Written evidence submitted by Professor
Philippe Sands QC
1. I understand this question to be concerned
with the circumstances, if any, in which the use of force could
be justified where not in self-defence (under Article 51) or authorised
by the Security Council (or some appropriate regional body).
2. The only situation could be where military
force is used to prevent a massive and systematic violation of
fundamental human rights. This is an emerging circumstance in
international law, sometimes referred to as "humanitarian
intervention" or, more recently, the "responsibility
to protect".
3. In December 2001 an independent International
Commission on Intervention and State Sovereignty published a report
on "Responsibility to Protect".[2]
It sought to clarify and define the conditions under which force
might be used to prevent massive violations of fundamental rights.
The context was Kosovo.
4. The UN Secretary-General subsequently
established a High-Level Panel on Threats, Challenges and Change,
which reported in December 2004. Its report on "A more secure
world: our shared responsibility" addressed "responsibility
to protect" at paragraphs 199 to 203.[3]
The authors of the Report concluded:
"We endorse the emerging norm that there
is a collective international responsibility to protect, exercisable
by the Security Council authorizing military intervention as a
last resort, in the event of genocide and other large-scale killing,
ethnic cleansing or serious violations of international
humanitarian law which sovereign Governments have
proved powerless or unwilling to prevent."[4]
5. The theme was then taken up by the UN's World
Summit, held in New York in September 2005. The Outcome Document
endorsed by participating Heads of State or Government addressed
the issue of "Responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity"
at paragraphs 138 to 140. It was later adopted by UN General Assembly
resolution 60/1.[5]
The outcome document did not go as far as the High Level Panel's
recommendations, but it did conclude that:
"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 Chapters VI and VIII of the Charter, to help to 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 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 are 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 and international law. We also intend to commit
ourselves, as necessary and appropriate, to helping States build
capacity to protect their populations from genocide, war crimes,
ethnic cleansing and crimes against humanity and to assisting
those which are under stress before crises and conflicts break
out."
6. These three documents indicate a move
towards a right to use military force to protect fundamental human
rights. However, the conditions under which such force could be
used, if at all, remain unclear, and a number of important states
remain opposed to this development. In my view the recent conflict
in Iraq has tended to undermine developments in this direction,
since it has supported doubters who are concerned about motive
and possible abuse.
Philippe Sands
1 June 1006
2 Available at: http://www.iciss.ca/report2-en.asp Back
3
Available at: http://www.un.org/secureworld/report.pdf Back
4
Ibid, para 203. Back
5
Available at: http://daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement Back
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