HUMANITARIAN INTERVENTION IRENA GIORGOU & EMANUELA PARISCIANI IRENA GIORGOU & EMANUELA PARISCIANI

Definition Humanitarian intervention can be defined as the threat or the use of force against a State by another State or group of States or regional organizations with the aim of preventing or ending widespread and grave breaches of fundamental human rights, mostly without the acquiescence of the State in whose territory force is to be applied. It hinges on the foundational legal quandary about whether or not States may breach the prohibition to resort to force in their international relations in order to protect fundamental human rights of third State nationals.

‘Just war’ theory It may be argued that, even if humanitarian intervention is authorized by the UN, the action undertaken with legitimacy and moral sanction of the SC does not necessarily have a moral quality superior to that of a state or group of states acting unilaterally. Humanitarian intervention authorized by the SC as the enforcement action under Chapter VII of the Charter presumably has greater legitimacy than a unilateral action, but it is not clear whether it is any more just, as the politics of the UN is not more different in its character from that of its member states.

Legal Analysis Article 2.4 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”

The UN was created for underpinning territorial integrity, political independence and national sovereignty of its member States; but the UN has an equally compelling mission: protect and promote the interests of “We the Peoples”. Does the Charter privilege peace over dignity and human rights?

HUMAN RIGHTS Article 55 UN Charter With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, the United Nations shall promote: a)higher standards of living, full employment, and conditions of economic and social progress and development; b)solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and c)universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 56 UN Charter All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55

Article 2.7 UN Charter: “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” The Non Intervention Principle

GA Res 2625 (XXV) 1970, Declaration on Friendly Relations Considering that the progressive development and codification of the following principles: (a) The principle that States 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, (b) The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, (c) The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter, (d) The duty of States to co-operate with one another in accordance with the Charter, (e) The principle of equal rights and self-determination of peoples, (f) The principle of sovereign equality of States, (g) The principle that States shall fulfill in good faith the obligations assumed by them in accordance with the Charter

Article 39 UN Charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” SC Powers under Chapter VII

It entitles the security council to pass a resolution to protect human beings in any sovereign state also by authorizing the use of force

A threat to peace? SC acting under Chapter VII: what constitutes a threat to peace? The Charter is silent on the term and the travaux préparatoires indicate that this was done deliberately. Then it was decided “to leave to the Council the entire decision, and also the entire responsibility for that decision, as to what constitutes a threat to the peace, a breach of the peace, or an act of aggression”. Hence for Kelsen “it is completely within the discretion of the SC to decide what constitutes a threat to the peace”

The changing definition of a “Threat to Peace”: “Une menace pour la paix au sens de l’Article 39 est une situation dont l’organe compétent pour déclarer une action de sanctions dèclare qu’elle menace effectivement la paix” (Combacau, 1974) Tadi ć Case §28-30

Res 687(1991) Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686 (1991) An Example

The practice of the SC during the nineties was towards setting up the most of the basic legal elements for the right of humanitarian intervention State Practice

UNILATERAL INTERVENTIONS HUMANITARIAN INTERVENTION AUTHORIZED BY THE SC Tanzania in Uganda, 1979 Iraq’s treatment of Kurds, 1991 (Res. 688) France in Central Africa, 1979 (SC ex post facto Resolution) Somalia, (Res 794, 3 December 1992) India in Bangladesh, 1971Haiti, 1994 (Res 940, 31 July 1994) USA in Grenada (1983)Rwanda, 1994 (Res 929, 22 June 1994) USA in Panama (1989)Bosnia, 1994 (Res 770,13 August 1992) ECOWAS Intervention in Liberia, 1992 (but consent of all factions) ex post facto SC Res S/21485, 9 August 1992) Albania, 1997 (Res 1101, 28 March 1997) Sierra Leone, 1997 (Res 1132, 8 October 1997) (a kind of ex post facto authorization) East Timor, 1999 (Res 1264)

Article 43 UN Charter: The plasticity of the Council’s mandate and the contingency of Council authorization on the willingness of a state or states to take action were suggestive leitmotifs throughout the interventionist 1990s. The general trend of SC delegated actions in the 1990s, then, was towards intervention only when such action coincided with the preparedness of a regional power to act – NATO in Europe, France and ECOWAS in West Africa, and the United States in the Americas. Evidence of such a trend has been shown in the form of authorizations, but this has been accompanied by a more troubling shift in the practice of the SC away from debating international peace and security issues in open session to granting its formal imprimatur to prearranged deals.

Authorized humanitarian intervention “The purpose of the enforcement action under Article 39 is not to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law” Hans Kelsen, Most governments and scholars accept that the UN SC may, in appropriate cases, authorize the use of force to end or prevent humanitarian crises. In spite of the categorical language of Article 27, the limitation to intervene in matters which are essentially within the a State’s domestic jurisdiction does not apply to enforcement measure taken by the UN SC under Chapter VII. Simply, nowadays, human rights are not longer part of the exclusive domestic jurisdiction of states.

Since 1990, the council has explicitly authorized one or more nominated states, regional organizations, or ‘coalitions of the willing’ to use ‘all necessary means’ (or ‘all measures necessary’ or ‘all necessary measures’) in the following situations: Operations Desert Shield and Desert Storm in Kuwait and Iraq (1990–91); Operation Restore Hope (UNITAF) in Somalia (1992–93); Operation Turquoise in southwest Rwanda (1994); Operation Uphold Democracy in Haiti (1994–95); Implementation Force (IFOR ) and Stabilization Force (SFOR) in Bosnia and Herzegovina ( ); NATO-led Kosovo Force (KFOR) operations in Kosovo ( ) International Force in East Timor (INTERFET) (1999); International Security Assistance Force (ISAF) in Kabul and its surrounding areas (2001– ). The council has also authorized more limited uses of force under Chapter VII in the following situations: UN Protection Force (UNPROFOR) and member-states providing air support in respect of safe areas in Bosnia and Herzegovina (1993–95); and Operation Alba in Albania (1997).

In reality, apart from the exception of Resolution 940 (Haiti), all SC resolutions authorized the use of force to protect humanitarian relief and rescue operations, but not to conduct operations effectively intervening in the conflict and aimed at influencing its outcome. How to avoid tragedies like Rwanda and Srbrenica? States’ action ultra vires

The problem arises when legality and legitimacy come into conflict, that is, when something that is deemed to be legitimate is prohibited by law and vice versa. Legitimacy is an inherently subjective concept, so agreement is not always possible on what is legitimate and illegitimate. Without institutional endorsements of a particular action by the SC of the UN, for instance, which create a sense of consensus as a result of a successful political process on what is seen as legitimate, a tension between law and legitimacy may weaken the bidding force of legal rules that are necessary for the very existence of the society of states. If this situation prevails, the breakdown of any international legal regime is unavoidable. Legality vs Legitimacy

NATO intervention in Kosovo

A “legitimate” illegal intervention Aggression or legitimate intervention? In the current framework of the international community, three sets of values underpin the overarching system of inter- state relations: peace, human rights and self- determination: to promote Human Rights NATO violated the other two

The resort to non authorized armed force "the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself." (Corfù Channel, ICJ Reports 1949, p. 35.)

The previous resolutions of the SC didn’t allow the recourse to force, indeed they reaffirmed the sovereignty and territorial integrity of FRY ex post facto - ex post lecito? a return to legality with res The only possible explanation is that the NATO intervention was unlawful but characterized by a state of necessity due to the humanitarian catastrophe on the go but Art. 25 and 26 States Responsibility Draft Moving towards the Human Rights Era

Article 25 Necessity 1.Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a)Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b)Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole 2.In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a)The international obligation in question excludes the possibility of invoking necessity; or (b)The State has contributed to the situation of necessity (b) question. Article 26 Compliance with peremptory norms Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

NATO intervention An erosion of UN’s primacy in peace and security? Kosovo moral action was contrary to current international law but based on nascent trends in the world community, under certain conditions resort to armed forces may gradually become justified, even in the absence of any SC res de lege lata

Darfur Crisis

Darfur *2003 and 2004: SC demands access to humanitarian assistance, disarmament of militias, civilian protection and investigation and punishment of HR violations. SCRes 1556 (2004): the conflict in Sudan is a ‘threat to international peace and security’ *International Commission of Inquiry on Darfur *Referral of the situation to the ICC SCRes 1706 (2006):‘supreme humanitarian emergency’ -Sudan refused UN interference and SC was unwilling to authorize non-consensual intervention given there was a standing government. *2003 and 2004: SC demands access to humanitarian assistance, disarmament of militias, civilian protection and investigation and punishment of HR violations. SCRes 1556 (2004): the conflict in Sudan is a ‘threat to international peace and security’ *International Commission of Inquiry on Darfur *Referral of the situation to the ICC SCRes 1706 (2006):‘supreme humanitarian emergency’ -Sudan refused UN interference and SC was unwilling to authorize non-consensual intervention given there was a standing government.

Darfur Peace Agreement (5/5/2006) Individual UN members support AU mission in Darfur (AMIS), which had the consent of the Sudanese government Aim: monitoring ceasefire and protection of civilians (but supplementary-primary responsibility rests upon the Sudanese government) Some UN (mainly technical) support; minimal effectiveness

SCRes 1706 (2006) ‘invites’ Sudan to consent to UN force in Darfur. The Sudanese government refuses. SCRes 1769 (2007): establishment of UNAMID (hybrid AU-UN force) authorized under Ch.VII to implement DPA and protect civilians and its own personnel. Vague purpose and mandate, unsatisfactory results

Practice and theory of Humanitarian Intervention: where are we moving on? 1. Before the 1990s the humanitarian doctrine was not recognized and the justification for any intervention tended to be couched in the language of self-defence or demographic aggression (refugees) 2. The failure of Rwanda, Kosovo and Darfur 3. Shifting from humanitarian intervention to R2P: States still want to retain their sovereignty -DEBATE- Practice and theory of Humanitarian Intervention: where are we moving on? 1. Before the 1990s the humanitarian doctrine was not recognized and the justification for any intervention tended to be couched in the language of self-defence or demographic aggression (refugees) 2. The failure of Rwanda, Kosovo and Darfur 3. Shifting from humanitarian intervention to R2P: States still want to retain their sovereignty -DEBATE- Conclusions