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THE FIFTH SYDNEY D. BAILEY MEMORIAL LECTURE
HUMANITARIAN INTERVENTION: PRINCIPLES, PROBLEMS AND PROSPECTS
Friends House, 23 February 2001
Brenda - thank you for that gracious introduction.
Before I begin I would like to say a few words about the person who first asked me to do this lecture, the late Myriel Davies - a woman whom many of you knew, who sadly passed away just before Christmas. Throughout her life Myriel was a steadfast supporter of the ideals enshrined in the UN Charter. A central figure for many years both at the UN Association and in CCADD, she will be remembered as a prolific public speaker and broadcaster on the UN, in both Welsh and English, but most of all as a woman of enormous energy and kindness. I am deeply sorry that she is not with us this evening.
Tonight I feel very privileged to have been asked by her (and by you all at CCADD who have so diligently administered this event for the last half decade) to deliver the fifth and final of the series of lectures established to honour the memory of Sydney Bailey. Sydney Bailey was a remarkable man, not just for the breadth and diligence of his scholarship – the author of over 20 books on the United Nations system, parliamentary governance, and peace, many of them the definitive work on their subject -- but also for his personal and mostly unsung commitment to what has become known as second track diplomacy. I have heard of how he served as a go-between between governments mired in the heat and confusion of conflict. The way he so successfully brought together, with his wife Brenda, UN ambassadors over dinners at Quaker House in New York to thrash out controversial issues in discreet and intimate surroundings. Throughout a life of service he remained always a humanitarian in the purest sense of that word. With a long-held personal and professional commitment to human rights, he presciently wrote in 1993 his acclaimed book "The Security Council and Human Rights" which predicted many of the shifts that were to occur in the Security Council’s handling of that subject. I was moved to discover that shortly before his death he inspired CCADD’s "Ethics and Intervention Project" which culminated in the publication of a collection of essays on the subject "Some Corner of a Foreign Field", dedicated to Sydney’s memory.
So it is entirely appropriate that this final Sydney Bailey Lecture should focus on a humanitarian issue intimately bound up with the issue of human rights: "Humanitarian Intervention: Principles, Problems and Prospects".
This subject has come into vogue in recent years, following a remarkable series of speeches made in 1998 and 1999 by the Secretary-General of the United Nations, Kofi Annan. Since the phrase "humanitarian intervention" is increasingly falling into disfavour, I should note that he never used it himself, speaking rather of "intervention" pure and simple. At Ditchley Park in June 1998 he stated: "Our job is to intervene…. State frontiers...should no longer be seen as a watertight protection for war criminals or mass murderers. The fact that a conflict is internal does not give the parties any right to disregard the most basic rules of human conduct". The following year, at the General Assembly, he asserted that "the core challenge to the Security Council and to the United Nations [is] to forge unity behind the principle that massive and systematic violations of human rights – wherever they may take place – should not be allowed to stand." Referring to the Charter’s declaration that armed force should only be used in the common interest, he then posed the key questions: "But what is the common interest? Who shall define it? Who will defend it? Under whose authority? And with what means of intervention?"
There are no agreed answers to these questions, not even on whether they are the right ones to ask. Indeed a lively debate has been raging in international circles ever since he spoke those words. The debate over humanitarian intervention is largely between two sides both claiming to be committed to the rule of law in world affairs. One upholds a notion of the rule of law based on the rights of states, and the other speaks of the rule of law based on the rights of ordinary individuals. Each of these is set out in different but equally vital UN documents, the United Nations Charter and the Universal Declaration of Human Rights. Part of the challenge before the UN is to reconcile both sets of principles, and I shall return to this later.
But we must begin by acknowledging that even the term "humanitarian intervention" is a contentious one. To its proponents it is the coming of age of the imperative of action in the face of human rights abuses, over the citadels of state sovereignty. To its detractors it is an oxymoron, a pretext for military intervention often devoid of legal sanction, selectively deployed and achieving only ambiguous ends. As some put it: "There can be nothing humanitarian about a bomb."
I suppose we should step back from the fray for a moment and start with a definition. Professor Adam Roberts defines ‘humanitarian intervention’ in its classical sense as "coercive action by one or more states involving the use of armed force in another state without the consent of its authorities, and with the purpose of preventing widespread suffering or death among the inhabitants". It can thus be viewed as a sub-set of the century-long discourse on intervention in which writers from the days of John Stuart Mill onwards have grappled with the moral and practical dilemmas of when a state or states could and should intervene militarily against another.
In his own speeches the Secretary-General has been careful to stress that intervention can be of many types, from humanitarian relief aid to diplomatic efforts to peacekeeping missions, and that military action is not the only kind of intervention he had in mind. But for the purposes of our discussion this evening, it may be best to narrow our focus to the main area of intellectual and political contention, and this is where Professor Roberts’ definition helps us. It gets to the nub of the matter: the "humanitarian intervention" we are talking about is conducted in the absence of governmental consent; it involves the application of armed force; and its stated motivation is alleviation of suffering.
This raises three issues in our discussion of principles:
1) Is humanitarian intervention necessarily the antithesis of the principle of non-intervention?
The principle of non-intervention in the internal affairs of another state – immortalized in the UN Charter under Article 2 subparagraph 7 – is often portrayed as an anachronism of the 1940s, privileging state sovereignty over the rights of citizens. That has always been a risk, and at times has been the experience. But non-intervention also acts to strengthen the rule of law, and to create the international environment for the realization of the ideals of the UN Charter. Ideally the concept of non-intervention can be qualified by the concept of military intervention for the purpose of safeguarding another central plank of international law – individual human rights – thereby mutually strengthening the system of international legal rules and norms. But dangers remain: the doctrine of non-intervention carries with it the dangers of omission – atrocities protected by the barrier of state sovereignty – whilst humanitarian intervention carries with it the dangers of commission – either that it is used as a cover or pretext for intervention for other motives, or that the intervention is genuinely well-intentioned but results in more harm than good.
A second question that arises is:
2) Who has the right to authorize the use of force?
If humanitarian intervention is to strengthen international law and norms rather than serve as a Trojan Horse undermining them, it needs to be effective in obtaining its intended goals and it needs to be, and be perceived to be, legitimately implemented. Legitimacy here rests on what is done, who does it and under what authority.
The experience of the 1990s has focused on three types of bodies that have claimed the authority to intervene:
a. The United Nations, particularly the UN Security Council;
b. Regional bodies and arrangements, including ECOWAS, NATO and the OAS;
c. Individual States and groups of States acting ad hoc.
International lawyers have taken different positions on whether groups of states or regional bodies can act without wider United Nations legitimization. On Kosovo, the Secretary-General, who for a year had been urging the world not to allow the rights of Kosovars to be trampled upon, while declaring that "there are times when the use of force is legitimate in the pursuit of peace," nonetheless expressed regret over NATO’s decision to bomb without seeking the consent of the Council. It has been argued that the Security Council’s subsequent vote by 12-3, rejecting Russia’s proposal to condemn NATO air strikes against Serbia, strengthened the case for unilateral action in the event of a Security Council deadlock. However, a double negative, in any field, but perhaps especially in international law, is not a good basis to establish a precedent. At most, perhaps, along with previous Security Council resolutions, it did create what has been referred to as a "semi-permissive" legal and political environment for NATO action.
The Secretary-General, in the Ditchley Park lecture referred to earlier, raised a note of caution. He asked:
"Can we really afford to let each State be the judge of its own right, or duty, to intervene in another State’s internal conflict? If we do, will we not be forced to legitimize Hitler’s championship of the Sudeten Germans, or Soviet intervention in Afghanistan?"
He answered that most of us would like to see such decisions taken collectively, by an international institution whose authority is generally respected, and that only the Security Council, assigned this responsibility by the Charter, fits the bill.
Other commentators ponder that the General Assembly, with its subsidiary responsibility for peace and security under the Charter, might also play a role. This could either be in drawing up a set of guidelines which the Security Council could apply when faced with the question of the legality of an act of intervention, or in the case of Council deadlock by invoking the "Uniting for Peace" formula and making direct recommendations containing an implicit judgment on the case at hand. Despite the strong legal challenges to the validity of the Assembly acting whilst the Council is seized of an issue, Ramesh Thakur argues that invoking this formula would give greater political legitimation, particularly in the absence of reform of the membership of the Security Council, on an issue of such historical sensitivity and importance to developing countries. The dilemma with this approach is that it substitutes the democracy of the Security Council, where an attempt has been made under the Charter to marry power with representation, with the ‘One State – One Vote’ democracy of the General Assembly where countries such as Nauru and Tuvalu with a population of 12,000 each have the same vote as countries such as China and India with over a billion citizens each. Certainly the General Assembly can claim to be more representative of world opinion than the Security Council, but a General Assembly majority itself is no guarantee of a majority of world opinion. If the General Assembly was to take upon itself to pronounce on such matters it would clearly be the composition of votes – i.e. which countries voted in favour, against or abstained -- that would add to or detract from legitimacy in a particular case.
Whatever the respective roles of particular UN organs, I believe that the United Nations is central both to political legitimacy as the only global authority in the field of peace and security, and to legal legitimacy since the principle of non-intervention under international law is primarily institutionally enshrined through the provisions of the UN Charter and any permissible exceptions to this principle must also be viewed and defined through the Charter framework.
What has helped push the debate to the forefront in recent years have been attempts to find answers in cases where the Security Council was either unable or unwilling to take action in the face of humanitarian catastrophe and the international community did nothing (such as the case of Rwanda) or where in the face of deadlock in the Security Council, some States took military action, under the rubric of humanitarian intervention, without explicit approval (as in Kosovo). The Secretary-General explored this dilemma in his 1999 speech to the General Assembly:
"To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask…in the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?
To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system designed after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke those precedents, and in what circumstances?"
The dilemma was interestingly summed up at a conference at a Conference at Wilton Park this week in the following three propositions:
A third question of principle relates to:
3) The motivation, means and ends of humanitarian intervention
Humanitarian intervention, like justice, may be easy to define but problematic to identify. It is particularly hard to distinguish from undesirable (or "un-humanitarian") types of intervention. Intra-state conflicts frequently present a mélange of security, political, economic and humanitarian problems, all interconnected. Political tools such as sanctions and humanitarian tools such as food aid can undermine each other’s effectiveness. Even non-violent humanitarian action can itself constitute a political intervention or influence the military balance in a civil war situation.
A recent publication by the Carnegie Council on Ethics and International Affairs argues that in practice humanitarian intervention has never been free of both good and bad effects:
"Humanitarian intervention saves lives and costs lives. It upholds international law and sometimes breaks international law. It prevents human rights violations and it perpetrates them."
In our initial definition, of course, we failed to define the very word "humanitarian". I am reminded of a card sent me by a college friend, which asked, "If a vegetarian is someone who consumes vegetables, what is a humanitarian?" The UN Secretary-General in speech last year to the International Peace Academy Symposium on Humanitarian Action noted that the word humanitarian, according to the Concise Oxford Dictionary, is defined as: "1) A person who seeks to promote human welfare, and 2) a person who advocates or practices humane action". He cautioned that it is better to talk of "military action undertaken for humanitarian motives", and adds that while he considers it sometimes necessary for armed force to be used when there is no other way to save masses of people from extreme violence and slaughter, such cases will be very rare. Of course for the victims of gross violations of human rights, the motives of the interveners are less important than being effectively protected; purity of motive is irrelevant if the result ends violations and preserves life.
This takes us to the problem areas in this debate. There are, of course, serious objections against the growing norm and practice of humanitarian intervention. The three principal ones are those of neo-colonialism, of double standards and of inefficacy.
Neo-colonialism. The fundamental political problem with humanitarian intervention is that it is resisted as a concept by many countries in the developing world that see it as the thin end of a neo-colonial wedge.
As one diplomat from a formerly colonized country said to me a few days ago: "In the imperial days they embarked on intervention in our countries as part of a civilizing mission. Now they call it a humanitarian mission. What’s the difference?"
It is hardly surprising, of course, that countries which have only recently won their independence, especially after centuries of foreign rule, will look with suspicion upon any doctrine that seems to license foreign intrusions upon their hard-won freedom. The fact that the doctrine of humanitarian intervention appears to have found its strongest adherents amongst precisely those countries that, in the past, have revealed a taste for empire, compounds the problem. So does the fact that decisions on intervention are usually taken in bodies like the Security Council where the developing world feels it is only feebly represented, or NATO where it is unrepresented. One can argue that the last thing ex-imperial nations want is a new set of colonies – and indeed that the sole remaining superpower, the US, insists more and more that it will only intervene in its own national interests, which makes me want to cry out, "Humanity is a strategic national interest!" But for many in the post-colonial world, humanitarian intervention looks suspiciously like a recipe for foreign domination, and is resisted as such, irrespective of its merits. Speaking immediately after the Secretary-General at the 1999 General Assembly, President Bouteflika of Algeria, then the chairman of the OAU, called sovereignty "our last defence in an unequal world". The problem is, very substantially, that developing countries still largely see themselves not as norm setters in international affairs, but rather as "norm takers", not as subjects of international law, but as the not-always-willing recipients of it.
Double standards. Another criticism raised is the perceived one-sidedness of humanitarian intervention. Some Western politicians and governments have objected to having United Nations human rights investigators on their own soil to evaluate their domestic human rights standards, as required under the Human Rights Covenants. But these same countries appear only too ready to cast judgment on the practice of others, and to intervene when others are found wanting. Indeed, concern has been expressed that intervention is the corollary of the new advocacy of good governance, when again it will be outsiders judging whether a country is governed well enough not to warrant external intervention.
Efficacy. A fundamental question is whether humanitarian intervention brings any lasting benefit to the societies and policies where intervention occurs. This is in fact the argument being made by some in the new Bush administration in the US – that if you look at the interventions in Haiti, Rwanda, Bosnia and Kosovo, they had a short-term impact but resulted in a long term commitment without long-term benefits to either the interveners or, if I may coin a word, the intervenees. I do not agree with this argument myself, since intervention in Bosnia, for instance, undoubtedly put an end to atrocities, killings and mass rapes, but it is an argument that is gaining wide currency.
Humanitarian intervention is also part of a wider ends-and-means dilemma that besets much of the UN’s enforcement action. Many interventions under Chapter VII of the Security Council, and with full Security Council authorization, have negative humanitarian consequences. Despite the measures in place to mitigate such effects, the sanctions against Iraq – though they do not constitute a "humanitarian intervention" in the sense we are discussing -- have unquestionably worsened the living conditions of the Iraqi population. Where we put the blame for the continuation of sanctions – on Saddam Hussein for refusing to abide by Security Council decision-making or on the Security Council or its permanent members who each hold the power to block the modification or lifting of sanctions -- is a much-debated question with no universally accepted answer.
The question of efficacy raises an important point. It is essential that problems are treated with the right tools, and early prevention is invariably the best (and cheapest) cure. Early action of a non-military kind at the first signs of human rights or humanitarian disaster can make military intervention unnecessary, or a rare act of last resort. When military intervention does occur, it must then be followed-up by post-conflict peace-building to strengthen legitimate governmental structures and the rule of law in a country. This also raises the wider question of expensive short-term intervention versus longer-term development. If more lives can be saved in other parts of the world, perhaps in places out of the media spotlight, for fewer dollars, yen, euros or pounds, than paying for the expensive military escort of humanitarian aid in the midst of a telegenic civil war, then is it not preferable to focus on the long-term development instead? These are the tough choices one wishes governments would make, given the constraints on Government treasuries and public donor fatigue, but one has little doubt how most governments would choose when under the spotlight of media pressure and public moral outrage to act in the short term.
Despite these suspicions, and the valid concern for efficacy, the imperative for some form of intervention in the face of clear human rights abuses will remain. In accepting this, one must squarely face the sovereignty argument. "National sovereignty" does not give the State an unlimited freedom of action; the concept of sovereignty cannot be seen in isolation from other provisions of the Charter, namely those that relate to "promoting and encouraging respect for human rights and for fundamental freedoms for all" (Article 1, Paragraph 3). Moreover the development of international law in relation to human rights and humanitarian law has mainly occurred after the adoption of the Charter. The assertion of sovereignty has to take into account not only the Universal Declaration of Human Rights, but the international human rights covenants of 1966, the establishment of international tribunals for Yugoslavia and Rwanda, and the adoption in 1999 of the Rome statute of the International Criminal Court, all of which are meant to exercise jurisdiction over matters that are traditionally within the competence of sovereign states. In any case, sovereignty is no longer seen as designed to protect a sovereign but a people. The more freedom people have within a country, the less likely it is that they will need, demand or receive humanitarian intervention from abroad to uphold their human rights. Every state has the responsibility to demonstrate that its primary concern is with the rights and welfare of its own citizens; a state that makes every possible effort to protect its own people would thereby also safeguard its sovereignty, since there would then be no basis for intervention against it from outside in the name of human rights. And it is simply not right to compare "humanitarian intervention" with the imperialisms of yore – there is a tremendous difference in motive and end result which we must not ignore.
A valid question is how the doctrine of humanitarian intervention can deal with a major military power that is committing human rights abuses within its own sovereign territory. Here the pragmatic need to assess the consequences of an intervention arises. To attempt a military intervention would be folly, since it would lead to all out war, and result in greater harm than good being done. As a practical matter, there would be few countries willing to risk their troops or their treasure in a military intervention for purely altruistic reasons against a major power. This does not give a major power impunity over human rights abuses, nor does it negate the need to act elsewhere; it simply requires that other techniques to induce change would need to be employed against a militarily strong power. The fact is that there are other means of expressing international opprobrium against the misconduct of a major power – sanctions, of course, but also international condemnation not just through resolutions of human rights bodies, but through exposure in the increasingly ubiquitous mass media. Shunning such states is also effective; I do not believe I am too South Asian in asserting that shame is a powerful factor in global diplomacy.
However, selectivity is thus an inevitable consequence of the requirement of efficacy in intervention – that the right tool is employed in each case. Clearly selectivity also arises as a consequence of the lack of political will to mobilize resources (military or otherwise) to intervene in every situation. Does this mean that it should not be done at all – that consistency should triumph over the (imperfect) possible? I assert that it should not. Two wrongs, whether of omission or commission, do not make a right.
It is rather like the crusty Frenchman at an obscure crossroads who is asked by an English tourist how one can get to Paris and replies; "Well if I wanted to go to Paris, I wouldn’t start from here". On humanitarian intervention, we have to begin somewhere.
Now, turning to future prospects.
The Secretary-General has stated in an address to the United Nations Commission on Human Rights that: "Emerging slowly, but I believe surely, is an international norm against the violent repression of minorities that will take precedence over concerns of State sovereignty". He added that: "though we are an organization of Member States, the rights and ideals the United Nations exists to protect are those of people".
But how can this be manifested in practice? A number of scholars and practitioners have called for the creation of a "principled framework for humanitarian intervention which could be used to guide future responses to imminent humanitarian catastrophes and which could be used to assess claims for humanitarian intervention".
I must confess I am no great fan of criteria, in this or in most other domains. Here the devil is in the detail. Who would draw up such guidelines? Some have argued for the General Assembly, others the International Court of Justice. Could either body ever agree on such guidelines? The United Nations, it has been frivolously suggested, exists so that "nations which are unable to act individually get together to decide that they are unable to act collectively". If they did agree, how would such guidelines be applied and by whom, and would they be directed at determining the validity of an intended, current or past intervention? Or is this a blind alley, since no intervention will ever be purely humanitarian in motivation, and a political judgment of legality and legitimacy on a case-by-case basis will always be necessary? If in applying such guidelines an emphasis is placed on a predicted evaluation of outcomes, then what outcomes should be examined – whether the intervention will purely do more humanitarian good than harm? Or also what the political, economic, and social/developmental effects will be? And what should be the timeframe of these likely effects?
Perhaps the best we can do, by learning lessons from the past, is to find a middle path between rigid guidelines and total case-by-case ad hockery. One method could be to draw up broad considerations to assess a particular case of intervention before it is embarked upon. Nicholas Wheeler, the author of the new book Saving Strangers, suggests that five criteria should be applied to determine the justice of a humanitarian intervention:
A sixth criterion which might be worth adding to this list is that the intervention must be welcomed by the people at risk.
The Independent International Commission on Kosovo suggested three "threshold principles" which must be satisfied in any legitimate claim to humanitarian intervention:
1) The suffering of civilians owing to severe patterns of human rights violations or the breakdown of government;
2) The overriding commitment to the direct protection of the civilian population;
3) The calculation that the intervention has a reasonable chance of ending the humanitarian catastrophe.
One scholar, Dr Peter R. Baehr, goes into more detail. He outlines nine factors for consideration before undertaking a military intervention:
And Baehr argues that during a military intervention the following conditions should be fulfilled:
By following guidelines such as these the international community may be better equipped to deal appropriately when faced with each sui generis case. But I have to stress there is no political consensus behind these eminently sensible principles, nor does it seem to me very likely that any such consensus will emerge in the near future.
To conclude, there is widespread and growing acceptance – demonstrated in the world’s reaction to events in Bosnia, Kosovo, East Timor, and Rwanda – that the world cannot stand aside when gross and systematic violations of human rights are taking place within sovereign states.
The Secretary-General has asserted that: "No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples." In a world where globalization has limited the ability of states to control their economies, regulate their financial policies, and isolate themselves from environmental damage and human migration, the last right of states cannot and must not be the right to enslave, persecute or torture their own citizens.
But in raising the issue of humanitarian intervention the Secretary-General was alerting the world to a grave moral and political dilemma of our times, not seeking to rewrite the UN Charter. It is clear that a world order which rests on an association of sovereign states cannot lightly – and indeed will not in the foreseeable future – abandon the bedrock principles of state sovereignty enshrined in Article 2, paragraph 7 of the Charter. The norm of non-intervention remains strong. And yet, the prospects for humanitarian intervention are not bleak.
The UN has revealed over the years a capacity for putting 2(7) aside when confronted with a specific case requiring international intervention within a state. Indeed, a majority of the peacekeeping operations of the UN in the 1990s were within states rather than between them. Humanitarian interventions will always be contemplated, authorized and carried out on a case-by-case basis. The debate that the Secretary-General revived, and upon which we are engaged today, may not establish humanitarian intervention as a universally-acceptable doctrine, but by raising the questions we have considered today, it may serve a more useful purpose: that of changing the climate within which the next case is discussed.
Some have suggested that the doctrine of humanitarian intervention would amount to a call for endless "wars of altruism". This is absurd, not merely because no one would authorize them, but because the challenge is more often going to be to get governments to summon the political will to intervene even when the situation cries out for intervention. One can only hope that by raising this issue and inviting governments to debate it, the Secretary-General has helped create a political and human rights environment in the world that will make it more difficult for states to abuse the rights of their citizens and think that the world would stand idly by. If the debate over humanitarian intervention leads a single genocidal dictator in the future to think twice before starting a rampage, it will have been worth every minute we have collectively spent on it.
If I may end with these words from the Secretary-General:
"This developing international norm in favour of intervention to protect civilians from wholesale slaughter will no doubt continue to pose profound challenges to the international community.
Any such evolution in our understanding of State sovereignty and individual sovereignty will, in some quarters, be met with distrust, skepticism, even hostility. But it is an evolution that we should welcome.
Why? Because, despite its limitations and imperfections, it is testimony to a humanity that cares more, not less, for the suffering in its midst, and a humanity that will do more, not less, to end it."