Humanitarian Intervention - Research Paper Example

In 1999 the then UN Secretary General Kofi Annan asked: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Sbrenica to gross and systematic violation of human rights?” The Charter of the United Nations proclaimed the goals of saving succeeding generations from the scourge of war, promoting human rights, justice and respect for international law and the Nuremberg trials were a cornerstone of the great effort to make the peace more secure (Gray, 2001). However, in failing to define the act of “aggression”, the doors to exploitation were left open (Weiss, 2007). Moreover, the machinations of war are extremely complex and what constitutes excessive force in one situation differs from another. The spectrum is so broad that therein also lays the problem of having a definitive framework for the crime of aggression, further compounded by the broad discretion of Article 39 of the Charter, enabling the UN to take necessary measures to restore international peace and security. In turn this has become central as a justification for UN peace building initiatives post armed conflict (Pritchard, 2001). Furthermore, the complex nature of conflict and changing nature of warfare within the cotemporary international framework has raised questions as to which organ of the UN is most suitable for the process of restructuring post conflict (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 (Weiss, 2007). For example, in the post Cold War international framework, there was an increasing amount of recommendations for the UN to become involved in peacekeeping, which has fuelled debate as to the legitimacy of their presence and efficacy of such peacekeeping measures (Weiss, 2007). On the one hand, the intervention on humanitarian grounds has been justified on the basis of morality within the wider legal justifications under international law. However, in turn the conflict between morality and legal justification for intervention on the one hand and the right to self determination on the other has perpetuated academic debate as to the priority of national interests when considering humanitarian intervention (Weiss, 2007). Moreover, whilst on purely moral grounds arguments for humanitarian intervention as a necessary impingement on sovereignty may be sound; the ad hoc manner in which such interventions are executed by the international community have led to questions as to whether interventions on humanitarian grounds are utilised by the powerful members of the UN to serve wider agendas (Weiss, 2007). Indeed, it is arguable that the recent UN resolution regarding intervention in Libya is a prime example of this on the basis that similar action has not been taken in the Yemen and Bahrain where the governments are openly firing at civilians protesting against political corruption. On this basis, if the morality argument necessitates UN intervention on humanitarian grounds as is argued, then this would imply consistency within the execution of such measures and thereby require similar action vis-a-vis Yemen and Bahrain. This paper critically evaluates the justification for intervention on humanitarian grounds under international law and will highlight the gaps between idealistic theories based on morality on the one hand; in contrast to the inconsistency of humanitarian interventions in reality on the other. To this end, this paper argues that whilst the moral justifications for humanitarian interventions are sound; the lack of consistency at international level in taking action on such grounds raises wider issues of exploitation and power abuse. The conflict between morality and legal justification is further challenged by the problematic doctrine of self determination and its boundaries in international law (Higgins, 1995). The doctrine of self determination has remained contentious in international law as whilst the objective of the doctrine as expressed in the UN Charter 1945 was arguably triggered by the increasing desire for decolonisation; the practical consequences has often seen the doctrine of self determination being utilised to perpetuate conflict (Castellino 2000; Weller, 2008). In reverse, this has been utilised by the UN to justify intervention on humanitarian grounds, leading to the conflict between sovereignty and morality (Weller, 2008). A prime example is the United Nations Assistance Mission for Rwanda (UNAMIR), which was intended to help enforce the Arusha Accords of 4 August 1993 and in turn facilitate the peace process between the Hutus and the Tutsis. However, the UNAMIR is well documented as having failed in its mission to maintain and restore peace in Rwanda (Dallaire, 2003). The UN and UNAMIR failure in Rwandan has perpetuated the debate regarding the legitimate boundaries and efficacy of the UN’s role in post conflict situations and justifications for intervention on humanitarian grounds. Indeed, with regard to the failure in Rwanda, this is exemplified by the controversial firsthand account of General Romeo Dallaire’s “Shake Hands with the Devil” (2003), which provides a graphic insight into the UN failures in Rwanda. Dallaire’s memoir unveils his personal trauma in a controversial narrative, which highlights the flaws of the UN role in enforcing international law. For example, Dallaire suggests that a central flaw was the policy of intervention post conflict, whereas the UN’s first priority should have been to intervene to prevent the mass genocide of 800,000 Rwandan Tutsis in 1994 (2003). Dallaire highlights the failure of the UN in preventing the atrocities by presenting his account as a “cri de coeur”, where the native Africans and witnesses were forced to watch “as the devil took control of paradise on earth and fed upon the blood of the people we were supposed to protect”. This is in stark contrast to the recent UN resolution regarding Libya on humanitarian grounds, which has been almost pre-emptive in nature with international concern regarding the wider motives of such action by the UN. To this end, Dallaire also highlights the central problem regarding an international consensus on the definition of democracy” within a definitive international legal framework, which is arguably the implied justification of 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 war-torn and strive ridden territories…..these initiatives represent some of the boldest experiments in the management and settlement of intra-state conflict ever attempted by third parties” (Caplan, 2005, p.1). However, Caplan argues that whilst the complexity of regional conflicts and the changing nature of warfare have created problems particularly in the method and implementation of international administrations, “international administrations have generally made a positive contribution to the mitigation of conflict in the territories where they have been established.” (Caplan, 2005, p1). This point is reinforced by Dallaire’s observation that the socio-cultural complexities of Rwanda’s population and national interests and cultural conflict was at odds with the UN methods geared towards peace keeping post conflict. Additionally, it was the UN’s failure to understand the cultural complexities at play that contributed to the failure of the peacekeeping mission; a point which Dallaire highlights through the rhetoric of “good and evil” throughout the narrative. Moreover, in applying the good and evil rhetoric throughout, Dallaire highlighted the intrinsic flaws of UN justification for peacekeeping missions under international law. For example, Dallaire suggests that the UN peacekeeping missions are based on theoretical principles of international law and vague concepts of peace and stability, which fail to address the complexities of a particular conflict situation (Dallaire, 2003). Additionally, the political structure of the UN means that peacekeeping missions are intrinsically shaped by states with the balance of power within the UN, which can impact the efficacy of peacekeeping missions. Indeed, Dallaire’s argument correlates to Chesterman’s question as to whether it is ever possible to “establish the conditions for legitimate and sustainable national governance through a period of benevolent foreign autocracy?”(Chesterman, 2004). Chesterman further comments that in essence such state building operations: “combine an unusual mix of idealism and realism: the idealist project that a people can be saved from themselves through education…. and the space to develop mature political institutions; the realist basis for that project in what is ultimately 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 on humanitarian grounds, particularly in the bi-polar international framework of the post-cold war era (Chesterman, 2004). On the one hand, the UN’s ostensibly overall objective is to restore peace through its interventionist strategy, which is arguably justified by moral arguments as alluded to by the above statement of the previous UN Secretary General Kofi Annan. However, on the other side of the spectrum, September 11 has transformed US foreign policy and its strategy towards “nation building” often pursuing objectives outside the confines of democratic peace restoration (Jervis, 2002); which is arguably reflected by the wider agendas being served by the recent UN resolution on Libya. 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 (Cohen, 2006). This therefore underlines the debate regarding the legitimacy of peace building after armed conflict, which further reflects the questions and sentiments in the 2000 Brahimi report as to “whether the UN should be in this business at all” (2000 at paragraph 78). Accordingly, it is submitted that the UN efforts to address the problems encountered by the humanitarian interventions in the 1990s highlighted the following central issues in relation to peace building and conflict resolution under international law: 1) The implied objective of peace building post conflict is rooted in rebuilding democracy, however contention remains regarding the actual definition of “democracy” for the purpose of such international interventions; 2) The legal basis for establishing and implementing a peace building intervention; and 3) The changing nature of contemporary warfare and the conflict between the US based “state building” approach and the peace building objectives of the UN. This is clearly reflected in Dallaire’s narrative where he suggests the need to reform the structure of the UN with the implementation and training of “multidisciplinary, multi-skilled and humanist senior military leaders” (Dallaire, 2003). Dallaire argues that this is imperative for the UN to uphold its ostensible role as international peacemaker and for the preservation of what Dallaire refers to as global humanity. To this end, Dallaire suggests that a move towards global humanity would work towards a more unified approach as opposed to a “them and us” policy, which Dallaire argues was a key factor in UN failure in Rwanda. Additionally, Dallaire suggests that in the case of Rwanda the imperial legacy has left the West with a propensity towards promoting racial autonomy in African states (Dallaire, 2003). However in the Rwanda conflict situation, Dallaire argues that the focus should have been on global humanity and prevention and that failure to appreciate the complex nature of tribal conflict within this African country for fear of racial interference accusations ultimately triggered the downfall of the UN mission in Rwanda (Dallaire, 2003). Accordingly, it is submitted that Dallaire’s account highlights the following central problems and issues in relation to UN peace building and conflict resolution under international law: 1) The implied objective of peace building post conflict is rooted in rebuilding democracy, however contention remains regarding the actual definition of “democracy” for the purpose of such international interventions; 2) The legal basis for establishing and implementing a peace building intervention; and 3) The changing nature of contemporary warfare and the conflict between the US based “state building” approach and the peace building objectives of the UN (Dallaire, 2003). As highlighted above, the Security Resolutions for Rwanda were based on the discretion granted in Article 39 of the UN Charter that the Security Council are entitled to take action to protect international peace and security. However, Schneider makes the important point regarding the inherent twofold tensions pertaining to the legitimacy of international peace building measures in conflict zones as highlighted by the role of the UN in the 1990s humanitarian interventions (2005). Firstly, Schneider highlights the importance of a legitimate basis for the intervention in the first place (Schneider, 2005). Secondly, Schneider highlights the importance of the efficacy of the actual measures implemented to achieve an appropriate balance in implementing the peace building initiatives, which is underlined by Dallaire as a central reason for UN failure in Rwanda. The consequences of this are highlighted by Dallaire’s graphic account of genocide, suicide and post traumatic stress disorder. In summary, Dallaire highlights the following central four reasons for UN failure in the Rwanda peace keeping mission: 1) Indifference and failure to understand the cause of conflict and ethnic complexities; 2) Focusing on autonomy instead of intervention as part of implementation of the peace keeping plan; 3) Legitimacy of peacekeeping mission; 4) The disorganised approach of the peacekeeping group and methods (Daillaire, 2003). Furthermore, a central controversy pertaining to international peace building initiatives post armed conflict is the line between military occupation and legitimate peace building. This is further highlighted by the US, which “has faced the challenge of attempting to apply the existing laws of war to a global war on terrorism” (Lietzau, 2004). Moreover, it is argued by Cogen and Brabandere that a central problem is the fact that the issue of democracy itself is not defined in the UN Charter, and was only addressed by the UN General Assembly Resolution of 21 November 1997, entitled “Support the United Nations System of the efforts of Government to promote and consolidate new or restored democracies”, in which the general principles of democratic governance were summarised as comprising: “Effective participation of civil society/political empowerment... political pluralism and freedom of association and expression; rule of law and respect for human rights”(Cogen & Brabandere, 2007). However, on 4 December 2000 the General Assembly adopted a “Specific Resolution on Democracy”, which acknowledged that no universal detailed model in relation to what constituted “democracy” under international law (GA Resolution 55/96, 28 February 2002). However, if a peace keeping 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, if the concept of “democracy” does not exist under an enforceable international legal framework. Therefore the legal parameters of the UN role in humanitarian interventions and conflict resolution have created significant problems in practice. Furthermore, Article 21(3) of the United Declaration of Human Rights asserts the right to a democratic government, which whilst arguably 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 point that as regards post conflict construction and democratic governance, the central problem is the correlation between intervention, occupation and democracy, which raises the issue of “forced democratisation” (Cogen & Brabandere, 2007). They further comment on how recent UN peacekeeping missions have involved introducing democratic governance in states, or territories emerging from years of conflict, through international territorial administration or military occupation such as Iraq (Cogen & Brabandere, 2007). In addition to the recent UN resolution regarding Libya, 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 fully fledged administration by a UN subsidiary organ, and therefore somehow represent a culmination in the evolution of peacekeeping mandates” (2007). Moreover, in Afghanistan, the emphasis was on participation of local actors with minimum international participation and in Iraq the administrative functions were exercised by the occupying powers on law of occupation. In terms of the legal justification for such measures, whilst Chapter VII of the UN Charter has been relied on for the establishment of international territorial administrations in East Timor and Kosovo (Zervaki, 2008). To this end, Zervaki highlights how: “these two operations seem to be established not only in an institutional vacuum due to the absence of a definition in the Charter, but also in an unsystematic manner, following a case by case approach in the selection of territories to be administered, the means for implementation of “international governance and the final goals of these operations” (Zervaki, 2008). 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 that the Security Council are entitled to take action to protect international peace and security. This wide discretion under Article 39 is further highlighted by the difference in the two security resolutions for East Timor and Kosovo(Zervaki, 2008). Additionally, Afghanistan is an important recent example of international intervention geared towards post conflict restructuring. The Bonn Agreement acknowledged “the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism, and social justice” (5th December 2001, available at www.bonnagreeement.org ). However, to this end, Schneider comments that the flawed basis of the “constitution making process” of the Bonn Agreement has created an unstable security situation, compounded by enforcement problems in relation to the Afghan authorities, the perpetuation of factions under the influence of regional warlords (Schneider, 2005). The interrelationship between these factors was the detrimental influence on the constitution making process, which was viewed as essential to provide a foundation for a new democracy by the UN (Schneider, 2005). Indeed, Schneider further comments that “failure to recognise this may jeopardise the legitimacy of state building efforts with long-lasting consequences” (Schneider, 2005). As such the failure to define “democracy” and the focus on individual autonomy has led to the direct impact on constitution making, which has fuelled regional power structures, which in turn creates further conflict. In Afghanistan, the Bonn Agreement’s central goal was to draft and pass a new constitution, however the inherent legitimacy and efficacy of any constitution relies on the process by which it is adopted (Schneider, 2005). Similarly 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). However, Chesterman observes that notwithstanding the caution in element, by 1995: “United Nations had assumed responsibility for policing in Bosnia under the Dayton Peace Agreement...and in June 1999, the Security Council authorised an interim administration in Kosovo to govern what remained technically Serbian territory for an indefinite period” (Chesterman, 2004 at p.1) . The tension of the legal status of intervention under Article 39, coupled with the lack of effective definition of “democracy” highlights that the central problems encountered by the UN in the humanitarian interventions of the 1990s was the distinction between peace building and state building. The long term impact of UN’s interventions in the 1990s has been further compounded by September 11, which “transformed this debate” (Chesterman, 2004). Chesterman highlights the point that interventions now are unlikely to be solely justified in grounds of purely humanitarian reasons and “the fact that Al Qaeda had used lawless Afghanistan as a base suggested the importance of strong state governments in combating the terrorist threat” (Chesterman, 2004 p.4), which lead to the US policy concept of “nation building” under the guise of intervention on humanitarian grounds (Cohen, 2006). This focuses on the state rather than the nation, which creates an inherent conflict with the United Nations preference for “peace building” on humanitarian grounds as highlighted by the post September 11 international framework(Dixon and McCorquodale, 2003:p. 296-298). 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. 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. This in turn has created problems for the UN in terms of legal justification for humanitarian interventions and the role of ad hoc peacekeeping missions of the 1990s have further blurred the distinction between legitimate peace building on humanitarian grounds on the one hand; and backdoor state building on the other. This is further evidenced by Operation Iraqi freedom, which is arguably a result of the ad hoc UN interventions of the 1990s on humanitarian grounds. Furthermore, Stahn highlights the reality of the current position that the concept of peace keeping and humanitarian intervention is intrinsically complex and on the one hand necessitates a flexible approach based on the factual circumstances (Stahn 2001). However, this lends itself to exploitation and legal uncertainty and the result is that: “The structural changes in the conception of peacemaking are not adequately captured in the contemporary conceptualisation of the law of armed force. The restoration of peace and justice in post-conflict situations, has in fact, in many ways, become the other side of intervention” (Stahn, 2001). However the division between the international legal concepts of jus ad bellum and jus in bello have not been adapted to these changes. Moreover, the “law of occupation, the only body of law which deals explicitly with post-conflict relations, has largely fallen in abeyance in the second half of the 20th century” (Stahn, 2001). Therefore, whilst the intentions of the peace building initiatives are meritorious, the role of the UN in humanitarian interventions in the 1990s and the concomitant legacy of this as evidenced by the responsive actions to September 11 highlight that the current framework needs to work towards a comprehensive system of accountability to ensure that the ad hoc reactionary measures to the changing nature of contemporary warfare do not undermine the very international legal framework intending to provide safeguards on humanitarian grounds. BIBLIOGRAPHY Joshua Castellino (2000) International Law and Self Determination Martinus Nijhoff Publishers Caplan, R., International Governance of War-Torn Territories: Rule and Reconstruction. (Oxford: Oxford University Press, 2005). Chesterman, S., You the People – The United Nations, Transitional Administration, and State Building (Oxford: Oxford University Press, 2004). Cogen, M. and De Brabandere, E., “Democratic Governance and Post conflict Reconstruction”. (2007) Leiden Journal of International Law, Volume 20 pp.669-693. Cohen, J. L., “The Role of International Law in Post-Conflict Constitution Making: Towards a Jus Post Bellum for “Interim Occupations”, (2006) New York Law School Review, Volume 51 Dallaire, R. (2003). Shake Hands With the Devil. Random House Dixon, M. and McCorquodale, R, Cases and Materials on International Law (Oxford University Press, 2003) Gray, C. International Law and the Use of Force, (Oxford University Press, 2000) Rosalyn Higgins (1995) Problems & Process, International Law and How We Use It Oxford University Press Jervis, Robert, “An Interim Assessment of September 11: What has happened to and what has not?” (2002) Political Science Quarterly. Volume 117, No.1, pp.37-54. Lietzau, W. K., “Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism” (2004) UNYB 8. 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