Humanitarian intervention: a controversial right
Olivier Corten, lecturer at the Centre for International Law and for Sociology applied to International Law, at the Free University of Brussels
The first case of armed intervention on humanitarian grounds by Western
countries was in Kurdish areas of northern Iraq.
The Rwandan case: in 1994, France led Operation Turquoise to protect
populations from the genocidal war tearing the country apart.
Under no circumstances can a government claim
it is ‘lawful’ to massacre its own populationon the grounds that everything that
goes on inside the country is an ‘internal matter’
|
Action on grounds The “right to intervene” came to public attention for the first time when military
action against Iraq was taken by several Western countries in April 1991.1
The operation was presented as a measure to protect the Kurds, who were being harshly
oppressed by the Iraqi authorities. Respect for human rights would from now on be
enforced through action by the “international community”, through the appropriate
institutions or by certain states which were prepared to defend this principle. The
United Nations Security Council, as on all subsequent occasions, declared the situation
a “threat to international peace and security”. 1. The international action against Iraq after Iraq invaded a sovereign state, Kuwait, is by definition outside the purview of the “right to intervene”. |
The crisis in Kosovo
has fuelled the debate between supporters and opponents of the right of humanitarian
intervention. The contributions below were made at the beginning of June 1999
The term “right” or
“duty” of “intervention”–to which the word “humanitarian” was soon added–was coined
in the late 1980s by Mario Bettati, Professor of International Public Law at the
University of Paris II, and by the French politician Bernard Kouchner, one of the
founders of the aid organization Médecins sans frontières (Doctors
without Borders).
As Kouchner put it, they were taking issue with “the old-fashioned theory of state
sovereignty, used to fend off criticism of massacres.” The idea caught on quickly,
especially with the emergence of a new world order in which values like democracy,
the rule of law and respect for human rights were supposed to be top priorities.
The need to help peoples in distress would mean that everyone had a “duty to assist
a people in danger” which would override the traditional legal rules.
Despite the generous intentions of its advocates, the fuzziness of such a right immediately
raised questions and even criticism. Was it simply a moral right or was it a principle
to be incorporated into international law? For centuries, international law has been
based on the sovereignty of the state. As a result, a state is only bound by a legal
obligation–especially by an obligation to protect human rights–if it has agreed to
it by ratifying a treaty or by adhering to an existing customary rule. Human rights
have widely varying legal status all over the world, and persons are better protected
in some countries than in others.
A challenge
to sovereignty
Sovereignty also means
that a country which has violated human rights cannot be prosecuted unless it accepts
or has accepted the authority of a court. Except by going through regional bodies
such as the European Court of Human Rights and the Inter-American Court of Human
Rights, it is thus very hard to get a government convicted of human rights violations
by an international court. And even if a conviction is obtained, there is no way
of guaranteeing the sentence will be carried out. Sovereignty has proved incompatible
with the existence of a kind of worldwide “international police force”.
The doctrine of “the right to intervene” is an attempt to challenge this traditional
legal structure by calling into question the very concept of sovereignty it is based
on. The power of the state, it says, must yield to a “principle of extreme urgency”–the
need for a minimum protection of human rights.
Humanitarian aid must therefore be delivered without regard to national frontiers,
or whether or not a country has pledged to respect a rule, the jurisdiction of a
court or the powers of an international police force. It is no longer tenable to
bow to legal formalism which, as Kouchner says, is tantamount to accepting that it
could be “permissible, albeit discreditable, to massacre one’s own people.”
Many legal experts have strongly criticized the view of traditional international
law held by supporters of the right to intervene. First, under no circumstances can
a government claim it is “lawful” to massacre its own population on the grounds that
everything that goes on inside the country is an “internal matter”. All states have
formally agreed that they should respect fundamental rights, such as the right to
life and respect for the physical person, and that genocide is unlawful as far as
their own people are concerned and therefore on their own territory. They decided
in “a sovereign manner” to respect these principles, so they must respect them in
a sovereign manner too.
Where a massive violation occurs, retaliatory measures and reprisals can be taken
in political, diplomatic, economic and financial ways. An embargo, even without United
Nations intervention, could be envisaged against a state or a group which is violating
a people’s most basic rights. Such a measure, quite a formidable one, has been used
against certain states, including Argentina at the time of the Falklands war, the
Soviet Union after its military intervention in Afghanistan and more recently against
Haiti and Burundi in response to coups d’état in those countries.
The United Nations Security Council can also declare that massive violations of human
rights are a threat to “international peace and security” and duly authorize military
intervention (article 42 of the United Nations Charter). It has done this on several
occasions (see
box). So on closer inspection,
most of the operations presented as arising from “the right of humanitarian intervention”
are actually applications of existing legal mechanisms. It is quite wrong to say
that traditional international law is incompatible with effective protection of human
rights. In fact the problem is usually more political than legal, in the sense that
what is needed is not new rules but the better use of existing ones.
These political obstacles, especially the right to exercise a veto in the Security
Council, mean that nobody is going to claim international law is perfectly adequate
to protect human rights. But despite the system’s shortcomings, many analysts think
that it is less bad than one that would include a broad right of humanitarian intervention.
The principle of non-intervention is the result of a historic battle waged by the
weakest countries. Throughout the 19th century, they were subjected to colonialism
and imperialism, which also made themselves out to be defending “civilized” values.
On many occasions, the humanitarian argument was used to justify military action
by Western states against the Ottoman Empire, as well as in Africa and the Far East.
The United Nations Charter did not put an end to such practices, but at least it
gave countries that were attacked the opportunity to invoke the law to oppose the
use of force. A return to a situation where there was a right to intervene which
could, hypothetically, involve sidestepping UN decisions, would mean the world’s
most powerful states could set themselves up as sole judges of what humanity supposedly
needs. Once again, might would be right.
Colonial
memories
The question of double
standards is often raised. How can one claim an action is humanitarian if it clearly
arises from considerations of realpolitik, which are the only possible explanation
why some states that violate the most basic human rights are let off the hook? The
Palestinian situation is the one most often cited in this respect. This probably
points to the fundamental problem raised by the “right to intervene”–that it is not
clearly defined.
Mario Bettati (see
below) illustrates this
ambiguity when he defines “the right to intervene” largely in terms of opposition
to a restrictive, rigid interpretation of sovereignty. “The term just by itself has
no legal content,” he says. “It only acquires any when it is accompanied by the adjective
‘humanitarian’. By virtue of the purpose it gives to intervention, the adjective
removes the unlawful aspect which everyone associates with it. A lawyer would prefer
the expression ‘right to provide humanitarian assistance’, which defines the purpose
more clearly and sounds less like a subjective and implicit clash–which after all
it isn’t–with the anti-colonialist principles of ‘non-intervention’ and ‘non-interference.’
”1
Ambiguities
And so it is hardly surprising
that this doctrine, which might seem attractive in theory, has led to and is still
leading to many abuses in practice. The recent example of the war in Kosovo may be
seen to embody all the ambiguities of a “right to intervene” exercised, in the name
of the international community, by a coalition of the world’s biggest military powers.
1 Un droit d'ingérence?, Revue générale de droit international public, 1991, p. 644.
• Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality, New York, Transnational Publishers, 1988.
• Mario Bettati, Le droit d’ingérence: mutation de l’ordre international,
Paris, Odile Jacob publishers, 1996.
• Mario Bettati and Bernard Kouchner, Le devoir d’ingérence: peut-on les laisser mourir?, Paris, Denoël publishers, 1987.
• Olivier Corten and Pierre Klein, Droit d’ingérence ou obligation de réaction?, Brussels, Bruylant publishers, 2nd edition, 1996.