Tuesday, September 20, 2005

Humanitarian Intervention and the UN World Summit

The UN World Summit has been largely regarded as a failure: as one Guardian leader noted, it was "little more than a heavily spun restatement of its [the UN's] loftiest ambitions". This, although real grounds for criticism, cannot have been much cause for surprise. The definition of "terrorism", for example, has for years proved to be quite as intractable an issue as the definition of "aggression"; for, most likely, fairly similar reasons (any definition will almost inevitably appear both under- and over- inclusive to most states). However, most reports have agreed that one real, substantive advance has been made in the field of humanitarian intervention.

I, for one, have found these reports a little confusing. I assumed, on the basis of a few articles and news bulletins, that some notion of an individual right to armed intervention to defend populations suffering grave human rights abuses had been agreed. The same Guardian piece, for example, applauded the "one real shift: recognition that the world body has a 'responsibility to protect' - to ensure that genocide, ethnic cleansing and other war crimes should not be ignored in the name of state sovereignty."

Just how much of a shift is this, though? Certainly not as much as the Guardian piece suggests. The Security Council has already shown itself willing (albeit only very occasionally) to view such serious human rights abuses as "threats to international peace and security" - the "trigger phrase" for enforcement action under Chapter VII. They have thus already acknowledged that state sovereignty in this field can be overridden by the International Community acting through the Security Council.

Perhaps, though, it could be argued that, for the first time, the United Nations has accepted an obligation to intervene in cases of genocide, ethnic cleansing or other crimes against humantiy. Perhaps it has learned its lessons from Rwanda after all. I'm not so sure, however: here is the relevant section from the World Summit outcome:

Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and its implications, bearing in mind the principles of the Charter of the United Nations and international law. We also intend to commit ourselves, as necessary and appropriate, to help states build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assist those which are under stress before crises and conflicts break out.

Does this really constitute the "unambiguous acceptance by all governments of the collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" breathlessly proclaimed on the UN website? I have serious doubts. (See also the post on the Carpterbagger Report for an interesting view in this regard, noting that, in respect of genocide at least, such responsibility to protect already existed under the Genocide Convention). The language, when it comes to the role of the international community, and even more so when it comes to the use of force, is decidedly less than mandatory.

Thus, the international community "should, as appropriate, encourage and help States to exercise" their individual responsibilty to protect their own populations from these serious human rights violations. It also has the responsibility to use "diplomacy and other appropriate peaceful means to help to protect" populations from genocide. In terms of the use of force under Chapter VII, no obligation at all is accepted; it is nothing more than a restatement of what we already new: "we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis".

There is, to my mind, nothing here for proponents of humanitarian intervention to get in the least excited about; indeed, there seems to be little, if anything, that is new at all. Any action must still got through the Security Council; and Security Council paralysis will not lead to any right to act unilaterally (except to the extent that such a right can be said to exist already under customary international law). Not that those who are deeply uneasy about the proposed customary right to unilateral humanitarian intervention, relied on by the UK as the legal basis for the Kosovo bombings (according to Lord Goldsmith; see my post here), to get excited about; this was a real opportunity missed, for both sides. Those in favour could have seen much of the controversy over the proposed right removed; more importantly, from my own point of view, those uneasy could have seen the potential for such a right - the acceptance of which now seems more and more likely - to be used in an absolutely arbitrary manner could have seen some much needed specifications, thresholds and safeguards put into place. At least the legal categories of genocide, war crimes and crimes against humanity are a little more specific than Lord Goldsmith's formulation of "the use of force to avert overwhelming human catastrophe".

to its Of course, it is perhaps naive to hope for an individual right to humanitarian intervention to be specified within the framework of a UN summit. However, if the Charter can make exceptions for self-defence, why not for humanitarian intervention? Would it be so different from the domestic analogy, in which a right to defend others is often inferred from the right to self-defence (particularly now, when the focus of international law has shifted from its subjectsobjects)? Arguments in favour of such a right seem to me to have a very sound basis in ethical theory (and not merely a foundationalist ethical theory); however, they are currently outweighed by the danger created by the lack of ex post accountability generally in international law, exacerbated by the current situation of single power hegemony. The summit would thus have been an ideal opportunity to provide some delimitation of the "right" to humanitarian intervention, so that this ethically sound but practically extremely dangerous doctrine could begin, at least, to shed some of its controversy and begin to aid those most in need with a much reduced risk of cynical appropriation for individual interests.

In this, however, as, apparently, in everything else, the best that the leaders of the world could muster was a rhetorically fudged restatement of the status quo.



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