Humanitarian Intervention

The Dutch lawyer, statesman and diplomat Hugo Grotius (1583-1645), conceived of international law as analogous to moral relationships between persons. This means - according to Grotius - that moral laws apply equally to both the individual and the state. In order to adjust international law to the post-Cold War situation, we need to reconsider the basic principles of international law.

In his major work De Jure Belli ac Pacis (1625) Grotius sets out the basic principles of international law. Among these principles are the moral requirements for resorting to the use of armed force (ius ad bellum) and the criteria for justifiable use of such force (ius in bello). The moral requirements of ius in bello are that a use of armed force be discriminate and proportionate. For ius ad bellum, the requirements are that the resort to force (1) have a just cause, (2) be authorised by a competent authority, (3) be motivated by moral intention, and (4) pass four essential tests: it must (a) be expected to produce a preponderance of good over evil, (b) have a reasonable hope of success, (c) be a last resort, and (d) have peace as its expected outcome.

In view of the major disagreement about the justification for the recent intervention in Iraq, the first moral requirement of the ius ad bellum - just cause- is very much in point. Grotius regarded (1) defence, (2) recovery of something wrongly taken, and (3) punishment of evil/wrongdoing as just causes for war. During the nineteenth and twentieth centuries emphasis was given to defence as justification for resort to armed force. As a result of the development, set in motion by the French Revolution, war became a vehicle for nationalist aspirations. By that time technology had made war much more destructive, and the comprehensive use of national resources exposed more and more people to its terrible effects.

The efforts to control these two trends - for example the The Hague Peace Conferences (1899 and 1907), the League of Nations (1919), the United Nations (1945), and the Geneva Conventions (1949) - concentrated on restricting the incidence of war. It built on the emphasis given to defence of the state as just cause by Grotius, but drew out this emphasis so that self defence became the only justification for unilateral resort to armed force. From the perspective of those who saw war itself as the evil to be avoided, the other classically recognised just causes -recovery of something wrongly taken and punishment of evil/wrongdoing- were too easily made instruments of national self-interest and tended to produce wars in which both sides could claim to be fighting justly. As a result, the other just causes were seldom discussed.

Membership in the League of Nations and the United Nations was extended to nations all over the world. Both were designed to be a forum for settling international conflict, a source for international law, and to provide a peacekeeping function through collective security. Under collective security, nations give up the use of armed force in international disputes and pledge to come to the aid of nations who are attacked by aggressors - collective security through collective defence.

Until the fall of the Soviet Union and the Warsaw Pact of Soviet vassal states, collective security operated under the realities of a bipolar world: the United States and its allies countered the Soviet bloc. With the end of the Cold War, only one superpower remained, creating a unipolar world. Now that a unipolar world has come into existence, questions arise about the role of the alliances and collective security arrangements that had been built up to address the needs of a bipolar world. A bipolar international system in a unipolar world will not be adequate for contemporary international needs. These include the need for an external response in cases where a sovereign state is unwilling or unable to protect its own citizens from mass murder, rape, starvation, and other humanitarian catastrophes. This means intervention in Grotius' words: for the punishment of evil/wrongdoing - one of his just causes for war. Nowhere was this more clearly illustrated than by the plight of German citizens of Jewish origin in the 1930’s, although this was not articulated by the allied powers as a cause for war with Germany – rather they relied on self-defence against external aggression.

Humanitarian intervention compromises the sovereignty of states. The modern concept of the sovereignty of states originated in the Treaty of Westphalia of 1684, which brought to an end eighty years of religious wars in Europe. The foundation of this system is the sovereign character of the nation state and the solemn prohibition against interference in its internal affairs by outsiders. This international rule remained more or less intact until the end of the twentieth century, though Article 42 of the Charter of the United Nations entitled the Security Council to authorise the use of force to maintain or restore international peace and security. It was left to the Security Council to decide, under Article 39, whether a situation within a state constituted a threat to or breach of the peace. These articles form part of Chapter VII of the Charter.

On 10 June 1999 the sovereign character of the nation state changed de facto as a result of (1) "distinctive historical transformations in the late twentieth century - changes in the global production system, new technologies, a reorganisation of global capitalism, and the end of the Cold War -a set of megaprocesses" ; and (2) the emergence of the principle of national obligations. On that date the UN Security Council approved Resolution 1244 on Kosovo, and with that resolution the Security Council effectively redefined the sovereign character of the nation state. Resolution 1244 is the final act in a series of decisions and actions which, taken together, changed the legal and theoretical structure of international politics.

With the Universal Declaration on Human Rights (1948) and the International Covenant on Genocide (1948), and the European Convention on Human Rights and Fundamental Freedoms (1950), to mention only the most prominent international instruments, the principle of national obligation began to take shape. Previously national governments were responsible only for inter-state obligations, but the new human rights codes created a set of norms designed to regulate a government’s relations with its own population. The idea began to spread that governments could be judged as legitimate or illegitimate in terms of internal, as well as external behaviour. Internal despotism, as well as external aggression could now cost a government its right to rule.

This new idea of national obligation, together with the megaprocesses earlier mentioned, resulted in direct action on 10 June 1999. In the period 1998-1999, the international community, through the medium of the UN, had begun to criticise the internal policies of the Federal Republic of Yugoslavia, a recognised sovereign State and a member of the UN. Beginning in March 1998, the Security Council adopted a series of resolutions on Kosovo that invoked Chapter VII of the UN Charter to condemn the Yugoslav government, although the use of force was not authorised until the last resolution, UNSCR 1244.

Then NATO, claiming authority under this UN resolution, declared invalid the authority of the government of Yugoslavia to rule in a part of its own territory and intervened militarily to enforce that decision. NATO then obtained a UN decision to replace the previous government with a UN trusteeship, with the intention to create a new authority to which NATO would transfer the right of governance at a time of and in accordance with criteria of its own choosing. The UN therefore, acting as the agent of its members, would govern Kosovo with the assistance of a NATO military force. The international community had, by formal decree, cancelled or suspended the Yugoslav government’s licence to rule in Kosovo, a recognised part of its national territory.

It seems that the hitherto inviolable sovereignty of the nation state is now subject to the approval of the international community of its peers assembled in the Security Council. The actions taken in Kosovo were partially justified by the growing belief in many countries that humanitarian and human-rights considerations are the legitimate concern of the international community and therefore constitute legitimate grounds (a just cause) on which to judge and act, even with armed force. International law has returned subconsciously to the ideas of Grotius.

It is the challenge of the twenty-first century to rationalise this factual practice, in order to adjust international law on a legitimate basis to the needs of the age of universal human rights. This must do justice to the statement in the Preamble of the Charter that " the peoples of the United Nations determined … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …. have resolved to combine our efforts to accomplish these aims."

We would do well to consider carefully The Responsibility to Protect. This excellent report, written for UN Secretary-General Kofi Annan, examines basic principles, foundations and elements of state responsibility. The two basic principles are stated to be: "(1) State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself; (2) Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the State in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect."

The report continues with the foundations of the international responsibility to protect. These foundations lie in: "(1) obligations inherent in the concept of sovereignty; (2) the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; (3) specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law; and (4) the developing practice of states, regional organizations and the Security Council itself."

The report further defines the principles of military humanitarian intervention. First, the just cause threshold - "Military intervention for the purposes of human protection is an exceptional and extraordinary measure. To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: (1) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or (2) large scale 'ethnic cleansing', actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape."

Secondly, four precautionary principles are set out: "(1) Right intention: the primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering…. ; (2) Last resort: military intervention can only be justified when every non-military option for the prevention or peaceful resolution to the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded; (3) Proportional means: the scale, duration and intensity of the planned military intervention should be the minimum necessary for the defined human protection objective; and (4) Reasonable prospects: there must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction." With regard to the right authority, the report concludes that "there is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes."

More than three centuries ago, Grotius conceived international law to be based on moral relationships between persons, meaning that moral laws apply equally to both the individual and the state. This I believe is an appropriate starting point for modern international law. If we hear a neighbour inflicting cruelty upon his children, inaction is unacceptable. We must do something about it.