Public International Law - Essay Example

? INTERNATIONAL LAW College Outline 0 Introduction 2.0 Historical, political and philosophical background 3.0 UN ized Interventions 4.0 Unauthorized interventions 5.0 Conclusion 6.0 References Libya and the Concept of Humanitarian Intervention in International Law Introduction The assertion that states, more often than not, act in the interest of domestic power is one that has been held by many. States aren’t the agents of morality and the field in which they are allowed to operate as such is decidedly small. Humanitarian intervention is the use of military force by one state against another on grounds of human rights violations within the territory and jurisdiction of the state being attacked and without that state having committed an act of aggression against the attacking state. Intra-state conflict is one of the leading causes of wars and civilian casualty makes up for almost ninety percent of the war fatality. In a world where the state has been identified as the foremost aggressor against its own, civilians the case for intervention seems solidly made. The philosophical underlining the debate is the implementation of foreign policy decisions that not only defend the interests of states but also their values such as justice and democracy. The grand idea of humanitarian intervention while controversial since its inception has been cast in the limelight since the events of September 11, 2001; indeed since the ‘90s when the United States rose to be the sole super power militarized aid. However there can be no outright objection to militarized aid because the 1994 Rwandan Genocide is a dark stain in the fabric and conscience of the world. Yet many questions still plague it: what are the limits of armed intervention? Who has ultimate authority of sanction and does retaliatory defense fall within its ambit? Compounding these concerns is the problem of ethics. The tag humanitarian in armed intervention is indicative of the motives of such intervention but the fact of motives being complicated has led to humanitarian aid being described as one of the primary motives for Morality in foreign affairs is not as outlandish as it seems but moral dimensions to a situation do attract distortions to it1. Is it morally permissible or morally obligatory to intervene in the face of systematic and widespread violations of basic human rights? Yet the concept of intervention doesn’t take place in abstraction. It is interconnected with the ideals of national sovereignty, international relations and foreign policy, politics and the growth of the international community. These linkages are what inform philosophical thought and public opinion on the subject today2. Those arguing against intervention for human rights say they compromise basic features of state sovereignty since human rights are claims that states cannot do anything they want to however even among legal scholars, notions of sovereignty are coming under pressure to include understandings that would allow or even require intervention by outsiders in cases of humanitarian crisis and gross human rights abuse. Historical, Political and Philosophical Background The state is the fundamental ingredient for political self-determination, thus according to Michael Walzer intervention should be staged only when the basic purposes for which the state was formed have not been achieved. The legitimacy of states is limited to waging internal wars that go on without the acts shocking the conscience of mankind3. Of course there are scholars who think that Walzer’s ideas are far too liberal. The fact is that states monopolize defense and security matters within their territory4. The Soviet Republic murdered over 50 million of its citizens in cold blood, in Yugoslavia the numbers were over a million, in Darfur it was in the hundreds of thousands. This sobering statistics justify the assertion that it is the most dangerous threat to civilian existence today. Since the 2001 enactment of the Responsibility to Protect (R2P) international law policy makers have been trying to develop doctrines of limited sovereignty that aims at giving the international community or specific international organizations leeway or duty to undertake intervention in cases of genocide, war crimes, crimes against humanity and ethnic cleansing5. The framework of humanitarian intervention isn’t clearly defined6. This is amplified by the fact of intervention being not just a moral, but a legal issue as well. The fact that the doctrine isn’t definitively limited to cases where there has been explicit UN Security Council sanction under Chapter VII of the UN charter goes to the cause of a lack of definition and fuels criticisms by detractors of the concept that intervention could be used as a smoke-screen by powerful nations to invade countries for self-interest as is widely seen of the US attacks on Iraq and Afghanistan under the Bush administration justified in human rights terms. The mechanics of humanitarian intervention requires a political body to decide upon and authorize military action and the military force itself that carries out such action. Article 2(7) of the UN charter is non-intervention clause prohibiting intervention by the UN of matters falling within the domestic jurisdiction of the state or requires the state to submit such matter but there is a proviso that allows enforcement measures encompassed under Chapter VII. Markedly, there is a limitation on the body international law protecting citizens facing humanitarian disaster7, The 1981 UN Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of states is a reaffirmation of the principle, a notion rooted in the Nuremburg Trial’s definition of a Crime against Peace which stated it as, inter alia, the starting or waging a war against the territorial integrity, political independence or sovereignty of a state or in violation of international treaties or agreements. It declares no State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal or external affairs of other States. Relevant too is article 2(4) of the UN Charter which encourages members to refrain from threat or use of force against territory and freedom of one another against UN aims. Chapter VII of the Charter covers action with respect to threats to the peace, breaches of the peace, and acts of aggression. Through this chapter Article 2(7) can be overridden and as such is not an absolute bar to intervention. It describes the Security Council’s power to authorize economic, diplomatic and or military sanctions to resolve disputes as well as the employment of military force. World peace and security are within the core mandate of the Security Council. The prohibition of aggression and attacks among states is a fundamental reason for the formation of the UN. Article 39 gives the Security Council the power to determine whether such threats to the peace exist, make recommendations or decide measures to be taken according to article 4 and 42 to restore the peace before which recommendations Article 40 gives provisional measures the non-compliance of. Article 41 gives interim measures that will be taken not involving the use of armed force. Article 42 covers blockades and demonstrations as well as other land, air or sea operation in case of the measures under Article 41 failing. Beyond this point is urgent military action. Basically armed intervention within the framework of the UN is a measure of last resort8. The politics of intervention is a balancing act between legitimacy and efficacy. The UN being the decided political authority sanctioning interventions is itself at the mercy of the five members of the Security Council. The politics of intervention is all the more confusing after the US gained its current hegemonic position in the world stage. Meanwhile the responsibility to protect is dependent on the five permanent members of the Security Council and in absence of their responsibility to act R2P remains something of a discretionary entitlement9 UN Authorized Interventions Early in the ‘90s, the UN in collaboration with multinational forces assembled for missions with forces being comprised of military units from different countries. It enjoyed a successful run at global peacekeeping. The collapse of the Soviet Union came with hopes of expansion for the peacekeeping objectives of the UN for the USSR sometimes vetoed these missions. The UN did expand the scope of these missions to encapsulate failed states, the results were spectacularly disastrous. The UN force intervention was guaranteed of course under Chapter VII of the Charter. Relevant too in this regard is Chapter VI which permits peacekeepers to come between warring factions that have agreed to follow UN reconciliation plans or not to shoot at each other while peace is being restored. Somalia The United Nations Operation in Somalia (UNOSOM II) from ’93-’95 was the second wave of intervention in Somalia carried on from the US-controlled Unified Task Force (UNITAF) was aimed at ensuring that security necessary for humanitarian operations for the country which had descended in anarchy and facing famine. Resolution 794 authorized the use of all means necessary for the establishment of, as soon as possible, a secure environment for humanitarian relief operations to ameliorate famine in the country. The Somali case is unique because this was intervention based purely on humanitarian grounds. The UN Security Council examined the matter and decided that there had been a threat to peace as under Article 39 which triggered the operation of Chapter 7. Rwanda Not surprisingly then, the explosion of the 1994 genocide in Rwanda was met with an obstructionist US government sounding warning bells. At the time of the crisis the UN had a small contingent on the ground, the United Nations Assistant Mission in Rwanda (UNAMIR) but the US successfully blocked the expansion of UN presence in the country strongly influenced by the Somali events. After the massacre of its troops, Belgium withdrew and on 21st April other countries followed suit. The UN Assistance Mission in Rwanda (UNAMIR) mandated to oversee the peace accords that ended the civil war of the previous year was reduced from 2165 to 270. On April 21st, at the behest of the US which had no troops in Rwanda at the time, the UN Security Council had voted to withdraw all but a remnant of the UNAMIR. The Clinton Administration not only refused to offer troops but prevented the UN from obtaining more from the rest of the world. Bosnia There was a 1995 effort to end the conflict in Bosnia Herzegovina. Bosnian Serbs forces in Srebrenica committed the Bosnian genocide. The Bosnian Serb Army controlled it during the 19992-1995 Bosnian War. The ethnic cleansing campaign targeted Bosnian Muslims and Croats. In Bosnia, the UN forces did not stop the ethnic massacres, which culminated in the murder of 7000 men and boys in 1995, in Srebrenica. The intervention under the aegis of the UN was seen as a way of assuaging Western guilt about the atrocities taking place. The UN peacekeepers were conducting low-risk missions centered on humanitarian intervention efforts. The UN operation dubbed the United Nations Protection Force (UNPROFOR) was foremost charged with finding a middle ground traditional peace-sustaining missions and massive military enforcement operations that would create this peace. The UN operations were of made over 33,000 troops. The sad fact is the Croats, the Serbs and the Muslims ended up manipulating UN forces to continue the conflict. The war was finally won with US air power along with the ground forces of allies like Kosovo and Croatia. Libya The case of intervention in Libya was complicated by the fact of oil in the country. It was special as the first intervention on the basis of the norm of the responsibility to protect. Notable too is the fact US contributions to the operation were meager and there were no US troops on the ground despite the overthrow of the Giraffe regime and the stopping of atrocities in Libya being primary objectives of the US government. On the 17th of March, the UN Security Council at its 6498th meeting adopted resolution 1973 (2011) by a 10 to 5 vote with abstentions from Brazil, China, Germany, Russia and India. The effect was a no-fly zone imposing a ban on all flights over the country’s airspace except those whose mission was humanitarian relief or the evacuation of foreigners or purposes necessary for Libyans and authorization to member states acting through whichever channels to take to take all measures possible to protect civilians under fire in Libya. There was exclusion of an occupation possibility in any area of the territory. A further decision was the denial of landing permission to any and all Libyan aircraft or to take off unless such fight had been cleared by the Committee formed to monitor such sanctions imposed by resolution 1970 (2011). Further, the resolution also established an arms embargo and asset freeze with detailed conditions for inspection of transport systems suspected of violating the embargo. There was a request to the UN Secretary General for the creation of an eight member panel to assist the Committee in the monitoring of the observance of sanctions. The case for intervention in Libya was based on humanitarian terms and the R2P doctrine. It was under resolutions 1970 and 1973 that NATO (the North Atlantic Treaty Organization) under operation UNIFIED PROTECTOR to protect civilians or civilian populated areas under attack or threat of this. The reason for intervention in the Libyan case meets the Chapter VII criteria. Libya Analysis The situation in Libya should only be within the prerogative of the Council of Human Rights to determine whether the situation has reached to such heights as to evoke humanitarian intervention and make recommendations to the General Assembly who would then determine the necessary action to be taken. Under Articles 10 and 14 of the UN Charter, the General Assembly has been empowered to deal with all matters within the Charter except those matters that are expressly provided to be under the ambit of the Security Council. Form these four cases, there are easy conclusions to be drawn as to the criteria for UN sanctioned intervention: there must be a humanitarian crisis whether famine or large numbers of civilian casualty; the crisis must amount to a threat to international security and peace within the meaning of Chapter VII of the Charter; the UN must be the political authority that sanctions this force and such force must be a measure of last resort. All these factors must be present for UN intervention to be justified under international law. Unauthorized Intervention Under the current international law framework, unilateral intervention without UN Sanction is illegal yet scholars think that if the humanitarian crisis is apparent and there are no willing actors, unauthorized action may be justified. Other cases of successful intervention include those undertaken by the US and NATO. Kosovo In 1999, ten countries under the auspices of NATO and without a UN Security Council resolution waged war against Slobodan Milosevic, the President of Yugoslavia to end the human rights abuses against of ethnic Albanians in the Serbia. Russia and China opposed US intervention but the Security Council did issue a resolution to the effect that the occurrences in Kosovo were a threat to international security and this was a justification put forward for the intervention. The Clinton administration saw these as logical continuations of American responsibility of European. The justification here was humanitarian grounds that did in fact meet the Chapter VII threshold10. Iraq Instead of armed humanitarian aid intervention, the US Government under the Bush Administration went to war on the basis of human rights. It did so under its own definition of US interests and before the conclusion of the Afghanistan war. These interests were listed as: the presumed threat of weapons of mass destruction presumably under Iraqi or Al Qaeda control and the control of Iraqi oil production. Some thought the democratization of Iraq would help perpetuate liberal democratic and free Market ideals throughout the Middle East. On March 2003, a US led coalition of twenty countries invaded Iraq, overthrew the government and occupied Iraq. The mission was an epic failure in many respects and has dictated the future of intervention missions. Conclusion The success of the Libyan intervention has put wind in the sails of interventionism. But the philosophical debate over its morality and necessity persist. Perhaps this can be best attributed to the hegemonic position of the US and literature that argues that America’s foreign policy should be the spreading of liberal democratic ideals worldwide and on this basis, intervention can be justified. Resource-wise, America is by and large the only country which can stage successful intervention missions on its own. But this doesn’t make it the moral compass of the universe. Contra-wars are not legitimate reason for intervention. Any intervention that seeks to be justified must come within the ambit of the UN framework as guided by Chapter VII. Further, the recent Libyan intervention shows the need for clear guidelines and proper regulated framework for intervention. More so because this notion requires a balance between very fundamental issues like sovereignty and the duty to protect civilians. The UN General Assembly has described as dictatorial interference in the political independence and territorial integrity of a sovereign state. Traditionally, intervention was prohibited by international law. To this day there are controversies as to intervention with some scholars classifying humanitarian interests as window-dressing. Humanitarian intervention always occurs within an intricate structure of conflicting norms and values that determine whether and how it happens. Intervention is fraught with transparency issues, violates proportionality and last resort principles as well as fostering militarism. But perhaps this is the price of human rights. References HIGGINS, R. (1994). Problems and process: international law and how we use it. Oxford, Clarendon Press. SHAW, M. N. (2008). International law. Cambridge, UK, Cambridge University Press. DIXON, M. (2007). Textbook on international law. Oxford, Oxford University Press. CASSESE, S. (2005). Universalita? del diritto. [Napoli?], Editoriale scientifica. WALZER, M. (1992). Just and unjust wars: a moral argument with historical illustrations. [New York], Basic Books. FRED, FRUSTON. (2003). The savage wars of peace: Small wars and the rise of American power. New York, Basic Books. HEHIR, A. (2010). Humanitarian intervention: an introduction. 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