Humanitarian Intervention and the Responsibility to Protect

Does it Challenge the Foundations of Modern International Society and

UN Charter?

Amjad Nazeer

December 2010

University of Gothenberg, Sweden

 Humanitarian Intervention and the Responsibility to Protect

Does it Challenge the Foundations of Modern International Society and UN Charter?

Generally, it is liberal democratic states that appear to be more inclined towards forced
intervention into the boundaries of other states in response to a humanitarian crisis.
Humanitarian Intervention (HI) and the responsibility to protect (R2P) appear to be a
new found justification at the turn of the century (Baylis 2009: 524). Preventing crimes
against humanity such as genocide, war crimes, and ethnic cleansing is important but
there is always a risk of retaliation, failure and negative political implications. In the
Secretary General Kofi Anan’s own words, ‘although an international norm of forcibly
protecting civilians....seems to be in the making, but the new norm is pretty week’. HI
and R2P persuasions often fall in conflict with the customary law of state sovereignty
and non-intervention. An empirical, legalistic and constructivist analysis might
illustrate my argument that, how the above said norms not only challenge rather shake
the foundations of international law (IL) and international society (IS). Before we reach
any conclusion, seeing things in retrospect is essential for Sweden, having a relatively
better record of respect for UN Charter.

In the times of cold war the argument of HI was never subscribed by IS and UNSC in
all three instances of Indian intervention into East Pakistan 1971, Vietnamese’ into
Cambodia 1978, and Tanzanian one into Uganda 1979 (Wheeler 2000). Therefore all
three states reverted to the argument of self-defence and national-security, the bedrock
of UN Charter and international customary law (Foley 2008).

Post cold war 1989 era was presumed to be a golden period for HI. Northern Iraq
1991, Somalia 1992, Rwanda 1994, and Kosovo 1999 were intervened on
humanitarian grounds (Baylis et al.2009: 528). At times, it was pronounced as the
dawn of a ‘new world order’ extendable to the fold of legal, ethical and politico-
economic level. But that aspiration proved to be a fiasco, given the turn of events and
emerging political split in the coming years. Humanitarian activism eclipsed with the
Kosovo intervention and declined at ex-post 9/11 invasion of Afghanistan and Iraq
(Baaz 2009: 125-126, 169). In case of Rwandan intervention, France actually abused
the cause of HI for siding with the Francophone Hutus and reviving its lapsing colonial
influence. It was ‘too little too late’ in Rwanda and ‘too soon, too much’ a response in
Kosovo (Baylis etal: 2009, 529) given the diversified interests of the states.

Actually NATO intervention of Kosovo revived the old doctrine of just war
overstepping UN Article 2(4) and fundamental principles of IL that strictly restricts the
use of force. Afghanistan 1991 and Iraq Invasion 2003 violated the norm even further,
though the former one succeeded to mobilize a wider support. Other than an
empirical-realist affirmation, a déjà vu, Kosovo operation was nothing more than an
expression of ethnocentric arrogance and exercise of power, opening up new avenues
of relativist manoeuvring. Failing to create a sense of ‘we-ness’ and helping a
gemeinschaft international society to evolve. NATO itself is the product of gesellshaft,
created by acts of statist will. It begs little to say that states rarely operate for
humanitarian purposes (Baaz: 2009, 168-169, 423-426). Kosovo interventions was
only a success if we count on ‘how many live saved than lost’ but a massive failure in
terms of reinforcing IL & IS coupled with setting a dangerous precedent (Seybolt: 2007:
82).

The UN sanctioned operation in Somalia 1992, delved into crisis after the premature
withdrawal of US troops followed by other European states, including Sweden.
Although Afghanistan invasion gained enormous moral justification but Iraq war failed
to seek legitimacy on similar grounds. Russia, China and several southern states are
always sceptic of HI against the ICL of non-interference. Darfur has failed to seek any
consensus, though humanitarian tragedy is bigger than with Kosovar Albanians or Iraqi
Kurds. In the 1990s Various interpretations like civilizational clash, stable chaos,
durable disorder, plurilateral militarism, so much so the emergence of EU as a power-
balancing-superpower have been presented by various theorists, all having their own
weaknesses and shortfalls (Baaz 2009: 125-126, 170-171).
At present, the very idea of IS is quite euphemistic, comprising at best a few American
& European states, at times identifying themselves as enlightened states as well. They
are the ones who define a war as just or unjust and to intervene or not to intervene as
dictated by their national interests not as a moral imperative (Chomsky: 1999: 10-11).
What Sweden needs to do as a responsible member of ISs is to contribute towards the
expansion and naturalization of IS by its disposition of respecting the Charter.

Left to individual states, powerful states would always act under their cultural and
political preferences. Little consensus is available on the principles of HI in the
international community. It is therefore bound to undermine international norm and
order of the states. States selectively apply the principles of HI, guising their ulterior
motives, under humanitarian claims. Formulating or endorsing any such law shall
always be subjected to abuse (Amneus, 2008: 526-528), having harmful impact on
Sweden too as a respectable member state.

Apart from Article 51 that allows the use of force, it is the spirit of Article 2 (4) imbued
in the respect for sovereignty and non-interference that runs all through the body of the
Charter. Under UN Article VIII, it is appropriate measures, not the use of force that
prescribes prevention or suppression of genocide. Even in case of threat to peace
Article VII allows the use of force in a very narrow sense and as a last resort. This too is
not acceptable without the authorization of UNSC. Apart from genocide, it is not
extendable to other crimes against humanity and does not oblige states for external
responsibility. Several aspects of R2P are not compatible with the ILC Articles, save the
non-militaristic measures. Responsibility and duty to cooperate are in response to
serious breaches of law offering a probability of lex-fernande rather than lex-lata.
Therefore an external R2P is not a duty of states under UN Charter. The UN GA
provision under uniting for peace is controversial, only permissible if majority states
agree to use force as measure for R2P. But this too lacks historical evidence.
Comparing 1950s and 1960s, GA is now occupied by non-interventionist states. The
idea of institutionalizing R2P and uniting for peace, when UNSC is unwilling or unable
to take action, is neither feasible nor likely to mobilize opinio-juris in near future
(Amneus 2008:
504-505). ICISS’s proposal of R2P is only the third of the two other strict
conditionalities. Even the R2P Criteria is very much likely to be manoeuvred by self-
serving ends (Nardin 2005). Non Aligned Movement always opposes intervention
unauthorised by UNSC. Actually the whole idea of HI and R2P is controversial and
problematic, profoundly wobbling the foundations of IS and UN charter. Its prospects
are disastrous if applied further. First, they do not offer any hope for the development
of a coherent IS, secondly they might endanger the universality, sanctity and integrity
of IL.

Although we cannot deny the role of HIs, authorised or unauthorised by UNSC, in

saving human lives but the very act remains riskier for the sanctity of UN Charter and
integrity of IS. The so called war-on-terror is already abusing humanitarianism.
Powerful states are now poised to take unilateral measures under the garb of
preventing gross violations or crimes against humanity.

Well intentioned but R2P’s attempt to switch focus from state sovereignty is hard to
materialise outside UN system. Forging consensus around the ICISS-extended criteria is
next to impossible. Although WSSD also endorsed R2P but in pretty amended form that
cannot help IL or shift opinio juris in favour of interventionism. Even ICISS itself
acknowledges that external interventions disturb internal order of the state and
generate chaos. It is mainly up to the states to resolve disputes in peaceful manner, it
opines. Darfur already marks the death of so called new norm of R2P within the span
of a decade since Kosovo intervention. Ultimately, it is only the Charter based IL and IS
that can save the suffering humanity from state or non-state atrocities. Greater common
good can only be realised if unauthorised interventions are completely banned and
truly representative international is given a chance to develop.

In Bhikko Parekh’s words,‘citizens are exclusive responsibility of their states’ and if a

civilian authority is behaving in appalling manner, it is the duty of its citizens and
political leaders to choose an appropriate response’. J.S Millĵs argument is best suited
here to convey my advice. ‘Interveners are embroiled in an unending commitment or
abuses reignite once they quit. Democracy and respect for human rights can only be
established by domestic struggle for liberty. Superimposed and enforced by outsiders,
human rights cannot take roots. It is the responsibility of the oppressed people
themselves to overthrow tyrannical governments. Finally, I will say IL and IS can only
be reinforced by respecting treaty based law.

****

References:

Amnéus, D. 2008. The Responsibility to Protect by Military Means: Emerging Norms

on Humanitarian Intervention.

Baaz, M., 2009. The Use of Force and International Society. Stockholm: Jure Förlag AB.

Baaz, M., 2008. Human Rights or human wrongs? Towards a “ thin” universal code of
international human rights for the twenty first century. Sartryk Ur Jurisdisk Tidskrift.
13(3).

Baylis, J., Smith, S. & Owens, P., 2004. The globalization of world politics. Oxford: Oxford
University Press.

Chomsky, N., 1999. The new military humanism: Lessons from Kosovo. London: Pluto Press.

Foley, C., 2008. The thin blue line: How humanitarianism went to war, London: Verso.

Nardin, Terry. 2005. Humanitarian Imperialism, Ethics and International Affairs, Volume 19,
Issue 2.September 2005.

Seybolt, T.B., 2007. Humanitarian Military Intervention: The condition for success and failure,
Oxford: Oxford University Press.

Wheeler, N.J. 2000. Saving strangers: humanitarian intervention in international society,

Oxford University Press, USA
Independent International Commission on Kosovo, 2000. Kosovo report. [Online], Available
at:
http://www.reliefweb.int/library/documents/thekosovoreport.htm.