Reconciling non-intervention and human rights.

"When you come to a fork in the road, take it." Yogi Berra's well-known aphorism is an apt introduction to the topic of this essay. Over the last decade, the international community has been protracted engaged in a debate over issues raised by humanitarian interventions in defense of human rights. To date, world leaders have attempted to finesse these issues by committing themselves to the human rights path without abandoning the well-trodden path of non-intervention. When Governments have authorized interventions in support of human rights, they have been able to avoid a direct clash with the principle of non-intervention by citing established legal principles such as "threats to international peace and security" and "failed States". As the precedents accumulate, however; it is becoming harder to skirt a confrontation between the traditional commitment to state sovereignty and the growing commitment to the protection of basic human rights. Some choices have to be made, but they will not be easy or without co sts.

The debate between the proponents of non-intervention and the supporters of intervention in defense of human rights is sometimes presented as a struggle between a cadre of reactionary lawyers and authoritarian rulers on the one hand, and a community of enlightened humanitarians on the other. This is both misleading and unfair. In fact, it is better understood as a choice between two important value clusters. The first is associated with a 400-year tradition of international law based on the principle of state sovereignty. This principle, which is usually traced to the Treaty of Westphalia of 1648, has been the basis for a rich body of rules and practices associated with non-recourse to force, the legal equality of States and respect for differing cultural traditions within countries. The second value cluster can also be traced back four centuries as a principle in international law--to Hugo Grotius' assertion of a "right vested in human society" to intervene in the event that a tyrant "should inflict upon his subjects such treatment as no one is warranted to inflict". In diplomatic practice, however this principle was almost completely eclipsed by the commitment to state sovereignty prior to the 1990s. Viewed in this historical context, the changes that have taken place since the end of the cold war can only be described as revolutionary. Today, it would be irresponsible to publish a textbook on international relations which did not accord a substantial section to human rights and humanitarian intervention.

The international community in general, and the United Nations in particular, now recognize a clear mandate to become involved in situations of large-scale, imminent or ongoing human rights violations. The Economical magazine. on 6 January 2001, contended that this international consensus has only developed since 1999 and is the result of successes achieved in Kosovo and East Timor. If this were true. we would have little reason to predict that humanitarian intervention will become established as a permanent and influential principle in international law and diplomacy. In fact. international interest in humanitarian intervention has been developing for more than a decade. in reaction to such event as the 1989 Tiananmen Square incident, the Iraqi repression of its Kurdish minorities. mass killings and population displacements in Rwanda, and the violent collapse of the former Yugoslavia. The Kosovo and East Timor operations represent stages on this continuum, but they also gave the international community new r easons to be concerned about the way in which humanitarian interventions are being initiated and managed. Kosovo raised questions about the appropriate procedures for authorizing humanitarian intervention and about the appropriate use of force. East Timor highlighted the costs associated with the United Nations Security Council's enduring concern for state sovereignty.

In spite of the mixed results achieved to date, the growth of world public support for humanitarian intervention seems inevitable, since it is driven by transformative changes in communications and transportation technology. This places a great burden on scholars and policy makers. They will have to act quickly and assertively to establish new rules for humanitarian intervention if they hope to stay ahead of this trend. But they will not succeed if their actions are interpreted as a frontal assault on the Westphalian order. The resistance will be especially fierce among Third World Governments, which will fear that an ambitious mandate for humanitarian intervention will provide great powers with a convenient fig leaf for interference in their legitimate affairs.

The first step in establishing new rules for humanitarian intervention is to agree upon terminology. For purposes of discussion, I define humanitarian intervention as a coercive action by an outside Government or an authorized agent directed toward or within another State, in order to alleviate or avoid a mass humanitarian crisis, Coercive action is meant to subsume not only military force but also a range of punitive options, including economic and arms embargoes, international sanctions and diplomatic pressure.

It is tempting to distinguish between military and non-military coercive options in terms of "hard" and "easy" choices. In the wake of the air campaign in Kosovo. however. This distinction has broken down. As Michael Ignatieff in Virtual War: coercive and Beyond has argued. The impunity with which this conflict was fought. in the name of human rights. raises some new and cautionary ethical questions. My definition also establishes humanitarian intervention as a subset of humanitarian action to alleviate human suffering. This broader category includes not only cocrcive situations but also non-coercive relief operations in response to natural or man-made emergencies. The line between these two types of humanitarian action is often hard to establish and even harder to maintain. All too often. over the last decade. we have seen situations in which relief missions have escalated (for more appropriately collapsed) into intervention situations. It is worth noting that most of these situations have involved a reversal of t he traditional relationship between into jus ad bellum and jus in bello. According to the traditional just-war model. a government typically considers the moral and legal justification for going to war. and then once the conflict has begun monitors the behaviour of its troops to assess the legitimacy of their actions in combat. Recently however. the norm has been for humanitarian relief workers to enter combat situations as neutrals. And either witness gross abuses of the principles of jus in bello or be subjected themselves to such abuses. This has forced outside Governments and international agencies to confront jus bellum issues relating to coercive intervention.

The following seven guidelines are offered to stimulate debate about the circumstances under which humanitarian intervention should be authorized, and the actions that should be take.

* The international community has the right and the obligation to intervene in massive humanitarian crises. even if such intervention constitutes an infringement on state sovereignty.

* Security Council authorization should be sought in all cases of humanitarian intervention. In emergency situations where such authorization is not available. Unilateral or multilateral action by Governments may be necessary But Governments which undertake such actions incur a special burden to justify their intervention. And to cease and desist if instructed to do so by the Council.

* The United Nations should have primary responsibility for designating a situation as a massive humanitarian crisis. All States should accept an obligation to facilitate UN fact finding to accomplish this task.

* Recourse to military force should be the last resort in humanitarian intervention. When military force is deemed to be necessary. rules of proportionality and discrimination must be strictly adhered to.

* Decisions on where and when to intervene should be impartial. Guided only be concern for the alleviation of human suffering.

* Governments which undertake a humanitarian intervention incur a special responsibility for reconstruction and rehabilitation once the immediate goal of halting the humanitarian crisis has been accomplished.

* The international community must provide the United Nations with the resources necessary for fact-finding, protection of relief workers and. in extreme circumstances, coercive military action. These must be available to the Secretary-General for immediate deployment. Procedures must also be established for transferring responsibility from these UN "fire brigades" to authorized national or multinational forces.

The issue capabilities, which is addressed in the last guideline. is arguably the most important and most immediate mater for action by the world community. [This issue is also central to the August 2000 report by the Panel on United Nations Peace Operations. the so-called Brahimi Report. Which is summarized and discussed in the United Nations Chromide. Issue No. 3. 2000.] The United Nations is the only international organization which stands a chance of legitimizing humanitarian interventions in the eyes of the world's population. But it can only do so if is provided with the resources to respond effectively to humanitarian crises when they occur. In the words of the International Institute for Strategic Studies Strategic Survey. 1999-2000: "Success is a powerful impetus to evolution as much in international relations as in biology."