Human Security Centre Human Rights and International Security Research
By Tom Dunn, Former Member
14th September 2013
Humanitarian intervention has, since the fall of the Berlin Wall, been an issue that has dominated discourse in international law and diplomacy. Debate concerning the topic can be generally placed into two camps. In the first, the realist belief of the sacrosanctity of states’ sovereignty when it comes to dealing with their internal affairs, no reason but self defence should allow states to bear arms against one another. In the other, ‘intervention is justified from a more liberal approach of righting wrongs and protecting the innocent’.1
Intervention has been accepted by the global community in limited circumstances, very few countries argue that international intervention is not justified in any circumstance. And furthermore, the majority of these states have a questionable record of protecting the rights of their own citizens, for example Cuba, Zimbabwe, North Korea or Syria2. Codified international law, in particular Articles 2, 39 and 51 of the UN Charter, claims that any case of serious human rights abuse is a case for international concern3. It is surely an ethical responsibility for the international society to step in when a minority within a sovereign state are being subject to systematic abuse or crimes against humanity; sovereignty ‘in and of itself should, at the very least… not shield perpetrators from punitive measures4’. Therefore, the argument from ethics and morality seems to justify international interventions in other states. Despite this, interventions still face myriad inconsistencies and contradictions.
States have an obligation to protect their inhabitants. This obligation extends from everyday life to serious human rights abuses such as war crimes and ethnic cleansing. The rights and sovereignty that states are allowed are dependable upon the fulfilment of the obligation to protect. When governments fail to protect their citizens, as is the case in Syria, their sovereign right to non-interference is forfeited5.
During the International Convention on Intervention and State Sovereignty, headed by the Canadian government in 2005, a report was released which introduced the ‘responsibility to protect’ doctrine. The doctrine represented a reevaluation of the more often than not consecrated notion in international law of absolute sovereignty as the chief constituent of relations amongst states. A new definition of sovereignty was embraced in the report, claiming that it included the state’s responsibility to protect its own citizens from harm coming from within or outside its borders. The report continued, where ‘a state is unwilling or unable to protect its own civilians from mass atrocities, the international community has a responsibility to prevent such crimes with as much haste as is possible6’. At the summit of the United Nations in the same year, heads of state and their delegates unanimously agreed that they had a ‘responsibility to protect’ the civilians of their countries from war crimes, genocide, crimes against humanity and ethnic cleansing, which were seen as four fundamental human rights abuses that, if allowed to happen, would ‘constitute grave humanitarian crises warranting intervention7’.
However, considering a completely legal viewpoint, it is difficult to find definitive support for intervention in international law8, the reason being that
because there are so many different forms of governance across the international society, from democracies, such as social democracy in Scandinavia, market democracy in the United States, and authoritarian democracy in Russia, to regimes of communism and theocracies, security between borders must be subject to a system of rules and laws which can be agreed on by all. These laws are codified in the aforementioned articles of the Charter of the United Nations. They allow countries, many of which fundamentally disagree about how people should be governed, to coexist with one another without hostility. Unrestrained international intervention holds the possibility of states attacking one another in order to ‘protect and violently export their own cultural preferences2’. It was because of this fear that any loophole in a ban on the use of force would be exploited by states that those who wrote the UN Charter in 1944-5 issued a comprehensive ban, Article 2(4), which ‘forbids the use of force by states in their dealings with one another9’. The ban has two exceptions: Article 39 gives the UN Security Council the ability to authorise military intervention in cases which it deems a
‘threat to international peace and security’, and Article 51 recognises that all states have the right to use force as a means of self defence2. Although the actions of the Assad regime may not have violated Article 51, there is a legal case to be put to the UNSC that Article 39 has been breached.
We should also take into account how many mass human rights atrocities have occurred, without any form of intervention taking place, even since the
‘responsibility to protect’ doctrine was acknowledged by a large proportion of the global community at the World Summit in 2005. For example, in the Democratic Republic of Congo, Darfur and Sri Lanka, governments have systematically targeted and slaughtered their own civilians whilst the UN Security Council has failed to sanction any form of action to end these human rights abuses. International law governing the use of force has remained unchanged since 199110. The vetoing of coalition intervention draft resolutions on Syria by two of the five permanent members of the UN Security Council, can be viewed as just as much an expression of self-interest as actively intervening. The consequences of inaction should be more closely taken into account.
Whether or not previous interventions have been successful, this does not mean that reasons for justifying future interventions should be regarded as being doomed to failure. Should we really step back and take no action in Syria? Anthony D’Amato poses the question ‘Are we really supposed to shut our eyes to the killing of boys because they are Serbs, the raping of women because they are Muslim, the severe maltreatment of elderly persons because they are Croats11?’ Just because cases such as the Iraqi intervention are contentious does not mean we should turn a blind-eye to cases such as Syria. For example, take the bombing of the Al-Shifa pharmaceuticals plant by the Clinton administration in August 1998. This plant was destroyed by cruise missiles because it was a chemical weapons site used by Al-Qaeda. The actions of the Clinton administration indirectly led to the death of many innocent Sudanese. But we must ask ourselves – did the administration intend these deaths? We can be sure that the facility would otherwise have been used to bring about the death of innocents. And, we can
also be sure that if the Clinton administration could have kept casualties at zero, it would have done. The same cannot be said of bin-Laden and Al- Qaeda.
Comparisons can be drawn here between Sudan and Syria. It is the Obama administration’s wish to destroy Syrian chemical weapons sites to deter their future use by Assad or any other government. To paraphrase Sam Harris12, does the Obama administration intend to bring about the deaths of thousands of Syrians? No. Is the Obama administration’s goal to kill as many Syrians as possible? No. Is the Obama administration trying to kill anyone at all? It is trying to keep collateral damage to a minimum. If we ask these same questions about the Assad regime, we will arrive at very different answers entirely.
The NATO intervention in Yugoslavia of 1999 was widely criticised for using the tactic of bombing to remove the Yugoslav forces from Kosovo because of the high number of civilian casualties it caused, leading many to deem it a partial failure. But this does not mean that intervention should never have happened in the first place. With the benefit of hindsight, we can criticise the means by which policies were executed, but ‘it doesn’t follow that we throw out policy because improper means were used. You don’t shut down the entire police department because some police officers are trigger-happy sadists10’. Even if interventions are sometimes less than successful, it does not follow that they should be blocked, whether in the House of Commons or in the UN Security Council.
Countries failure to act against such cases as Syria cannot be put down to lack of authority in a legal sense, but lack of political willpower. The UN could provide legal authority for intervention. There is no overriding norm of intervention or non-intervention in international law and in my opinion the law here needs codification. But even where authorisation is not granted, such as in Kosovo, an excusable breech of UN regulation can be justified ethically or politically without a country facing too much negative backlash. So, non- intervention in Syria would be a failure on the part of international law and the international community, and as much a statement of interest from international society as active intervention in other places. ‘Some cite the risk of doing things,’ as John Kerry said on Friday. ‘We need to ask what is the risk of doing nothing.’
References
1 Rashid, K. (2012) ‘Is humanitarian intervention ever morally justified?’
2 Bellamy, A.J. (2010) Contemporary Security Studies New York: Oxford University Press. Pg. 365-366.
3 Simma, B. (1999) ‘NATO, the UN and the use of force: Legal Aspects’,European Journal of International Law, 10/1. Pg 1
4 Arbour, L. (2008) ‘The responsibility to protect as a duty of care in international law and practice’, Review of International Studies, 34/3. Pg 455.
5 Caney, S. (1997) ‘Human Rights and the Rights of States: Terry Nardin on Non-Intervention’, International Political Science Review, 18/1. Pg 32.
6 Stark, A. (2011) ‘R2P: challenges & opportunities in light of the Libyan intervention’. e-International Relations 1: 4-6. Téson, F.R. (1998) A Philosophy of International Law, Boulder: Westview Press. Pg 4
7 Arend, A.C. and Beck R.J. (1993) International Law and the Use of Force: Beyond the UN Charter Paradigm, London: Routledge.
8 Nardin, T. (2002) ‘The moral basis of humanitarian intervention’. Ethics and International Affairs, 16/1
9 UN General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970,
10 Berman, F. (2007) ‘Moral Versus Legal Legitimacy’ in C. Reed and D. Ryall
(eds.) The Price of Peace Cambridge: Cambridge University Press. Pg 161.
11 D’Amato, A. (2001) ‘There is No Norm of Intervention or Non-Intervention in International Law’. International Legal Theory, 7/1. Pg 2.
12 Harris, S. (2013) ‘The End of Faith – Religion, Terror and the Future of Reason’, Kobo E-Store. Pg. 111.
