Few foreign policy issues in the past decade have elicited as much controversy as the use of military force for humanitarian purposes. In this book Brian Lepard offers a new method for analyzing humanitarian intervention that seeks to resolve conflicts among legal norms by identifying ethical principles embedded in the UN Charter and international law and relating them to a pivotal principle of "unity in diversity."
A special feature of the book, which avoids the charge of ethnocentricity brought against other approaches, is that Lepard shows how passages from the revered texts of seven world religions may be interpreted as supporting these ethical principles. In connecting law with ethics and religion in this way, he takes a major step forward in the effort to formulate a normative basis for international law in our multicultural world.
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The Need for a Fresh Approach
1.1. Humanitarian Intervention and International Law at the Turn of the Century
Few foreign policy issues during the last decade of the twentieth century elicited as much controversy as the use of military intervention for ostensibly humanitarian purposes, with some degree of force beyond the self-defense of military personnel authorized to help achieve these purposeswhat I will call humanitarian intervention. Most often, but with notable exceptions, including the bombing of the Federal Republic of Yugoslavia (Serbia and Montenegro) (which I will refer to as "Yugoslavia") in the spring of 1999 by forces of the North Atlantic Treaty Organization (NATO), such intervention was conducted with authorization by the U.N. Security Council. Much of the controversy over humanitarian intervention has involved important issues under international law, including the legality of various forms of humanitarian intervention, with or without a U.N. blessing, and the extent to which international law regulates or ought to regulate how humanitarian intervention is conducted. The debate over these international legal issues is likely to persist in the new century, as humanitarian crises continually flare up and policymakers and lawyers are forced to grapple with them.
This book attempts to develop a new approach to some of the difficult problems raised by humanitarian intervention under international law. Because the pattern established during the last decade of the twentieth century was for most states or regional organizations to seek Security Council authorization forhumanitarian intervention operations, or for the U.N. itself to undertake such operations, the book devotes proportionately greater attention to such forms of Council-authorized intervention, which I will often refer to as "U.N. humanitarian intervention." But it also addresses the legal problems associated with intervention not authorized by the Security Council.
One reason that humanitarian intervention has proven so controversial from a legal perspective is that it has underscored significant conflicts among legal norms in the U.N. Charter and contemporary international law. Some norms tend to support humanitarian intervention, while others tend to oppose it.
Legal norms tending to support humanitarian intervention include the norms of international human rights law, international humanitarian law, and international criminal law. The U.N. Charter itself proclaims as a fundamental purpose of the U.N. the achievement of "international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." Under Article 55, the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all." And under Article 56 "all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement" of this purpose. In 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights, which in turn was followed by the promulgation of numerous international human rights treaties, many of which have been widely ratified by U.N. member states. In keeping with these human rights norms, the international community has adopted a number of treaties relating to the conduct of war and providing protections for civilians and other vulnerable individuals, the most important of which being the Fourth Geneva Convention of 1949. And certain treaties, including those on genocide and torture, as well as the four Geneva Conventions, now require states to prosecute and punish individuals who commit particularly egregious violations of international human rights law and international humanitarian law.
The existence of this expanding corpus of legal norms guaranteeing a minimal level of respect for human rights and human dignity suggests that in some cases military intervention in defense of these norms may be legitimate, and perhaps even required, under international law. Indeed, Chapter VII of the Charter empowers the Security Council to take economic or military enforcement action without the consent of the state or other parties involved when it determines the existence of a "threat to the peace," "breach of the peace," or "act of aggression"language that has been used by the Council to encompass certain human rights violations and to be the basis for authorizing humanitarian intervention.
At the same time, however, various norms in the U.N. Charter and contemporary international law appear to disfavor humanitarian intervention. These include the norms of state sovereignty, domestic jurisdiction, nonintervention, the pacific settlement of disputes, the nonuse of force, self-determination, and (in the case of U.N. humanitarian intervention) U.N. impartiality. For example, Article 2(1) of the U.N. Charter affirms that the U.N. "is based on the principle of the sovereign equality of all its Members," and Article 2(7) declares that the U.N. may not "intervene in matters which are essentially within the domestic jurisdiction of any state," with the exception of enforcement measures taken by the Security Council under Chapter VII of the Charter. Article 2(3) and Chapter VI of the Charter encourage states to settle their disputes peacefully and counsel against the resort to force. Moreover, Article 2(4) of the Charter specifically declares that members of the U.N. may not threaten or use force against the "territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This provision might be interpreted (as we will see in Chapter 11) as prohibiting humanitarian intervention by states without Council authorization. The Charter also establishes as a purpose of the U.N. the development of "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples." Humanitarian intervention by outside forces may be seen as interfering with the exercise of such a right of self-determination. Finally, humanitarian intervention may be perceived as violating a principle of U.N. impartiality, which is reflected in many Charter provisions.
Before I embark on an elaboration of the fresh approach proposed in the book, which can help to reconcile these conflicting legal norms, let us survey the history of the current debate on humanitarian intervention. When the Cold War suddenly ended, optimism at first abounded. The way appeared to be clear for greater East-West cooperation and the thawing of the icy gears of the U.N. Security Council, whose peace-making role under the U.N. Charter had been subverted by the Cold War deadlock. The military success of the 1991 Gulf War, however fleeting, only reinforced the view shared by many observers that the world stood at the threshold of a new eraan era in which the U.N. would at last become an effective guarantor of world peace and even human rights.
Hopes that the end of the Cold War would usher in a period of relative peace and stability in world affairs were, however, quickly dashed by a veritable explosion of national, ethnic, religious, and tribal conflicts in numerous corners of the globe. Despite the intensity of these political upheavals, the U.N. appeared to be a promising instrument for containing their destruction, saving human lives, and safeguarding the human rights of civilians. The Security Council launched major new peacekeeping operations in these troubled regions. The number and scope of U.N. operations quickly mushroomed and placed an unprecedented strain on the U.N.'s meager financial, human, and military resources.
Traditional peacekeeping operations began in 1956, when Secretary-General Dag Hammarskjöld formulated a plan for the United Nations Emergency Force in the Sinai (UNEF I) and defined the mission of U.N. peacekeeping as the interposition of U.N. troops between parties to a conflict to supervise an agreed truce or police a cease-fire line. As envisioned by Hammarskjöld, cardinal principles of peacekeeping were that the troops would remain only with the consent of all parties, that they would act impartially, and that they would use force only in self-defense. They were to be lightly armed, and they were not intended to engage in enforcement action.
In contrast to this traditional peacekeeping paradigm, the new post-Cold War peacekeeping operations were not limited to the military function of monitoring a cease-fire line. Instead, they involved the coordination of a broad array of nonmilitary tasks, including humanitarian relief, electoral monitoring, and civilian policing. These multifaceted missions are often referred to as "second-generation" peacekeeping operations. In addition, in many cases the Security Council exercised its powers under Chapter VII of the Charter to mandate large-scale economic sanctions against states committing gross human rights abuses.
Perhaps most significantly, many Security Council-endorsed military operations, whether under U.N. command or consisting of multinational coalitions, attempted the use of military force in more robust ways that went beyond the self-defense of the troops involved to achieve these humanitarian objectives. These forays into military enforcement again invoked the Council's jurisdiction under Chapter VII of the Charter.
The new U.N. humanitarian intervention arguably was born from the ashes of the Gulf War and as a result of the Security Council's precedent-setting decision to authorize a coalition of U.N. member states, spearheaded by the United States, to use "all necessary means" to dislodge Iraqi forces from Kuwait. In the war's immediate aftermath, attempted revolts by Kurds in northern Iraq and Shi'ite Muslims in southern Iraq were cruelly repressed by Iraqi troops, driving hundreds of thousands of refugees across the borders into neighboring Turkey and Iran. Allied governments soon decided in the face of international popular pressure to establish "safe havens" for the Kurdish refugees and protect these enclaves with the threat or use of military force. They took the position that their action, dubbed "Operation Provide Comfort," was authorized by Security Council Resolution 688.
The Kurdish operation was the precursor for many experiments with humanitarian intervention during the 1990s. I examine six representative cases here. In five of these cases the Security Council endorsed the use of force other than in strict self-defense for primarily humanitarian purposes. These involved the safeguarding of humanitarian efforts and the deterrence of attacks against "safe areas" in Bosnia-Herzegovina (Bosnia); the delivery of humanitarian relief, and the promotion of national political reconstruction, in Somalia; the maintenance of public order and the protection of civilians in Rwanda following the devastating outbreak of genocide in that country in early 1994; the restoration of the democratically elected government of Haiti in late 1994; and the deployment of the multinational Kosovo Force (KFOR) in Kosovo in June 1999 following the NATO bombing campaign to allow a safe return of Kosovo Albanian refugees and to assist in rebuilding Kosovo's civilian institutions. In the sixth casethe NATO bombing campaignhumanitarian intervention was conducted without authorization by the Security Council. In the next section I review these six cases, discussing the last two, involving Kosovo, together. I follow up on this review with a brief survey of certain developments after the deployment of KFOR, including events in East Timor, Chechnya, Sierra Leone, and the Democratic Republic of the Congo.
1.2. Representative Cases of Humanitarian Intervention
Following the outbreak of war in the former Yugoslavia in 1991 after the Yugoslav Republics of Slovenia and Croatia declared their independence, as well as the subsequent imposition by the Security Council of an economic and arms embargo that was gradually strengthened in subsequent resolutions, the Security Council deployed a United Nations Protection Force (UNPROFOR) first to Croatia. In early 1992, the fighting spread to Bosnia, which also claimed independence, with Serbia and Croatia each supporting military efforts by Bosnian Serbs and Croats against the Bosnian government. In April 1992, Serbian forces initiated a major military campaign involving the terrorization of Bosnian Muslim civilians. In response to this brutal fighting, the Council authorized the extension of UNPROFOR into Bosnia.
The U.N. soon recognized Croatia, Slovenia, and Bosnia as independent U.N. member states in May 1992a recognition that converted the conflict in the former Yugoslavia from a "domestic" one to an "international" one over which the Council could exercise jurisdiction under Chapter VII if it so chose. As noted earlier, the Council's jurisdiction under Chapter VII extends only to situations that constitute a "threat to the peace," "breach of the peace," or "act of aggression." The first two expressions are understood to refer only to "international peace." U.N. member states were clearly more comfortable dealing with the conflict as an international war, which unquestionably would not be covered by the domestic jurisdiction limitation in Article 2(7) of the Charter.
UNPROFOR's mandate was quickly expanded to include protection of the Sarajevo airport and the delivery of humanitarian relief in Bosnia generally. Concerned about increasing attacks against UNPROFOR personnel, the Council instituted a ban on all military flights over Bosnia. In February 1993 the Council called for the strengthening of UNPROFOR's security by providing it with "the necessary defensive means." About a month later, the Council extended the ban on military flights to include all nonmilitary as well as military flights over Bosnia and authorized member states, acting nationally or through regional organizations, to take "all necessary measures" to enforce the ban. NATO agreed to provide air support for this purpose as of April 1993. These bans were violated routinely without any adverse consequences.
In April and May 1993, after it had long become apparent that the Bosnian Serbs were engaging in a calculated and large-scale effort to eradicate the Bosnian Muslim population, the Council strongly condemned the Bosnian Serb atrocities (euphemistically dubbed "ethnic cleansing") and established so-called safe areas for the beleaguered Muslims, drawing in part on the earlier precedent of safe areas for Iraq's Kurds. While UNPROFOR did not have a mandate actually to protect the safe areas through the use of deadly force, it was empowered in Resolution 836 to "deter" attacks on the safe areas, monitor a cease-fire, promote the withdrawal of non-Bosnian government forces, and occupy key points on the ground, as well as to continue to participate in the delivery of humanitarian relief. The Council also authorized UNPROFOR in carrying out this mandate to take necessary measures when acting in self-defense, "including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys." The Council further authorized all member states, again including regional organizations, to take "all necessary measures, through the use of air power, in and around the safe areas" to support UNPROFOR in its extended mandate.
To implement this more ambitious mandate UNPROFOR developed an often uneasy relationship with NATO. As noted above, NATO supplied air power for use in enforcing the Council-declared "no-fly zone" and also in conducting sporadic attacks on Serbian military positions in an attempt to enforce compliance with Council resolutions calling for the withdrawal of heavy weapons from the perimeter of the safe areas. This was the first time the U.N. enlisted the assistance of a regional organization in undertaking enforcement action, even though such action by regional organizations at the Council's direction had been provided for in Chapter VIII of the Charter. The British and French governments, which provided the bulk of UNPROFOR's peacekeepers, were far less keen than the U.S. government on air offensives out of concern for the safety of their troops and in keeping with their view of the conflict as primarily a civil war rather than a war of Serbian aggression. They, and the U.N. secretary-general, were convinced accordingly that UNPROFOR should, as a general rule, adhere to traditional peacekeeping doctrine and use force only in self-defense. At the insistence of the United States, however, on several occasions air strikes were either threatened or conducted.
Excerpted from Rethinking Humanitarian Intervention by Brian D. Lepard. Copyright © 2002 by The Pennsylvania State University. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.