Legal aspects to conflict interventions

The question of the legitimisation by international law of conflict intervention

The question of if and when conflict intervention is legitimate has been discussed rather intensively over the last ten years. But the debate usually mixes questions of the general right to intervene with the question of the legitimisation of the use of force. Without denying that the use of deadly force deserves special treatment in any discussion, it nevertheless is necessary to put the question of legitimisation of intervention much more generally. What right does anyone have to involve himself/herself in someone else’s conflict? There are two approaches to this question: a legal one, referring to international law, and an ethical one (1)referring to different issues which are of a purely ethical and political nature.

The principle of sovereignty of all states and the rule of non-interference

International law, as it has been developed specially after World War II, and codified in the UN Charter and the different Covenants drafted and ratified since then, are mainly concerned with the relationship between states. Important in the context of conflict intervention are the still up-held principle of the sovereignty of all states, and the consequent rule of non-interference into the affairs of another state (chapter I, article 2/7 of the UN Charter). To see a state as an individual actor that is considering it to be a legitimate person, in international relations, is an old tradition in international relations, often tracked back to Jean Bodin and Alberico Gentili in the 16th century(2), and put into practice from the time of the Peace of Westphalia, which ended the 30-year-war. New for the time after WW II are the general prohibition of war (chapter I, article 2/4 of the UN Charter)(3) , and the prescription of peaceful procedures of settling disputes (Chapter VI of the UN Charter)(4). There are two generally accepted exceptions to this prohibition:(5)

• 1. Self-defence against an attack is considered allowed as long as the UN does not take measures (Art 51 of UN Charter)(6);

• 2. If there is a threat to international peace or security, the UN Security Council may decide to use “all means necessary” including force (Chapter VII; specially article 39 and 42). It may delegate the implementation of its decision to some of its individual members (article 48) as it did in the case of Rwanda in 1994 (France and the US), to a military alliance (NATO in Bosnia 1992-5 and Yugoslavia 1999), or have the decision carried out by a UN-led mission (like Somalia 1993)(7).

The possibilities of the UN to enforce its decisions against the will of the member concerned, and to persecute breaches of international law, are limited. If diplomacy fails, its means are sanctions, setting up intervention operations (usually with a strong military element) if the five permanent members of the Security Council agree, and in the future hopefully a War Crimes Court which has been designed on the model of the two War Crimes Tribunals on Yugoslavia and Rwanda, but which is not yet ratified by a sufficient number of states(8). Not having a police of its own, the UN is reliant on its member states to provide the means, be it civil police to arrest a war criminal or military troops to intervene in a conflict.

After the breakdown of the Warsaw Pact in 1989, a new dynamic entered hitherto frozen international relations. The so-called realist school of international law and politics, which emphasises the sovereignty of states as the best guaranty of international peace, lost ground to the so-called idealistic school that aims at world governance with a monopoly of violence of the United Nations(9). Certain decisions of the UN Security Council, specifically Resolutions 687 and 688 from the 5.4.1991 on North Iraq and Resolution 794 from 3.12.1992 on Somalia, are considered examples of the UN going beyond the non-interference rule(10). Generally new is that the UN after 1989 has concerned itself with internal wars in a measure it usually was not able to do before 1989 because the veto has been used more sparingly in the Security Council recently than in the years of the Cold War(11). In a recent resolution (1296/2000) the Security Council established that the targeting of civilians in armed conflict and the denial of humanitarian access to civilian populations affected by war themselves constitute threats to international peace and security, and thus can be triggers for Security Action Council.(12)

Another important development in this context is the growing realisation that many problems, specifically ecological ones, can only be solved on a global basis. The creation of International Environmental Law and international agreements in this and other fields, often made at or in connection with World Conferences (Rio, Beijing), is sometimes seen as a positive sign for globalisation of responsibility.(13)

But it seems that the tendency to strengthen the rule of international law is facing a counter-move, at least in regard to the respect of the UN and its Security Council as the only body being able to establish a threat to international peace. The new NATO Alliance’s Strategic Concept adopted on April 24, 1999(14) does not say so explicitly, but may be interpreted as mandating NATO to get active with the UN Security Council if possible, and without it if necessary(15), claiming to have to play “an indispensable role…in consolidating and preserving the positive changes of the recent past, and in meeting current and future security challenges”(16). The NATO attack on Yugoslavia in winter/spring 1999, which was not mandated by the UN, is the first example of the so-called “New World Order” - what some observers have considered a relapse into the time even before the League of Nation Treaty - a time when the powerful states decided by themselves when to go to war.(17)

The definition of human rights as formulated in the Universal Declaration of Human Rights

The second important aspect of international law important for conflict intervention is the definition of human rights as formulated in the Universal Declaration of Human Rights, and further developed in the Covenant on Economic, Social and Cultural Rights, the International Covenant of Civil and Political Rights (both from 1966) and other later declarations. Unlike the regulations considered so far, human rights are rights an individual has against his (or her) own state(18). In the preamble of the mentioned Covenants it is said explicitly that every individual does not only have the right, but also the responsibility for ensuring the promotion of human rights. This right and responsibility is not limited to activity within an individual’s own state. A certain right to intervene on behalf of human rights anywhere could be deducted from this responsibility. Of course, this interpretation(19) until now would not be accepted by most governments in the world, and there is as yet no way to legally enforce it. On practical terms, human rights activists getting involved in human rights affairs outside their own country, depend on the protection of the laws of the country they work in gives them, plus the means they have available to alert international pressure and support from their embassies. In 1998, the UN Commission on Human Rights has presented a draft for a declaration on the protection of human right defenders. The draft asserts the right of any individual to work, alone or in co-operation with others, for the protection and the realisation of human rights in a national and international framework(20). If this declaration is ever passed and ratified, it would give individuals and NGOs a much better standing in regard to international activities.

The international humanitarian law

As a third factor the International Humanitarian Law needs to be named which governs the protection of non-combatants in war. The work of the International Committee of the Red Cross and Red Crescent Societies deserves special mention here because the ICRC has status which resembles more that of an official organisation than a NGO in regard to its rights to be active in zones of war.(21)

To sum up: Any conflict intervention implemented by states or international governmental organisations against the will of all or one of the parties in conflict,(22) is strictly limited by the UN Charter. Enforcement of decisions of the UN Security Council is only allowed in cases when international peace and security are threatened, a rule which has been open to some interpretation lately. This provision is equally valid for an un-armed intervention force as it is for military forces.

These provisions are not valid for NGO interventions. NGOs may intervene whenever they want to without breaking international law. On the other hand, they are not per se (yet) protected by international law, and therefore depend on the acceptance of the government of the country in which they get active.

Notes

• (1) : Although in the end, all justifications of intervention, even pure self-interest, are based on ethical principles as the sociologist Dieter Senghaas points out. (Senghaas 1993:418). See also Lewer/Ramsbotham 1993:53

• (2) : See Lewer/Ramsbotham 1993:66

• (3) : This prohibition is much stricter then what the Briand-Kellog-Covenant said in the time of the League of Nations. Delbrück 1993:103

• (4) : In six articles, it outlines the UN’s role in negotiation, inquiry and investigation, mediation, conciliation, arbitration, judicial settlement and other procedures.

• (5) : See Delbrück 1993:103 pp.

• (6) : This rule of self-defence sometimes is considered as including protection of their own citizens even if they are in another country. This is the legitimisation for military evacuations of citizens from crises areas without asking permission from the state the citizens are evacuated from. (Kühne 1993:35).

• (7) This is actually already alluded to in Article 1 of the Charter: “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.”

• (8) Decision from 1998 with a big majority in the UN Plenary. But USA, China, Israel are among those who at first did not agree - the US with the explicit explanation that they are afraid that their own soldiers might be brought to trial when they are involved in missions abroad. The USA and Israel eventually ratified the contract on the 31st of December 2000, 9 hours before the deadline ran out. The Court will be responsible for genocide, war crimes, crimes against humanity, and ‘war of aggression’ which still need to be defined. The Resolution will become valid when 60 states have ratified it. (See Greve 1998) At the moment 139 states signed the contract, 27 states ratified it. It is expected that the sufficient number will be reached in about 2003. (FR 2.1.01, “USA unterstützen UN-Strafgericht”, p. 1).

• (9) : Fetherston 1994, Czempiel 1994, Debiel/Nuscheler 1996, Delbrück 1993

• (10) : Kühne 1993:29. In the case of Somalia, the suffering of the victims in an internal war was interpreted as a threat to international peace and security, and thereby legitimised according to the UN Charter (Eikenberg 1993:185).

• (11) : That does not mean that there weren’t cases of what could be considered military ‘humanitarian’ intervention by individual states before that time. Lewer/Ramsbotham mention among others the Vietnamese intervention in Kampuchea to end Pol Pot’s reign of terror (1978/9) and the Tanzanian intervention in Uganda in response to Idi Amin’s massacres in 1979. (Lewer/Ramsbotham 1973:68).

• (12) : Report of the Brahimi-Commission (2000), paragraph 50

• (13) : Delbrück 1993:114f

• (14) : “The Alliances’ Strategic Concept, Approved by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington D.C. on 23rd and 24th April 1999”.

• (15) : Schweitzer 2000

• (16) : No 4 in the Strategic Concept

• (17) : The former ambassador and high OSCE diplomat Horst Grabert comments: “With the announcement of the ‘new world order NATO was virtually put over UN. Thereby we conjure a conflict between the 20 % rich population of the world with the 80% poor.” (Grabert 1999:20) It is, of course, a right the more powerful states in practice have always claimed for themselves in cases in which they saw threatened what they consider their ‘vital interests’. More recent cases include: Afghanistan 1986 (Soviet Union), Panama 1989 (USA), Grenada (USA), Falkland Islands 1982 (Great Britain).

• (18) : Delbrück 1993:108

• (19) : Taken from a working paper “Using Human Rights in Social Action” the international law specialist Curtis F. Doebbler has written in 1993.

• (20) : Heintze 1998

• (21) : 90 % of the ICRC annual budget is funded by governments, and it is designated the custodian of International Humanitarian law. (see Weiss 1999:12, Lewer/Ramsbotham 1993:71)

• (22) : The ‘classical’ peacekeeping operations of the UN as many other, civilian missions, always have had the agreement of the parties in the conflict.