Humanitarian Intervention and How It Is Used to Justify Interference in another States Affairs - Assignment Example

Define “humanitarian intervention” and explain how it is used to justify interference in another s affairs. The machinations of war in the contemporary political climate are complex, further compounded by the ambiguity regarding the boundaries of legitimate human intervention under the international legal framework. For example, Article 39 of the UN Charter vests the UN with broad power to take necessary measures to restore international peace and security, which has become central as a justification for UN humanitarian interventions. Appurtenant to this is the fact that the end of the Cold War and the events of 9/11 have provided a catalyst for unprecedented challenges to the international order and national security policy. Furthermore, Gareth highlights that responsibility to protect is starkly different to humanitarian intervention, and that it is a critical step in preventing “mass atrocity crimes” requiring support and understanding of the international community (Gareth, 2008). To this end, Gareth comments that “the term “humanitarian intervention” was used to describe military force deployed across borders to protect civilians at risk” (Gareth, 2008: 32). This is further reflected in the current approach of the Security Council interpretation of peace and security and administration of territories, which in turn has raised questions as to which organ of the UN is most suitable for the process of restructuring post conflict on grounds of “humanitarian intervention” (Zervaki, 2008). This also raises the issues of legitimacy of their presence in such territories, the implications of such operations for management of conflicts around the globe and military occupation. This in turn fuels the debate regarding “democracy” within a definitive international legal framework, which is arguably the implied justification of humanitarian intervention measures geared towards restructuring post armed conflict (Lietzau, 2004). Indeed, Caplan highlights that since the mid 1990s, the United Nations and other organisations have been vested with “exceptional authority” for the administration of conflict zones, which have overall been effective (Caplan, 2005: 1). Conversely, Chesterman questions the legitimacy of such “benevolent foreign autocracy” and argues that such state interventions blur distinctions between legitimate humanitarian intervention and military occupation (Chesterman, 2004 p.1). It is submitted that Chesterman’s reference to “state building” goes to the heart of the debate in relation to the role of the UN and other multilateral organisations in peace building initiatives under international law, particularly in the current bi-polar international framework. On the one hand, the UN’s ostensibly overall objective is to restore peace through its interventionist strategy. However, on the other side of the spectrum, September 11 has transformed US foreign policy and its strategy towards “nation building” on humanitarian grounds often pursuing objectives outside the confines of democratic peace restoration (Jervis, 2002). Moreover, the US position in the Security Council arguably enables the UN to be utilised as a tool to facilitate these objectives particularly in light of the ambiguity of Article 39 of the UN Charter. Indeed, Fletcher and Ohlin posit that the ambiguity in the interpretation of the UN Charter has enabled humanitarian intervention to be utilised as a legitimate form of self defence. This therefore underlines the debate regarding the legitimacy of peace building after armed conflict particularly with regards to the US (Lietzau, 2004). Moreover, Cogen and Brabandere argue that a central problem is the fact that “democracy” itself is not defined in the UN Charter (Cogen & Brabandere, 2007). However, if a humanitarian intervention is to be legally justified on grounds of promoting “democracy”, this clearly begs the questions as to how any such measure can be justified under an international legal system. Furthermore, Article 21(3) of the United Declaration of Human Rights asserts the right to a democratic government, which whilst providing justification for interventionist measures to rebuild peace, fails to address the governance of the actual method of intervention in the first instance. Indeed, Cogen and Brabandere highlight the fact that the central problem is the correlation between intervention, occupation and democracy, which raises the issue of “forced democratisation” (Cogen & Brabandere, 2007). Prime examples of other UN mandated missions have been in East Timor, Kosovo and Afghanistan (Cogen & Brabandere, 2007). Cogen & Brabandere argue that insofar as consideration of UN involvement in post conflict reconstruction, Kosovo and East Timor “represent the first cases of full fledged administration by a UN subsidiary organ, and ….. represent a culmination in the evolution of peacekeeping mandates” (Cogen & Brabandere, 2007). In terms of the legality, whilst Chapter VII of the UN Charter has been relied on for the establishment of international territorial administrations in East Timor and Kosovo; Zervaki highlights how the lack of definition in the UN Charter has effectively led to an ad hoc approach to humanitarian intervention. Moreover, the Charter itself lacks any express definition for administering territories, with the exception of the “Trusteeship system”( Zervaki, 2008). Accordingly, this clearly raises the issue of legitimacy under Chapter VII. Moreover, the Security Resolutions for both East Timor and Kosovo were based on the discretion granted in Article 39 of the Charter. This wide discretion under Article 39 is further highlighted by the difference in the two security resolutions for East Timor and Kosovo. Firstly, resolution 1272 “promoted statehood and self determination claims, while resolution 1244 was limited to the establishment of political institutions without having settled the overall institutional framework and status these institutions would function in” (Zervaki, 2008). Accordingly, Schneider raises concerns pertaining to the legitimacy of international peace building measures in conflict zones (Schneider, 2005). Indeed in 1992, the UN Secretary General in the “Agenda for Peace” supplement acknowledged that whilst the proliferation of intra-state conflicts presented the UN with novel conflict challenges, caution was needed in relation to the consideration of intervention by the UN (In Chesterman, 2004). Moreover, the concept of “positive peace” is difficult to define when addressing humanitarian intervention under Article 39 (Stahn, 2001). Indeed, Stahn argues that a central problem that the “law of the use of force is traditionally founded upon the dual distinction between the lawfulness of the recourse to force (jus ad bellum) and the law governing the conduct of hostilities (jus in bello)” (Stahn, 2001). The legitimate boundaries concerning the use of force have always been a controversial focus of international law. Article 2(4) of the UN Charter includes a general prohibition on unilateral force. However, the parameters of Article 2(4)’s applicability have remained uncertain, with some questioning its practical efficacy as a protective measure against unilateral use of force, particularly in light of the right of states to self defence under Article 51 or Security Council authorisation’s powers under Chapter VII to restore peace (Dixon 2004). To this end, Stahn argues that international law is currently converging towards a “tripartite” system of armed conflict (Stahn, 2001).Additionally, Fletcher & Ohlin argue that “most attempts to justify humanitarian intervention sidestep the Charter by appealing to exterior legal norms by appealing to Article 51’s language” (Fletcher & Ohlin, 2008 p. 147). The SC has power to “determine the existence of any threat to the peace, breach of peace, or act of aggression” (UN Charter, Article 39) and measures that may require the use of force, if the circumstances are grave (UN Charter, Article 42) . However, the provision for Security Council sanction is not without problems and the modus operandi of the SC is complex and many argue that internal complexities of the member states especially those with power at the SC can influence SC decisions according to their political motivations (Both 2003). In the international forum, the interpretation of Article 2(4) has also led some to argue that the Charter effectively renders force on grounds of humanitarian grounds illegal (Fenwick 2002). The UN has accounted for this problem through the use of mandates or co-operation with NATO to use force in such circumstances. Therefore, despite the Charter’s express restriction, the unclear and flexible attitude to force has been exploited by member states such as the United Kingdom and the United States in asserting justification for their attack on Afghanistan and Iraq on legal grounds. Conversely, whilst acknowledging the potential for abuse, Janzekovic argues that “one may intuitively be affronted by the use of violence to address severe human rights abuse, but at the same time rationalise that unless force is used many people will needlessly suffer and due” (Janzekovic, 2006, p.39). Stahn further highlights the point that the changing nature of warfare requires changes to address the termination of conflict and steps to rebuild peace (Stahn, 2001). However, the discretion offered to the Security Council to determine what actions to take to restore international peace and order appears to offer carte blanche underneath the guise of peace building initiatives. For example Chesterman highlights how through activism in this area in the 1990s, the UN “showed itself willing to interpret internal armed conflicts, humanitarian crises, and even disruption to democracy as “threats to international peace and security” under Article 39. It is submitted that accountability in post conflict peace building is essential to maintaining legitimacy in conflict and the shifting dynamics of contemporary warfare and the complex nature of the international political order necessitates responsible intervention and peacekeeping efforts. Rice and Loomis define “humanitarian intervention as the armed engagement by outside parties in a sovereign state on behalf of a local population facing an imminent or ongoing violation of their human rights” (2007, p.63). However, a central problem is the exact legal parameters within which such initiatives operate, which is compounded by the wide discretion offered to the Security Council under Article 39. To this end, Roth acknowledges that the term “humanitarian” is intrinsically wide and does not provide a sufficient justification for the use of force per se. Moreover, peacekeeping initiatives should be distinguished from the law of armed force, which has in some ways “become the other side of the intervention” (Stahn, 2001). 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UNISCI Discussion Papers, No. 18 October LEGISLATION AND WEBSITES Bonn Agreement 5th December 2001 available at www.bonnagreement.org Charter of the International Military Tribunal 8 August 1945 www.un.org/aboutun/charter The International Law Commission’s (ILC) Draft Articles on State Responsibility (1996) at www.untreaty.un.org/ilc UN Charter available at www.un.org/aboutun/charter NATO treaty available at www.nato.int Rome Statute of the International Criminal Court (U.N. DOC A/CONF 183/9). See full statute at www.un.org/icc United Nations General Assembly Resolution 3314 of 1974 (XXIX) at www.un.org Other web resources: www.oecd.org www.wto.org www.coe.int www.echr.coe.int Read More