Intervention: When, Why and How?

Written evidence from the United Nations Association – UK (UNA-UK)

‘Wars begun in the pursuit of humanitarian rescue are now seen as different from wars fought for other purposes.’ Ian Hurd

Preamble

In the paragraphs that follow, UNA-UK will examine ‘humanitarian intervention’ and discuss how this pertains to the United Kingdom’s current policies, and how it might be best understood to help shape UK policy in this area in the future. The paper starts with traditional perceptions of humanitarian intervention before examining the legal basis status of military intervention for human protection purposes. It then considers the principle of the ‘Responsibility to Protect’ as currently understood and implemented within the United Nations and by member states. The final sections survey intervention in the UK context and advance recommendations for future interventions.

Traditional perceptions of humanitarian intervention

1. Contemporary international law may be read as either permitting or prohibiting international intervention for humanitarian reasons. As Ian Hurd has stated, "there is no consensus over the legality of intervention, in part because there is no consensus over the sources of international law more generally." Humanitarian intervention may be seen as the most extreme end of political exertions aimed at protecting civilians.

2. External military intervention for human protection purposes, though referenced to varying degrees historically, became an important issue in the aftermath of the Cold War, particularly as interstate tensions were replaced by intrastate. As political certainties loosened and instability crept into states, in some quarters, political and ethnic tensions became heightened and spilled over into skirmishes, conflict and, on some occasions, one-sided slaughter. Generally, civilians became victims in two ways: by becoming the indirect victims of the conflict – in terms of ‘being caught in the crossfire’ or being indirectly denied things like food and shelter; or being directly targeted to cause fear or because of the perception of belonging to a certain political or ethnic group.

3. ‘Intervention’ has generally referred to the external deployment of a one-nation or multination military force into another country (or its airspace or national waters) with or without the prior consent of (a) the country in question or (b) the international community as represented by the United Nations. Such variations are mirrored in the purpose and goal of the interveners but, in basic terms, may be held to be the alleviation of civilian suffering by securing or facilitating food, shelter and water and so forth; by protecting civilians through the provision of secure geographical areas or by attacking a party or parties to the conflict directly.

4. The 1990s witnessed military interventions in Somalia (1992-1995 onwards); Bosnia (1992); Rwanda (1994) and Kosovo (1999). All of these helped develop and hone the debate regarding military intervention. Rwanda tends to be seen as the ultimate failure of the international community to intervene militarily to halt the most egregious onslaught on civilians and non-civilians, that of genocide. Somalia, Bosnia and Kosovo too have generated their own demons, namely abandonment of civilians caught up in brutal conflict, ineffectiveness in protecting and issues pertaining to legitimacy, respectively.

5. However, as is stated in the Background Research Essays of the International Commission on Intervention and State Sovereignty’s (ICISS) 2011 report, "The definition of ‘humanitarian,’ as a justification for intervention, is a high threshold of suffering. It refers to the threat or actual occurrence of large scale loss of life…massed forced migrations, and widespread abuses of human rights. Acts that shock the conscience and elicit a basic humanitarian impulse remain politically powerful."

6. However, as great as these basic humanitarian impulses remain, humanitarian intervention remains controversial, even when recognised as being the most extreme of a host of possible options to prevent and halt threats against civilians. The controversy arises from a disconnect between the understanding that, beyond an explicit agreement arrived at between the ‘intervening parties’ and the nation-state in question, the only legitimate intervention is one mandated by the international community through the United Nations Security Council, and which is outlined in the United Nations Charter.

International obligations and facilitative legal authority

7. The international legal regime authorising the use of force is established in the UN Charter of 1945. The Charter explicitly prohibits the threat or use of force "against the territorial integrity or political independence of any state" (Article 2 (4)) and outlines that "nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state" (Article 2(7)).

8. However, the Charter also permits enforcement measures with respect to threats or breaches of the peace under Chapter VII, stating that the UN Security Council "may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security". Thus, although the use of force against another state is deemed illegal, when authorised by the Security Council for the maintenance of international peace and security it becomes legally sanctioned.

9. The primary legal obligation to the Charter is supplemented by a number of international conventions that seek to establish an international responsibility for the protection of human rights and the prevention and punishment of ‘acts that shock the conscience’.

10. The 1947 Convention on the Prevention and Punishment of the Crime of Genocide prohibits genocide and establishes an international responsibility to prevent it and punish the perpetrators. In this regard, the International Court of Justice ruled during Bosnia vs Serbia (2007) that states have a legal responsibility to take positive action to prevent acts of genocide when they have the knowledge of its likely commission and a capacity to influence suspected perpetrators. Although this finding is binding only on the parties involved, it is likely to hold precedential value for future ICJ cases. While the Convention provides little guidance on how its provisions are to be enforced, Article 8 states that,

"any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter…as they consider appropriate for the prevention and suppression of acts of genocide".

Whether or not this includes the use of force is open to interpretation.

11. The four Geneva Conventions (1948) and subsequent Protocols (1977) establish the immunity of non-combatants in all armed conflict and require parties to cooperate to prevent violations of the law. Again, the Convention provides little guidance on its enforcement and defers to the UN Charter’s authority on all matters of enforcement (Protocol 1, Article 89). The Rome Statute of the International Criminal Court (1998) provides what is arguably the most comprehensive legal definition of "conscience-shocking acts" under the rubric of "crimes against humanity" but does not include any stipulation of the state’s responsibility to prevent these crimes.

12. While the Genocide Convention and the Geneva Conventions establish state responsibility to prevent crimes and violations, two challenges to defining international obligations to intervene for humanitarian ends remain. Firstly, as stated, there is no stipulation of whether military measures should be used to enforce the conventions’ commitments. Secondly, there remains an overriding obligation to the UN Charter. Article 103 of the Charter states that,

"in the event of a conflict between the obligations of the Members of the United Nations under the present charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

The Responsibility to Protect

13. Despite the overriding authority of the UN Charter and the preeminence of Security Council mandated action, so-called humanitarian interventions have been justified and initiated in other ways. Emerging normative commitments developing from state practice throughout the 1990s and an evolving international consensus regarding the humanitarian responsibilities of the sovereign state means that the legal status of humanitarian intervention remains uncertain.

14. In an effort to breach this chasm between state sovereignty and state responsibility the ‘responsibility to protect’ (R2P) was developed in 2001. As a political concept that seeks to provide guidance on upholding the states’ responsibilities to both the UN Charter and international human rights and humanitarian law, it was endorsed at the 2005 World Summit (paragraphs 138-140, Outcome Document), and asserts that

"each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity".

15. Furthermore, should a state be unwilling or unable to protect its populations,

"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 of the United Nations, to help protect populations from war crimes, ethnic cleansing and crimes against humanity."

16. Should this prove unsuccessful and a state is manifestly failing to uphold its obligation to protect its populations from these crimes, then the international community has a responsibility to

"take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including under Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisations as appropriate".

17. The three sections above compose R2P’s three pillars: 1) state responsibility; 2) the international community’s responsibility to assist and 3) the international community’s responsibility to take timely and decisive action. The R2P that is affirmed by UN member states differs from the common conception of "humanitarian intervention" in a number of ways and there are several points to consider in this regard:

a) It relates specifically to the prevention of and response to four crimes based in international law: genocide, war crimes, ethnic cleansing and crimes against humanity;

b) All states have a primary responsibility to protect their populations from these crimes at all times: there is never a case in which R2P is not applicable;

c) R2P calls specifically for the prevention of these crimes and their incitement;

d) Measures in the UN Charter, under Chapter VI, VII and VII are to be used only when prevention fails or is thought likely to fail;

e) Military force, akin to what is commonly known as ‘humanitarian intervention’, is endorsed by R2P under Chapter VII but it must be authorised by the Security Council.

While military force should not simply be considered as a measure of last resort, it must only be contemplated if peaceful means under Chapter VI and VIII are deemed likely to fail in dissuading perpetrators. It is also generally accepted that military force should be proportionate, believed to have a likely chance of success and cause more good than harm.

18. Since its adoption in 2005, the language or R2P has been used in a number of Security Council Resolutions to create peacekeeping mandates in Darfur (S/Res/1706) and South Sudan (S/Res/1996), and authorizing the use of military force in Libya (S/Res/1973), Côte d’Ivoire (S/Res/1975) and Mali (S/Res/2100).

19. A consistent response to atrocity crimes is, however, unlikely as the international community is faced with a number of significant challenges in this regard. Firstly, Security Council agreement is beholden to the particular interests of the Permanent Members and despite calls for prohibiting the use of the veto in cases where there is a clear threat of genocide, war crimes, crimes against humanity and ethnic cleansing (see ICISS (2001)), this remains highly unlikely. Secondly, there remains suspicion that military intervention represents a threat to the status of state sovereignty, particularly with regards to cases where intervention seems to be aimed at regime change rather than the protection of civilians.

20. Lessons can be learnt from recent cases, such as Libya, and can help mitigate such challenges. Firstly, military measures must form part of a wider international policy strategy for preventing atrocities by protecting populations from further atrocities, dissuading perpetrators from incitement and commission of crimes and addressing the humanitarian concerns raised by displacement. Secondly, backing for military intervention from the relevant regional and sub-regional organisation, such as the African Union, the Economic Community of West African States or the League of Arab States can be decisive in ensuring UN Security Council authorisation for intervention and bestowing increased legitimacy upon the military operation.

The United Kingdom and Humanitarian Intervention – when and how?

21. The ebullience in the aftermath of intervention in Libya, albeit surrounded in controversy, has given way to frustration and doubt over a thwarted intervention in Syria. Yet UK ‘humanitarian intervention’ policies, for better or worse, go back further and are equally chequered. UK policy on the matter has been predictably oscillatory. It has been determined in response to international events; by the direction shown by UK premiers; by the exertions of other states on UK policy, most notably the United States; and has been tempered too by international perceptions and international institutions. Consistency of response has been near impossible, and it is doubtful that consistency will ever be achieved or should be sought.

22. As the 1990s set a new tone in intrastate warfare and the targeting of civilians, so too US and UK leaders of the time formulated conditions for, and types of, humanitarian intervention – the so-called ‘Clinton and Blair’ doctrines respectively. As Prime Minister Tony Blair stated in his address to the Chicago Economic Club in April 1999,

"The most pressing foreign policy problem we face it so identify the circumstances in which we should get actively involved in other people’s conflicts. Non-interference has long been considered an important principle of international order…but the principle of non-interference must be qualified in important respects. Acts of genocide can never be a purely internal matter. When oppression produces massive flows of refuges which produce massive flows of refugees which unsettle neighbouring countries then they can properly be described as ‘threats to international security’".

23. In the same speech, Prime Minister Blair set out five things to consider before intervening, including: the humanitarian case; the exhaustion of diplomatic options; the possibility that military actions will work; an assessment of the long-term needs of the country; and whether national interests are best served by intervening. With the Kosovo air-campaign providing the backdrop to his remarks, it is unsurprising that specific reference was not made then to the sanctioning authority of the United Nations Security Council. However, the prime minister goes on to state that,

"If we want a world ruled by law and by international cooperation, then we have to support the UN as its central pillar. But we need to find a new way to make the UN and its Security Council work…"

24. Legally, and as clearly as such legitimacy may be defined, the UN Security Council remains at the core of mandating humanitarian intervention – the most extreme end of R2P. Even R2P does not convey legal authority, merely guidance. However, even if the composition or environment of the UN Security Council changes, the challenges facing the international community will remain.

25. Events in, inter-alia, Syria, Libya, Sierra Leone, and the politics and practicalities surrounding these, can help direct future UK policy. The UK, along with, for example, the United States or France, remains one of the few international powers with global reach. With one of only a handful of countries with a ‘blue-water navy’, strategic airlift, highly-trained infantry, global intelligence capabilities, residual imperial influence and strategically-placed geographical assets (including Diego Garcia), it is inevitable that the UK will often find itself well-placed to respond to humanitarian crises.

Intervening: Context, Legitimacy, Planning and Action

26. Recommendations pertaining to UK involvement in humanitarian intervention may include the following:

· As outlined in the Report of the International Commission on Intervention and State Sovereignty, in any given circumstance, the UK Government should assess whether populations within a country are at risk, including of:

"Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape."

· Assuming that evidence of the above has been countenanced, have all political avenues, including those outlined in R2P’s second and third pillars, been exhausted?

· Military intervention for humanitarian reasons is only ever going be the beginning: is military intervention likely to halt or alleviate threats to populations? What capacity and will is there to maintain UK forces in theatre beyond an initial intervention, or to support the deployment of, politically and practically, UN peacekeepers with, where appropriate, a robust, civilian protection mandate?

· Does regional support exist for an intervention and, where possible, will applicable regional powers be involved to help bolster legitimacy?

· Nationally, a Parliamentary vote on military action in Iraq in 2003 has been regarded by many as a precedent for prior approval in any future deployments, including military interventions undertaken for humanitarian reasons. It should be clear that, although Parliament has no legally established role in approving military action, the UK government of the day should seek parliamentary approval where possible.

· The importance of gaining international endorsement, and the current government’s failure to do so on intervention in Syria, was arguably reflected in the defeat of the government’s motion in the House of Commons on 29 August 2013. The UK government should, where possible, seek, and be seen to seek, legitimacy through the preeminent international organs, namely the UN Security Council. Even in the controversial case of Kosovo in 1999, the UK and others sealed a majority council vote, albeit one that was rendered powerless by the wielding of other permanent members’ vetos.

· The UK Government has fully endorsed the Responsibility to Protect, appointing a ‘focal point’ to coordinate cross-governmental work on the norm. Although legitimacy for humanitarian intervention is derived from the UN Charter and action is mandated by the UN Security Council, the UK Government should be guided, where possible, by the norm as outlined in the 2001 Report of the International Commission on Intervention and State Sovereignty, and as endorsed by the international community at the 2005 World Summit.

27 . Ultimately, the United Kingdom must be at the forefront of insisting that sovereignty cannot be used either as a shield against abuses performed against populations within a state, intentional or unintentional, nor as an excuse not to halt such abuses. The United Kingdom must lead on urging states to uphold their commitments to the populations within their borders and, where appropriate and when necessary, work to build international support for intervening when it clear that populations are threatened and all other channels have been exhausted.

UNA-UK

The United Nations Association - UK (UNA-UK) is the UK's leading source of independent analysis on the UN, and a UK-wide grassroots movement.

UNA-UK believes that a strong, credible and effective UN is essential if we are to build a safer, fairer and more sustainable world. We advocate strong government support for the UN and demonstrate why the UN matters to people everywhere.

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Authors

Alexandra Buskie is Responsibility to Protect Programme Officer at UNA-UK. Alexandra is responsible for the implementation of the Association's R2P programme, which seeks to foster understanding, support and leadership on R2P within the UK government, parliament and civil society. She has a degree from the University of Glasgow and is currently studying towards a Masters in International Relations at King’s College London.

James Kearney is Peace and Security Programmes Manager at UNA-UK. A member of the United Nations Association's delegation to the 2010 Non-Proliferation Treaty Review Conference in New York, James edits the organisation’s nuclear disarmament and non-proliferation briefing report series, chairs the London-based ‘Young Nuclear Professionals Group’ and is a frequent contributor to national and international print and online media. He has degrees from Oxford and Cambridge Universities and his doctoral studies at Edinburgh University examined societal reconstruction in post-Genocide Rwanda.

Alex Buskie and James Kearney

October 2013