square, the Iraqi repression of its Kurdish minorities, mass killing and population displacement in Rwanda and the violent collapse of former Yugoslavia gave international community new reasons to concerned about the way in which humanitarian intervention are being initiated and managed[4]. The relative success of NATO intervention in Kosovo has given the principle a new life. The international community in general and the United Nations in particular, now recognize a clear mandate to become involved in situations of large-scale, imminent or ongoing human rights violations[5]. Kofi Annan has a major role to play in this development. According to him, national sovereignty can be set aside if it stands in the way of the Security Council’s overriding duty to preserve international peace and security.”[6].

From “Humanitarian Intervention” to “Responsibility to Protect”:

In 2001, The Canadian Government had set up an international commission on Intervention and State Sovereignty (ICISS). The commission was the first one to suggest change in terminology, instead of right to intervene they proposes “Responsibility to Protect”. Gareth Evans, the chairman of the commission, had expressed his optimism that change in terminology could help in overcoming the reservations over the notion of intervention. But as was rightly observed by Mohammad Sid – Ahmad the problem is not of terminology, it was that of a substance. However, following the precedent set by the ICISS, the principle under the heading of Responsibility to Protect was taken up by the High Level panel on UN Reforms in 2004 and was adopted by Kofi Annan.  In 2005, United Nations Summit of world leaders, in its final “outcome document” adopted the responsibility to protect civilians from the genocide, war crimes, ethnic cleansing and crimes against humanity.

At this time it is pertinent to mention that humanitarian intervention or responsibility to protect only involves arm intervention in cases of genocide, ethnic cleansing or crimes against humanity, neither does it include nor is it intended “to cope with the aftermath of natural disasters”[7]. The avoidance of humanitarian aid and assistance raises some serious questions about the credibility of doctrine. Already most developing nations regarded the doctrine as a tool of West to interfere in another States and to impose their values. The exclusion of humanitarian assistance in natural calamities has made even more doubtful the principle of intervention.

Does international Community has a right to intervene?

Before answering this question, let us first understand that what humanitarian intervention is. Humanitarian intervention means arm intervention of one State into another in order to put an end to atrocities, which are committed by that State against its own Citizen. In 1999, Tony Blair was the first world leader “who assert the moral right to get actively involve in another people conflict even without the sanction of Security Council--- if it was the only way to stop the dire sufferings”[8]. To answer the question, whether the international community has a right to intervene or as proposed by ICISS, “responsibility to protect” depends upon the approach which one takes towards the concept of Sovereignty. The proponents of intervention have made a case for the shift of absolute sovereignty to relative Sovereignty, where a State will enjoy its Sovereign Status as long as it protects the rights of its people. Kofi Annan was much vocal about this; he explained this change to General Assembly[9] in following words: -

State sovereignty, in its most basic sense, is being redefined. ... At the same time, individual sovereignty ... has been enhanced by a renewed and spreading consciousness of individual rights.

According to this approach, sovereignty implies responsibility.  “Sovereignty no longer means “the right to control” people and borders at all costs, but now means “the responsibility to protect” civilians, especially from genocide, war crimes, ethnic cleansing and crimes against humanity. When a state is failing to protect its civilians, the responsibility to protect falls on the international community to prevent, react and rebuild areas affected by mass suffering and atrocities”[10]. This implies a change in Sovereignty from absolute to relative, in favour of human rights. According to this approach, the sovereignty of state means sovereignty of people, and not that of leaders. Kofi Annan also expressed a similar view, when he comments on Article 2(7) of UN Charter. The UN Charter, “was issued in the name of ‘the peoples’, not the governments of the United Nations . . . The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power[11]. The notion of a state’s sovereignty being conditional on an ability and willingness to protect its citizens was re-affirmed in 2004, in the Secretary General’s High-Level Panel on Threats, Challenges, and Change, which endorsed Responsibility to Protect as an emerging norm[12].

The opponents of intervention do recognize the change in absolute nature of Sovereignty to relative but lay emphasis on the importance of United Nations for its effective role. Mohammad Sid- Ahmad, in his famous article on Sovereignty and intervention has put it, “"Humanitarian intervention" has become a code word for "superpower intervention," which is dictated by and serves the interests of the summit of the global community rather than those of its base”[13]. Now we consider this question as to who has the right to intervene. 

Who to decide?

The most controversial thing about humanitarian intervention is about the question of authority, who should decide that an intervention should take place. A natural response would be that it has to be Security Council, which must decide that an intervention should or should not take place. ICISS in its report also emphasized on the role of Security Council,

It is the Security Council, which should be making the hard decisions in the hard cases about overriding state sovereignty. And it is the Security Council which should be making the often even harder decisions to mobilize effective resources, including military resources, to rescue populations at risk when there is no serious opposition on sovereignty grounds… If international consensus is ever to be reached about when, where, how and by whom military intervention should happen, it is very clear that the central role of the Security Council will have to be at the heart of that consensus[14].

The problem arises as to reaching the consensus within Security Council. Security Council is empowered with the responsibility of maintaining International Peace and Security under Chapter 7 of UN Charter. However, till date Security Council could unite and apply sanctions only on few occasions. In 1950, it authorized States to intervene and restore the sovereignty of the Republic of Korea. In 1960, it adopted enforcement measures to preserve the sovereignty of the Republic of Congo against a secessionist movement, applying its authority to a non-international armed conflict. However, in many other instances, it lacked the will or faced the veto, and as a result murderous regimes like Pol Pot in Cambodia and Idi Amin in Uganda enjoyed impunity[15].

A close examination of the working of United Nations Security Council will reveal the reason of inaction of Security Council in most events. Security Council consists of 15 members and requires nine votes in affirmative for its action, including five votes of all permanent members. Russia and China, both are part of Security Council have vehemently criticized the concept of humanitarian intervention. On the other hand, United States and its allies are advocates of intervention. This led to inaction of Security Council, sometimes to instances, where it should. A supreme example of this is that of Rwandan Genocide where United Nation was a mere spectator, watching the massive killing of about 800,000 people in just 100 days or so.

An alternative of Security Council could be United States and its Allies. This in fact, what is happening and this is exactly what is feared by most developing nations. NATO has intervened in many countries without the authorization of Security Council. A relative success has brought about by the operation in Kosovo, but Afghanistan and Iraq[16] shows its complete failure. To starve an entire population for a full decade can hardly qualify as humanitarian. On the other hand, US has constantly refused to allow UN intervention to protect a defenseless people of Palestine against what everyone agrees is excessive violence by the Israeli occupation forces[17].

Where to intervene?

Another question closely connected with the controversy of authority is that of where should intervention take place. Broadly speaking, the concept of humanitarian intervention and responsibility to protect comes into operation only in cases of genocide, ethnic cleansing and crimes against humanity. ICISS, in its report has outlined some conditions, which must be fulfilled before an intervention to take place. This includes just cause defined by large scale loss of life or large scale ethnic cleansing, right intention, last resort, proportional means, reasonable prospects of success, right authority, clear objectives and maximum possible coordination with humanitarian organizations[18]. However, the problem arises in situations when the gross violations were huge but they were not termed as genocide or ethnic cleansing by the Security Council. This problem was faced during the Rwandan genocide, where the Security Council was reluctant to term the killing as genocide. Consequently, despite the mass killing no action was taken to curb the genocide. The doctrine is only applicable to military intervention and not to suffering resulting from natural disasters.

What measures to be taken?

The philosophy of humanitarian intervention is to put an end to the atrocities, which are being carried on by the State against its own individual. An intrinsic question is that what measures need to be taken to end the violations of human rights. Of course, no hard and fast rule can be laid down in this regard and each case has to be determined according to its own peculiar circumstances. However, ICISS has stressed the importance of proportional measures in arm intervention. “The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective[19]”.

However, in addition to responsibility to protect, International Commission on Intervention and State Sovereignty proposes responsibility to prevent. “The need to do much better on prevention and to exhaust preventive options before rushing to embrace intervention”[20]. In case the measure to prevent the conflict fails, the commission has proposed the responsibility to react. “When preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required”[21]. In case if the military intervention takes place then the responsibility to rebuild. “There should be a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development”[22].

Rwandan Genocide:

In 1994, world has witnessed, perhaps, the most intensive killing in human history. Genocide in Rwanda was the result of ethnic clash between Hutu and Tutsis tribes. As already, much literature has been written as to what and why it happened, here we are concerned with the response of United Nations and of those countries that are proponent of intervention.

United Nations Security Council by its resolution 872 (1993) of 5th October had established a peacekeeping mission, named UMAMIR (United Nations Assistance Mission For Rwanda) to help implement the Arusha Peace Agreement signed by the Rwandese parties on 4 August 1993. However, UN officials concluded soon after 6 April that if a ceasefire were not possible, UNAMIR and all foreign nationals should be evacuated[23]. On January 11 1994 Canadian General Romeo Dallaire, commander of the UN Assistance Mission for Rwanda, (UNAMIR) reports to the UN Head quarter that Belgian peacekeepers in UNAMIR would be provoked (to force their withdrawal), that men were being trained to kill Tutsis (at rates up to 1,000 Tutsis in 20 minutes), and that a major weapons cache had been created[24]. But the response of United Nation was conventional and this gave a free hand to Hutu majority to carry out the genocide effectively. Secretary General confessed the failure of UN to act in Rwanda in a Statement made after receiving the Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, “All of us must bitterly regret that we did not do more to prevent it… I acknowledge this failure and express my deep remorse[25]”.

One can find the reason of this inaction of United Nations, which is dominated by United States, because of its least interest in Rwanda. To probe into this inaction, Wrage Stephen has aptly given the rationale:

There are few countries less strategically significant than the small mountainous state of Rwanda. It has no precious or strategic minerals, is landlocked with the nearest port more than 600 miles away, and is not located on any “arc of crisis” or near any choke point for navigation[26].

Rwanda offers no attraction to United States for intervention. People of land locked country with no precious or strategic minerals were not rescued but of oil rich country were, even without the sanction of Security Council. Western Nations did land their troops in Rwanda in the first week of genocide but they left after evacuating their own citizens. Later on French declared that it would intervene to stop the killing. Security Council gave its approval to French intervention on June 22, and on the same day French troops entered the Rwanda from Zaire and succeeded in saving thousands of lives of Tutsis; it also facilitated the safe exit of many of the genocide’s plotters, who were allies of the French[27].

Kosovo:

Kosovo portrays total different story from Rwanda. Here NATO intervenes without the sanction of United Nations. The premise of Western governments was that confronting ethnic cleansing was more important than respecting the international borders[28]. It was supposed that the U.S. decision to throw its full political and military weight into Kosovo reflected a desire to make up for perceived moral failures in the 1990[29]. The matter was not taken to the Security Council because of the feared veto from Russia. NATO, states following reasons for its intervention in following words:

During 1998, open conflict between Serbian military and police forces and Kosovar Albanian forces resulted in the deaths of over 1,500 Kosovar Albanians and forced 400,000 people from their homes. The international community became gravely concerned about the escalating conflict, its humanitarian consequences, and the risk of it spreading to other countries. President Milosevic's disregard for diplomatic efforts aimed at peacefully resolving the crisis and the destabilizing role of militant Kosovar Albanian forces was also of concern[30].

After one month of NATO intervention, Security Council established a mission for Kosovo, named UNMIK (United Nations Interim Administration Mission in Kosovo). The Mission was charged with an unprecedented sweeping mandate to provide Kosovo with a “transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo”[31]. Kosovo remains under the governance of UNMIK till it declares its independence on 17 February 2008.

No doubt, intervention did help Kosovars from the long continuing oppressing of Serbs. However, perplexing question is about the intention of intervention. Was NATO intervening on humanitarian grounds or to dismantle the Socialist economy of Yugoslavia? Intervention, which has set aside all the principles of sovereignty in favor of human rights, was really humanitarian? A censored version, declassified in 1990, “elaborated on NSDD 64 on Eastern Europe issued in 1982. The later advocated "expanded efforts to promote a ‘quiet revolution’ to overthrow Communist governments and parties," while reintegrating the countries of Eastern Europe into a market-oriented economy”[32].

Concluding Remarks:

It would not be wrong to say that the concept of Sovereignty has changed. However, United Nations should replace United States as a judge to decide that human rights are violated and intervention is to take place. Consequently, consensus within United Nations is required to have a standard approach towards intervention. It is proposed that matter is to be thoroughly discussed in General Assembly and let the world with majority decide what should override other.



* Presently Student of B.A. LL.B (Hons), University Law College, University of the Punjab. Mail: [email protected]

[1] www. unwire.org/unwire/19990921/4894_story.asp.

[2] 1986 ICJ REP. 14, 134-35.

[3] Goodman Ryan, Humanitarian Intervention and Pretext of war: American Journal of International Law.

[4] Stuart T. Douglas, Reconciling Non-intervention and Human Rights: UN chronicle online Ed. Vol. 38, Nov 2, 2001.

[5] Ibid.

[6] Kofi Annan, “Intervention”, Ditchley Foundation Lecture XXXV, 1998, p. 2 

[7] Economist dated May 15, 2008: To Protect Sovereignty or to Protect Lives

[8] ibid.

[9] Secretary General, Kofi Annan, 1999. Quoted in Stuart T. Douglas, supra note 4.

[10] http://www.ncca.org.au/actforpeace/protect/r2p

[11] Kofi Annan, “Intervention”, Ditchley Foundation Lecture XXXV, 1998, p. 2. See also Annan, Report of the Secretary-General on the Work of the Organization, United Nations General Assembly, Official records, Fifty-fourth session, Supplement No. 1 (A/54/1), September 1999, p. 4. 

[12] http://www.munkdebates.com/debates/for.cfm

[13] Sid-Ahmed, Mohammed. “Sovereignty and intervention.” Al-Ahram Weekly Online. Al-Ahram 537: Cairo, June 13 2001

[14] Report of the International Commission on Intervention and State Sovereignty 2001 p. 49.

[15] Popovski, Vesselin. “Sovereignty as Duty to Protect Human Rights.” United Nations Chronicle Online Edition: November 4 2004.

[16] Intervention in Afghanistan and Iraq was originally done under the heading of War against terrorism and to destroy the Weapons of mass destruction respectively. When it was revealed that these were the fake excuses made the Bush administration, some international human rights lawyers started to termed intervention on humanitarian ground, toppling the government involve in gross human rights violation. For more see: Popovski, Vesselin. “Sovereignty as Duty to Protect Human Rights.” United Nations Chronicle Online Edition: November 4 2004.

[17] Sid-Ahmed, Mohammed, supra note 13.s

[18] Report of the International Commission on Intervention and State Sovereignty 2001 foreword p 12-13.

[19] Ibid.

[20] ibid p.19

[21] Ibid-p. 29.

[22] Ibid p. 39

[23] Scheffer, David. Lessons from the Rwandan Genocide: Georgetown Journal of International Affairs.

[24] Ibid.

[25] http://www.un.org/News/ossg/sgsm_rwanda.htm

[26] Stephen D. Wrage, "Genocide in Rwanda: Draft Case Study for Teaching Ethics and International Affairs," presented at the 2000 International Studies Association Annual Meeting

[27] Ferroggiaro William 2001: The US and the Genocide in Rwanda 1994 Evidence of Inaction. Available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB53/index.html

[28] Young David (2008) Kosovo: It Is a Real Geopolitical Precedent: European Affairs, Volume 9, Issue: 1.

[29] Ibid.

[30] NATO & Kosovo Historical Overview," NATO, 07/15/99, Available at http://www.nato.int/kosovo/history.htm,

[31] http://www.unmikonline.org/intro.htm

[32] Chossudovsky, M., The Globalization of Poverty and the New World Order (Second Edition), (Shanty Bay: Global Outlook, 2003,) pp. 259-60.