International Humanitarian Law, Humanitarian Crises and Military Intervention

Chaired by Malcolm Fraser
22-23 April 2002
The John F. Kennedy School of Government,
Harvard University
Cambridge, Massachusetts

Introduction

1. The end of the Cold War has facilitated an increased capacity for involvement in international affairs. There have been more United Nations peacekeeping and enforcement operations in the last decade than in all the preceding 45 years of the Cold War.

2. The preparedness of the international community to become involved in humanitarian crises throughout the world has its own complications. Humanitarian actions have often brought into question the application of international law both in the decision to intervene, and in the military conduct of the intervention. Recognizing that the international community is increasingly willing to address gross violations of human rights, the InterAction Council convened the Expert Group to explore political and legal issues arising from humanitarian crises and military intervention.

Rule of Law, Democracy, Freedom and Respect for Human Rights

3. One of the most significant developments in International Law since the end of World War II has been the growth in International Human Rights Law. The traditional position at International Law was that sovereign independent States were free to treat their own nationals as they chose without threat of external interference. The advances of international human rights law have rendered a State's treatment of its own nationals an issue of international concern. Recent developments in International Criminal Law affirm the trend. Now the perpetration of atrocities, whether in armed conflict or in peacetime, whether committed solely against a State's own nationals or in the context of an international armed conflict, are the subject of universal jurisdiction - either in the domestic courts of another State or before an international criminal tribunal.

4. Democratic societies which purport to value respect for human rights and freedoms should be more likely to respect the rule of law in the conduct of military operations as well as in peacetime. Respect for international humanitarian law and international human rights law, however, is not determined solely by the character of the domestic political system. Military conduct and the treatment of particular groups within a society are also guided by an inherent idea of identity, both of self and of 'the other.' Political attempts to dehumanize 'the other' will inevitably translate into diminished respect for the need for correct application of humanitarian and human rights law.

5. International efforts to promote the establishment of institutional structures to support and strengthen democratic systems of governance throughout the world should be encouraged. In addition, even in existing democratic societies, more can and should be done to promote acceptance and tolerance of those perceived to be different whether they are minority groups within the society itself or the nationals of a military opponent. It is incumbent on democracies to maintain the highest standards of respect for, and effective implementation of, existing international legal obligations in both international humanitarian law and international human rights law. Such societies should remain open and accountable for the implementation of international legal standards and welcome external review of their policies. In an era, for example, of extensive movements of refugees and asylum seekers, there is a disturbing tendency in developed States to deal harshly with those individuals seeking refuge. The standards of treatment of such groups of people will communicate much about the commitment of a particular society to humanitarian principles. These societies must promote the education of their whole society, particularly young people, about the importance of respect for human rights.

6. The InterAction Council also recommends that leaders from the G8 economies meet with leaders of the world's major religions to discuss initiatives to promote tolerance and respect for those who are different. It is emphasized that the InterAction Council's proposed Universal Declaration of Human Responsibilities is relevant in this aspect. Against the possibility of a 'clash of civilizations' largely based on religion, in 1987 the leadership of the InterAction Council convened a meeting between senior religious leaders and the Council. The purpose was to examine the possibility of a common ethical base, acceptable to all religions. The InterAction Council was greatly encouraged by the meeting and, as a consequence, drafted the proposed Universal Declaration of Human Responsibilities, designed to reinforce and to complement the Universal Declaration of Human Rights.

7. The Universal Declaration of Human Responsibilities emphasizes the responsibilities of individual citizens to each other and the responsibility of those in positions of power and authority to advance the common good. Such concepts reinforce the Universal Declaration of Human Rights.

8. A meeting between key political leaders and senior religious leaders could have very special benefits at this time.

Humanitarian Intervention

9. The UN Charter only permits the use of military force to intervene in the internal affairs of another State, other than in self-defense, with Security Council authorization pursuant to Chapter VII. The Council has, on occasions, applied this authority by authorizing military intervention on humanitarian grounds. Council decision making can, of course, be frustrated on purely political grounds by the exercise of the veto power by one of the permanent five members. In the face of massive human rights violations it is entirely unsatisfactory for one permanent member of the Council to obstruct a collective decision to intervene militarily to stop those violations. A dogmatic commitment to Council authorization as the sole determinant of the legitimacy of intervention will be problematic in the face of political obstinacy expressed through the use of the veto power.

10. On the other hand, unilateralist claims of the right to intervene on humanitarian grounds also pose problems. The collective enforcement mechanisms of the UN Charter were designed to protect against the dangers of unbridled resort to military force. The most serious ramification arising from NATO's resort to force in Kosovo without Security Council authorization is the possibility that other groups of States may also decide that they too have the right to use military force on humanitarian grounds and to determine for themselves the circumstances in which resort to such force is justified.

11. In circumstances where the Security Council is frustrated in its decision making, the alternative exists for the UN General Assembly to be called into Emergency Special Session to recommend military intervention by two thirds majority of states present and voting. Although there are logistical and financial implications from implementing this process, a recommendation from the plenary body of the inter-governmental community would ensure greater legitimacy of a military intervention.

12. Humanitarian crises such as genocide or crimes against humanity rarely occur spontaneously. The international community must value initiatives to identify potential sources of conflict, and strategies designed to redress them. There are significant advantages in pursuing measures to avert humanitarian crises and any efforts to do so should be supported and encouraged. In particular, the Good Offices role of the UN Secretary-General in Article 99 of the UN Charter could be affirmed and enhanced - possibly through a consensus UN General Assembly Declaration. The Secretary-General should have an agreed mandate to monitor and report on impending humanitarian tragedies to the UN Security Council and should receive the financial and political support to establish the structures and processes to facilitate this increased capacity.

13. There are likely to be increasing calls for development of international law to permit military intervention on humanitarian grounds without UN Security Council authorization in situations where that authorization is prevented by the use of the veto. One possible course of development is through Chapter VIII of the Charter dealing with Regional Organizations. Irrespective of the ways in which the law develops, it is critical that the international community identifies and agrees upon clear criteria for the practice. The Report of the International Commission on Intervention and State Sovereignty (established by the UN General Assembly in 2000 and co-chaired by Gareth Evans and Mohamed Sahnoun) entitled The Responsibility to Protect makes an important contribution towards identifying such criteria. In the absence of agreed criteria for humanitarian intervention there is a serious risk of a particular action providing a precedent for others to spuriously claim justification for their own aggression.

Universal Participation in International Humanitarian Law Instruments

14. The Four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are amongst the most widely supported multilateral treaties in existence and have long been considered to reflect customary international law. However, when powerful and influential States are seen to conduct their military operations in disregard for these major instruments such action calls the very integrity of the treaties into question.

15. The US and its Allies have a significant responsibility to set exemplary standards in upholding the rule of law in international affairs. Perceptions of a readiness to ignore or to bend rules of international humanitarian law can only lead to a diminution of international respect for the law. Recent practices in aerial bombing campaigns and in the approach taken to the legal status of detainees at Guantanamo Bay, for example, raise serious concerns.

16. The 'War on Terror' presents new challenges for the application of international humanitarian law and the conduct of military operations. However, these challenges must still be met on the basis of fundamental principles of international humanitarian law and with respect for human dignity and fundamental human rights.

Enforcement of International Humanitarian Law

17. One advantage of humanitarian intervention, in addition to preventing the further perpetration of atrocity, is to facilitate the bringing to justice of those responsible for committing atrocities. The notion of individual criminal liability for violations of international humanitarian and human rights law is a long established principle. Although the establishment of international institutional structures and procedures for the prosecution of violations of international humanitarian law has been a protracted process, the entry into force of the Rome Statute for the International Criminal Court on 1 July 2002 is a welcome development.

18. While we celebrate the establishment of the International Criminal Court it is important to acknowledge that criminal prosecutions are not the only means of enforcement of international humanitarian law. Bodies such as the International Humanitarian Fact Finding Commission (established pursuant to Article 90 of Protocol I of 1977 Additional to the Geneva Conventions of 1949) could have a critical role to play in monitoring the conduct of military operations while they are still occurring.

19. The new International Criminal Court constitutes one of the most significant new multilateral institutions since the establishment of the United Nations Organization itself. The Court will exercise jurisdiction over war crimes, crimes against humanity and acts of genocide wherever they occur in the world. Unlike the two ad hoc international criminal tribunals for the Former Yugoslavia and for Rwanda, the new Court will be a permanent body without territorial or temporal limitations (except that its jurisdiction will not be retrospective). The establishment of the Court is a major advance towards the goal of ending impunity for the worst atrocities and all non-Parties should be encouraged to participate in the Court in order to render it a truly universal institution.

20. The selection of a professional and competent prosecutor will be one of the most important appointments of the early part of the new Century. States which have currently not ratified the Rome Statute should think seriously about whether to rectify their non-participation in order to participate in this selection process. Non-Parties to the Statute will also be precluded from nominating a judge for appointment to the Court, from having nationals appointed to the Office of the Prosecutor or to other employment positions within the Court and from participating in subsequent conferences of States Parties to review the Statute of the Court. Clearly one of the best ways to influence both the key appointments to the Court as well as the critically significant early years of operation of the Court which establish the culture of the new institution is to participate from the Court's inception.

21. Some States have objected to the possibility that their nationals might be tried by the Court without the consent of those States. This possibility is unlikely for two key reasons. First, the Statute only allows the Court to exercise jurisdiction if the territorial State and the State of nationality of the alleged perpetrator are 'unwilling or genuinely unable' to exercise their primary right to domestic jurisdiction. The current level of widespread support for the Statute is predicated upon this so-called 'complementarity' principle and the Court's Statute does not allow the Court to violate it. Secondly, an 'overly zealous' Prosecutor does not have an unbridled capacity to initiate proceedings against the national of a non-consenting State. The Prosecutor must satisfy a Pre-Trial Chamber of three judges that there is a case to answer. Ultimately the principal safeguard against either the Court or the Prosecutor acting ultra vires is a political one. If the Court engages in spurious or frivolous prosecutions or against the wishes of State attempting to exercise its rightful primary national jurisdiction existing States Parties are likely to withdraw their support for the Court. Those States that have ratified the Statute have done so because of their commitment to international justice. It is unlikely that many of those States would tolerate the perversion of the primary objectives of the Court for fear that they too may be subject to the same treatment in the future.

22. Some permanent members of the UN Security Council may still decide that they are unable to become Parties to the Rome Statute. Those States do not need to openly oppose the work of the Court. As permanent members of the Security Council, those States have the opportunity to lead Security Council decision making to refer situations to the Prosecutor of the Court for investigation and the possible initiation of proceedings. This Council authority could be the primary source of work for the Court in its foundational stage and it would be a tragedy for any of the P5 not Parties to the Statute of the Court to obstruct the utilization of the Court through their use of the veto.

Conclusion

23. International review of domestic implementation of international humanitarian and human rights law obligations often prompt States to raise a defense of national sovereignty. An effective multilateral system promoting international peace and security is in the interests of all States. The voluntary participation by States in multilateral treaties and institutions leads to an enhancement of, rather than a derogation from, sovereignty. For States to seek to evade international humanitarian and human rights law obligations on the basis of purported threats to sovereignty undermines the very system that they have chosen to support.

24. Expectations have been raised that the international community has an obligation to intervene and not simply shrug and turn away when gross violations of human rights or international humanitarian law take place. Despite inconsistencies inherent in decisions to intervene in particular situations, indications are that military interventions are likely to continue to occur. It is important that both the decision to intervene and the conduct of the intervention are subject to international regulation so that the growing willingness to act can be guided, legitimate and increasingly effective.