33 Humanitarian Intervention

Prof. Vik Kanwar

Table of Contents

1. Learning Outcomes

2. Introduction: What is Humanitarian Intervention?

3. Defining the Problem:

4. The policy challenge

5. The inviolability of UN peremptory norms: Problems with Military Interventions

6. What is Common Article 1 ?

7. Common Article 1 as an alternative: Scope and Content

8. Interpretation of the phrase “in all circumstances”

9. The various dimensions of the obligation to “ensure respect”

10. Summary

1. Learning Outcomes:

• To give students an overview of Humanitarian intervention, its temporal scope and application to armed conflicts, as well as measures to limit its applicability
• By the end of this module, the student will have an understanding of the nature, scope and meaning of humanitarian interventions, and their limited protection under IHL

2.Introduction to Humanitarian Intervention?

Most of the current conflicts show the response to a situation that involves a legitimized use of armed force that is often labelled as “humanitarian” in nature. The expression evolves from such legitimized use of armed force as a “humanitarian intervention”, albeit terms such as militarily humanitarianism, humanitarian war and humanitarian bombardment. Such terms are revealing, paradoxical and revealing. The pretext of most international conflicts by dominant powers have been legitimized by use of humanitarian considerations, and such mandates that were originally intended to prevent actual human rights violation, has become risky due to unwarranted use by the dominant powers to fulfil their own strategic needs of the country, leading to distortions on the legislative intent and purpose of international human rights law. This allows international humanitarian law to masquerade as a justifiable unilateral armed intervention. They also provide impunity from full compliance with the spirit and letter of international humanitarian law on the premise that such intervention is for the purpose to solve a humanitarian crisis, which forms a secondary priority for such nations. Thirdly, the very notion of forcing humanitarian law by way of armed force defeats the spirit of IHL and provides a leeway for powerful states to fulfil their political and military agendas.

Such hindrances are in contradiction with the envisioned fundamental principles and the very nature of humanitarian law and action.

To prevent further abuse and vagueness of IHL that provides an unwarranted leeway, IHL has to redefine itself in terms of how it cannot serve itself as a basis of armed intervention in response to grave violations of its provisions; the use of force being determined by the United Nations Charter.

This also prevents organizations such as ICRC and other UN-appointed organizations to pronounce on the legitimacy or legality of such intervention.

3. Defining the Problem:

The UN operations in Somalia and Iraq and NATO’s Intervention in Kosovo have been labelled as ‘humanitarian intervention’. The principle to intervention via humanitarian grounds has been contentious, both in law and international relations. The emerging legal principle of Responsibility to Protect and Common Concern(referring to Common Article 1 of the Geneva Convention) are an original impulse of recognizing the international system as having pre-emptive normative values, i.e. the ability to be enforced as binding. Both are premised on the belief that mutual interest of all people (States) would lead to a state of well-being without regards to boundaries or legal jurisdictions. In such approaches, the greater idea and concern is to overcome traditional approaches to state sovereignty, both in their labelling of problems and their respective responses.

4. The policy challenge

Military interventions taken by non-concerned parties for human protection purposes have been controversial when it has happened- as in Somalia, Bosnia and Kosovo- and when it has failed to happen- as in Rwanda. For most western humanitarian thinkers, this kind of activism has been an internationalisation of the human conscience; for others, it has been nothing short of an alarming breach of an international state order dependent on the sovereignty of states and the inviolability of their territory. While some argue that coercive interventions are effective and successful, the larger questions of violating legality, process and misuse of precedent pose a question of whether in whose perspective it is right or wrong. The UN charter Article 2(4) states that ‘all members shall refrain in the international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations’ NATO’s intervention has been most notoriously brought this controversy in its most intense head; the legal justification for military action without new Security Council was not even argued, and the ignorance of that has led to much more carnage and destruction than aversion and NATO was criticized for its dismay of procedures of its operation and conduct. The justification is given by the then Secretary-General Kofi Annan who made a stark dilemma to the world stating “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”

5. The inviolability of UN peremptory norms: Problems with Military Interventions

In a word, given the customary as well as erga omnes( character of most norms of international humanitarian law, all states are deemed to ‘have a right to ensure that any other states respects customary humanitarian law, and all states party have the obligation to do so… vis-à-vis any State party’ to the 1949 Geneva Conventions and Additional Protocol I. Hence, such intervention would best derive its legal grounding from common article 1, which has a quasi-constitutional meaning under the current legal system. The idea behind such an article is that while there are a plethora of rules that define IHL, they key problem of ensuring such rules be respected, contributes to state compliance, which the common article 1 reinforces. This endows the Geneva Convention to hold a special character in the field of IHL, and a stalwart of upholding the rights and duties of states and interstate behaviour.

At the same time, he had expressed fear stating the legal status of humanitarian intervention poses a profound challenge to the future of global order. A key obstacle to legalizing unilateral humanitarian intervention is the overriding concern that states would mostly use a pretext of intervention to wage wars for ulterior motives. While the Secretary-General’s report on R2P represents an important attempt to build consensus on the thorniest issues of our time, keeping tabs on state’s implementation to ensure the state obligations seriously, ability and authority of the Security Council to mandate specific actions to developing/acute humanitarian crises and ensuring States comply with its instructions, being few recommendations are too utopian and unfeasible for the UN to enforce. While R2P comes with a variety of checks and balances, to ensure states act with a genuine responsibility, history has suggested otherwise. The violations and disregards of UN Security in NATO’s intervention, America’s intervention in Iraq and the Rwandan Genocide are few devastating examples as to how these rules are hardly even discussed, and the states’ and organisation justify those who are against this principle.

From the viewpoint of ICRC, when it comes to humanitarian law, it is a contradiction in terms to speak of “intervention” or “interference”, as the term humanitarian should be reserved to alleviate the suffering of the victims. Yet the intervention is military in nature, and is often carried out with a visceral motive. IHL recognizes the right to provide humanitarian assistance, and impartial humanitarian aid is something that does not come in the purview of infringement or interference of a State’s national sovereignty. In a 1986 ruling in the International Court of Justice, it was held that the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of another State, it must be limited to the purposes allowed in the practice of the Red Cross.( Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,I.C.J. Reports 1986, para. 243) The court concluded stating that the use of force could not be the appropriate method to monitor or ensure such respect (para 268.)

Humanitarian law stipulates when grave breaches of provisions are committed, those responsible to be prosecuted and punished as criminals. However, humanitarian intervention is a jus ad bellum question. The question as to when the right of a State or a group of States resort to force only has to be read explicitly with the UN Charter. In principal, intervention is only legitimate if it is part of the exceptions of Chapter VII of the UN Charter by virtue of Security Council’s direction to tackle international threat to peace and security, or when exercised the right to individual or collective self-defence (Article 51). The right to self-determination is yet another instance where such discretion may be exercised. However, the right to take unilateral action or force against a State that commits human rights violations or breaches of humanitarian law are not a part of such exceptions neither is it part of international norms or customs.

6. What is Common Article 1 ?

Common Article 1 of the Geneva Conventions, on the other hand explains that with a certainty that there exists an individual and collective obligation to “respect and ensure respect” of IHL. Violations of the Common article, i.e. the violations of IHL give States the power to take jointly or separately, in co-operation with the United Nations as well as the UN Charter (Including Protocol 1 additional to the Convention). The Common Article 1 paves way for what is to be addressed when such events happen, and the charters and conventions further that cause by addressing what is to be done when such breaches take place. The Security Council, by deriving legitimacy from the Common Article 1, can do a variety of things at its disposal, from sending of troops, to condemnation, with partial to full interruption of economic relations as an intermediate measure. If by following this protocol, an armed intervention may be deemed necessary, then the SC can decide the UN forces or delegate it to a State or another regional security body. There exists no reason for a principle of R2P, because elements of responsibility to protect are already covered by the further expansion of Common Article 1, in tandem with UN Charter, Geneva Conventions and other UN documents. The ICRC further re- iterated its position on this by stating that they do not want the States to have a view that interventions are inevitable, but rather as a result of certain extreme conditions that contain gross human rights violations. The ICRC further stated how this attitude would lead to a systematic use of armed intervention for humanitarian purposes that completely abdicate international community of their true responsibilities: preventing conflict and promoting the basic values expressed in international humanitarian law. The obvious outcome of an intervention, even in the name of humanitarianism, leads to further taking of prisoners. They finally conclude stating that parties to the conflict and those who suffer consequences must discern a clear distinction between humanitarian and military entities, and blurring of such distinction must be avoided.

7. Common Article 1 as an alternative: Scope and Content

As already discussed, all States have to “respect” as well as “ensure respect” for humanitarian law. This is a two-sided obligation, as “to respect” means that the State is under an obligation to do everything it can to ensure that the rules in question are respected by its organs as well as all others under their territory. The phrase “to ensure respect” means that States whether involved in conflict or not, must take possible steps to ensure that the same rules are respected by all, particularly the parties to conflict. Originally the drafters did not intend to envisage the provision derive other provisions in the convention to be followed. However the language of the article allows the parties to enforce universal compliance with humanitarian principles underlying the conventions. The phrase “in all circumstances” under Article 1, further creates an unconditional obligation upon the parties to comply with the rules, especially not subject to constraint to reciprocity. The law being pre-emptive and binding in nature, is further asserted by the ICJ in an opinion on the Legality of the Threat or Use of Nuclear Weapons, noting that “a great many rules of humanitarian law is applicable that are so fundamental” that “these fundamental rules are to be observed by all the States whether or not they have ratified the Conventions that contain them. The issue of enforcement and compliance of such IHL has thus become a central feature in States and organizations and having established what the scope and content of this article entails, it must be focused on how this provision has achieved several dimensions and legal development.

8. Interpretation of the phrase “in all circumstances”

The phrase “in all circumstances” was crucial in Article 25(1) of The Wounded and Sick convention and Article 82(1) in the Prisoners of War Convention. These provision were construed to effectuate that the conventions were to be respected in peace as well as in war. Contracting states cannot, by virtue of this phrase even prohibits any valid pretext, legal or other for not complying with their conventions, hence making the obligation to respect IHL rules in an unconditional manner. Another interpretation of this phrase would mean that even internal conflicts or NIACs would apply under this Article. It was evidently assumed that had the phrase not been inserted, the convention’s obligations would have applied only to international conflicts. The phrase also implies a prohibition of negative reciprocities and reprisals; In the ICRC’s commentaries to the conventions and additional protocol I, the term has been understood to mean the same, as envisaged in Article 60(5) of the 1969 Vienna Conventions.

9.The various dimensions of the obligation to “ensure respect”

EXAMPLES AND CASES:

Common Article 1 clearly urges States to be under an unconditional obligation to do everything it can to implement the rules of war jus in bello (Conduct during war) as well as jus ad bello (justifications for causing the same). The Tadic case in the 1999 judgement established a blanket obligation upon states that violates not only when its armed forces breach such rules, but also when culprits, irrespective of their nationality, are acting under the command and control of the State, even if they are not from the armed forces.

It is hence obvious that armies and military abide rules within and outside their national territories. The decision of the International Criminal Tribunal for Yugoslavia (ICTY) in the case of “Dusko” Tadic is a case in point that stressed in its ruling the importance for the State’s armed forces to respect humanitarian law. The ICTY stressed that “as a consequence of absolute character, these norms of IHL do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State. Rather (…) they lay down obligations towards the entire international community as a whole, with the consequence that each and every member of the international community has a ‘legal interest’ in their observance and consequently a legal entitlement to demand respect for such obligations.”

The word “ensure respect” for IHL also convenes meetings of High contracting parties in application of Article 7 of Protocol I resorting to the protecting powers in ensuring enforcement in the system of ensuring minimal breaches, especially grave ones or call upon an International Fact-Finding Commission established under Article 90 of Additional Protocol I. The Additional Protocols henceforth expanded the scope of Article I to not only provide prohibition of recourse to force but also allowed the inclusion of jus in bello to be dealt by the UN, by way of Article 89 of Protocol I to enforcement of IHL within UN legal framework.

Another example that shows the execution of Common Article is the example of Israeli Palestinian conflict. The steady deterioration in the situation of the Israeli-occupied Palestinian made the Security Council as well as General Assembly to add another dimension to the obligation to ensure respect for Humanitarian law. Both Organs called upon the UN Secretary-General, in cooperation with ICRC, to convene a meeting of the High Contracting Parties of the Geneva Convention. Referring to common Article 1, they asked each party to contribute and listed down the explicit grounds for collective responsibility with respect to the occupied territories.

The common article, however, has been curbed thanks to R2P principle and other forms of statist or militarist intervention. Increasing reliance over the use of force, in a basis of humanitarian consideration and to ensure respect for international humanitarian law has hence, blurred the very distinction of jus ad bellum and jus in bello. This has led to a militarization in the implementation of IHL, something that defeats the very letter and spirit of Humanitarian Law. This imposes further questions of selective implementation of norms and humanitarian law, considering the politically induced nature of the Security Council’s decision-making process. This is very much evident in the June 1999, when the Security Council gave its ex post facto political blessing to NATO air raids intended to put a violation of humanitarian law. The legality of such an action is still debated, as something which is legally unjustifiable however morally correct. This might have been a positive step, however illegal, though this has led to justification of force as a tool for intervention, to ensure respect for humanitarian principles in a situation of humanitarian concern.

10.Summary

The UN SC has also taken cognizance to condemn and pressurize certain states that have grossly violated humanitarian law on a large scale, or breach of the peace under article 39 of the Charter of the United Nations, despite certain anomaly that exists in the application of the same. Specific counter measures were invoked using this article, led to the resolution 688 that condemned the repression of the Iraqi civilian population in many areas of Iraq including Kurdish populated areas. The same was held in many other resolutions that have denounced the massive violations of humanitarian principles, such as Bosnia-Herzegovina, Kosovo and Somalia, to name a few.

Overall, it can be said that IHL can be to a limited extent apply, to humanitarian interventions, and there exists a need to update the legal and practical approaches towards handling new types of interventions, that do not fall within the slots that IHL has defined, and also provide some barrier to qualify most armed interventions to actually be ‘humanitarian’ in nature.

Reference

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• Guraziu, Rudi. “Is humanitarian intervention in the affairs of another state ever justified?” Middlesex University, School of health and Social sciences, 2008 http://www.atlantic-community.org/app/webroot/files/articlepdf/Is%20humanitarian%20military%20intervention  20ever%20justified.pdf’International Religious Freedom Report For 2013′. N.p., 2014. Web. 4    Nov.  2014. http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=222329&year=2013#wra pper
• Ryniker, Anne. The ICRC’s Position on “humanitarian Intervention” 83, no. 842. https://www.icrc.org/eng/assets/files/other/527-532_ryniker-ang.pdf.’Laws Which Guarantee Religious Freedom’. N.p., 2014. Web. 4 Nov. 2014. http://www.religioustolerance.org/humrtlaw.htm
• Hurd, Ian. “Is Humanitarian Intervention Legal? The Rule of law in an incoherent World”, Carnegie Council for Ethics in International Affairs, 2011, Volume 25, Issue no. 3