The Scope of the Doctrine of Humanitarian Intervention under the United Nation - Essay Example

The making of the United Nations Charter is a great step forward towards building an environment of global cooperation and fellowship1. It is doubtless in the context of the present times that an international understanding of the important issues faced by the entire world is utmost necessary. The world is facing a rise of the breach of peace and the conditions assumed to maintain peace and security throughout the world are violated now and then. With increasing atrocities in the countries, humanitarian intervention has become a necessary intervention. This paper intends to present views on the doctrine of humanitarian intervention under the Article 2 of the United Nations Chapter. “The Statute of the International Court of Justice”2 forms an integral part of “the Charter of the United Nations”3 and is annexed to it. The main objective of the Statute is “to organize the composition and the functioning of the Court”4. It is “the principal judicial body of the United nations and functions according to the “provisions of the present Statute5”. The Article 38 of the International Court of Justice (ICJ) Statute is elaborated below. Various sources of the International Law have been recognized and emphasis has shifted between them over recent times. This has brought about remarkable results in creating “far reaching changes in the political shape of the world”6. The legal relationships among the different nations have undergone vast positive changes. The ICJ has the responsibility to make decisions over the disputes that are submitted to it, in “accordance with the international law7”. Being an organ of the United Nations, the Court is bound to perform its tasks “in compliance with the Charter”8 in order to promote “human rights and fundamental freedoms”9 In its functionalities the court shall apply either general or specific international conventions and establish the rules that are distinctly recognized by the concerned states. The Court will also make use of the international custom which will serve as an evidence of the common practice of acceptance of the law. The principles of law that are generally recognized by the civilized nations would be put into effect. According to the provisions mentioned in the Article 59, the process of determining rules and regulations for the nations would involve “the teachings of the most highly qualified publicists of the various nations”10 and their judicial decisions. It would act as a subsidiary means towards the determination of the laws. For the making of the international law, two major sources are recognized, viz., custom and treaties besides the general principles along with the subsidiary sources. The practical importance of the treaties, especially the multilateral treaties, rises steadily at the cost of the international customary law. Claims are being made that a new source of law has come into being, that is eligible for the title of ‘international legislation’. However, the exponents of such a law are admits that it does not possess all the attributes of legislation that can be termed as international legislation. The United Nations Charter The Charter of the United Nations is framed with the goal of re-establishing faith in the fundamental human rights and the “worth of the human person”11. It aims at maintaining respect for the commitments made as a result of the treaties so that there can be social progress leading to better living standards for the people. This would in turn help in promoting “economic and social advancement of all peoples”12 The articles 1, 2 and 4 are discussed below. Article 1 The Article 1 of the UN Charter defines the purposes of the United Nations. One of the key concerns of the United Nations is to preserve international peace and uphold the laws that aim at maintaining security across the globe. Maintenance of security is extremely crucial since it acts towards the establishment of international peace. Any act of aggression or any act that could take the form of aggression has to be suppressed through collective measures. The Charter is the combined work of the fifty nations of the world that initially built the United Nations13. Hence all the nations have pledged to settle any international dispute in accordance to the principles of international law. This combined effort of all the nations voluntarily develops friendly relationship among all the nations. This relation is based on the feeling of equal rights among the people of the nations. They rear the feeling of self-determination and consider appropriate measures that work towards strengthening universal peace. While solving a problem that concerns the entire world, such as any matter relating to the social or cultural aspects of the nations or some issue involving the humanitarian character, international cooperation has to be achieved and the UN would provide assistance to the nations in resolving the matter. The United Nations behave like a center for making a harmony among the actions of the nations so as to achieve these common ends. Articles 2 The members of the United Nations are pledged to act in accordance with the Principles laid down in the Charter. The member nations hold a faith on the sovereign equality of one another. The Members would fulfill all the obligations that they have assumed according to the Charter so that the rights and benefits accruing, to them might be ensured. It is the duty of the member nations to settle the disputes abiding by the international law and take care that the international peace is not endangered. They would refrain from any usage of force or threat against the “political independence of any state”14. They would keep away from any such matter that would violate the Purposes behind the formation of the United Nations. The Members would provide support to the Organization in taking any action according to the Charter and not second a country against which the UN is taking enforcement measures. The nations that are not members of the United Nations would also make any action keeping parity with the Principles of the UN and the Organization would take the necessary steps to ensure this. The Organization is not authorized to make any sort of intervention in the matters that are bounded “within the domestic jurisdiction of any state”15. However this principle would not prevent the Security Council to take enforcement measures in dealing with any acts of breach of international peace. Article 4 Any peace-loving country can accept membership of the United Nations by accepting the obligations mentioned in the Charter. The country has to prove eligible in the judgment of the Organization that it would be able to carry out all the obligations willingly. The matter of admission of the state would be decided by the General Assembly after recommendations are made by the Security Council16. Customary International Law: Two Principles Principle of prohibition of use of force There are people on this earth who understand no other language but the language of guns, battleships and fighter planes. They have the same characterization as the aggressors of yester years. Such people would continue to exist in this world and they look upon the ultimate availability to force and power as the real means to keep peace in the world and the actual value of the Organization. It is not disagreed that the Organization should not keep itself equipped and ready with the amenities to put up a fight for protecting the peace that it has won with the help of all its members, but it should be the last resort if everything else fails. The executive power of the United Nations is vested in the small powerful organ of the Organization, the Security Council. A Military Staff Committee is present under the direction of the Security Council17. However, the power should have to be kept dormant since it not the real motive of forming the institution. The immense hope of maintaining peace in the world stems from the intention to make conciliatory settlement of any dispute in such a way that it would never make way for war. The relationship of friendliness and regular consultations that the member states would maintain among them would be good enough to placate the nations in any case of disagreement between them. They would have to go through a pacific routine before they might be sanctioned by the UN for the resolve of any dispute through use of force. This routine would incorporate nine steps; which by itself would act like a ‘cooling system’ for the nations to neutralize a portion of their wrath. The nine steps include: “solution by negotiation, solution by inquiry, solution by mediation, solution by conciliation, solution by arbitration, solution by judicial settlement, solution by resort to regional arrangements, other peaceful means chosen by the disputants themselves or appropriate procedures or methods of adjustment recommended by the Security Council.”18 It would lead to a peaceful solution to the controversy, which otherwise might become a cause for a new war; as the world has witnessed that impetuous wrath leads to unprecedented national hysteria. The international obligation stands on the broad base of sacred trust and needs to be preserved for the maintenance of freedom and well-being of all the sovereigns of the world. Principle of non-intervention The interpretation of one of the principles of the UN Charter, the Non-intervention principle has been a difficult task for the Organization. At several instances the member states have claimed certain issues to be internal to the state and that comes with their own domestic jurisdiction. Thus the issue has not been made open for international intervention. It has been therefore quite a difficult task for the UN to handle such internal issues which has created international concern at different levels. Different researchers have provided different views about the following of the principle in any event of controversies within a country. The School of /static approach has opined that any action taken by the United Nations, excluding the enforcement activities made by the Security council of the Organization, that was in excess of a discussion, would be considered an intervention into the internal issues of a state falling under their domestic jurisdiction. On the other hand, followers of the dynamic approach have put forth that in a situation where a member state ignores a declaration addressed to it by the United Nations, the Organization is free to take action that might pertain to the domestic jurisdiction realm of the state. According to a third approach by Mr. Jones to interpret this issue, it is said that the UN is authorized to intervene into the domestic jurisdiction arena only after receiving permission from the state government to interfere or if a new treaty is ratified by the state that allows the UN some degree of intervention. Other than this, the UN could also interfere if “the International Court of Justice” provides any advisory opinion over the controversies, or if enforcement measures are taken by the Security Council of the United Nations. However these interpretations are also subject to further discussions and are debated. However, as we have seen from the instance of humanitarian interventions made by the United Nations for the protection of the civilians of Libya, the post 1990’s developments have made the international community more conscious about the protection of human rights19. Humanitarianism The term ‘humanitarianism’ does not have any rigid definition and a precise meaning cannot be provided for this term. It came into daily use in the late nineteenth century20. In a broader sense it can be defined as a “philanthropic feeling towards humankind”21. The concept of humanitarianism is based upon the act of providing “impartial, independent, and neutral provision of relief to those in immediate danger of harm”22. The question of violation of human rights has surfaced repeatedly and many advocates of human rights consider “the granting of immunity to a state”23 as unjust. In the international law some overriding principles exist that forms “a body of jus cogens”.24 Prohibition of genocide along with some other rules is considered to be the peremptory norms of the law. In literature it is mostly referred to as “principle of non-use of force25”. The rules of sovereign equality are disrupted when the violations reach the extent of infringement of the international law, or ‘jus cogens’. Increased violence and hostile state regulation often pose difficulties for the aid workers to work in these countries26. Legitimacy of Humanitarian Intervention The ethics of humanitarian intervention is debated on the ground that it violates the sovereignty of a state. However, all infringements are not unjust. The conditions leading to the intervention by the UN have to be considered in this debate. Yet the problem that persists concerns the way in which the government can give a moral justification to its citizens on humanitarian intervention. It is a question of inward justification. The other question is that of external legitimacy which concerns the justification to be provided to the external community of states27. Legitimacy can be conferred by states outside the Security Council also28. A conscious effort made on the part of all countries to make actions in accordance to the “natural duty of justice”29 will lead to the creation of international legal institutions. The duties would be determined and assigned to the states in such a way that all the citizens would have access to the rights-protecting institutions. Once the peaceful methods fail the Security Council of the UN would make enforcements on the states which would include “demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”30 Post 1990’s development Humanitarian Intervention in Chechnya The war wedged in Chechnya by the Russian armed forces ended in February 2000 with Russia conquering the capital city, Grozny. The justification provided by Russia behind the war was that of fighting Islamic terrorism31. During the crisis the international aid workers faced bad experiences in Chechnya. The importance of humanitarian intervention lies with the presence of the international body in the scene of crisis. However, increased military activity by Russia made it difficult for the humanitarian agencies to operate. If the disputing parties cannot oblige by the conditions of peaceful settlement international interventions become unavoidable32. In 1994, the United Nations was invited by Russia to help in dealing with the crisis. Although there has been activities in “Ingushetia, North Ossetia, and Daghestan”33, there was only a visit by a representative “from the UN Commission for Human Rights (UNCHR)”34 in Chechnya. There has not been enough support from the international community in the plight of Chechnya. Humanitarian Intervention in Iraq Humanitarian Intervention in Iraq in 1991 has been deemed valid through the resolution 688 on the ground that the Iraqi government of that period was making acts of gross human rights violation against its citizens35. Such atrocities had its effect on the rest of the world in this era communication via media has become very lucid. Hence intervention has become a necessity in order to protect the peace of the world. Nato Intervention in Kosovo The bombing of the Serb targets by NATO was characterized as humanitarian intervention. It had provided the justification that the bombing was necessarily done to stop the atrocities in Kosovo. It was done without approval from the UN. The Security Council ratified the settlement of the clash and interpreted it as a legitimate intervention, although not legal36. Security Council in Libya The entire world witnessed the massacre that was going on in the North African Nation of Libya due to the bombarding over the country’s localities. The UN Resolution 1973 was taken as a commitment towards intervening into the occurrences within country’s boundaries that require international actions. Presently, the mandate of Operation Odyssey Dawn has been framed to protect the civilians of Libya from state-sponsored attacks. The UN Security Council has passed anew resolution concerning Libya in March 2012 that is an extension of the peace keeping mission of UN, known as UNSMIL37. Through it a strong decision has been taken that the international community would not remain inactive following the policy of non-intervention, in any situation that demands intervention by UN. The use of armed forces of military has been authorized, through this Resolution for the first time for the protection of human kind against an oppressive government38. No stone had been kept unturned to protect the citizens of Libya from the acts of violence. In any such circumstances that needed protection from the foreigners, the allied coalition would work with full effect to avert any situation of chaos, preserve mutual respect and suppress acts of violence39. Security Council in Rwanda The world has learnt from the failure of the global community to take actions to stop state-sponsored killing of people in Rwanda in the 1990s. The Security Council failed to take decisive actions to secure the fundamental human rights of the people when they have been crying out for aid. To find a way in which the international community can effective take steps to respond to the acts of the state governments, that put assaults on the very concept of sovereignty that aims at protecting the civilians of a state, without delay, the expression of “responsibility to protect” was presented in a report by the “International Commission on Intervention and State Sovereignty (ICISS)”40 in December 2001. Resolution of UN The UN Security Council has noted in the Resolution 1265 that civilians are the worse sufferers of the armed combats. They are becoming the easy target of the combatants41. Such incidences harm the respect for human rights. To remain inactive to such a plight would imply betrayal to the people that are protected by the international law. It calls for the need to take coercive action by the international community for the need to deliver justice and maintain international peace. International Community Intervention and Obstacles to humanitarian intervention The UN has recognized a clear mandate to involve itself in the ongoing situations of human rights violation.42 The primary obstacle that to any action to be taken by the international community is the legal barrier that stems from within the principles of the UN Charter; the principle of non intervention and the principle of prohibition of use of force. All the members of the United Nations are pledged to maintain sovereign equality of the member states. It relates to the respect of each country and its authority to deal with its own issues that are within its own jurisdiction, without interference of the Organization. However, these norms do not allow the states to deal with its subjects under its free will, which might even include suppressing the fundamental rights of the civilians. There is a limit up to which the states should go in handling its own internal controversies. When these limits are exceeded the UN can intervene into these matters with its own authority and take legal actions on the humanitarian grounds43. Although the Organization at first tries to bring peaceful settlement, if that endeavor fails to bring desired result, it can make use of military forces under recommendation of the Security Council. Changes after 2000 Responsibility to Protect(R2P) The term “Responsibility to protect” (referred to as R2P) was first coined in 2001 by ICISS. R2P is defined by the duty of the states to protect their own citizens. It is emphasized that on given sovereignty the states are given the duty to control its internal matters and also protect the civilians of the state. The official reference to the R2P was made through the Resolution 1674 by the Security Council44. In practice, during the attacks in Libya, the Security Council adopted resolution 1970 which made reference to R2P and in resolution 1973 it commented strongly that these attacks symbolize crimes against humanity. In 2011 further reference to the R2P was made to remind the Yemeni government and the South Sudan government their responsibility to protect their populations45. Conclusion The convention of not using forces in the settlement of disputes and norm of non-intervention is changing over time. There has been a long period of inactivity by the international community and no intervention in the matters of the individual states has led to terrible sufferings on part of the common civilians. Human rights violation has become more common against women and children46. The new emerging norm recognizes and tries to find justification for the cause of intervention on humanitarian grounds that would make use of military forces in resolving conflicts. This is yet a debatable issue; however the purpose of military action is aimed halting the imminent threat to humanity47 and providing protection for the civilians and their human rights against any kind of atrocities; be it an internal conflict of the state concerned or a global issue. Bibliography 1) Vandenberg, Arthur H. “United Nations Charter: The Only Hope Of Averting Chaos”., Vital Speeches of the Day 11, no 19 (1945): 583-584. 2) Statute of the Court, accessed January 5, 2013 http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II 3) H. W. A. Thirlway. 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