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A reappraisal of humanitarian intervention Middleton, Kirsty Giselle 1994-12-31

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A REAPPRAISAL OFHUMANITARIAN INTERVENTIONbyKIRSTY GISELLE MIDDLETONLLB (Hons), The University of Strathclyde, 1992Diploma in Legal Practice, TheUniversity of Strathclyde, 1993A THESIS SUBMITTEDIN PARTIAL FULFILMENT OFTHE REQUIREMENTS FORTHE DEGREE OFMASTERS OF LAWinTHE FACULTY OF GRADUATE STUDIES(School of Law)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAJuly 1994©Kirsty Giselle Middleton, 1994In presenting this thesis in partialfulfilment of the requirements for an advanceddegree at the University of British Columbia, I agreethat the Library shall make itfreely available for reference and study. I furtheragree that permission for extensivecopying of this thesis for scholarlypurposes may be granted by the head of mydepartment or by his or her representatives,It is understood that copying orpublication of this thesis for financial gain shallnot be allowed without my writtenpermission.(Signature)Department ofL1\V\JThe University of British ColumbiaVancouver, CanadaDate_____________DE-6 (2/88)11AbstractA new threat to international peaceand security exists in the post Cold War years. Thedemise ofthe Cold War hasbrought chaos initswake as ethnic and religious disputes engulfseveral regions of the world often resultingin humanitarian tragedies. The tumultuousdevelopments of recent years have however,opened up new possibilities for internationalaction and cooperation underthe auspices of the United Nations. Consequently,a radicalshift has taken place in the international communityas recent humanitarian crises have notonly compelled the United Nationsto take a prominent role in world affairs butalso achance to expand the competence ofthe UNinto areas previously regarded as beingwithinthe exclusive jurisdiction of member states.Moreover, the humanitarian crises of recentyearshave calledforareappraisal ofthecontroversial doctrine ofhumanitarianintervention.This thesis explores the theoreticaljustifications to support the doctrine underthe UNCharter and general international law and alsooffers a contemporary appraisal of theapplicable norms in light of evolving conceptionsof state sovereignty and non-interventionin internal affairs. The overallhypothesis is that not only is substantial changein thetheoretical norms appropriate but that the operationalcapability of the United Nations toconduct a humanitarian intervention must alsobe reexamined in light of recent events. Theremaining section of the thesis thereforeconsiders how the United Nations can establish amore effective operationalmilitarycapacityfor future collectivehumanitarian interventions.111Table of ContentsAbstract.iiTable of ContentsiiiAcknowledgementvIntroductionPart One THE DOCTRINE OF HUMANITARIAN INTERVENTION7Traditional norms of Humanitarian Intervention 10(i) The non-use of force12(ii) Non-intervention into domestic affairs14(iii) State Sovereignty as a Barrier to HumanitarianIntervention 18Changing Views of the Doctrine ofHumanitarian intervention22(i) Classical School of Thought22(ii) Neo-classical school of thought 26Humanitarian Intervention and the UN Charter33A New Doctrine of Humanitarian Intervention38(i) The Erosion of Absolute Sovereignty42Conclusions on sovereignty and non-intervention in internal affairs52Collective Humanitarian Intervention53A Conceptual Appraisal of HumanitarianIntervention in Practice 58Incident Studies59(i) Humanitarian intervention and the Kurds59(ii) The Former Yugoslavia70(iii) Somalia - Operation Restore Hope76Conclusions on recent humanitarian interventions80Part Two THE BASIS OF UN JURISDICTIONIN A CIVILCONFLICT84Humanitarian crises as a threat to the peace underChapter VII 88Issue of Consent93Regional Developments98Human Suffering as a Ground for UN Jurisdiction102Codifying Humanitarian Intervention106Conclusions116ivPart Three OPERATIONAL ASPECTS OF HUMANITARIANINTERVENTIONS.118The United Nations Charter and the use of force120The revival for UN forces125Traditional Norms of UN Peacekeeping 130(i) The non-use of force 130(a) The Congo Crisis 132(ii) Traditional norm of impartiality134Evolving norms of UN peacekeeping operations 136(i) Departure from Impartiality as a Norm 138(ii) Problems in UN Command and Control of Peacekeeping 140UN Troops and the Use of Force143(i) The Former Yugoslavia - Peacekeeping or Peace-enforcement9 146(a) Original Deployment and Mandate of UNPROFOR 147(b) Expanded Mandate of UNPROFOR 149(c) Critical Appraisal of UNPROFOR 151(ii) Somalia - Deployment and Mandate of UNOSOM 153(a) Critical Appraisal of UNOSOM 155A Legal Basis for UN Peacekeeping156Conclusions on the role of peacekeeping 161A UN Army Under Chapter VII 164Legal Difficulties as regards the creation of a UN army 171Circumstances in which a UN force could be deployed 175Conclusions176Final Conclusion179Bibliography181VAcknowledgementsThis thesis could not have beenwritten without the invaluable support of various people.First and foremost, I would liketo express my sincere thanks to the Law Foundation ofBritish Columbia for funding my year inCanada, to Professor Potter, Professor KarinMickelson and Gillian Byrant for their adviceand encouragement and to my supervisorProfessor Ivan Head for his words ofwisdom,inspiration and wonderful hospitality!The friends that I have made in Vancouverdeserve a special thanks. I would like to thankFrances Diepstraten and Jackie Robson in particularforbeing such wonderfulfriends to meover the year. I must also thank my classmatesChristopher Hall, Keith Robinson, EmmaHendersonfor theirfriendship andhumour and toElizabethKirkforhersheer sarcasm andof course, her much valued friendship! I must alsothankJames forbeing there for me overthe past year. Your correction of my grammarwas especially helpful!Finally, I would like to thank DrRebecca Wallace, Professor of International Law at theUniversity of Strathclyde, Glasgow for helpingto make it all possible for me. I could nothave got here without her hard work and encouragement.IINTRODUCTIONThe law is one thing, butthe safeguard of a population is another,quiteprecious to which humanity cannotbe indifferentStatement by the French Foreign Minister,Roland Dumas, April 5th 1991A new threat to internationalpeace and security exists in the post-ColdWar era. The endof the East-West confrontationhas brought chaos in its wakeas bitter ethnic and religiousdisputes supplant classicalaggression,originallyaddressedby theframers oftheUN Charter.Humanitarian crises have insteadbecome the hallmark of the new world order.Televisedimages of Somali warfare, Bosnian orphansand now the massacre of thousands of civiliansin Rwanda continue to fill ourscreens, while sporadic reports fromtroubled countries asdisparate as Yemen, Tibet, Afghanistanand Zaire suggest ethnic rivalrymay yet beunleashed.The tumultuous developmentsof recent times have ironically opened upnew possibilitiesfor international action and cooperationin many areas of humanitarian activity,themultinational intervention inNorthern Iraq being an obvious example.Consequently, aradical shift has taken placeas events have compelled the United Nationsto take aprominent role in humanitariancrises quite different from the earlierpractice ofthe UnitedNations throughout the Cold Waryears. The thaw in East-West relationshas not only giventhe UN a unique opportunity toreassert itself in international affairs, but alsoa chance toexpand the competence of the UN intoareas previously regarded as within theexclusivejurisdiction of sovereign states.2The UN is, however, ill-equipped to deal with internal strife. Partof the problem lies inArticle 2(7) ofthe UN Charter, a disclaimerthatdelineates thejurisdiction ofUN authority.Article 2(7) states thatNothing contained in the present Charter shall authorize the UnitedNationsto intervene in matters which are essentiallywithin the domestic jurisdictionofany state or shall require the Members to submit suchmatters to settlementunder the present Charter; but this principle shall not prejudicetheapplication of enforcement measures under Chapter VII.Despite the emphatic language of this provision, the centralityof sovereignty and nonintervention under traditional international law has not preventedthe UN having a role,albeit a limited one, in controlling civil strife. The UN responseto the Kurdish crisissuggested for example, that the international communitywill no longer tolerate blatant andexcessive human rights violations by a sovereign nation against itsown citizens. Moreover,the ubiquitous reach of global telecommunicationsensures that governments cannot keepinformation from their people and that domesticactivities cannot be hidden frominternational scrutiny.Accordingly, thisthesis seekstodemonstratethatcertainnorms ofhumanitarianinterventionare no longer applicable in contemporaryinternationalrelations. Substantial revision ofthedoctrine of humanitarian intervention is thereforeappropriate given the prominent rolecurrently accorded to the United Nations. Thediscussion throughout the paper will focusalmost exclusively on the authority of the UnitedNations to perform a humanitarianintervention. While varying degrees of interventionexist ranging from indirect forms ofpersuasion to economic sanctions, the display offorce is the most controversial at thepresent time in international relations and thus, lendsitself more easily to description and3evaluation. One should bear in mind, however, that the use offorce as means of UN actionis not exclusive and is usually complementaryand often interrelated to more pacific formsof intervention.’Theoretical considerations about the acceptability ofintervention by the United Nationshave, however, remained secondary to the practical problem ofhow it should be conducted.So far the international community hasfailed to develop consistent policies and, indeed,effective mechanisms for overcoming the difficulty of sovereignty inorder to providehumanitarian assistance.2The humanitarian operationsin the former Yugoslavia andSomalia have been conducted in an “ad hoc” fashionwith no consistent policy or definedobjectives. Granted that most international lawyers have failed to addresssuch proceduralproblems, Part II of this paper will seek to identifycoherent and consistent criteria whichthe international community should adhere to when dealingwith humanitarian crises. Theaim is to pursue a contemporary inquiry focusingon the issue of when humanitarianconcerns will override the prohibition on intervention inArticle 2(7). It should be notedfromthe outset thatPart I ofthispaperwill focusalmost exclusively on intervention in termsof humanitarianism and therefore, not under thetwo most cited principles, self-defenceunder Article 51 of the UN Charter or threat tointernational peace and security underFor a general overview ofpacific measures, see OscarSchachter, The United Nationsand Internal Conflict, in Law and CivilWar in the Modem World 401, 401-442 passim(J.N.Moore ed. 1974)2According to McDougal and Bebr “...the mostdifficult problem still confronting theframers ofthe United Nations’ human rights programis that ofdevising effective proceduresfor enforcement” See McDougal andBebr, “Human Rights in the United Nations” 58American Journal International Law, (1964) 603at 6294Article 39 of the Charter. Although reference tothese principles will from time to time benecessarythroughoutthe discussion, the studywillbe narrowlyfocused. The more traditionalinterpretation of the concept of threats to international peacewill be explored in Part II.Recent humanitarian crises have not onlyhighlighted the normative inadequacies of thedoctrine ofhumanitarianinterventionbutalso revealed thatthe international communitystilldoes not have in place an effective collectiveenforcement mechanism for protecting humanrights. UN peacekeepers have, instead, become embroiled incivil wars, contrary to theirtraditionally perceived image as mediators. As the UN involves itselfin less ideal scenariosfor keeping the peace, it is evident that the applicablenorms governing traditionalpeacekeeping have also changed. Accordingly, the aim of thisfinal section is to highlightsome particular criticisms of the operational capacityof the UN to conduct a humanitarianmilitary intervention with reference to recent engagements in theformer Yugoslavia andSomalia. This section does not therefore purportto trace the historical developments ofpeacekeepingbut, rather, to discuss the evolvingnorms in light ofrecent events. Some legaland practical alternatives will be articulated in an attemptto resolve the current operationalcriticisms of UN peacekeeping. In order to preserve thecollective nature of humanitarianinterventions, proposals will be made to createan international enforcement mechanismunder Article 43 to give the UN the means to intervene ininternal crises. The conceptual,practical and political difficulties that this raiseswill not all be resolved, rather emphasized.It is important to point out at the outset just howbig this topic is. The enormity of thesubject would be less daunting if more of its variousaspects had been subject to academicresearch. Apartfrom topical and historical discussions ofspecificinternal wars, however, the5interrelationship ofcivil strife, human rights and internationalinstitutional control has neverreally been the subject of systematiclegal scholarship until fairly recently. Certainly, therehave been no shortage of recommendations throughout the postwar years, yet closeranalysis reveals that traditional legal scholars have beenlargely influenced in theirwork bythe ideological political struggle that hasbeen the hallmark of international relations since1945. The analytical aspects ofinternalwarand human rights in the internationalcommunityhavethereforebeenneglectedbypoliticaltheorists andinternational lawyers, the focus beingmore on the threat of “international war” in light of theEast-West divide. Accordingly, it isimportant to note the factual and normative ambiguity ofmuch of the legal parlance usedthroughout this thesis. I do not attempt to define the concept of civilwar which has, overthe years been subject to more obfuscation than clarification by internationallawyers. Nordo I aim to engage in an ideological analysis ofwhatamounts to intervention in this context.Myintentionwas to avoid any linguistic problems and focusmore on the critical policy issuesat stake within a contemporary normative framework.3Inview of the definitional problemsconcerning the doctrine of humanitarian intervention, Ihave therefore tried to avoidbecoming involved in an overlyjuridical analysis, not onlydue to the constraints of time andspace but also to concentrate more directly onthe salient policy issues facing theIn any case, the majority of international scholarsfind the traditional response andlanguage of international law inadequate to the occasionof external intervention in aninternal conflict. SeegenerallyTomJ.Farer,HarnessingRogueElephants:AShortDiscourseon Foreign Intervention in Civil Strife in 2 TheVietnam War and International Law 1089(R.Falk ed. 1969); Moore, Toward an Applied Theoryfor the Regulation ofIntervention inLaw and Civil War in the Modem World 9 (J.N.Moore ed 1974);Mcdougal, “Law as aProcess of Decision: A Policy-Orientated Approach toLegal Study” 1 Natural Law Forum53, 59 (1956); Falk, Janus Tormented: TheInternational Law of Internal War inInternationalAspects of Civil Strife. 185, 206-208 (J.Rosenaued. 1964)6international community.My overall hypothesis,is that the international community should adhere to thenorms ofsovereignty and non-intervention within a contemporarycontext, but not at the expense ofhumanitarian concerns. Whilst I realisethe issue cannot be reduced to simple moraldoctrine, I fail to see the sense inany so-called “humanitarian” intervention if it is not toprotect human rights.The thesis this paper intends topresent is therefore simple. Not only are certain doctrinalconcepts no longer tenable in contemporaryinternational relations, traditional UNpeacekeeping operations are alsounable to resolve the wave of humanitarian crises ofthepost-Cold War world. As thenumber of candidates for humanitarian interventionproliferates, it is imperative that the United Nationsestablish a normative frameworkdictating both when and how it should intervenein a humanitarian crisis. While there wouldappear to be adequate theoretical justification tosupport the doctrine against massivehuman rights violations, the United Nationsmust fully develop this jurisprudence so that acoherent practice of humanitarian interventionwill develop. This paper has thus beenwritten with this aim in mind.7Part One. THE DOCTRINE OFHUMANITARIAN INTERVENTIONThe doctrine of humanitarian interventionis not a new concept.’ Military intervention byeither a foreign power or an internationalbody, intotheinternal affairs of a sovereign state,for allegedly humanitarian reasons, has alwaysbeen controversial. Whether, or underwhatcircumstances, coercive intervention is permitted byinternational law has been widelydebated in international legal jurisprudence.At no period in international relations has itbeen easy tojustify humanitarianintervention under positive international law.2Traditionaldiscussion of humanitarian intervention focused onthe legality of forcible unilateral actionthat one state undertakes to protectnationals ofanother countrywho suffer from large-scaleatrocities.3The end of the Cold War has however,brought the concept of humanitarian‘See eg.L.Oppenheim, International Law (H.Lauterpacht(ed) 8th ed 1955) Humanitarian interventionderives from the teachings of Grotius. at 312;J.D.Van der Vyver, Statehood in International Law, 5 EmoryInternational Law Review, 9, 76 n.323 (1991)2See Hugo Grotius, De Jure Belli Esti Pads288 (Whewell trans. 1853) The doctrine of humanitarianintervention following Grotius was largely a theoreticalargument. Specific invocation of the doctrine arosemostly in the latter halfofthe 19th century.Seeeg.Thomas E.Behuniak, ‘The Law ofUnilateralHumanitarianIntervention by Armed Force: ALegalSurvey,” 79 Military Law Review 157, 160 (1978) Professor Fonteyne’sin-depth analysis of the pre-World War IIwritings and state practices of humanitarian intervention led himto conclude that humanitarian intervention was legal beforethe UN Charter. See Jean-Pierre Fonteyne, “TheCustomary International Law Doctrine of HumanitarianIntervention - Current Validity Under the UNCharter,” 4 California Western InternationalLaw Journal 203 (1974)”[W]hile divergences certainly existedasto the circumstances in which resort could be had to theinstitution of humanitarian intervention, as well asto the manner in which such operations were to beconducted, the principle itself was widely, if notunanimously,acceptedas an integralpartofcustomaryinternationallaw.” Butsee H.Lauterpacht,InternationalLaw & Human Rights, 32 (1950)(describing the use ofthe doctrine as sporadic and infrequent and castingdoubt on its recognition in internationallaw) Id.The legal literature on the concept of unilateral humanitarianintervention is too extensive to list in itsentirety here, but a representative list would include RichardLillich, “Forcible Self-Help by States to ProtectHuman Rights” 53 Iowa LawReview 325 (1967); Franck and Rodley, “Alter Bangladesh:The Law ofHumanitarian Intervention by Military Force” jhereinafter After Bangladesh!67 American Journal ofInternational Law 275 (1973); Behuniak, “The Law ofUnilateralHumanitarian Intervention by Armed Force:8intervention to the top of the globalagenda, but now in the context of collectiveactionunder the auspices of the United Nations.4Moreover, the United Nations authorizedhumanitarian interventions intoNorthern Iraq, Bosnia-Hercegovinaand Somalia havebrought the issue of humanitarianintervention to the forefront of internationallegaldiscourse.5Any conclusions to be drawnfrom the following discussion must beginby recognizing thatthe jurisprudential debateconcerning humanitarian intervention has changed.6TheA Legal Survey” 79 Military Law Review 157 (1978);Jhabvala, “Unilateral Humanitarian Intervention andInternational Law 21 Indian Journal of InternationalLaw 208 (1981); Verwey, ‘Humanitarian interventionUnder International Law” 32 NetherlandsInternational Law Review 357 (1985); Bazlyer,“Reexamining theDoctrine of Humanitarian Intervention in Lightof the Atrocities in Kampuchea and Ethiopia”23 StanfordJournal of International Law547 (1987)4See eg. Paul Lewis, “The Right to Intervenefor a Humanitarian Cause,” The New York Times, July 12,1992 4 (Week in Review) at 22. The doctrine ofhumanitarian intervention is receiving widespreadattentiondue to the end of the cold war andthe hope that the United Nations might finally act inthe fashion it wasdesigned. Id. Before the collapse of the Soviet Union as arival superpower to the United States, “[c]oldwartensions virtually assured paralysis, with therival superpowers fearing that humanitarianintervention wouldbe directed against their interests..butwith the cold war over, Western governments and humanitarianorganizationsbegan pressingfor newaction to defendvulnerablepeople.” Since 1987, some UN membershavetried to establishhumanitarianintervention as a rightunderinternational law. There is evidence, however,thatthe United Nations is overburdened by thepresent crisis. Id See eg.”Too Much Stressat the U.N”, The NewYork Times, July 25, 1992 at A20. “Thecrisis switchboardat the United Nations is overloaded.Once paralysedby coldwar rivalries, theworldorganization is nowadays asked to do too much:enforce peace in Sarajevo, facedown a truculentSaddam Hussein and clean upmesses in Cambodia, Central America, Afghanistanand SouthAmerica.” Id.Arguably, the doctrine has alwaysreceived considerable attention from legal theorists and thus,for thisreason alone it is not a new concept. Havingsaid that, it is one of the contentions of thisthesis thathumanitarianinterventiononly receivesinternationalattention in the aftermath ofa humanitarian catastropheor civil warwhich the UN or the internationalcommunity failed to resolve. The current debatediscussing themeritsofhumanitarian intervention merelyreconsiders issues that have been discussed for yearsalthough nowin a different political climate.Forinstance, in 1972, Professor Richard Lillich calledfor a reappraisal of thedoctrine following months of inactivity by theUnited Nations and the world community in the face ofgrosshuman rights deprivations in Bangladesh. SeeThe International Protection of Human Rights byGeneralInternational Law, Second Interim Report of theSub-Committee (R.Lillich, Rapporteur), in Report oftheInternational Committee on Human Rights OftheInternationalLawAssociation, 38 at 54, 1972.(”Thedoctrineofhumanitarianintervention,whetherunilateralorcollective, surely deservesthe mostsearching reassessmentgiven the failure of the United Nations totake effective steps to curb the genocidal conduct and alleviatethemass suffering which took place inBangladesh.”) Id.6See Christopher Greenwood, “Is there a rightof humanitarian intervention?” The WorldToday, 49:2February 1993p40(“...the law on humanitarian intervention has changedboth for the United Nations and forindividual states.”)Id9international doctrine of humanitarian intervention has gained strength for a number ofreasons, most of which focus on the United Nations.7Moreover, the articulation of asubstantialbody ofhuman rights lawhas led to the growing recognition ofa right ofstarvingcivilians to receive international assistance and of international bodies to provide it.8It isno longer tenable to assert that whenever a government massacres its own people or a statecollapses into anarchy international law forbids military intervention altogether. While itremainsundisputedthattherehavebeen significantdevelopments in the law ofhumanitarianintervention, there is still no imminent prospect of a formal agreement in either legaldiscourse or in state practice as to exactly how this doctrine has changed or what it shouldbe. As Adam Roberts points out:Any attempt to devise a general justification for humanitarian intervention,even if such a doctrine were to limit intervention to very extremecircumstances, would run into difficulty. A blind humanitarianism, which failsto perceive the basic truth that different states perceive social andinternational problems very differently, can only lead into a blind alley.Indeed, advocacy of any general principle ofhumanitarian intervention couldwell make some states more nervous than before about internationaldiscussion of human rights, since they might see this as a stalking horse forintervention.9The issue at the forefront of legal discourse is whether the protection of human rights canSee Gerald B.Helm & Steven R.Ratner, “Saving Failed States,” Foreign Policy, No.89 Winter 1992-93(citing civil strife, government breakdown and economicprivation as some ofthe reasons why the internationalcommunity is becoming more concerned with alleviating humanitarian suffering)Certain aspects of this right can be traced back to the 1949 Geneva Convention and in a number ofresolutions in the 1980’s concerning assistance in response to disasters. See General Assembly Resolution43/131 of 8 December 1988, adopted after the Armenian earthquake; see also “The evolution of the right toassistance,” International Review of the Red Cross (Geneva) no 291 November-December 1992 p592-602reporting the XVIIth Round Table of the Institute of Humanitarian Law, San Remo.Adam Roberts, “Humanitarian War:Military Intervention and Human Rights” International Affairs69,3:1993 at 429-449, 44810overrideinherent organizingprinciples ofthe international system. Accordingly,the purposeof this introductory sectionis to examine the attemptswhich have been made to reformulate the so-called classicaldoctrine ofhumanitarian intervention ina manner relevantto the presentinternational climate. The conclusion isthat although there has beensubstantial change in thenorms of humanitarian intervention,further reappraisal isappropriate. More generally,it may also be considered whetherany lessons are to belearned from historical practiceand legal scholarship in this area)°The starting point for an analysis ofthe doctrine of humanitarian intervention isanappreciation ofits normativeframework; namely, the principle ofthe non-useofforce, andthe doctrine ofnon-intervention,a notion which correlates to the fundamentalprinciple ofthe sovereign equality ofstates.Traditional norms of Humanitarian InterventionThe principles ofequal sovereigntyof all states and the correlativeduty of non-interventionin domestic affairs arecornerstones of international relations.”The right of sovereignstates to enjoy exclusive jurisdictionover all matters within their own boundaries,howeveraberrant in their human impact, isperhaps the most basic principle ofinternationalofthe numerous instances where humanitarianinterventions occurred during the nineteenthand early twentieth centuries has however,been consideredsuperfluous to this paper. Foran extensive survey.See generally, M.Ganji InternationalProtection ofHuman Rights 22-24 (1962); DavidScheffer, “Toward aModern Doctrine of Humanitarian Intervention”University of Toledo Law Review, Vol 23, Winter1992 at254, fn 4. Franck and Rodley, supranote 3, 275-305.‘See generally, Ian Brownlie, Principles ofPublic International Law 287 (4th edition,1990); see alsoJ.Brierly, The Law ofNations 7-16 (6th ed. 1963)11jurisprudence.12Theextremesensitiveness of governments tointerference with theirsovereign affairs is particularly acutein civil conflicts. Traditionally, itwas the view thatrebellions, internal strifeand uprisings fell within the exclusivedomain of a sovereign state.The fearwas that an intervention,even ifcouched in humanitarian terms,would subvert thepolitical, economic or military domain ofthe recipient country.The norm of non-intervention in theinternal affairs of states is articulatedin Article 2(7)ofthe UN Charter. Article 2(7)provides that ‘Nothing...shall authorizethe United Nationsto intervene in matters which areessentially within the domestic jurisdiction of anystate.”This principle of “domesticjurisdiction” has constituted a perennialchallenge to thecompetence ofthe United Nationsto intervene in the affairs ofstates inpursuit ofachievinggreater respect for human rights.For decades the principle of non-interferencein anotherstate’s domestic affairs hasbeen crucialto the maintenance ofworld peace.While a detailedexamination of this paradigm is outsidethe narrow ambit of this inquiry, thefollowingdiscussion bears directly on the conclusionsto be drawn from this paper as a wholeand thecentral hypothesis advanced throughoutit.The doctrine of non-intervention developedfrom principles of self-determination,internalorganization and independence.13In orderfor states to develop their ideals of democracy,intervention not only had to beactively discouraged but prohibited altogether.Therefore,12See eg.Michael Reisman, “Sovereignty andHuman Rights in Contemporary InternationalLaw 84American Journal of InternationalLaw, 866-69 (1990) Malcolm.N.Shaw,InternationalLaw 276 (3d. ed. 1991)“International law is based on the conceptof the state. The state in its turn liesupon the foundation ofsovereignty, which expresses internally the supremacyof the governmental institutions and externallythesupremacy of the state as a legal person.” Id13See eg. A.Thomas & J.Thomas Jr, Non-intervention:TheLaw and its Import into the Americas (1950) at14.12members of the UNhave traditionally interpreted the Charter in a manner basedon thepremise of non-interference in states’sinternal affairs. Article 2(4) for instance, requiresstates to refrain from theuse of force against the territorial integrityor politicalindependence of other states andin a manner inconsistent with the purposes of the UN.(i). The non-useof forceThe prohibition on the use offorcewasnot part ofcustomary international law prior to 1945- at least, not in the form of an internationalinstrument. Since its incorporation in Article2(4) of the UN Charter, however,the principle of the non-use of force has beengenerallyaccepted as the cornerstone of internationallaw concerning relations between states.’4Article 2(4) provides that memberstates must refrain “...in their internationalrelations fromthe threat or use of force againstthe territorial integrity or political independence of anystate.”5Similar prohibitions are contained inthe Charters of regional organizations suchas the Organization ofAmerican States, the OrganizationofAfrican Unity and the Leagueof Arab States.’614Seeeg.Ved P.Nanda, ‘Humanitarian MilitaryIntervention” 23 World View (October 1980) (existing rulesof international law generally prohibit militaryintervention) The status of the non-intervention principlelayat the heartoftheongoingdebatebetween Professors MichaelReisman and Oscar Schacter. Seeeg.W.MichaelReisman, “Coercion and Self-Determination:Construing Charter Article 2(4)’ 78 American JournalofInternationalLaw642 (1984); OscarSchacter, “TheLegality ofPro-DemocraticInvasion” 78 American JournalofInternational Law 645 (1984) and Oscar Schacter, “TheRight ofStates to Use Armed Force” 12 MichiganLaw Review 1620 (1984)15Article 2(4), UN Charter. It is commonly acceptedthat Article 2(4) has the character of a peremptorynorm of international law. See eg.L.Henkin, R.Pugh, O.Schacter,H.Smii, International Law 677 (1987) Theprohibition on the use of force in Article 2(4)was further clarified in 1974 with the passage ofGeneralAssembly Resolution 3314 on the Definition of Aggression.16See Organization ofAmerican States, art. 15, U.S.T.2394; Organization ofAfrican Unity, May 25, 1963,art III 21.L.M 766 (“non-interference in the internal affairsof States”); League ofArab States, Mar.22, 1945,art 8, 70 U.N.T.S 237 (each member “shall respect the form ofgovernment obtaining in the other states oftheLeague...and shall pledge itself not totake any action tending to change that form”).See alsoTreaty ofFriendship, Co-operation and Mutual Assistance(Warsaw Pact), May 14, 1955, art.8, 219U.N.T.S 313This provision is, accordingly,interpreted by numerous publicists as proscribingthe use ofaggressive force to include even militaryinterventions for humanitarian purposes.’7Forexample:Most authorsinterpretArticle 2(4) as imposinga totalban on the use offorcein international relations exceptwhen another provision of the Charterexpressly recognizes or creates an exceptionto that ban. This broadinterpretation of Article 2(4) is confirmed bythe travaupreparatoires of theCharter, and in recent years has receivedthe support of most of the memberstates of the United Nations.’8The prevailing view is that the use offorceis illegal in international relations except in self-defence’9and when authorized by the SecurityCouncil under Chapter VII of theCharter.2°The provisions banning the use offorce are considered the most important(“principles ofrespect for each other’s independence and sovereigntyand ofnon-intervention in each other’sdomestic affairs.”)‘7Michael Akehurst for example, suggested that “the UnitedNations debates on Cambodia in 1979provide some evidence that there is now a consensusamong states in favour of treating humanitarianintervention as illegal.” see MichaelAkehurst, Humanitarian Intervention, in Intervention in WorldPolitics, 95(H.Bull ed.1984) Certainly, during UNdebates in 1945, Thot a single state spoke in favour of the existence ofa right ofhumanitarian intervention.”Id at 97. seealso Ian Brownlie,Internationallaw and the Non-use offorce(1963) at 342. [hereinafter Internationallawj ‘[lit is extremely doubtful if [humanitarian intervention] hassurvived the...general prohibition ofresortto force to be found in the UN Charter. Id see also M.D.Verwey,“Humanitarian Intervention under InternationalLaw 32 Netherlands International Law Review 364, 377(1985). “The Charter bans the “use of forceforanyparticularpurpose, including a humanitarianone. Id18M.Akehurst, ibid at 106; see also Watson, “Legal Theory,Efficacy and Validity in the Development ofHuman Rights Norms in InternationalLaw” 1979 University of Illinois Law Review. 609. 619 n 41 (Article2(4)...outlaws the use of force except in very limited situations”)Id.‘9UN Charter art.51. Article 51 ofthe Charterprovides that “[nothing] in the present Charter shall impairthe inherent right of individual or collectiveself-defence if an armed attack occurs against a Member oftheUnited Nations”.20Chapter VII of the Charter reserves to the Security Councilthe exclusive right to use military forceagainst an aggressor. see Brownlie, International lawsupra note 17 at 33-34. “Chapter VII [of the Charterlconferred on the Security Council a broadcompetence to act on behalf of the international communitywithrespect to varying characteristics of unlawfulunilateral resorts to force: threats to the peace, breaches ofthepeace and acts ofaggression.” Id. see also Bazyler,supra note.3 at 575 (“[T]he..individual use of force has beensuperseded by the United Nations Charter and itsemphasis upon collective state action through the Security14provisions of the Charter and have beenauthoritatively reaffirmed on numerousoccasions.21Theobvious and unfortunateeffect of this strict construction is that the UNappears to be prohibited, as is anyother foreign power, from intervening to protect humanrights.(ii).Non-intervention into domestic affairsThe principle ofnon-interventionis premised on respect for sovereignty, territorialintegrityand political independence and thus, is a correlationto the principle of the non-use of forceembodied in Article 2(4) of the UNCharter.22More importantly, Article 2(7) of the UNCharter specifically prohibits interference inthe domestic affairs of another sovereign statealthough this disclaimer excludes the application ofenforcement measures under Chaptervu.23Defining intervention, or humanitarian intervention,raises a variety of normativedifficulties. The concept of intervention, for example,has been defined as broad enoughCouncil”) Id.21See Oscar Schacter, TheRight ofStates to useArmed Forcesupra note 14 at 1620. on aggression underthe UN Charter, see generally, Leland M.Goodrichand Edvard Hambro, Charter of the United Nations.’Commentary & Docs, 2nd Ed.(Boston:World PeaceFoundation, 1949), pp262-6622See eg Andrew Scott, “Non-intervention andConditional Intervention” Journal of Enternational AffairsVol 22, No2 (1968) (Non-intervention is an obviouscorollary of national sovereignty, for if nationalsovereignty is good, interference with a state’s integritymust be bad.’) Id at 208Article 2(7) delineates thejurisdiction ofUN authority:’Nothingcontained in the present Charter shallauthorize the United Nations to intervene in matters which areessentiallywithin the domesticjurisdiction ofany state or shall require the Members to submitsuch matters to settlement under the present Charter; butthis principle shall not prejudice the application ofenforcement measures under Chapter VII.24See R.George Wright, A Contemporary Theory ofHumanitarian Intervention” Florida InternationalLaw Journal.Vol 4 1989 43615to include even the verbalremarks of government officials concerning anotherstate’saffairs.251npractice, however, the UNoften involves itself in the peaceful resolutionofinternal affairs without objection eg.byway of committees and recommendations. ThePermanentCourt ofInternationalJusticeaptly summarized the essential thrust ofthenotionof intervention in the LOTUS case in1927 when it stated thatthe first and foremost restrictionimposed by international law on a stateisthat - failing the existence of apermissive rule to the contrary - it may notexercise its power in any form in the territoryof another State. In this sensejurisdiction is certainly territorial [emphasisadded]; it cannot be exercised bya state outside its territory except byvirtue of a permissive rule derived frominternational custom or from a convention.26More recently, the International Court of Justicenoted in its decision on the merits in thecase of Nicaragua v. US in 1986 that, “inview of the generally accepted formulations, theprinciple of non-intervention forbids allStates or groups of States to intervene directly orindirectly in internal or external affairs of otherstates.”27Numerous resolutions, declarations and conventionsadopted by international organizationsreflect state acceptance of the principleof non-intervention as pronounced by the WorldCourt as customary international law.As part of the preparations for the San FranciscoConference in 1945, the Carnegie Endowments’Report on the International Law for theSee eg. R.Vincent, Non-intervention and the InternationalOrder 3 (1974); Bazyler, supra note 3 at 547(citing authority)26The SS Lotus (1927) PCIJ ser.A.No 9, 18-1927See Case ConcerningMilitaiy andParamilitaiyActivities inandAgainstNicaragua (Nic v USA), 1986 ICJRep 14, 106-110. Earlier in the Corfu Channelcase the Court had made a similar pronouncementstating that“the alleged right ofintervention as the manifestationof the policy offorce, such as has, in the past, givenriseto most serious abuses and such as cannot...finda place in international law..especially when it would bereserved for the most powerful states, and might easily leadto perverting the administration of internationaljustice itself.” ICJ Rep 1949, Rep 4 at 3516Future declared:”Eachstate has a legal duty to refrain fromintervention in the internalaffairs of any other state,” the authorspointing out that the “principlewould reaffirm aprecept of the existinglaw.”29Similarly, the 1928 Convention onthe Duties and Rights ofStates in the EventofCivil Strifeprohibited intervention evenby nationals of one state in the affairsof another state.3°Likewise, the Montevideo Conventionon Rights and Duties of States of193331explicitlystated that “no statehas the right to intervene in the internal orexternal affairs ofanother.”32The principle ofnon-interventionwas unequivocally endorsed by the UnitedNations in the1965 Declaration on the InadmissibilityofIntervention in theDomesticAffairs ofStates andthe Protection of their Independenceand Sovereignty which statedthat “No State mayuse or encourage the use of economic,political or any other type of measuresto coerceanother State in order to obtainfrom it the subordination of the exercise ofits sovereignright or to secure from it advantagesof any kind.’° The UN GeneralAssembly laterSee The International Law ofthe Future:Postulates,Principles and Proposals, Carnegie EndowmentforInternationalPeace, 38 American Journal ofInternational Law, Supp 41 at 76 (1944)29ibid°Convention Concerning the Duties andRights ofStates in the Event ofCivil Strife, 1948 February 20th,46Stat, 2749 Article 1.31Convention on the Rights and Duties ofStates,1933, December 26th, 49 Stat 309732Ibid, at Article 8GA Resolution 2131, (XX) UN GAOR, 20th Sess,Supp No.14, UN Doc AIRes/2131“The Declaration reflected the General Assembly’sdeep concern at “the increasing threatto universalpeace due to armed intervention and otherdirect or indirect forms of interventionthreatening the sovereignpersonality and the political independenceof states.” and holds that “armed interventionis SynOnymoUs withaggression” and “a violation of the Charter ofthe United Nations.” Thus, the resolutioncondemns armed17adoptedaDeclarationonPrinciples ofLaw ConcerningFriendlyRelations and CooperationAmong States, which approvedthe principles enunciated in the 1965Declaration as the“basic principles” ofinternationallaw. The 1970 Declaration stated that “thepractice of anyform of intervention not onlyviolates the spirit and letter of the Charter, butalso leads tothe creation of situations which threateninternational peace and security.Although declarations such asthe above “are not ordinaryinternational treaties orconventions” there is authoritativeevidence to suggest that these declarationsactuallyestablished new rules of internationallaw binding upon all states.36Several eminent legal scholarshave contributed to thejurisprudentialdebate concerning thenotion of non-intervention. Falk for instance,has reiterated that “non-intervention isadoctrinal mechanism to expressthe outerlimits ofpermissable influencethat one State mayexert upon another,37while Teson interpretsintervention to mean proportionatetransboundary help, including forciblehelp, provided by governmentsto individuals inintervention “for any reason whatsoever” andmakes no exceptions, not even for the protectionof humanrights.” see GA Res 2131 (XX) Dec 21, 196520 GAOR, Supp 14 at 11-12 UN Doc. A16014Declaration on Principles ofInternational LawConcerning Friendly Relations and Co-operationAmongStates inAccordance with the Charterofthe UnitedNations, Res 2625 24th October 1970, 8th parag. Therewasa similar general condemnationof intervention in a 1974 UN documentwhich classified the following as“aggression:” The invasion or attackby the armed forces of a state of the territoryof another State, or anymilitaryoccupation, however temporary,resultingfromsuch invasion orattack..”,Article3(a) ofthe Definitionof Aggression, approved bythe UN General Assembly Res 3314 of December 14,1974. However, Article 2of the same document gave theSecurity Council some discretion inparticular cases to “conclude that adetermination that an act of aggressionhas been committed would not be justified inthe light of otherrelevant circumstances..”Id36Louis Sohn, “The ShapingofInternationalLaw” Georgia Journal ofInternational Law andComparativeLaw, 16 (1978) at 16. Similar argumentsmay be made to the effect that international treatiesof sufficientscope may createcustomary law bindingonnon-signatories; seealso Baxter, “MultilateralTreaties as Evidenceof Customary InternationalLaw’ 41 British Year Book of International Law275 (1965-66)Richard Falk, Legal Order in a Violent World(1968) (Princeton University Press)15918another state who themselves would be rationallywilling to revolt against their oppressivegovernment.38Ithas however, been statedthat“...the essence ofinterventionis force, or the threat offorce,in case the dictates of the interveningpower are disregarded..There can be no interventionwithout on the one hand, the presenceofforce, naked or veiled, and on the other hand, theabsence of consent on the part of the combatants.”39Similarly,in Ellery Stowell’s well-known treatise, humanitarianintervention is defined as ‘the reliance upon force for thejustifiable purpose ofprotecting the inhabitants ofanotherstate from treatment which is soarbitrary and persistently abusive as to exceed thelimits of that authority within which thesovereign is presumed to act with reason andjustice.”40Thus,although it is conceded thatintervention may take various nuances,41the useor threat of force remains paramount instatepracticewheneverthe doctrine ofhumanitarianinterventionhas been invoked. It is thisconsideration that is presented in this paper.(iii) State Sovereignty as aBarrier to Humanitarian InterventionSovereignty as a concept is crucial when consideringwhether or not to intervene to protecthuman rights. Intervention impliesviolation or intrusion upon authority and while authority,38Fernando R.Teson, Humanitarian Intervention:An Inquityinto Law and Morality (1988) al 5; see alsoF.X.Lima, Intervention in International Law 53 (1971) “Tointermediate in the domestic affairs of anothernation or to undertake to constrain its council is to do itan injury. (quoting Vattel) Id at 12T.Lawrence, Principles ofInternational Law, 124,(5thedition 1913)°E.Stowell, Intervention in International Law (1921)41See W.D.Verwey, Humanitarian Intervention under InternationalLaw’ 32 Netherlands InternationalLaw Review. 364 (1985) (quoting J.L Brierly, The Law ofNations 402 (1963) Intervention can refer toalmostany acts of interference by one Statein the affairs of another.” Id.19like sovereignty, is an abstraction, itsconcrete form consists of territorialboundaries.42Traditionally, governments intenton repressing their people have used thenotion of sovereignty to prevent life-savingassistance from the international communityreachingthe needy. As recently as1990 it was the beliefof some theorists that “[I[f offensesagainst humanity even to the point ofgenocide in a few cases have not been sufficientjustification to override sovereignrights untilnowwe probably should not expect it to be anydifferent in the future.”43The ethnically displaced, victims of human rightsviolations and civilians trapped in civilconflict have, for centuries, remained vulnerable tothe very regimes that violated theirhuman rights. To appreciate the significanceof the dramatic turnaround in internationalattitudes, onehas only to look at the emphaticdeference to state sovereignty over the years.The concept of sovereigntywas thedistinguishing feature of a new order established by theTreaty of Westphalia which prevented thehumanitarian intentions of earlier founders ofinternational law becoming a reality.44Theoriginsof the doctrine can be found, however.in the Roman Empire. It was argued that thesource of law must be above the law andhence, the emperor at the time was so regarded.This essential element of sovereignty42J.Chopra and T.Weiss, “Sovereignty is no longer Sacrosanct”Ethics and International Affairs, 1992 Vol6 at 102Robert Jackson, Quasi-States:So’ereignty,International Relations and the Third WorldCambridge:Cambridge University Press, 1990) at 192.See Theodor Meron, “Common Rights ofMankind in Gentili, Grotius and Suarez’ American JournalofInternationalLaw 85 (1991) ppllO-16; Hugo Grotius,DeJunBelliAcPacisLibri Tres [The LawofWar andPeace in Three Books], Prolegomena 14-15(F.Kelsey trans.1925)(original 1625) It was Grotius who firstprovided a theoreticalbasis to moderninternationallaw. Accordingly, any critique ofthe concept ofterritorialsovereignty must in the final analysis address the Grotian theory;see eg H.Maine,AncientLaw 92-108 (1970)The writer demonstrates that Grotiusderived his theory from the following postulates:(1) There is a determinablelaw of nature.Id at 92.(2) Each nation-state is sovereign.Id at 92.(3) Natural law is binding onnation-states inter se.Id20emerged at the end of the first century.However, the rebirth of sovereignty in thenation-state45 is customarily dated fromthe end of the Thirty Years War in1648.46Followingthree decades ofwarbetween Catholics andProtestants, the Peace ofWestphalia separatedthe powers of church and state. In doingso, it transferred to nation-states the specialfeatures of church authority. Nation-statesthus acquired the notion of sovereignty andbecame entities above the law that has since becomefrozen in the structure of internationalrelations.47Modern re-statementsof sovereignty derive their historical basisfrom theGrotian theory.48Traditionally defined, state sovereigntyrefers to a government’s exclusive rights to manageits own affairs without external interferenceand to conduct foreign affairs with othersovereign entities. For example, it was oncestated that “[T]he principles of sovereigntyandself-determination relieve publics ofworryingabout how and by whom others are governedand, in any event, foreign authority structuresare too far removed from the daily concernsof citizens to warrant their sustainedadvocacy of convention-breaking behaviour.”49International esteem for the concept reached its zenithshortly after the end of the colonialTheterm “nation-state” is used to avoid anyconfusionbetweenstate as an international person and stateas part of a federation. Hence, the term “nation-state”in this context refers to the international meaning.H.Grotius, supra note 44 For a thorough overview ofthe emergence of territorial sovereignty seegenerally Au Khan “The Extinction ofNation-States”AmericanJournal ofInternational Law and Policy 1992Vol 7 197-234see generally, F.Hinsley, Sovereignty, 2nd ed(Cambridge University Press, 1986) Chapter IIH.Grotius, supra note 44 see also M.Mcdougal& W.Reisman, International law in Com’enzporarvPerspective 1295 (1981)James N.Rosenau, “Intervention as a ScientificConcept” Journal of Conflict ResolutionVol 13. no2(1969):16621era.50 However, as detente took holdin the 1970’s and the Cold War beganto thaw,serious inroads were made to the doctrineof state sovereignty as the UnitedNations madehuman rights one of its main priorities.5’Proponents of human rights beganto argue thatthe United Nations should no longergenuflect before the notion of sovereignty andthatstates should be made accountable tointernational standards concerning humanrights.2Accordingly, the issue at the forefrontof legal discourse is whether the doctrine of nonintervention exists subject to certainexceptions where intervention may bejustified “interalia”, on humanitarian grounds, or whetherthe exceptions themselves explain the scope ofthe doctrine.53In this context opponentsof the doctrine believe that a “humanitarianintervention occurs when a state or groupof states interferes, by the use offorce in orderto impose its will, in the internal orexternal affairs of another state, sovereignandindependent, without its consent,for the purpose of maintaining or altering the conditionsofthings when the intervening state findsthat the condition or its removal is contrary tothe50JamesAnderson, “New WorldOrderandStateSovereignty:Implicationsfor UN-Sponsored Intervention”Fletcher Forum of World Affairs, Summer 1992at 130‘Foryears, Cold War dynamics prevented humanrights concerns from receiving much attention, despitethe passing of the Universal Declarationof Human Rights.52See generally Goodwin-Gill, The Refugee inInternationalLaw (1985) See also James Anderson,supranote 50 at 130. Anderson posits a theory ofmoral absolutism vs. moral relativism to explainthe emergenceofhuman rights in internationallaw and the tension between state sovereignty. Moralrelativism dictates thateach state be judged on its own terms,according to its own values, norms and customs. Accordingto thisparadigm, universal norms do not apply. In contrast,the absolutist model posits universal standards that applyequally across state borders. Internationalopinion has shifted between moral relativism and moralabsolutismwith respect to human rights. Since the end oftheCold War however, moral absolutism would appear tohaveemerged as the dominant paradigm for judginginternal state policies. IdThe Thomases believe for instance that“intervention is the exception’. supra note 13 Scoit-Fairleylikewise believes that any theory of humanitarianintervention must offer a legitimate exceptionfrom thisstated norm in contemporaryinternationallawwhen hesays “humanitarian intervention is aparticular speciesof an exception to a rule” H.Scott Fairley,“State Actors and Humanitarian lntervention:OpeningPandora’sBox” Georgia Journal of Internationaland Comparative Law (1980) at 3122laws ofhumanity.”54Thisdoctrine warrantsfurther examination.Changing Views of the Doctrine ofHumanitarian Intervention(i). ClassicalSchool of ThoughtAlthough its status has always been precarious,the doctrine ofhumanitarian intervention inits classical form was extensivelyinvoked by numerous Western EuropeanStates to justifytheir actions in the 18th and 19thcenturies and has been well documented byvariousscholars.55The concept was just one of a numberof theories that was used to ‘justify’ theenslavement of uncivilised peoples. Althougha genuine humanitarian interventionwas notalways guaranteed, a number ofeminent publicists consistently maintained the legalityof thedoctrine even if their formulations were couchedin moralistic overtones.56After WorldWar I however, and the creation ofthe LeagueofNations, special limitations were imposedon the right of states to resort tointervention.During the League of Nations, anew application of the doctrine was devised, largely dueto the proliferation of international organizationsproviding opportunities for concerted54Adapted from Thomas and Thomas’s definitionsupra note 13. see also Franck and Rodley, AjierBangladesh supra note 3 who believe in adifferent definition ofhumanitarian intervention as “Limitedto thoseinstances in which a nation unilaterallyuses militaryforce tointervene in the territory ofanother state [or thepurpose ofprotecting a sizable group ofindigenous peoplefrom life-threatening or otherwise unconscionableinfractions of their human rights that thenational government inflicts or in which it acquiesces.”Id at 277See generally E.Stowell supra note 40 for an annotatedbibliography of authorities who recognize thedoctrine, see also Fernando R.Teson, supra note 38.See Henry G. Hodges, The Doctrine ofInterventionand Morality 5 (1988) quoting Hugo Grotius ‘AnySovereign may justly take up arms to chastisenations which are guilty ofenormous faults against the laws ofnature.” (90.n.29)23action.57 The proponents of thedoctrine during this period recognizedthat nonintervention in the affairs of anothersovereign state was a generally accepted principle ofinternational law.58 Statements ofthe doctrine of humanitarian interventiontherefore,usually consisted of generalassertions of morality and lacked a sound legalbasis.59Yet,even the moral legitimacy of the doctrineunder general international law wasdenied bysome commentators.60More importantly,the doctrine of humanitarian intervention isthought to have been proscribed or,at least severely restricted by the UNCharter in1945.61The doctrine of humanitarian interventionhas always been a controversialconcept. Manystatesforinstance, characterizehumanitarianintervention as a pretext designed to legitimizeinvasion of the weak by the strong.62Someargue that humanitarian intervention is “simplya cloak of legality for the use of bruteforce by a powerful state against a weaker one,”63and that “experience has shown how readily morepowerful states have used the pretext ofSee M.W.Graham, “Humanitarian Intervention” XXIIIMichigan Law Review, l923-t,p3l2 al 328.ibidSee eg the Marten’s Clause in the Conventionwith Respect to the Laws and Customs of War on Land,which makes reference to the concept of “laws ofhumanity”.60See authorities cited and discussed in E.Stowell,supra note 40.61Article 2(4), UN CharterSeeSchactersupra note 14 at 1629 (“The reluctance ofgovernments to legitimize foreign invasion intheinterest of humanitarianism is understandablein the light of past abuses by powerful states”)IdSee eg. Hassan, “Realpolitik in International Law:After Tanzanian - Ugandan Conflict,’ HumanitarianIntervention” Reexamined” 17 Willamette LawReview 859, 890 (1981); see also Jost Delbruck, “AFresh Lookat Humanitarian Intervention Underthe Authority of the United Nations”67 Indiana Law Journal 687, 891(1992) (“[Tjhe door to purely arbitraryintervention, that is, acts of aggression in disguise,would be wideopen.“)Id24a higher good to impose theirwill and values on weaker states.”64One commentatorconcluded that “humanitarian interventionis so blatantly open to spuriousclaims that itshould not be countenanced.”65Others have colourfully suggestedthat the doctrine lacks“a means that is both conceptuallyand instrumentally credible to separate thefew sheep oflegitimate humanitarianism from the herdsof goats which can too easily slipthrough.”66The argument need not be leftat the level of the hypothetical. TheIndian intervention inEast Pakistan in 1971 and theTanzanian intervention in Uganda in1979, for instance,attracted criticism in the UNGeneral Assembly and especially among certain legalscholarsfor allegedly using the doctrine of humanitarianintervention as a pretext for serving self-interests.67Other commentators such as Oscar Schachterhave written that “governments by and large(and most jurists) would not assert aright to forcible intervention to protectthe nationalsOscar Schacter, The Lawful Resort To UnilateralUse ofForce’ Yale Journal of InternationalLaw 291(1985)Clark, Humanitarian intervention:Help toYour Friends and State Practice’ 13 GeorgiaJournal ofInternational Law 211, 213, (1983)Franck and Rodley, AfterBangladesh supranote 3 at 28467The legal status ofthese operations is somewhatdubious since the governments in each casebased theirclaim on the right of self-defence as enunciated inArticle 51 of the Charter rather than on the doctrine ofhumanitarian intervention. India did initiallyjusti1i its military action in 1971 partly on thegrounds ofhumanitarian intervention in the UN Security Council.Thesestatements were however, deleted from the finalrecord of the Security Council.Instead, Indiaalleged that Pakistan had attacked indiafirst and thus acted inself-defence, a much less persuasive claim,see Bazlyer supra note 3 at 588-92; see also Franck and Rodley,After Bangladesh, supra note 3(motivatingforce behind the intervention was not humanitarianconcern, butself-interest and thus India’s intervention was notjustifiable) Thus,”the Bangladesh case does not constitutethe basis for a definable, workable or desirable newrule of law which, in the future, would make certain kindsof unilateral military intervention permissible)Compare to Teson, supra note 38.(”Thecase..is an almostperfect example of humanitarian intervention.”)see also R.Lillich, Rapporteur, The InternationalProtectionof Human Rights by General InternationalLaw, Second Interim Report of the Sub-Committee,in Repon ofthe International Committee on HumanRights of the International Law Association,3t. 54 (197?);seuM.Akehurst “Humanitarian Intervention”,supra note 17 at p96.25ofanother country from atrocitiescarried out in that country.68Tom Farerhas also pointedout that even slaughters ofnear genocidal proportions do not consistentlyinduce asubstantial number of states to call forarmed rescue, much less to attempt it themselves.69He submits that there is not a singlecase in the entire post-war era whereone state hasintervened in another for the exclusivepurpose ofhalting mass murder, muchless any othergross violation of human rights.70Accordingly,opponents of the doctrine of humanitarianintervention contend that the prohibitionon the use offorce, which is enshrinedin Article2(4) of the UN Charter, shouldbe interpreted broadly and consistently withits plainlanguage. They argue that there is no scopefor considering humanitarian intervention as avalid exception to the Article 2(4) norm.71Most scholars during the Cold Wareratherefore found that action taken in thename ofhumanitarian intervention rarelycompliedstrictly with the norms of internationallaw as enunciated in the UN Charter.72A recent British Foreign Policydocument points out that to establish any semblance oflegality ofhumanitarian interventionit would be necessary to demonstrate that Article2(4)Oscar Schacter, The Right of States to UseArmed Force, supra note 14 at 1629.Tom Farer, ‘An Inquiry into the Legitimacy ofHumanitarian Intervention in Law and Force intheInternational Order (Lori F. Damrosch and DavidScheffer eds. 1992) 186 at 192 [hereinafter Law and Force)70Ibid at 193, Similarly, Michael Waizer claims tohave found no examples of pure humanitarianintervention...”States don’t send their soldiers intoother states, it seems, only in order to save lives. The livesof foreigners don’t weigh that heavily in the scalesof domestic decision-making.” Michael Walzer, Just andUnjust Wars 101-108 (1977) at 10271See Ian Brownlie, International law supra note 17 forcitations to the works ol these publicists; andBrownlie “Humanitarian Intervention” in HumanitarianIntervention and the United Nations,[hereinafterHumanitarian Intervention] Lillich (ed 1970.) seealso T.Franck and N. Rodley, After Bangladesh supranote3 299-3072See eg. Franck and Rodley, supra note 3 Professors Franck and Rodleyconcluded that “[some pastinvocations of humanitarian intervention] are soclearly bogus as to be worth examining only to indicate theabuse to which the asserted right is so commonlysubject.”Id26does not apply to violations of human rights. The studyhowever, concluded thatthe overwhelming majority of contemporary legalopinion is against theexistence ofaright ofhumanitarian intervention, forthreemain reasons: First,the UN Charter and the corpus of moderninternational law do not seemspecifically to incorporate such a right; Secondly, state practicein the past twocenturies, and especiallysince 1945, at bestprovides only a handful ofgenuinecases ofhumanitarianintervention, and, on most assessments,none at all, andfinally, on prudential grounds, that the scopefor abusing such a right arguesstrongly against its creation.73There is however, a school of thought which posits a contradictoryinterpretation of theCharter.(ii) Neo-classical school of thoughtInternational law distinguishes between twocategories of intervention related tohumanitarian concerns: the protection of nationals andtheir property abroad by theintervening state; and humanitarian intervention perSe, where the basis for intervention isnot the link of nationality between the persons soughtto be protected and the interveningstate, but the protection of individuals or groupsof individuals from their OWfl state wherethe governing authority permits gross abusesof human rights or itse]f maltreats subjects ina manner which “shocks the conscience” of mankind.74Proponents of the doctrine ofhumanitarian intervention, accordingly,subscribe to the viewAnd CommonwealthOfficeForeign PolicyDocument No.148, reprinted in 57 British Yearbookof International Law 614 (1986).It is the latter conception of humanitarian intervention that this thesis isconcerned with. SeeOppenheimwho states ‘Thereis a substantial bodyofopinionand ofpracticein support oftheviewthat whena state renders itself guilty ofcruelties against and persecutionof its nationals in such a way as to deny theirfundamental human rights and to shock the conscience of mankind,intervention in the interest of humanityis legally permissable.” International law.(8th ed.1955); E.Stowell,supra note 40 at 51-52 “For H is a basicprinciple of every human society and the law which governs it that no mannermay persist in conduct whichis considered to violate the universally recognized principlesof decency and humanity.’27that if a state denies certain minimumbasic rights to the people within its territory, anyother state can remedy the situation by intervention.As one commentator attested, suchintervention was, however,justified only “in extremecases.. where great evils existed, greatcrimes were being perpetrated, or where therewas danger of race extermination.7Asimilar conclusion was reached by anothercommentator at the turn of the century thatintervention was permissable on the grounds of“tyrannical conduct ofa government towardsits subjects, massacres and brutality in acivil war, or religious persecution.”76Anotherobserver states that “while divergences certainlyexisted as to the circumstances in whichresort could be had to the manner in whichsuch operations were to be conducted, theprinciple itself was widely, if not unanimously, acceptedas an integral part of customaryinternational law.”77There are numerous scholars whobelong to the so-called neo-classical school of thought.Richard Lillich for example, strongly supports thethesis ofhumanitarian intervention on thebasis ofproportionality and ofits limited duration intime. He believes that such interventionis legitimate not only when human rights are beingviolated, but also in the presence of aclear danger of such human rights violations.78Mostproponents of the doctrine ofhumanitarian intervention refer to the Charter andinternationally recognized principles ofStowell, supra note 40‘Hall, International Law, 302 (4th edition, 1895)Jean-Pierre L.Fonteyne, supra note 2 at 23578Lillich, [HumanitarianInterventionJ supra note 71 at 130; seealso Lillich, Forcible Self-Help by Statesto Protect Human Rights” 53 Iowa Law Review, 325 (1967)and “Intervention to Protect Human Rights” 15McGill Law Journal (1969) at 205 for aninvaluable insight into the doctrinal debate between LillichandBrownlie.28international law rather than tocustomary law. For instance, Professors Reisman andMcDougal ofYale Law School holdthat the UN Charter not only confirmed the legitimacyof humanitarian intervention, butalsostrengthenedHit.79 They cite the Preamble andArticle I ofthe UN Charter and point outthatthese provisions confirm the legitimacy oftheuse of force for self-defenceand humanitarian intervention.80Article 2(4) of the UNCharter, according to Reisman and McDougal,prohibits the use of force only for“illegitimate purposes” such as encroachmentsupon territorial integrity or politicalindependence of states. Humanitarian intervention,in their opinion, does not violate thepurposes ofthe Charterbut rather corresponds fully to themandatory provisions of the UNCharter.8’A similar thesis is supported byinternational policy makers. For instance, the reportsubmitted by the Sub-Committee onHuman Rights at the 54th Conference of theInternational Law Association (I.L.A) in 1970,stated that the “humanitarian intervention”doctrine is well-founded in international law, andit is not its existence but its limits that mayconstitute the subject matter ofdebates.82Despiteopposition from some ILA members onthe grounds that the doctrine is contrary to theUN Charter, subsequent reports of theAssociation stated that the doctrine deservesto be treated most favourably and thatintervention for “humane” purposes is legitimateonly in cases where gross violations areM.Reisman and M.Mcdougal, Humanitarian Intervention toProtect the Ibos, in Lillich, fHumanilariunIntervention] supra note 71 at 167-195801bk1, at 17281Ibid at 17582The International Law Association, Report of theFifty-Fourth Conference, London 1972 at 633-64129“inevitabl&’ or “unavoidable’.83The InternationalCourt of Justice however, has not directlyruled on the legality ofhumanitarianintervention. Certain decisions nonetheless,do reflecton the value of human rights andhumanitarian intervention generally.84Aside from legal theorizing, isthere a basic moral justification for humanitarianintervention? It is often argued thathumanitarian intervention of a military sort is inherentlyself-defeating. Indeed, it has been colourfully suggestedthat “guns do not have...the gift ofdiminishing the number of corpses or ofdisinfecting the atmosphere corrupted by theirsmoke.”85There is however, a strong moralargument in favour of the doctrine ofhumanitarian intervention.86Stowellat theturn of the century, theorized for instance, thathuman rights violations in one countrydo have a “moral effect on theneighbouringpopulations.”87It is almost implausible at thisjuncture in internationalrelations to suggest that any attemptto prevent the mass genocide of civilians by thenational government can never be justifiedby moral suasion. Simply because atrociousviolations of human rights take place overseashardly seems sufficient to justify inaction.As one eminent legal critic asserted:“[S]urely toThe International Law Association, Report ofthe Fifty-Fifth Conference, London, 1974 at 608-624SeeMilitaiyandParamilitatyActivities in andAgainstNicaragua ‘Nicar. v. US) Merits, 1986 I.C.J 4 (June27); United States Diplomatic and Consular Staff inTehran (US. v. Iran), 1980 1.CJ. 3 (May 24): LegalConsequences for States of the ContinuedPresence of South Africa in Namibia (SouthWest AfricaNotwithstandingSecurity CouncilResolution 276(1970, 1971 I.C.J. 16 (June 21);Barcelona Traction,Light andPower Company, Limited (Belg.v Spain),1970 I.C.J 3. (Feb 5) (second phase); SouthWest Africa (Eth.vs.Africa.;Limber.v.s.Afr), 1966 1.C.J. 6 (July18) (second phase);Reservations to the Convention on thePreventionand Punishment ofthe Crime ofGenocide, 1951I.C.J 15 (May 28). These decisions are however,inconclusiveas to the legality of the doctrine. For a review ofthe above cases, see Nigel.S Rodley, “I-luman RightsandHumanitarian Intervention:The Case Law of theWorld Court” 38 International Law and ComparativeLawQuarterly 321 (1989).85Tanoviceane, DroitInternational de L’Intervention 12-13(1884) quoted in Hassan, supra note 63Lillich, supra note 3 at 344. Thedoctrine ofhumanitarian intervention appeals to theaverage person’ssense of morality and justiceJd The doctrine“is the expression of a profound and innatesense of justicecorresponding to the natural feelings and reactionsof the average person.” Id.see Stowell supra note 4030require a state to sit back and watch theslaughter of innocent people in order to avoidviolating blanket prohibitions against theuse of force is to stress blackletter law at theexpense of far more important values.’88McDougal and Reisman haveconcluded thatin the contemporary world,international and peace and security and theprotectionofhumanrightsareinescapablyinterdependentand that the impactof the flagrant deprivation of themost basic human rights of the great massof the people of a community cannot possiblystop short within the territorialboundaries in which the physical manifestationsof such deprivations firstoccur.89Even Michael Waizer who ironically presents oneof the strongest moral arguments foradhering to traditional conceptions of the principleof non-intervention allows limitedintervention in response to human rights violationsthat “shock the moral conscience ofmankind.”90Indeed, most legal critics of humanitarianintervention would appear to admitthe moral attractions of the doctrine.9’Opponents to the concept of universalhuman rights consistently fail to consider the moraluLl1Ch,“Forcible Self-Help Under International LawNaval War College Review 22 (1970) Lillich goeson to state that ‘it is a realistic assumption that no statewith the capabilities to act will allow its ownnationals and the national ofotherstates to be killedor injuredabroad.”Idat 60-61 Similarly, Professor ArthurLeff succinctly summarized the position of many peoplewho support the legalization of humanitarianintervention: “1 don’t much care about international law, Biafraor Nigeria. Babies are dying in Biafra.. Forgetall the blather about international law, sovereignty andself-determination, all that abstract garbage:babies arestarving to death.” Arthur Leff, “Food for Biafrans,” The NewYork Times, October 4, 1968 at A46.89McDougal and Reisman, “Rhodesia and the UnitedNations:The Lawfulness of International Concern”62 American Journal of International Law15 (1968)°Michael Walzer, “The Moral Standing ofStates”, Philosophy andPublic Affairs 9 (Spring 1980) 209-2991Even traditional opponents of the legal doctrinesupport, in principle, the moral premise ofhumanitarian intervention.”In theory, no moral personcan take exception to a rule which, in theabsence ofan effective international system to secure human rights,permits disinterested states to intervene surgicallyto protect severely endangered humanrights and lives, wherever the need may arise.’ See Franckand Rodley,AfterBangladesh, supra note 3 at 278 For a sense ofsomeof the moral issues involved in killingone personin order to save countless others undervarious moral circumstances, see eg. Thomson, The TrolleyProblem,in Rights, Restitution, and Risk 94 (W.Parent.ed.1986)31premise on which the doctrine of humanitarian interventionis based. Their views may becriticized for offering what essentiallyamounts to an “arid textualist approach”92toexistinginternational law, without comprehending theneed to adapt the law in order to meet thedemands of contemporary international society.R.George Wright expounds an interesting theoryof contemporary moral relativism tosupport the doctrine of humanitarian intervention.He states that:there is a sense in which moral and culturalrelativism may actually pave theway for humanitarian intervention.The argument may be made that apotential intervenor should respect thepopular institutional choice of aforeignpeople, howeverdepraved orbarbaricthatchoice may appear to someoutsiders. This argument may itselfdepend uponsome non-relativist premisewhich may conflict with other non-relativistmoral principles. But equallyimportantly, why is the would-be intervenor morallyrequired to defer to thevalue choices of the potentially intervened-upon state ?It may be said thatmass killings are right for some societies, if wrongfor others. It is not clear,however, why the intervening state mightnot equally demand the world’srespect for its choice to intervene. Perhaps interveningin the largely internalaffairs ofother states is right for some states, ifnot for others. There may wellbe some relevant moral difference betweenwhat a society does internally, toitself, and what it does to unconsenting foreignstates. Such a difference,however, takes on effective moral weight onlywhen seen as a non-relativistmoral consideration, and as only one suchconsideration among others.93Thus, although it is possible to conclude that thedoctrine ofhumanitarian intervention hasnever received authoritative recognition inpositive international law, in view of theconflicting ideals of the UN Charter,94its existencecan nevertheless, be viewed asprovidingan indication ofthe importance of upholdingcertain higher principles of humanity.See eg. Claydon, “Humanitarian International” Law 1 Queensintramural Law Journal, 36 (1969) at 57R.George Wright, supra note 24 at 444See M.Mcdougal and F.Feliciano, Law and MinimumWorld Public Order 536 (1961) who speak of theamorphous doctrines on “humanitarian intervention.”32Humanitarian intervention may,therefore, generally be justified on avariety of humanrights-based approaches.95It was oncethought that ‘...foreign authority structuresare toofar removed from the daily concerns ofcitizens to warrant their sustained advocacy ofconvention-breaking behaviour.96There is however, a growing awarenessthat barbaric acts of aggression towards innocentcivilians are no longer morally acceptable.An analogy may for example, bedrawn fromcommon law systems where an individual witnessesthe perpetration of a violent crime. Thepsychological dynamics posed by this dilemma areessentially founded upon a basic notionof morality. It follows therefore that that individualis duty-bound under traditionalconceptions of morality to intervene to put a stopto such violence, provided he can do sowithout physically imperilling himself. In somejurisdictions, it is a crime not to offerassistance.97Such an incident may be paralleled inthe international context where it issubmitted that states are duty-bound to intervene toput a stop to human rights atrocities.98Thus, the implementation of at least some ofthe fundamental human rights must be seenas the firstprecondition for the foundations ofstable and enduringinternational organizationSee generally, Louis Henkin, The Rights ofManToday 108-09 (1978) Bilder, “Rethinking internationalHuman Rights: Some Basic Questions’, WisconsinLaw Review 1967, 17196James N.Rosenau,supra note 49 at 166 Asimilar argument may be made that a child struck by a drunkdriver arouses more attention than a thousand civilians massacredby their own government in a far-flungcountry. see generally James Anderson, supra note 50 at 34see generally the work ofpsychologists Latane and Darley,SocialDeterminant ofBystanderInterventionin Emergencies in Altruism and Helping Behaviour 13-27 (J.Macauleyand L.Berkowitz eds. 1970)98For a philosophical consideration of thisduty in the context of charity, as opposed tohumanitarianintervention, see Singer, Famine, Affluence and Moralityin Philosophy, Politics and Society 33 (P.LasletandJ.Fishkin, eds fifth series 1979)(”we ought togive until we reach the level...at which, by givingmore, I wouldcause as much suffering to myself or my dependentsas I would relieve by my gift”) Id.33and Law.99Humanitarian Intervention and the UNCharterA cursory perusal of thenormative logic of the UN Charter as a whole, andits allocationofcoercivejurisdiction leads tothe conclusion that its overriding goals are themaintenanceofpeace and the protection ofhumanrights. There is a strong argument that the principlesand purposes upon which the UNwas founded, in particular the support andpromotion ofhuman rights throughout theinternational community, justifies humanitarianintervention.Indeed, some scholars argue thatthe two purposes are not inconsistent because the UNCharter’s prohibition on intervention “per se’was never intended to apply to violations ofhuman rights.’00Moreover, by ratifyingthe UN Charter, member states took on inherentobligations in the area of human rights.’0’Otherssubscribe to the view that the Chartermust be accorded a contemporaryinterpretation in view of the present expectationsof theinternational community which allows interventionto protect human rights.102 Indeed, anumber ofderivative resolutionspassed since the inception of the UN Charter reaffirmtheinviolability of human rights in internationaljurisprudence.’°3Yet,still, the promotion ofSee Falk, ‘The US and the Doctrine of Non-interventionin the internal Affairs of Independent States”5 Howard Law Journal 1959,p163at pp166-167; Lauterpacht, “The Grotian Tradition inInternational LawXXIII British Yearbook of International Law1946p1at p46‘°°SeeJean-Pierre.L.Fonteyne, “ForcibleSelf-Help by States to ProtectHuman Rights:Recent Viewsfromthe United Nations” in Lillich, [HumanitarianIntervention] supra note 71 at 206-09101Ibid at 200 (citing commentary of UN delegatesas support for the theory)102Teson, supra note 38 at 134-47103See e.g Convention on the Elimination ofAllForms ofDiscrimination Against Women, G.A.Res. 34/180,U.N GAOR 3d Comm, 34th Sess, Supp. No.46,at 193, U.NDoc AJ34/830 (1979) (declaring equality ofwomenand men),International Convention onthe Elimination ofAllFor,ns ofRacialdiscrimination, Mar.12,1969, 660U.N.T.S 195 (seeking to end government sponsored practice ofracial discrimination);International ConferenceonHumanRights (the “ProclamationofTehran”),1968 U.N.Y.B 538,539(declaring that economic development34human rights ranks below the protection ofstatesovereignty and the maintenance of peaceas the aims of the worldorganization.’°4Nevertheless, under a traditional interpretation,the provisions of the UN Charter areauthority for the view that humanitarianintervention is permissable where necessary toprotect human rights. Although Article 2(1)of the Charter, rests on the basic premise ofsovereign equality for all member states, Article2(4) prohibits the use of force and Article2(7) protects sovereignstatesfromUNinterventioninto “matterswhich are essentially withinthe domesticjurisdiction of any state”, equally,the Preamble and first Article of the Chartermake clear that the founders of the UN had as theirintention a link between internationalpeace and security with fundamental human rights.The Preamble to the United NationsCharter states that “We the Peoples ofthe UnitedNations determined...to reaffirm faith infundamental human rights, in the dignity andworth ofthe human person, in the equal rightsof men and women..”05The Preamble alsoprovides that armed force shall only he usedcannot come about without protection of human rights),IntemationalCovenant on Economic, Social andCultural Rights, G.A.Res 2200, U.N GAOR 3d Comm, 21stSess, 1496th plen mtg. at 49, UN Doe AJ6316(1966) (recognizing the right to self-determination as afundamental right);Convention on the Prevention andPunishment ofthe Crime ofGenocide, Jan.12, 1951, 78 U.N.T.S277 (outlawing all practices which intend todestroy a specific national, ethnic, racial or religious group);UniversalDeclaration on Human Rights, G.A.Res217A, 3(1), U.N GAOR Res 71, U.N Doc A1810 (1948) (callingon all states to recognize and affirm generalhuman rights for all peoples without limitation). For an overview ofthe UN responses to the protection ofhuman rights, see Louis B.Sohn and ThomasB.Burgenthal, International Protection of Human Rights(1973);Louis Sohn, ‘The Universal Declaration of HumanRights”, 8 J.Int’L Commission Jur 17, 23(1967).”[T]he Universal Declaration of Human Rightswas adopted unanimously, without a dissenting vote,[so] it was considered as an authoritative interpretation ofthe Charter of the highest order.” Id.‘°Human rights had only a tenuous place among theconcerns of the founding members for when facedwith a proposal to include a bill of rights in the new Charter,a majority of states rejected it. See generallyP.Meyer, The International Bill ofHuman Rights: ABrief History, in The International Bill ofHuman Rightsociii (P.Williams ed.1981)105The preamble to the Universal Declaration of HumanRights also emphasizes the United NationsCharter’s conceptualization of the indivisibility of human rightsand international security.35if it is in the “common interest.”°6Thisphrasehas been interpreted by some scholars tomean interests that are “common to all individualson earth,” as opposed to all recognizedgovernments.’07Article 1(3) furtherprovides that “the Purposes of the United Nations are...to achieveinternational cooperation in solving international problemsof an economic, social, culturalor humanitarian character, and in promoting and encouragingrespect for human rights.”Under Articles 55 and 56, members are committed “totake joint and separate action incooperationwith the Organization “forthe promotionof“equalrights and self-determinationofpeoples,” including “universal respectfor, andobservance of, human rights”. In Article 68,the Economic and Social Council “shall set up commissions...forthe protection of humanrights” whereas Article 76(c) stipulates that a basicobjective of the trusteeship system is “toencourage respect for fundamental freedomsfor all....”These provisions have led to claims that the furtherance of humanrights isjust as importantwithin the normative framework of the United Nations asthe principle ofnon-interventionset out in Articles 2(4) and 2(7). Although, theICJ argued in the Nicaragua case that theprotection ofhumanrights “cannotbe compatible”with military actions such as those carriedout by the United States in Nicaragua, theCourt concluded that “...humanitarian aid...cannot be regarded as unlawful intervention....’.108Indeed, this view is further supported106UN Charter preamble, article 1.107Teson supra note 38 at 133; see also Reisman “AHumanitarian Intervention to Protect the Ihos,” inLillich, [Humanitarian Intervention] supra note 71 at177.108Nicaragua v. United States, 1986 I.C.J 14, 134-35 (Merits) Notall scholars uphold this belief. LouisHenkin for example contends: “[c]learly itwas the original intent ofthe Charter to forbid the use of forceevento promote human rights...Human rights are indeedviolated in every country...But the use of force remainsitselfa most serious violation ofhuman rights.” See Louis Henkin,Use of Force:Law and US policy in Right. V36by extensive UNwork in the humanrights field, the Universal Declaration ofHumanRightsbeing the key document.’°9While the Charter does not explicitlyauthorize unilateral or collective humanitarianintervention by states, neither does it specificallyabolish the traditional doctrine.”0Thistheory concludes, upon an evaluation ofthe legislative history of the UN Charter, thatbecause the drafters did not explicitly banhumanitarian intervention, it remains legal. Analternative proposition can be made that aslaw evolves over time, Article 2(4) should beaccorded a contemporary interpretation inview of the present political and technologicalclimate.”Some scholars would go as far to statethat humanitarian intervention, far fromMight:IntemationalLaw and the Use ofForce, 2nd Ed (1991)109 [hereinafter Right v MightIOpponents ofhumanitarian intervention claim that the prohibitionon the use of force embodied in Article 2(4)should beinterpreted consistently with its plain language, so thatpermitting an exception for humanitarian uses offorceis impermissible. See Ian Brownlie, InternationalLaw supra note 17 at 342; Tom Farer, “Human Rights inLaw’s Empire:TheJurisprudence War” 85 AmericanJournal ofInternational Law 117, 121 (1991)(arguing thatthe original intent of the drafters of the Charterwas to forbid any use of force, even for humanitarianpurposes, and that state practice has notaltered the contemporary meaning of the original text)‘°90.A Res. 217, UN GAOR, 3rdSess, at 71, UN Doc A/810 (1948); see generally RichardLillich,International Human Rights Instruments(2nd ed.1988)‘10SeeIan BrownlieInternationalLawsupra note17 at 342; Contra to Reisman: “The advent ofthe UnitedNations has not excised this traditional customaryright although it has set a structure ofnormative conditionsabout it.” Reisman, “HumanitarianIntervention ToProtecttheIbos” 167, LillichHumanitarian Interventionsupranote 71“This argument rests on the basic premise thatthe UN Charter is only concerned with inter-state warand not intrastate conflicts. Accordingly, the Charter shouldbe interpreted against the current backdropofcomplex wars ofethnicity which have become thehallmarkofthe post-Cold War era. See eg. James Rosenau,Turbulence in WorldPolitics:A TheoryofChangeand Continuity (Princeton:Princeton University Press, 1990);Thomas M.Franck, “Who Killed Article2(4)?” American Journal of Internationallaw 64 (1970),p809.Professor Reisman for instance, has argued that“[o]ne should not seek point-to-point conformityto a rule without constant regard for ihe policyorprinciple that animated its prescription, andwith appropriate regard for the factual constellation inthe mindsofthedrafters...Article 2(4).. is premised ona political context and a technological environment thathave beenchanging inexorably since the end of the 19th century.”W.M.Reisman, supra note 12 see also WilliamChip, “A UN Role in Ending CivilWar”, 19 Columbia Journalof Transnational Law (1981) (“External reactionto internal events may have supplanted classicalaggressionas the primary threat to world peace.”) Id.37being inconsistent with the Charter’s purposes,actually may further one of the worldorganization’s major objectives.”2On astrictinterpretativeconstruction,Article 2(4) prohibits the use offorce in threespecificsituations, none ofwhich raise humanitarianconcerns. Article 2(4) primarily prohibits forceagainst the territorial integrity ofthe target state. Humanitarian intervention, by definition,does notimpair the territorial integrityand is onlyconcerned with the protection of people’srights.113The use of force is also prohibitedwhere it interferes with the political affairsofa state. Again, however, a truly altruisticact ofhumanitarianintervention is not concernedwith the regime but only the rights of the individuals.’14Finally, force is not permittedwhere its ultimate objective is inconsistentwith UN goals. As already stated, human rightsare one ofthe primarygoals ofthe UN and thus,the use offorce for humanitarian purposeswould not appear to frustrate the UN Charter.”5112Lillich, Humanitarian Intervention supra note71 at 131 see also Teson supra note 38 at 131 jT]hepromotion of human rights is a main purpose of theUnited Nations...[TJhe use of force to remedy serioushuman rights depravations, far from being “against the purposes”of the UN Charter, serves one of its mainpurposes.” Id.113Tesonsupra note 38at 131. Legitimate humanitarianintervention is motivated only by the internationalcommunity’s desire to end human suffering or restore humanrights, not by a state’s desire to conquer Landareaid1141t is questionable however, even in today’spolitical climate whether the intervening power (the UN orotherwise) would not attempt to exercise some pressure ona recaltricant government) Teson ibid at 131115This is the view shared by Professor Reisman and theThomases supra note 13 based on a flexible andteleological interpretation of Article 2(4) of the Charter;Reisman says for example :‘Since a humanitarianintervention seeks neither a territorial change nor achallenge to the political independence of the stateinvolved and is not only not inconsistent with thePurposes ofthe United Nations but is rather in conformitywith the most fundamental peremptory norms ofthe Charter,it is distortion to argue that it is precluded byArticle 2(4). Insofar as it is precipitated by intensehuman rights deprivations and conforms to the generalinternational legal regulations governing the use offorce-economy,timeliness, commensurance, lawfulness ofpurpose and so on-it represents a vindication ofinternational law, and is, in fact, substitute or functionalenforcement;’ See “Humanitarian Intervention toProtect the Ibos” in Lillich Humanitarian Intervention supranote 71 at 177. Professor Julius Stone construes asimilar interpretation of Articles 2(4) and Article 51, see“Book Review”, 59 American Journal ofInternationalLaw 396 (1965).lan Brownlie, however, does notbelieve38Moreover, the two ideals are not inconsistentbecause the Charter’s principle of nonintervention was never intended to apply toviolations of human rights. By ratifying the UNCharter, states implicitly undertook certainobligations in the field of human rights.”6Ithas also been suggested that interpretingArticle 2(7) to accommodate the new concern forhuman rights is 1egitimate.’7War in the nameof “humanitarianism would not therefore.appear to be the oxymoron as was once thought.A New Doctrine of HumanitarianInterventionLet us give the world cause to say:These were dedicated men. They did notpose and postpone but strove humblyand honestly to lighten the afflictionsthat weigh so heavily on mankind.Ed Hambro, 25th Anniversaryof the United Nations, October 14, 1970It must be remembered that the “intervention”issue only arises if the matter is held to hein such an “arid textualist approach” and would accordinglydiscredit this interpretation. He believes that ifone has recourse to the preparatorymaterials of the San Francisco Conference the phrase“against theterritorial integrity” was inserted at the “behest of smallstates wanting a stronger guarantee againstintervention” andthus, cannotbeaccorded a teleologicalinterpretation.SeeBrownlie, in Lillich,HumanitarianIntervention supra note 71 at 222. Farer, similarly discreditssuch an interpretation of the norm, calling it“doctrinal manipulation” T.Farer, ‘Law and War” in TheFuture ofthe International Legal Order, III Black &Falk, (eds) (1971) at 15, 55.116This assertion rests on a teleologicalinterpretation of UN Charter Article 25.117See Jean-PierreFonteyne, supra note 2 at 241; see also FelixErmacora, “Human Rights and DomesticJurisdiction” (Article 2(7) of the Charter), 1224 RecueilDes Cours, bk.II, 371, 436 (1968) (concluding thaiegregious violations ofhuman rights “are no longeressentiallywithin the domesticjurisdiction of States, andtherefore the principle of non-intervention is notapplicable.”Id39domestic. If it is not, then theprohibition in Article 2(7) does not apply. Thus, in order toshowthatthe Charteris implicitlycompatiblewith the doctrine ofhumanitarian intervention,it must first be established that egregiousviolations of human rights are not essentiallymattersofdomesticjurisdiction.In otherwordsArticles 2(4) and Article 2(7) mustbe shownnot to apply.Despite the emphatic language ofArticle 2(7), theUnited Nations has on several occasionsheld that the concept of “domesticjurisdiction” does not exempt everything thattakes placewithin a state’s borders.”8Indeed, the relevancy ofthis principle of non-interventionwould appear to be rapidly diminishing in light ofthe current climate of intrastate ethnicconflict primarilybecause it is inconceivablethat “though states founded for the sake of lifeand liberty, they cannot be challenged inthe name of life and liberty.”19Internationally recognized human rights primarilyaddress the way a state treats its owncitizens and thus this would appear to amountto an essentially internal affair within theliteral interpretation accorded to Article 2(7). Yet,on the other hand, concern for humanrights around the world has become an integralpart of many national policies and moresignificantly, has dominated the activities ofinternational organizations in recent years.’2°118Domestic jurisdiction has been held, for example, not to preventUN action on de-colonization andapartheid. See Declaration on the Granting ofIndependenceto Colonial Countries, O.A.Res 1514, 15 U.NGAOR Supp (No.16) at 66, UN Doc A/4684 (1960) seealso SC Res 181 UN Doc 5/5386 (1963), SC Res 392(S!Res/392) (1976) S.C.Res 418 SfRes/418 (1977) forthe Security Council action against South Africa and itsgovernment policy of apartheid.“Teson supra note 38 quoting Michael Walzer, Just and UnjustWars 61 (1977)120Even Brownlie, a staunch opponent of humanitarian interventionwhether by unilateral or multilateralmeans, concedes that as compared withthe earlier part ofthe century, domesticjurisdiction in thecontext ofhuman rights currently constitutes much less of a shelteragainst intervention, see generally Brownlie,Humanitarian Intervention, in Law and CivilWar in the Modem World (J.N. Moore ed 1974)40At the University of Bordeaux in April 1991, and againin his annual report on the work ofthe United Nations in September 1991, the former SecretaryGeneral Javier Perez deCuellar stated “[W]e are clearly witnessing whatis probably an irresistible shift in publicattitudes towards thebeliefthatthe defence ofthe oppressed inthe name ofmorality shouldprevail over frontiers and legal documents.”21He went on to say in his annual reportthat a balance must be struck between adherenceto the doctrine of state sovereignty and the needto protect human rights:I believe that the protectionof human rights has now become one of thekeystones in the arch ofpeace. I am also convinced that itnow involves morea concerted exertion of international influence andpressure through timelyappeal, admonition, remonstrance or condemnationand, in the last resort, anappropriate United Nations presence, thanwhat was regarded as permissableunder traditional international law....It is increasinglyfelt that the principle ofnon-interference with the essential domestic jurisdiction ofStates cannot beregarded as a protectivebarrierbehindwhich human rights could bemassivelyor systematicallyviolatedwith impunity.Thefactthat, indiverse situations, theUnited Nations has not been able to prevent atrocities cannot be citedas anargument, legal or moral, against the necessary corrective action,especiallywhere peace is also threatened. Omissions or failures due to avariety ofcontingent circumstances do not constitute a precedent. The casefor notimpinging on the sovereignty, territorial andpolitical independence of Statesis by itself indubitably strong. But it wouldonly be weakened if it were tocarry the implication that sovereignty,even in this day and age, includes theright ofmass slaughter or oflaunchingsystematic campaigns ofdecimation orforced exodus of civilian populations in the name ofcontrolling civil strife orinsurrection. With theheightened interest in universalizing a regimeof humanrights, there is a marked and most welcome shift inpublic attitudes. To try toresist it would be politically as unwise as it is morallyindefensible. It shouldbe perceived as not so much anew departure as a more focused awarenessof one of the requirements of peace.122121Report on the Work of the Organization, UN Doc A146/1, September 6th,1991,pp10-11; see also“Secretaiy-General’sAddress at the University ofBordeaux,” UNDPT, PressRelease SG/SM/4560 of April 24th,1991J.Perez de Cuellar, ibid at 1241Principles are indeed emerging that place theindividual on an equal footing with thestatein international law in support of the formerSecretary General’s claims.’23For example, during Security Council debates concerningUN Resolution 688 in the Gulfcrisis itwas declaredthatArticle 2(7) doesnotapply to matterswhich are not fundamentallydomestic, such as human rights protection,with South Africa cited as an illustration.124The United Nations Relief Operation in EastPakistan (UNEPRO) assumes addedprecedential value in that neither the SecretaryGeneral nor the Government of Pakistanwere prepared to permit the prohibition in Article 2(7) ‘tostand in the way of the relief oflarge-scale human suffering in a situation ofinternal conflict.”25Furthermore, it wasasserted that the Secretary General initiated thebeginning of a body of law by relyingexplicitly upon the statement of fundamentalpurposes in the Charter and his responsibilityas the executive of the organization, toinsure that human well-being was protected andhumanitarian principlesupheld.”26Moreover, thereis growing evidence in legal discourseand state practice that severe violations of humanrights are deemed to constitute a threatto international peace and thus, as theyare not considered to be solely within a state’s‘As one scholar predicted in 1950, “as the feeling ofgeneral interest in humanity increases, and with iiaworld-widedesireforsomethingapproachingjusticeandan internationalsolidarity, interventions undertakenin the interests of humanity will also doubtless increase.”Henry G 1—lodges The Doctrine of HumanitarianIntervention (1915) at 91124See UN Doc S/PV 2982 at 58 (1991) (providing text of theResolution debates.) The implications ofResolution 688 will be discussed further on in this section.125Quoted from text of second Haguelecture delivered by B.Morse on the United Nations ReliefOperation in Bangladesh, 9 August 1977126ibid.42domestic jurisdiction, they are excluded fromArticle2(7).127As the eminent scholar LouisHenkin once said “...that which is governedby international law or agreement is ipso factoand by definition not a matter of domesticjurisdiction.”It may therefore be concluded that conformitywith essential human rights obligations is nolonger encompassed within exclusive domestic jurisdictionbut has developed into an issuejustifying international concern.’29(i) The Erosionof Absolute SovereigntyThe time of absolute and exclusivesovereignty has passed;it’s theory wasnever matched by reality.UNSecretaryGeneralBoutrosBoutrosGhali,Agenda for Peace Report, 1992The doctrine of absolute sovereignty is no longersacrosanct.130The notion that statesshould stand silent and impotent to the gross mistreatmentofindividuals simply because the127See Lilllch, Humanitarian Intervention, supra note 71(observing that as it becomes more appareni thaiinternational peace and security and the enforcement ofhumanrights go hand in hand, member states can nolonger claim protection from the domesticjurisdictionclause.) On human rights generally as an internationalconcern beyond the domestic jurisdiction of states, see generallyMartin Dixon and Robert McCorquodale,CasesandMaterials onInternationalLaw (London:BlackstonePressLtd, 1991) p1155. M.N.Shaw, InternationalLaw 3rd ed. (Cambridge:Grotius Publications)(1991), p196‘R.Myers, “A New Remedy for Northern Ireland: The CaseFor UN Peacekeeping Intervention in anInternal Conflict” 11 New York UniversityJournal ofInternational and Comparative Law (1990) 116 (quotingL.Henkin, “Human Rights andDomesticJurisdiction” Paperpresented at the American Society ofInternationalLaw Conference June 1977)129See Jack Donnelly, Universal Human Rights in Theoi’y andPractice (Ithaca:Cornell University Press,1989); Terry L. Deibel “Internal Affairs and InternationalRelations in the Post-Cold War The WashingtonQuarterly, Summer 1993 ppl3-33 (citing a variety ofpolicyreasons why the principle of domesticjurisdictionis no longer inviolable. This concept willbe further explored in Part Two of the thesis as a basis of UNcompetence in internal conflicts.130See generally Chopra and Weiss supra 4243abuse comes from the people’s own government is nolonger tenable.’3’The premise ofnational sovereignty is being challengedby the millions of displaced refugees fleeing theircountries, ethnic groups strugglingfor self-determination and the proliferation of regionaland international organizationswhich have jurisdiction across state borders.Nation-states are no longer the only actorsin international affairs.’32There is increasedawareness of the individual in internationallaw, which makes specifically targetedintervention possible, enabling society “...tofulfil the UN Charter’s ambition of working tosave succeeding generations fromthe scourge ofwar, to reaffirm...the dignity and worth ofthe human person, in the equal rights of menand women and nations large and small topromote social progress and better standard oflife in larger freedom.’133National sovereignty has also been diminished bythe sheer volume of international treatiesand conventions protecting individualhuman rights.’34Moreover, developments incommunications technologies mean that internationalpublic opinion can be quicklymobilized by the media making it increasinglydifficult for regimes and insurgent forces to131See eg, ‘Landscape of Death” TIME, December14, 1992 at 30.”The harrowing faces of starvation, theinert shapes of death. These are images that have finally broughtthe world to Somalia’s rescue. Id BrianUrquhart, “Sovereignty vs Suffering” The New York Times,April 17, 1991132Numerous theories exist to expand the rights of individuals.It has been stated that a sovereign statederives its rights from its citizens and thus, has no separateidentity. See Teson supra 38 note, at 16. Peoplecreateagovernmentfortheirownbenefit andprotection.Id. The theorycontinuesthat “[Blecause the ultimatejustification of the existence of state is the protectionand enforcement of the natural rights of the citizens,a government that engages in substantialviolations ofhumanrights betrays thevery purpose for which it existsand so forfeits not only its domestic legitimacy, butits international legitimacy as well. Id at 113.133Former US President George Bush, UN General AssemblyAddress 46th Sess (September 23 (1991)New York City, in 27 Weekly Compilation of PresidentialDocuments 1324, 1325See eg All Khan, supra note 46 at 199.(The conditionsof global life free individuals from the physicaland psychological boundaries of the nation-state) Id.44persecute ethnic groups with impunity.’35Public revulsion against the bloody strugglesinthe Sudan, Bosnia-Hercegovina,Somalia, Angola and Mozambique certainly contributedtothe international action against suchatrocities.’36Economic interdependence hasalso created a global market which preventsthe exercise ofabsolute territorial sovereignty.’37Thefactthat the G-7 nations must act in concert onmajor economic policies alsoreflects increasing awareness of economicand financialglobalisation. Moreover, the growth ofinternational human rights doctrine, asalreadyasserted, has had a significant impact on thenotion of sovereignty.’38Human rights areno longer the exclusive purview of states andnational authorities are increasingly held toaccount for their human rights practices.’39The implementation of various human rightsmeasures through the UnitedNationsttOand regional organizations,‘41for example,135The Cable News Network (CNN), available inmore than one hundred countries, demonstrated itstechnological prowess during the Gulf War in 1991.See James Anderson, supra note 50 at 135 (Foreignauthority structures are no longer remote; they are at mosta satellite dish away)136See eg. Christine Ellerman, ‘Command ofSovereigntyGives Way to Concern for Humanity” VanderbiltJournal of Transnational Law Vol 26: 1993341-37 (noting that recent events have created an awarenessthatonly force can stop some serious humanrights violations) Id.137See J.Jackson and W.Davey, Legal Problems ofInternational Economic Relations 2-4 (2nd.ed.1986)(describing how the current state ofinternational economic relations create an environmentofinterdependence.)138See egT.Burgenthal and Mahler,Public InternationalLaw in a Nutshell 116 (1990) (tracing the originsofthe international law of human rights to the adoptionof the Charter of the United Nations.139In September 1991, George Bush made aspeech to the UN praising international co-operationandaspiring to a ‘new world order”. Healso spoke ofprotecting human rights and enforcing state compliancewith“standards of human decency”. While he assuredthat no state would “surrender one iota ofits ownsovereignty,” the underlying message suggesteda legitimation ofhumanitarian intervention. SeeGeorge Bush,Address to the 46th Sess of the UN GeneralAssembly, supra note 133140UniversalDeclarationofHumanRights andother treatiessuch as theInternational Covenant on Civiland Political Rights and its Optional Protocol16 Dec 1966, 999 UNTS 171: Convention onthe Prevention andPunishmentofthe Crime ofGenocide, 9 December1948 78 UNTS 277 have all given form tothe human rightsprinciples enunciated in the Charter.45specifically include non-forcible measuressuch as monitoring of practices, observer missions‘42and individual mechanisms.International organizations have alsocontributed to theerosion of the doctrine byprevailing over governments that block reliefagencies. There isfor instance, a plethoraof private relief agencies in Bosnia-Hercegovina,that have carriedout their own aid operations, withoutany assistance from their governments.Whether in fact the power structure ofnation-states ever accurately reflected classicformulations ofthe concept, clearly absolutesovereignty is no longer tenable. The emergingnorm of11thecommon heritage ofmankind”hasmade serious inroadsinto the exclusivity andinviolability of the concept of sovereignty.143Indeed, it would not be overly pessimistictuconclude at thisjuncture that the failure of the conceptto adequately reflect contemporaryinternationalsocietyhas effectivelyrelegatedit to increasingconceptual and indeed, practical141Economic cooperation or regional protection of humanrights are often the primary goals of theseorganizations, the EC being the best example ofthis phenomenon. Article 2 of the Treaty of Rome declaredthe goal ofthe European Economic Community:“The Community shall have as its task,by establishing a common market and progressivelyapproximatingthe economicpolicies ofMemberStates, to promote throughout the Community a harmoniousdevelopment of economic activities, a continuousand balanced expansion, an increase in stability, anaccelerated rising of the standard of living andcloser relations between the States belonging to it.IdSee also the European convention For the ProtectionofHuman Rights and Fundamentalfreedoms, openedforsignature Nov.4, 1950, 213 U.N.T..S 221, Europe.T.S No.5.(entered into force, Sept 3, 1953). Many partiesto this Convention are not members ofthe EuropeanCommunity. All members ofthe European Community,however, are parties to the Convention. This convention issupplemented by seven protocols. See eg. B.Carterand P.Trimble, International Law:Selected Documents429-50 (1991).142In August 1991, the United Nations Observer Mission inEl Salvador (ONUSAL) became the firstmilitary civilian operation with the task of monitoringhuman rights abuses. For an overview of the humanrights machinery seeJohn Tessitore and SusanWoolfson, (eds) Issues Before the 45th GeneralAssemblyoftheUnited Nations (Lexington:UNA-U.S.A/lexingtonBooks, 1991) (In the last decade, the United Nations “hasdeveloped an impressive array of new enforcement machinery-machinerythat is not widely known but hasfundamentally changed what the United Nations canand does accomplish to aid individual victims of humanrights violations”)Id ppll9-l20143SeeparticularlyAntonio Cassesse,InternationalLaw inaDivided World (Oxford:Clarendon Press, 1986)p391 (“[T]he common heritage ofmankindenshrined in the 1979 Convention on theMoon and OtherCelestialBodies and the 1982 Convention on the Law ofthe Sea, marks the passage from the traditional postulateofsovereignty to that ofcooperation”) Id. On the concept of“the common heritage of mankind” generally, seeChapter 4 of Cassese.46insignificance. Professor Reisman has aptlysummarized the position as follows:The validity of humanitarian intervention isnot based upon the nation-state-oriented theories ofinternational law; these theoriesare little more than twocenturies old. It is based upon an antinomic butequally vigorous principle,deriving from a long tradition of natural law andsecular values: the kinshipand minimum reciprocal responsibilities of allhumanity, the inability ofgeographicalboundariestostemcategoricalmoralimperatives, andultimately,the confirmation of the sanctity of human life,without reference to place ortransient circumstances.144Reisman continues:But why, we may ask, should the independenceof state be more sacred thanthe law which gives it that independence?Why adopt a system which makesit necessary to gloss over constant violations ofthe very principles which aredeclared to be most worthy of respect from all?If, where such intolerableabuses do occur, it be excusable to violate at oneand the same time theindependence of a neighbour and the law of nations, can sucha precedent ofdisrespect for law prove less dangerous to internationalsecurity than therecognition of the right, when circumstancesjustify, to ignore thatindependence which is the ordinary rule of statelife ?‘The erosion of absolute sovereignty is notconfined to theoretical debate in legal circles. Atthe UN Security Council Summit, in the aftermath ofthe Gulf crisis, the concept ofsovereignty was at the forefront of internationaldiscourse.’46Although the leaders ofChina and India stressed non-interference in theirinternal affairs, they were met by strongopposition from other world leaders who emphasizedthe fact that times have changed andthat governments can no longer hide behindthe shield of sovereignty.147While most of144Reisman, supra note 12 at 642145Ibid“ See generally, UN SC Summit meeting, Jan 31, 1992,47th session, 3046th mtg. UN Doc S/23500147For example, John Major, the British PrimeMinister said‘]the opening line ofour Charter, the Charterof the United Nations, doesn’t talk about states orgovernments, it talks about people....1 hope, like thefounders ofthe United Nations themselves, thatwe cantoday renew the resolve enshrined in the Charter, the47the leaders spoke favourably ofthe need toprotect human rights as a common global value,some suggested more directly that this value couldbe superior to even nationalsovereignty.’48Boris Yeltsin, for instance, said that humanrights are not an internal matterof states, but rather obligationsunder the UN Charter,” and maintained that the SecurityCouncil had a “collective responsibility forthe protection of human rights andfreedoms.”49Although Germanywas not represented at the summit, Foreign MinisterHans-Dietrich Genscher stated in a speech to the GeneralAssembly in 1991 that“...sovereignty must meet its limits inthe responsibility of states for mankind as awhole...When human rights are trampled underfoot, thefamily of nations is not confined tothe role of spectator...It must intervene...”50TheChinese Prime Minister Li Peng washowever, opposed to the idea of expanding theconcept ofgreater intervention and insistedthat China would consistently oppose all external interventionsin the internal affairs ofsovereign states “using human rights as anexcuse.”51An important document issuedby the UN Secretary General in July, 1992 has also asignificant impact on the way the internationalcommunity views sovereignty. At the UNSummit the UN Secretary General Dr Boutros BoutrosGhali stated that:State sovereignty takes a newmeaning in this context.Added to its dimensionof rights is the dimension of responsibility,both internal and external.resolve to combine our efforts to accomplish the aims oftheCharter in the interests ofall the people that weare privileged to represent. That is our role” Ibid‘ See Paul Lewis, Leaders Want to Enhance UN’s Role”The New York Times, Jan 31, 1992 at AS:‘World Leaders Pledge to Broaden Role of UN” TheNew York Times February 1, 1992149Ibid.150See Tad Daley, “Can the UN Stretch to Fit its Future ?“Bulletin ofAtomic Scientists 1991 Vol 2 at40151See Lewis supra note 14848Violation of state sovereignty is and will remain anoffence against the globalorder, but its misuse alsomay undermine human rights and jeopardize apeaceful global life. Civil wars are no longercivil and the carnage they inflictwill not let the world remain indifferent...152Following on from this, Security Council leadersissued a challenge to the Secretary Generalto produce a report within six months “onways of strengthening and making more efficientwithin the framework and provisions of theCharter the capacity of the United Nations forpreventive diplomacy, for peacemaking and for peacekeeping”.’33On July 17th, 1992, the UN Secretary Generalpresented a comprehensive document to theSecurity Council aptly entitled “An Agenda forPeace”, which reflects the growing need ofthe UN to adopt a more systematic and intrusiveapproach towards aggression and internalstrife.’54The Secretary General’s approach to the issue ofsovereignty is, however, disappointing andindeed, somewhat surprising, particulary as it isone of the central themes of Agenda forPeace. Dr Boutros Boutros Ghali recommendsradical new measures designed to enhancethe role of the United Nations in internal crises,yet would appear to adhere to traditionalnotions of absolute sovereignty. Thisis despite his claim that “the time ofabsolute andexclusive sovereignty...has passed; its theorywas never matched by reality”, and his call for“a balance between the needs of goodinternal governance and the requirements of anever152UN Security Council Summit Opening Addresses,January 31, 1992 ILM 31(1992)153UN Security Council Summit Meeting Declaration UN Document S/23500(1992). For full text of thedeclaration “New Risks for Stability and Security “The NewYork Times, February 1, 1992‘54AnAgendafor Peace: “Preventive Diplomacy, Peacemakingand Peacekeeping.’June 17, 1992 31 ILM. 953 (1992) The Report identifies4 important, interconnected UN security functions;preventive diplomacy; peacekeeping; peacemaking andpost-conflict peace building49more interdependent world.”55Dr Boutros Boutros Ghali’s affirmation ofconventionalconcepts is in sharp contrast with the views ofhis predecessor, Javier Perez de CueHar whospoke of the limits of absolute sovereigntyduring his last term in office.’56TheSecretaryGeneral is also reticent in hisreport about international control over large - scaleviolationsof human rights. Although the Report does recommendaction for more coordinated UNassistance to “internally displaced persons, “if...assistanceto displaced persons within asociety is essential to a solution,”this is couched in vague and ambiguous language, theSecretary General failing to specify whatthis would encompass.’57Professor Reisman hasinterpreted this as implying that “a matter,hitherto within the general area of domesticjurisdiction, is now actionable by the SecurityCouncil.’58However, this assertion wouldappear to go too far. The term “intervention”does not feature in the report at al] incontradiction to the request of the UNSummit declaration which explicitly endorsedigreater role for the UN in the area ofhuman rights.’59Recently, the General Assmebly, passed a truly remarkableresolution on humanitarian aidwhich set forth some radical principles concerningcurrent UN practice in overcoming thebarrier of state sovereignty for humanitarianintervention. The resolution stated thathumanitarian assistance “should be provided (not“shall”) with the consent of the affected155ibid at p959l56eg Annual Report ofthe Secretaiy General onthe Work ofthe Organization, September 13 1991 DocA/46/1 at p4-S.157supra note 154 at 965.158Michael Reisman, “Peacemaking’ Yale Journal of InternationalLaw. Vol 18: 415. 1993 al 417.‘59supra note 153 for text of declaration50country (not “state’ or “government”) and inprinciple on the basis of an appeal by theaffected country”.’6°During the 1991 General Assemblydebate on emergency assistancein wars, redefinitions ofsovereigntywere also apparent. The ICRC argued “[i]n terms oftheexisting right to assistance, humanitarianassistance cannot be regarded as interference. Farfrom infringing upon the sovereignty of states,humanitarian assistance in armed conflicts,as provided for by internationallaw, is, rather, an expression of that sovereignty.”61Dr Boutros Ghali’s handling of the sovereigntyissue is out of line, therefore, with currentthinking and practice.’62The rationale behindhis affirmation of traditional ideologiesseems to be driven more by political considerationsand a desire to satisfy the criticisms ofhis opponents in the Third World. This may partlyexplain the extensive discussion in thereport ofwhat Dr Boutros Ghali has elsewhere called“the democratization of internationalrelations.”63Eliminating sovereignty altogetherfrom the international forum is simply outof the question in the foreseeable future as memberstates are not likely to renounce theirsovereignty to a world organization. The Third World isparticulary sensitive to the wholeissue of sovereignty for a number ofhistoric. Althoughsovereignty as legal fiction continuesto evolve, the widespread view among legal scholarsis that it remains the best mechanism160UN General Assembly AIResI4ó/182 14 April 1992,concerning the “Strengthening ofthe coordinationofhumanitarian emergency assistance ofthe United Nations.”161UN GAOR 46th Sess, UN Doc A/46 1991 Record of 42ndmeeting at 60. At the same session, theSoviet Union noted that any reservation about humanitarianintervention’ can he addressed by relormula0ngthe issue as “humanitarian solidarity.”Id.162See eg. Thomas G.Weiss, “New Challenges for UN MilitaryOperations: Implementing an Agenda ForPeace” 16 Washington Quarterly 15 (1993). “As efforts inBosnia, Somaliaand Iraq illustrate, humanitarianismhas made its appearance as the driving rationalebehind new international military forces. The precedent ofhuman rights is therefore critical in looking toward futureUN military efforts.”Id.163Dr Boutros Boutros Ghali, “Empowering the United Nations”Foreign Affairs, Summer, 199251for organizing international society.’TMIt maybe that over time, the criteria of statehoodwill evolve to include more complex subjectivegrounds, as opposed to the traditionalobjective standards of territory, population,government and sovereignty.’65Is there, forinstance a willingness to observe internationallaw ? Was the regime in power electeddemocratically ? Are human rights standardsbeing observed ?It is not however, the intention of this thesisto indulge in an overly theoretical andjurisprudential analysis of the nation-stateparadigm.’66As the former UN SecretaryGeneral Javier Perez de Cuellar rightly concludedin his final report “[W]e need not impaleourselves on the horns of a dilemma betweenrespect for sovereignty and the protection ofhuman rights. The last thing theUnited Nations needs is a new ideological controversy.What is involved is not the right of interventionbut the collective obligation of states to164Only nation-states may become members of theUnited Nations. The principle organs of the UnitedNations, including the General Assembly, the SecurityCouncil and the Economic and Social Council, allconsist of nation-states. Only nation-statesmay appear as litigants before the International Court ofJustice.(Article34, para 1 Statuteofthe International CourtofJustice). Even specialized agencies in economic, social,cultural, educational, health and related fields are establishedby “intergovernmental agreements amongnation-states. Regional charters ofAmerica, Africa andEurope reaffirm similar principles that enshrine thenation-state as the cornerstone ofinternational society;Charterofthe Organization ofAmerican States, April30, 1948, article 20, 2U.S.T 2394, T.I.A.ANo2361, 119 UNTS. 3 Charter ofthe Organization ofAfrican Unity,May 25, 1963, art III, para 3 479 U.N.T.S39 reprinted in 21.L.M 766 (1963); Conference on SecurityandCooperation in Europe:Helsinki Final Act, August 1, 1975,art III, reprinted in ILM 1292, 1294 (1975)165See generally, J.Crawford, ‘The Criteria forStatehood in International Law, British Yearbook ofInternational Law 48 (1976-77)pp93-182.‘Some scholars have expounded various reformulationsof the concept. see Ali Khan supra note 46 fora critique of the Grotian theory. Khanadvocates the concept of free state to replace traditional conceptionsofsovereignty in the field of human rights and economicactivity, the right to be free from both external andinternal subjugation being the main characteristic of hisconceptualization of sovereignty. Khan would alsodiscard the term “international law” since it emphasizes nationsrather than people and would replace it with“global” lawwhich is a more appropriate term because itincludes the law ofhuman rights and global markets.For a contemporary theory ofwhatsovereignty has become see generally Chopra and Weisssupra note 42 at10652bring relief and redress in humanrights emergencies.”167Conclusions on sovereignty and non-interventionin internal affairsThe rights ofindividualswould appear to begradually displacing concerns for the protectionof a state’s sovereignty.’ Therehas been a perceptible move away from the anachronisticprinciple of domestic jurisdictionin the area of human rights. While human needsdo notyet override sovereigntyin all instances, the latest pronouncements fromthe United Nationsare a significant step along the path ofestablishing more rights for civilians of internalwar.169Accordingly, the increased awareness ofthe role of individuals in internationa] lawand the direct application ofinternationallegalinstruments to aggrieved personshas helpedto permeate the wall ofsovereignty.170Traditional notions of sovereignty musttherefore adapt to meet the requirements of basichuman rights and international orderwhilst the principle of non-intervention must becomemore flexible. Yet at the same timea balance must be struck between thecompeting normsofnon-intervention and international humanrights standards; sovereignty cannot he viewed167United Nations Doc A/46/1 plO.‘See eg Lillich, ‘Forcible Self-Help” supranote 3(affirming that the interdependence of internationalpeace and security and the protection ofhuman rights supports the argument that humanrights no longer Callwithin exclusive domestic jurisdiction of a state.) Id. seealso Cyril E.Black, Challenge to an Evolving LegalOrder, TheFuture oftheInternationalLegal Order, in Black& Richard A.Polk, eds.Vol 1.(Princeton:PrincetonUniversityPress, 1969)pp23-36; WolfgangFreidman, The ChangingStructureofInternationalLaw (New York:Columbia University Macmillan, 1964)169This process is a continuation of the effortsby the ICRC to protect prisoners, the woundedandinnocent civilians from states during wartime.See the Four Geneva Conventions ofAugust 12,1949 and thetwo Additional Protocols of December 12, 1977(Geneva: ICRC, 1989)170See generally, Jarat Chopra, “TheNew Subjects of International Law” BrownForeign Affairs Journal(Spring 1991) p27-3053as an absolute legal fiction but asa flexible device. Likewise, the principleof nonintervention can be overriddenby humanitarian concernswhen atrocities rise to anunacceptable level, for example,which “shock the conscience of mankind”.Intervention bythe United Nations, in whatever capacityit sees fit would therefore be appropriate.Intervention, in this context, is nottherefore confined to measures under ChapterVII oftheUN Charter. Itfollowsthat iftraditional conceptions ofsovereignty are no longerapplicable.the doctrine of humanitarianintervention does not violate this ancient principle. Ontheother hand, if humanitarian interventionis permitted as part of an expanded definition ofsovereignty and humanitarian solidarity,then it does not conflict with what is left oftraditional sovereignty. Humanitarianinterventions, non-state actors, internationalorganizations and human rightscould all be included as exceptions tothe anomaly ofpartiallyabsolute sovereignty.Thus,ratherthanredefinesovereignty altogetherwhich wouldonly serve to perpetuate itssignificance, sovereignty can be circumvented byfocusing onhuman rights as a legitimate justificationfor humanitarian intervention. Thiswould surelybe a more advantageous intellectual andpractical exercise, than engage the UNin anotherideological dilemma.Collective Humanitarian InterventionIt has become increasingly evident thatanother emerging norm of the new doctrineothumanitarian intervention is thewillingness of the international community toresort to theUnited Nations as an instrument ofhumanitarianism. Although it has beenstated that“intervention does not gain in legalityunder customary internationallaw by being collective54rather than individual”71thegeneralconsensus among legal publicists and statesthemselves is that humanitarian intervention is only legitimateif it is carried out under theauspices of the United Nations.’72In thepost-Cold War era there is renewed opportunityfor collective action within the United Nations.It is thought that an intervention by a multilateralorganization guarantees the strength ofinternational support free from the pursuitofnational interests or political goals. Collectiveaction is also thought to decrease the ability ofindividual states to use humanitarianintervention as a pretext forinterferingin anotherstates’ affairs. As Lori F.Damrosch states“...the proposals for internationalization offorce seem to presentan attractive alternative toaccepting the contentions of those who would shake off theCharter’s constraints or whowould engage in far-fetched feats of “interpretation’ todefend unilateral intervention.’173Indeed, any humanitarian action performed or endorsed byan international organization,is preferable to unilateral action which carries withit the risk of abuse.174 It has been171Quincy Wright, “Legality of Intervention under the UNCharter’ 51 Proceedings of the AmericanSociety of International Law, 79,86 (1957)172Even Brownile supports the view that humanitarian interventionsby the United Nations are preferableto unilateral action. He says that “Under Chapter VII of theCharter, action may be taken in instances ofviolations of human rights which give rise to a threat to thepeace” BrownhieInternational law supra note 17at 226 Schwarz similarly contends that “In modern literatureand practice, only intervention on behalf of theUnited Nations or assimilated organizations seems to beadmitted as lawful.’ U Schwarz, Confrontation andIntervention in the Modern World 179 (1970). Kevin Ryan, “HumanRights, Intervention and Self-Determination” Denver Journal of International Law andPolicy, Vol 20 1991 55-74 (Ryan says that it isessential that nations refer cases of human rights violationsto international bodies, to seek to find asbroadbased a consensus as possible on the facts that allegedly justify the use offorce)173Lori F.Damrosch, Comment on Collective Military Intervention toEnforce Human Rights in Law andForce supra note 69 at 216174See Reisman,Humanitarian Intervention to Protectthe Ibos inLillich,Humanitarian Intervention supranote 71 see also, Farer, “Defending Human Rights inthe Post-Reagan Era:Candor and Competence 28Virginia Journal International Law. 855 (1988) (rulingout consideration of unilateral military interventionfor human rights purposes); Schachter, “TheLawful Resort to Unilateral Use of Force. to Yale Journalof55stated for example, that unilateralhumanitarian intervention cannot achievethe samelaudable objectives as aninternational collective action because “. ..in theabsence of aninternational organization, solidly built upon oneclear law, it is to be feared thatthe spiritof domination which finds itself inthis noble institution, that of the desire toprotect allhuman beings, would be a facilepretext for well camouflaged victories.”’75Indeed, any doctrine that allows astate to act unilaterally is subject to potentialabuse.’76Collective action onthe other hand, is assured of broad support amongall whorespect basic human rights because “...it inno way affects the legality of intervention;itreinforces an intervention and does not serveto conceal an unwarranted incursion.”177Action through an international organizationsuch as the UN, ormultilateralism, as it is oftenreferred to by political scientists, isdistinct from multinational action, which amountstoindividual states independently cooperatingin a particular venue, as a form of self-help.Collective actionontheotherhand is conductedaccording to standardoperatingproceduresdevised and agreed prior to a crisis, and whichare consistently applied whatevertheInternational Law, 291 (1985) (“1 would underline theimportance of rejecting the contention that force maybe used unilaterally to achieve such laudableends as freedom, self-rule and human rights’)1:75Aroneanu, “La genre internationale d’interventionpour cause d’humanite”, 19 Rev tnt D.Pen.173(1948)In a similar vein, Brownlie has asserted:”Arule allowing junilateral] humanitarian intervention...isageneral license to vigilantes and opportunists toresort to hegemonical intervention.’ Brownlie,Thoughts onKind-Hearted Gunmen, in Lillich, HumanitarianIntervention supra note 71. Similarly, human rightsscholarLouis Henkin has observed: “A humanitarianreason for military interventions...easy to fabricate...every caseofintervention I can think of...[has been] justifiedonsome kind ofhumanitarian ground Henkin, Remarkson Biafra, Bengal and Beyond:InternationaResponsibility and Genocidal Conflict”Proceedings of theAmerican Society of InternationalLaw 1972 95, 96176Some scholars disagree with this assertion, statingthat the possibility of abuse does notnecessarilyrender a doctrine illegal. See eg Myers McDougaland Florentino Feliciano, Law and MinimumWorld PublicOrder 416 (1960)(”A policy of permitting individualinitiative is, of course, again like the policyof allowingself-defence, susceptible to perverting abuse;butthis susceptibility is an attribute common to alllegal policy,doctrine or rule’)Id.1:77Stowell, supra note 40 at 13756configuration of subjective interests of communitymembers)78However, while collective decision-makingremoves national interests from trulyhumanitarian motives, it raisesother problems. There should be no assumption thathumanitarian intervention on a UN basiswill be widely accepted by either the target stateor its allies, or will always lead to capitulation. Theconcern is that the multiplicity ofinterests represented on the Security Councilwould not guarantee the predominance ofcommunity policies as opposed to the self-interestofstates otherwise choosing to interveneunilaterally.Many states are prepared to resist pressure fromthe United Nations, or those acting in itsname.179It is a common illusion that if collectiveaction is taken under the auspices of aninternational organization the state at whom it is aimed willvoluntarily comply with itsdemands. The notion that collective decision-making bythe United Nations Security Councilautomatically eliminates any legal deficiencies, is notnecessarily a legitimate claim.’80178For example, the procedure established underChapter VII of the Charter.179The United Nations is for instance considered tobe an enemy in Somalia by the warring factions andin the former Yugoslavia the Serbs seem intent on defyinginternational pressure from the UN.180The following exchange between Professors Weston andRichard Falk elucidates these points:Professor Weston’...one should try to exhaust the highest levelsofmultinational participation first ofall-say, in terms of global organizational intervention - andthereafter to turn, after trying everything else inbetween, to unilateral intervention...What concerns me,however, is that if we are to limit humanitarianintervention to global organizational intervention or its equivalent,then we are not talking about a real world.I don’t think that we can expect the United Nations tointervene actively through the use of force except inthe most limited circumstances. And ifwe shift to aregional organization type of intervention, such as mightbe undertaken by the OAS, then are we not risking arubber-stamp operation such as prevailed in theDominican Republic?AS I see it, then, the real problem is not oneof multilateral versus unilateral, excepi in a policypreference sense, but rather one which requires us to grapplewith the kinds of unilateral intervenlions wearcgoing to allow, one which requires us to grapplewith probabilities rather than possibilities.’‘What I would like to see is a discussion that focuses onthe real-world possibilities of humanitarianintervention, not on some “wouldn’t-it-be-nice-if” kindof debate, and then to try to answer questions ofanormative nature about those real-worldpossibilities. What are, in fact, the real possibilitiesof getting57Although the United States supremacy inthe United Nations is no longer a foregoneconclusion, the ability of the US to influencethe General Assembly and dominate theSecurity Council is nevertheless, a significant factorwhen assessing collective humanitarianinterventions. It is against this backdrop thatrecent expressions of discontent from variousregions of the world have led to bitterattacks upon the legitimacy of Security Councildecisions. Governments often hide under the fig-leafofthe United Nations as an excuse forinaction in a humanitarian crisis.The Third World remains particularly sensitiveabout the revival of the UN as a forum forenforcing human rights as a possible “[t]rojanhorse” for big-power intervention after theCold War.’8’This reluctance to revive the UN andalso the whole issue of sovereignty isdue in large part to numerous historical and contemporarypolitical reasons. Many statesbelieve that it is possible that the SecurityCouncil’s involvement could also result in a globalinternationalization of a conflictthat would otherwise have been confined not only to aparticular region but to the territory of a singlestate.Although these are legitimate fears, it isessential that the United Nations and the SecurityCouncil in particular, become more active in takingappropriate action to put a stop to massviolations of human rights.’82 With the end ofthe Cold War, there exists a uniquemultilateral interventionaryactivity goingon? Are they real,oraren’t they? If they aren’t real, then let us starttalking elsewhere...”“Professor Falk: There is a tendency, I think, to becometoo much a prisoner ofrecent international historyand to overly discount the potentialities forconsensus to be crystallized within the United Nations.”Conference Proceedings, in Lillich, HumanitarianIntervention supra note 71For an articulation of Third World views and concerns,see Olga Pellicer, “Uniting or Dividing theUnited Nations” Occasional Paper no.10 (Providence RIWatson Institute 1992)182See Helman and Ratner, supra note 7 at 93 (calling for a moresystematic and intrusive approach from58opportunity to implement fullythe provisions of the UN Charter aimed at maintaininginternational peace and security andprotecting the individual. This surely, is the mostrealistic and pragmatic way ofensuring peace and safeguarding fundamental rights andfreedoms. Humanitarian interventioninvolves a number of legal, political and practicalproblems. No other organizationthan the United Nations is in a position to take diplomaticor military action required by most instancesof humanitarian crises.’83The distinctionbetween such interventions and those taintedwith political self-interests will always bedifficult to delineate unless the action is initiated by acredible international organization.A Conceptual Appraisal of HumanitarianIntervention in PracticeLegaltheorizing concerningtheideology ofinterventionhas, however,been swiftly overtakenby policy and practice. Since 1991 there have beenseveral cases in which interventions withan element of UN support have had a fundamentalhumanitarian purpose. They illustratesome of the central difficulties of developing anew doctrine of humanitarian intervention,one that can be applied consistently anduniformly. Yet, at the same time, they provideevidence of an emerging contemporary doctrine ofhumanitarian intervention.The recent humanitarian interventions in Iraq,Somalia and in the former Yugoslavia raisemany awkward questions, two of which areconsidered here:(1) Is humanitarian involvement in conflicts- in the form of the provision of food, shelter,and protection under the auspices of the UnitedNations becoming the norm ? Or. isinternational organizations in dealing with “failed states”)Id.183See generally, B.De.Schutter, “HumanitarianIntervention:A United Nations Task” CalifornianWesternInternational Law Journal Vol 3 1972 21-3659humanitarian intervention still likelyto be carried out by a state acting unilaterally?(2) Can we conclude fromrecent and contemporary practice thata new consensus isemergingon humanitarianinterventionin a state,without the approvalofits authorities, andwith the purpose of preventingwidespread suffering or death among the inhabitants?Incident Studies(i). Humanitarianintervention and the KurdsThe UN relief operation in NorthernIraq, following the Gulf war in 1990/91,resuscitateda conceptual reappraisalofthe political and legal attributes of thedoctrine ofhumanitarianintervention, the circumstances thatwarrant it, and how it should beauthorized andenforced.’’ Resolution 688 was unprecedentedin that it brought the whole issueofinternational human rights and thecompeting norm of non-intervention tothe forefront ofinternational concern and legaldiscourse.’85The Kurdish crisis demonstratedthat thenorm ofnon-intervention is not imperviouswhen it conflicts with gross violations of humanrights. Moreover, the notion thatIraq could invoke absolute state sovereignty inthe crisiswas overridden by humanitarianconcerns. To what extent the crisis establishesnew normsof humanitarian intervention isconsidered in this context.1A thorough examination of the historicaland conceptual background to the crisis is notpossible,although Part II of this thesis will explore ingreater depth the expansion of the threat to thepeace conceptas a basis for UN competence.For a comprehensive overview of theevents preceding the humanitarianintervention in 1991 See Howard Adelman“Humanitarian Intervention:The Case of the Kurds”InternationalJournal ofRefugee Law Vol 4 No.1 1992; JudyA. Gallant, “Humanitarian interventionand Security CouncilResolution 688:A Reappraisal in Light of aChanging World Order” American UniversityJournal ofInternational Law and Policy Vol7:1992 881; Michael E.Harrington, OperationProvide Comfort: APerspective in International Law” ConnecticutJournal of International Law Vol 8:635 1993;Sarah E.Whitesell, “The Kurds: An InternationalIncident Study” DenverJournal of InternationalLaw and Policy, Vol21: 2 1993 454-479.185For full text of this resolution see 30 ILM 858(1991) see generally T.Weiss and K.Campbell,MilitaryHumanitarianism, Survival 33 (Sept/Oct 1991)pp45l-64.60The Iraqi Kurds are traditionally aneconomically independent ethnic group living inNorthern Iraq, historically linkedby cultural, religious and linguistic ties for centuries.186The Kurdish population constitutes Iraq’ssecond largest ethnic group, the country’s largestethnic minority.’87Thegovernment of SunniArab and its leader, Saddam Hussein, havepersecuted the Kurds for years inblatant disregard for human rights. Evidence of massmurders, chemical warfare and forced exodusfrom Kurdistan, [as it is commonly known],has been available, yet the international communityhas consistently failed to overcome thebarrier of state sovereignty to put a stopto the atrocities.’88TheKurds’ struggle forautonomyfrom the Iraqigovernmenthasneverresulted in any more than partial recognitionfrom the international community. That is, untilthe events following the Gulf war in 1991.In the aftermath ofthe war against Iraq, Kurdishinsurrections took place in Northern IraqandShiaMuslimsuprisings inthe South. Iraqiauthorities respondedbyrelentlesslyattackingthe Kurdish population, forcing over 2 millionrefugees to flee their homes.’89The media’sportrayal of thousands of refugees, starving andexposed in freezing temperatures proved‘See generally David McDowell, The Kurds:The Minority Rights Group Report. No.23, 5-9 (1985).187Although the Iraqi government refuses toprovide population figures, one 1989 estimate places theKurdish population at 21.6%. See eg. Simon Henderson,InstantEmpire:Saddam Husseins Ambitionfor Iraq,26-27 (1991)188See Patrick.E.T’ler, ‘The Kurds, The Horror at Sulalymaniyah”The Economist, June 1990; ‘In TownIraqis Gassed, Kurds Now Breathe Free” The New York Times,Nov 18 1991 at A4.; Chris Hedges, ‘KurdsUnearthing New Evidence of Iraqi Killing” The New York Times,Dec 1991, at Al.‘t9SeeDavid Scheffer, Use ofForceAfter theCold War:Panama, Iraq and the New World Order, in Rightv. Might supra note 108 at 144 (noting that the Iraqi governmentdrove 2 million Kurds and Shiites intoTurkey, Iran, and Southern Iraq)61intolerable to the international community.’90The barbaric treatment of the Kurdishpopulation by the Iraq regime demanded internationalaction that transcended claims ofstate sovereignty and political interests. According tosome estimates, starvation andexposure were claiming lives of over 1,000Kurdish refugees daily.’911nresponse to intensepublic pressure, world leaders finally appealedto the UN Security Council to end therepression of the Kurds and Shia Muslims.The UN Security Council subsequently passedResolution 688 which “[condemned] therepression of the Iraq civilian population in manyparts of Iraq, including most recently inKurdish populated areas, the consequences ofwhich threaten international peace andsecurity in the region.”92The resolution further‘[insisted] that Iraq allow immediateaccess by international humanitarian organizationsto all those in need of assistance in allparts of Iraq and to make available allnecessary facilities for their operations,” and“[demanded] that Iraq cooperate with the Secretary-Generalto thoseends.”93Resolution688 triggered a multinational operation to establish“safe havens” for the Kurds within thesovereign state of Iraq. It was explicitlystated that the proposed safe havens were a“humanitarian concept”.’94.‘90See Judy Jones, ‘Parliament and Politics:MP’s DemandMore Action by West in Support of Kurds;KurdishRefugee Crisis:Commons Statement” TheIndependent,April 16, 1991 at 9, Haberman, “Kurds EndureMud and Cold and Fear the Worst” The New York Times, April11th, 1991 at Al, co 3.191See Elaine Sciolino, “Kurds Will Die in Vast NumbersWithout Swift Aid” The New York Times, April10, 1991 at Al col 4‘UN.SC Res 688, 30 ILM 858 (1991)193‘p” Sir David Hannay, the British Ambassador to the UN,quoted on BBC World Service News, April 12th,199162By authorizinginternational interventionto protect the Kurds on April 5th, the UN SecurityCouncil approved for the first time “theright to interfere” on humanitarian grounds in theinternal affairs of a member state. As one Frenchjurist noted:“[Ajithough cross-border humanitarian aid long hasbeen tolerated if notlegally binding activity by non-governmentorganizations for moving food,medicines and other help to the needy, the SecurityCouncil vote marked forthe first time governments openly gavetheir seal of approval to suchpractices.”195This was despite the claims of the Iraqi governmentthat Res 688 conflicted with theprinciple of non-intervention enshrined in Article 2(7) ofthe UN Charter.196The Security Council however, overcame the legaldilemma posed by Article 2(7) bycharacterizingtheconsequences oftheKurdish crisis,namely the massive outflow ofrefugeesfrom Iraq to neighbouring countries, as a threat tointernational peace and security. Byfocusing more on the imminent threat to regional securityand interstate relations betweenIran, Turkey and Saudi Arabia, the Security Councilwas able to characterize the crisis asa threat to international peace ratherthan confront Saddam Hussein’s human rights195Mario Bettati, “The Right to Interfere” The Washington Post,April 14th, 1991 at B7. The French wereat the forefront of international support for a new concept ofhumanitarian intervention. Roland Dumas, theForeign MinisterofFrance, stated that he believed, “theKurdish crisis could act as a detonator’ for re-thinkingofthe conceptofnon-intervention. See “G-7 BacksGreaterUN Role in Internal Conflicts”,Reuters (BCcycle),July 16th, 19911%“Iraqi UN Envoy says Res 688 is Unjust”, BBCSumnza,y ofWorld Broadcasts, Part 4, The Middle East,April 9, 1991. Iraq also questioned the legitimacy of Res688 stating that “it represents yet another exampleof the Council’s use ofdouble standards in dealingwith Iraq, “basing their claim on the oppression of Kurdsby Turkey, Iran, Syria and the USSRJd.197For a discussion of the legal arguments, See PaulLewis, “Legal Scholars Debate Refugee Plan.Generally Backing US Stand” The New York Times April19, 1991 at A8 (maintaining that Res 688 was thefirst time the Council found that huge exodus of refugeesor displaced people in their own nation threatenedinternational peace and security) Mario Bettati, supra note 195at A25 (quoting United Nations HighCommissioner for Refugees Sadako Ogata as stating that Res688, which permitted humanitarian interventionby United Nations agencies in Iraq, marked the first timethe Security Council recognized large populationdisplacement as a threat to international peace and security).63violations. Both Iran and Turkey feared that the massexodus ofKurdish refugees into theircountries would result in civil and ethnicunrest.198The Turkish representative to the UNargued that the scale ofhuman tragedy and itsimplications for international security meantthat the crisis was no longer an ‘internal affair.”He went on to say that “[W]e are dutybound to take whatever measures we deemnecessary to prevent the anarchy and chaosreigning on the Iraqi border from spilling overinto our country.”20°Likewise, the Iranianrepresentative to the UN expressed his concernover the Iraqi shelling of Iranian bordertowns, in which three border guards were killed.201The primary purpose ofthe intervention inNorthern Iraq was to provide reliefto the Kurdsand to protect them from the Iraqi army,202andconsequently to ensure that reliefoperations were not at risk.203 The plans specificallyembodied a limited purpose ofsecuring a safe region for the Kurds so thatthey could receive humanitarian aid and returnto their homes. Although the initiative was essentiallyunilateral the decision was taken to198UN SCOR, 46th Sess, 2982nd mtg at 6-7, 13-15, UN Doc S/PV2982 (1991) (comments of the Reps ofTurkey and Iran respectively)‘98lbid at 6200Ibid at 7201Letter dated 3 April 1991 from the PermanentRep oftheIslamic Republic ofIran to the UNAddressedto the Secretaiy General, UN SCOR, 46th Sess, UN Doc S/22436(1991)202Chris Hedges, “Kurds Unearthing New Evidence of Iraqi Killings”The New York Times, December 7,1991, at Al; “Kurdish Refugees, by Thousands FleeVengeance of Iraqi Army” The New York Times , April4th, 1991 at Al col 4.203See Elaine Sciolino, “New Activity by MilitaryPurely Humanitarian, President Says.” TheNew YorkTimes April 12. 1991 at Al col 364place the operation under theauspices of the United Nations.204 Accordingly, it wasdecided in Security Council deliberations toestablish a multinationa] force to provide theneeded relief.205ConceptualAppraisalFrom a practical standpoint, theUN operation in Northern Iraq did restore some degreeof order and saved numerouslives. Armed troops had never before offered militaryassistance to humanitarian aid agencies.206Yet,ithas been criticized among legal circlesfor its precedential value.207 There wasalso consternation in UN circles.208Withoutdenigrating the significant achievements of theoperation, certainly in terms of its limitedlegal basis and in the special circumstances precedingthe crisis, UN Security CouncilResolution 688 would not appearto set an authoritative precedent for a new doctrine of204John Major, the British Prime Minister suggesteda plan for safe havens which subsequently receivedEC approval, see W.Tuohy and R Tempest, “Europeans seeHaven for Kurds;Refugees: Britain’s Plan toCreate a Shelter Zone in Northern Iraq wins ECEndorsement” The LA Times, April 9th, 1991 at A6;see WDrazdiak, “Europeans to Press Bush to Back EnclavePlan; EC Responds to Outrage Over Kurds Plight” TheWashington Post, April 11th, 1991 at A34205W.Drozdiak and D.Ottaway, “US AlliesWant Refugee Havens Established in Iraq:European BackProtective Zone for Kurds” The Washington Post, April9th, 1991 at Al; Stanley Meisler, “UN ApprovesDispatching of Peacekeepers,” The LA Times, April10th, 1991 at A4.204SeeScheffer, How the UN Balances Concernsfor Sovereignty and Suffering - (UNA) August 6th 1991[hereinafter UNA] Address of the Annual Meeting ofthe Conference on Washington Representatives on theUnited Nations, American University Journal of InternationalLaw. (suggesting that relief agencies may nowenjoy the right to protection) TheReport concludes thatRes 688 was significant in that it did not require aidagencies to obtain the consent of the Iraqi governmentbefore operating within its borders.Id207For example, James Mayall’s overall conclusion at the timewas that “it would be imprudent in practice.and wrong in theory, to generalize from theinternational obligations towards the Kurds in favour ol aninternational enforcement mechanism for human rightswherever they are abused. See Mayall, “Nonintervention, Self-determination and the New WorldOrder” International Affairs 67:3 July 1991 p425208Seethe views of Stephen Lewis,Clovis Maksud and Robert C. Johansen in “The United Nations Alterthe Gulf War” World Policy JournalVol 8, no 3, Summer 1991,pp537-7465humanitarian intervention as was oncethought.209Although the international interventiondoes create legal justification for similar action,21°it doesnot compel states to act in sucha way in future cases, largely dueto the unique circumstances preceding the intervention.Oscar Schacter, for example,an eminent authority on humanitarian law, stops short ofreferring to Resolution 688 as an explicit authorizationfor humanitarian intervention “[I]tis unlikely that most governments wouldapprove a broad right of the United Nations tointroduce troops for humanitarian purposesagainst the wishes of the government.”211Likewise, David Scheffer concludes:The allied deployment should not beregarded as a new type oflawful militaryintervention to stop a government’s acts of repressionand the consequentsuffering of its own people. Indeed, the interventionwas the right action butfor the wrongreason. The Bush administration[which invoked Resolution 688as grounds for its intervention] wouldhave been more honest if it had invokedthebroadviewofhumanitarianintervention-controversialthough it may be-orhad argued that the UN Charter’s prohibition ofinterference in the internalaffairs of member states, Article 2(7), is inapplicable,where member-statesare continuing to take enforcement measures underChapter Vu.212Scheffer goes on to say thatLaw here matters. The Kurdish exodus from Iraq demandedan immediate209It has been stated for instance that the Iraqicase was a poor example on which to base generalprinciples; and more significantly, it illustrated thatthere is no mechanism in place to distinguish trulyhumanitarian motivations from biased national interests. SeeChopra and Weiss, supra note 42 at 96210By this assertion I am referring to the conceptualizationof the outflow of refugees as a threat tointernational peace and security which I will explore in PartII of this thesis.211Oscar Schacter, “United Nations Law in the Gulf Conflict’American Journal of International Law 85(1991) p469. Schacter goes on to say that additionalfactors in the Iraqi case included the mass exodus ofKurds and Shiltes into Turkey and Iran, detracting fromthe purely internal character of the situation and thefact that the predicament ofthe minoritieswas partly a result ofthe Allied military action against Iraq itself.giving the coalition of an interest in protecting the refugees.Schacter concedes however, thai the UN couldoverride reluctant host governments by invokingenforcement procedures under Chapter VII of theUNCharter.212David Scheffer, Right vs Might supra note 108 at 146-4766response. The need for the Americanand European intervention was criticalunder the circumstances. But the reasonsinvoked to use military forceoverseas are important, for they establishprecedents, affect the way othergovernments and the United Nations react anddeeply influence the durationand magnitude of a nation’s commitment.213Former US President Bush forexample,repeatedly referred to “humanitarian concerns” and“humanitarian need” as the basisfor United States military operation in NorthernIraq. TheUS President expressly stated thatthe effort was purely ‘humanitarian”, and the operationwould consist of temporary relief stationsto encourage the Kurds to move to areas wherethey could be provided with food,clothing and medicine.214Similarly, the US Ambassadorto the UN at the time, Thomas Pickering,spoke the following month of “a shift inworldopinion toward a re-balancing of theclaims of sovereignty and those of extremehumanitarian need.”215The formal legal basis of the safehavens operation however, was by no means exclusivelyhumanitarian. The tension between thecompeting norms of state sovereigntyandinternational human rights doctrinewas evident in political debate around theworld. TheBritish Foreign Secretary, when pressedon the legal basis of the humanitarianoperationstated that “[W]e are vigorously pursuingthis proposal for safe havens. Our aim is to createplaces and conditions in whichthe refugees can feel secure. We are not talkingof aterritorial enclave, a separate Kurdistan or apermanent UN presence. We supporttheIbid at 47215Quoted in Richard Gardner, “Internationallaw and the Use of Force:Paper 11, Annual Conference ofthe International Institute for StrategicStudies, New Dimension in International Security, Adeiphi Paper266(London:IISS, Winterl99l/92)p6867territorial integrity of Iraq. But we have to get therefugees off the mountains.”216Thus, it would appear that the UNauthorization for the creation of safe havenswas basedmore on the legal grounds ofthreats to international peace and security underArticle 39 ofthe Charter, bearing in mindthat the coalition had explicit authorizationto restoreinternational peace and security in the areaunder Resolution678.217Furthermore, the action occurred in the immediateaftermath of an international war undercircumstances for which the allies hadconsiderable reason to feel responsible forthe plightofthe Kurds, not leastbecause ofthe American’sprevious incitement to the Kurdish peopleto rebeL218 It would not therefore, beunduly cynical to comment that theoperationprovided a welcome degree of comfort to the countriesthat contributed to it.219The government of Iraq protested officiallythat the UN action violated Article 2(7) of theUN Charter. Many ofthe ThirdWorld States expressed particular concern over Resolution688 on the grounds that it could set aprecedent for intervention into domestic affairsand216House of Commons Debates, Vol 189, Col 21:April 1991 When questioned again in a radio interviewabout the legalityofthe impositionoftheno-fly zone vis a vis Iraq’s sovereignty, the Foreign Secretaryreplied“But we operate under internationallaw. Not every action that a British government or anAmericangovernment or a French government takes has to beunderwritten by a specific provision in a UN resolutionprovided we complywith internationallaw. International law recognises extreme humanitarian need...We areon strong legal as well as humanitarian groundin setting up this “no fly” zone” Interview onBBC Radio 4‘Today Programme, 19 August 1991. Transcriptavailable from the Foreign and CommonwealthOffice.217UN SCOR Res 678, ILM 1991.218See David Scheffer, [UNA] supra note 206(noting that Res 688 was preceded by a war authorized bythe United Nations, world opinion wasunited in condemnation of Saddam Hussein and Turkeyrefused toaccept Kurdish refugees); Oscar Schacter,supra note 211 at 468-69 (explaining that additionalfactors in theIraqi case included the mass exodus of Kurds andShiites into Turkey and Iran, detracting from the purelyinternal character of the situation and the fact thatthe predicament of the Kurds was partly aresult of theallied action against Iraq.)219See Adam Roberts,supra note 9 (Certainly [it]led to someself-congratulation and perhaps toexcessivetrust in humanitarianism as a response totragedy) Id at 43868as such was incompatible withthe principle of non-intervention.220The SovietUnion andChinawere concerned about theprecedent ofa blue-helmeted humanitarian forcedeployedwithout a host governments’ consent; theirfearbeingthat the Baltic republics or Tibet mightask for the same type of UNassistance. The notion of sending in a UN forceto replaceWestern troops in Iraq was rejected infavour of sending UN guards whichwould still beviable symbols oftheUN’s presence,although theywouldbe supportedmilitarily by Westernsoldiers and fire-power, leadingsome commentators to conclude that rather thanconstitutea reformulation of the doctrine of humanitarianintervention, the coalition’s actions mayinstead beviewed in customary law termsas a variant oftraditional conceptions ofthe rightof a victor over the state concerned todetermine the future of that country.22’Moreover,while the operation was, in name, an internationalhumanitarian intervention by the UN, theUS, France and Britain played akey role in the decision-making and thecourse of action.From a conceptual perspective however,Res 688 is significant in that the UN SecurityCouncil explicitly recognized that the Iraqigovernment could not retreat behind the mantleofstate sovereignty. The principleofnon-intervention in the internal affairs of Iraqwas thusinapplicable.222Iraq’s barbaric aggressiontowards the Kurdish population could not he‘20Resolution 688 received the least support ofall of the Gulf War resolutions, only 10 out of the 15Security Council members voted for its adoption,Cuba, Yemen and Zimbabwe opposed it, Chinaand Indiapredictably abstaining.221Adam Roberts, supra note 9 at 437222See Schacter supra note 211 at 468 (maintainingthat Iraq’s barbaric suppression of minoritiessignificantly strained the principle of non-interventionin domestic affairs); Stanley Meisler and NormanKempster, “World Leaders Urge UN to SafeguardRights Everywhere; Summit:Chiefs of StateDeclare it isTime to Abandon the Tradition of Non-Interference inNation’s Affairs. Global Interdependence Cited byBoutros Ghali”, The L.A Times, Feb 1, 1992 at Al(stating that the leaders of the Security Council nationsannounced that the international community cannotpermit the protection ofhuman rights to stop at nationalfrontiers and that the United Nations shoulddiscard the outdated principle of non-intervention in state’s69categorised as a matter for domestic jurisdiction.Although Resolution 688 was adopted under a uniqueset of circumstances223 itscontributiontothedevelopmentofanewconception ofhumanitarian intervention under theaegis ofthe United Nations is valuable.2’As theFrench Minister of Humanitarian Action,Bernad Kouchner stated, “Soon it will no longerbe acceptableto cross a border to wage warbut not to do the same to make peace andsave lives.”225 A]though these remarks areperhaps overly optimistic on the basis of this one intervention,subsequent events on theinternational arena have demonstrated that theKurdish crisis was not just an isolatedincident.Regardless of the conceptual debate concerning theprecedential value of Resolution 688,the UN’s intervention in Northern Iraq explicitly recognised thatstates can no longer invokethe doctrine of state sovereignty to evade international humanrights obligations.226Forthat reason alone, Resolution 688 was a watershedfor humanity.domestic affairs).223See James H.Anderson, supra note 50 at 129 (finding that not all future silualionsof SeriouS humanrights violations will be preceded by such unmitigated interstate belligerency)224See Scheffer, U.N.A supra note 208 at 9(asserting that the creation of safehavens established a strongprecedent in protecting relief workers) see also Right V Might, supra note114 at 129 (stating that theprecedents created by the Security Council during the Gulf War should reinforce thecredibility of andconfidence in collective procedures)225“Interview With Bernad Kouchner” Le Monde, 30 April 1991p2.The French Minister went so far asto assert that the right ofhumanitarian intervention should beadded to the Universal Declaration ofHumanRightsJd In a similar vein, French Foreign Minister Roland Dumas suggestedthe conceptualization ofa dutyto intervene. Just as Nazi Germany’s murder of the Jews broughtabout the concept of a “crime againsthumanity”, Dumas stated that Saddam Husseins’ mistreatment ofIraq’s Kurdish population argues forrecognition of a “duty to intervene” to prevent gross violationsof human rights. See William Safire, ‘Duty ToIntervene” The New York Times April 15 1991See Greenwood, supra note 6 at 36 stating that “It isdifficult to resist the conclusion that theintervening states were in practice asserting a right of humanitarianintervention of some kind’.Id70(ii). The FormerYugoslaviaHumanitarianism has played a central role in the international response tothe crisis in theformer Yugoslavia. However, the difficulty of any analysisof the humanitarian role in theformer Yugoslavia derives not so much from the fact that theevents are still continuing butthat the humanitarian considerations arejust a small part of a much larger and inherentlycomplex ethnic conflict.227 It is for thesereasons that the United Nations humanitarianoperation has been largely ineffective.2Unlike the Gulf crisis, the Yugoslav conflicthas tested the willingness of the internationalcommunity to act in cases of less thanvital interest, that is purely humanitarian issues.Although the UN was moderately successful in brokering aceasefire between Serbia andCroatia for most of 1992, the UN has dismally failedto prevent the carving up of the stateof Bosnia and the subsequent “ethnic cleansing”of the Muslim population.229The limited role ofthe United Nations in Bosnia isto some extent understandable given the227For background to the conflict see generally, NormanStone, The Sunday Times, August 9, 1992 at 9;Alan James, “The UN in Croatia: an exercise infutility ?“ The World Today, May 1993 p93-96; J.Zametica,TheYugoslav Conflict (Adeiphi Paper270, 1992)see also theexcellent article by M.Weller, “The InternationalResponse to theDissolution oftheSocial Federal RepublicofYugoslavia” AmericanJournal ofInternationallaw 1992 p569; seealso Charles Lewis NierIII “TheYugoslavianCivil War” DickinsonJournalofInternationalLaw Vol 10:2 Winter 1992 304-331. For a politicalanalysts’ viewseeJosefJoffe “The NewEurope: Yesterday’sGhostsForeignAffairs 1992 29-37; V.P.Gagnon, Jr “Yugoslavia:ProspectsForStability” Foreign Affairs, 199217-35; Sabrina Petra Ramet “War in the Balkans” ForeignAffairs 1992 79-98; Charles Gatti “From Sarajevoto Sarajevo” Foreign Affairs 1992 64-78Christopher Cviic, “Yugoslavia I: New Shapes from Old” The WorldToday August!September 1991 125-127; Michele Ledic“Yugoslavia ll:the costs ofdivorce’ The World TodayAugust! September 1991 127-129; James Gow “The use of coercionin the Yugoslav crisis” The World TodayNovember 1992 198-202.228See James Bone, “When in Trouble Blame the UN” The Times(London) August 17 1993SeeJohnF.Burns, “Serbs’ Campaign for EthnicPurity Divides Upa Busload of Orphans The New YorkTimes, August 3, 1992, at Al; Stephen Engleberg, “BosniansProvide Accounts of Abuse in Serbian Camps”The New York Times, August 4, 1992, at Al.71complex circumstances.230Variousfactors contributed to the UN’s slow response. First,the UN hesitated because its membersinitially saw the Yugoslav crisis as primarily aninternal affair within the meaning of Article2(7) of the Charter. It is possible, however, todefeat the argument that theconflict amounted to a civil war and thus fell withintheprohibition in Article 2(7). By recognizingCroatia as an independent state with bordersprotected by international lawn’the international community had transformed the conflictfrom an internal affair to one warrantinginternational concern.232Thefact that Croatia,Bosnia-Hercegovina and Slovenia were later admittedto the UN as fully fledged statesstrengthen this hypothesis.233By November 1991, however, UN members recognizedthat mounting numbers of refugeesand civilian casualties, as well as the dangers ofescalation, had blurred the line separatingdomestic and international jurisdiction necessitatingsome global response. As the crisisworsened, however, humanitarianissues dominatedSecurity Council resolutions and various°See generally, Jane M.O.Sharp, “Intervention in Bosnia-TheCase for The World Today, 1992, 29, 31(citingvarious reasons, legalandpolitical,whytheinternational communityinitiallyhesitatedto intervene.)seealso Brian Wilson, “Bosnian plight is Europe’s Shame”The Glasgow Herald, July 18, 1993231eg.Colln Warbrick, RecognitionofStates” Internationaland ComparativeLaw Quarterly, 1993p479232See The Independent, 14 February 1992; ChuckSudetic, “Asserting Croatia Invaded, Bosnia Appeals toUN”, The New York Times, Saturday January 28, 1992XXIX UN Chronicle, 3 (September 1992)p78.see also Rosalyn Higgins, “The New United Nations andFormer Yugoslavia” International Affairs 69, 3 (1993) 465-483,470. Higgins posits the theory that if the crisiswas essentially a civil war, within the meaning of Article 2(7),the international community would not beinvolved atall; See also Christopher Greenwood, supra note6 at 38 for the supporting view that the situationceased to be one of civil war within a single state and becameinstead a complicated mixture of internationaland internal conflicts.See also Marc Weller, “UN PutsBelgrade in a legal limbo” The Times (London) Sept24 1992 for a discussion of the legal limitations of Serbiaand Montenegro assuming the membership of theFormer Yugoslavia at the UN72other international statements.2The SecurityCouncil resolution of 21 February, 1992setting up UNPROFOR said that the force was‘to create the conditions of peace andsecurity required for the negotiation of an overallsettlement of the Yugoslav crisis.’235 Bycontrast, the mission of UNPROFOR inBosnia has been from the outset in July 1992narrowly humanitarian, “to ensure the security and functioning ofSarajevo airport and thedelivery of humanitarian assistance.”2Safe havens were created in Bosnia to protectMuslim enclaves similar to the Kurdish crisisalthough they were called UN ProtectedAreas (UNPA’s.)237This was presumably adiplomatic manoeuvre to allay fears thatthe sovereignty of Croatia was under threat.238By Christmas 1992 the UN and the InternationalCommittee of the Red Cross (ICRC) hadhelpedto deliversome $750mworth ofinternationalassistance to starving refugees. This wasfacilitated in large measure by the expandedmandate of UNPROFOR into Bosnia, adecision taken mainly for humanitarian reasonsand not to impose peace on the warringfactions. However, the widespread feeling is thatthe humanitarian operation is merely aSeegenerally, Embargo against Federal Republic ofYugoslavia tightened, The UN Chronicle, March1993 4-12 for a discussion ofthe variousresolutions. See also “Situation worsens as peace processcontinues”UN Chronicle June 1993 4-12UN Security Council Res 743, 21 feb 1992 oppara.5 see James Bone and Tim Judah, “UN Powersbraced to send peace troops to Croatia The Times(London) February 14, 1992UN Security Council Res 764, 13 July 1992See Josh Friedman, “UN Authorizes Use ofForce in Bosnia Havens” The LA Times June 5 1993;Edward Luce,”Agreement for UN to run Sarajevo” TheGuardian August 19th 1992See generally Marc Weller, “UN Security CouncilStumbles Over Safe Havens” The Times (London)April 21 1993 for an analysis of the legalpremise for establishing safe havens. Weller accusesthe UN oldouble standards by comparing the Iraqi precedent toBosnia. He concludes that when it came to rescuing theKurds the international community wasless concerned with blackletter law thanit is presently occupied within Bosnia at the expense of thecivilian population.73pretext for avoiding a more forceful militaryrole, on the grounds that the peacekeepersinvolved in humanitarian relief could becomeembroiled in the fighting.239Subsequent diplomatic talkshave achieved little success despite the valiant efforts of theinternational negotiators LordOwen and Cyrus Vance and the general pressure exerted onthe Bosnian Serbs by the internationalcommunity. At the time of writing, however, theinternational community has stepped upits action in Bosnia and has authorised the use ofair-strikes, carried out by NATObut under the legal authority of UN resolutions.24°Itremains to be seen just how successful this policywill be. Although tougher measures wereclearlywarranted against the Serbs,the fear is that bombing Serb positions will onlylead tothe UN becoming another party to theconflict and therefore compromise the UN’shumanitarian reliefefforts.24’ConceptualAppraisalThemoralargumentforhumanitarianinterventionin theformerYugoslavia is unambiguous.It has been stated that tolerating the doctrineof the “ethnically cleansed” state marks theend of civilisation.242War camps, murder, rapeand torture are obvious infringements ofhumanitarianlawwhereas the practice of“ethnic cleansing”specificallycontravenes the 1948Genocide Convention.243Moreover, the feelingin the international community that historySee Paul Koring “Safe Areas really Danger Zone for UN’ TheGlobe and Mail June 8 993240James Bone,” NATO agrees with the UN on joint control ofair strikes” The Times August 10th 1993241See “Playing with fire:Nato threats mean nothing to Bosnia’sSerbs” The Times August 26th 1993242George Soros, “Why Appeasement must nothave another chance” The Times August 2, 1993243Principles of international humanitarian law have been consistentlyviolated in the Bosnian conflict,leading one prominent member ofthe ICRC to conclude that“In this conflict international humanitarian lawis a dead letter. Unacceptable practicesare going on, including mass expulsions and the concentrationof74was repeating itself on ascale comparable to the holocaust contributed topressurize worldleaders into taking action.244As onejournalist succinctly put it “ Compassion, conscience.anger, passion itself are part ofthe equation...as our television screens showimages ofsuffering etched in the faces of innumerableanonymous people, so many of themchildren.”245The response oftheinternationalcommunity has been criticized for a variety ofreasons, notleast because of the “extraordinaryand disturbing fragmentation in the locus of decisionmaking.”246TheEC initially took a lead role inthe crisis, relegating the UN to its ColdWar function as a diplomatic talk-shop2471twas only when it became clear over timethatthe ECwas unable to achieveany substantive peace on the ground that the taskwas passedto the United Nations.Yet the costs of becoming involved inwhat amounts to essentially a quagmire havepeople in camps based on their ethnic origin.”Pierre-Andre Conod, Chief Delegate of theInternationalCommittee ofthe Red Cross (ICRC), see TimJudah “Shades of the great dictators darken the Balkans”TheTimes (London) Wednesday April 20th1993. Although a war crimes tribunal was established to dealwith actsofgenocide and violations ofhumanitarian law, its role has, to date, been largely ineffective.See James Bone.“Human Rights group presses for tribunal onBosnia war crimes” The Times August 131992. There washowever, an application for a declaratoryjudgementto theIJin 1992 on the issue ofgenocide as awar crimein the former Yugoslavia. See generallythe introductory remarks by Paul Sasz on the Genocide Case,31 ILM1992244See Hella Pick, “Exiling our Empathy” TheGuardian, November 18 1992 (proclaiming thatit isintolerable for such a situation to be allowed topersist in Europe, not all that far from our comfortablehomes). PaddyAshdown “Bosnia:Heroism betrayed”The Independent August 5 1993 (calling for internationalmilitary intervention to save Sarajevo)245Hella Pick, ibid.246Higgins, supra note 233 at 472 (Thefragmentation of decision-making on Yugoslavia has beenremarkable. Much of it represents not a consideredanalysis as to what things are best done by the UN andby regional agencies, but a reflectionof political considerations extraneous to theYugoslav problem) Id247See Higgins supra note 233 at 474for a discussion of the European initiative and therole of regionalarrangements generally. Higgins concludes thatthe Yugoslav experience is not adesirable model for futurehumanitarianinterventions.Id. SeealsoFareedZakaria, “Yugoslavia is Europe’s BusinessInternationalHeraldTribune, August 10, 199275prevented the international communitybecoming more heavily involved.248Although thiscan be partly explained by the inherent complexitiesof the conflict, the accusations ofdouble standards at the UN are vociferous.Can international law be so senseless, that itpermits a limited humanitarian interventionto rescue Kurdish refugees, yet can be invokedto prevent humanitarian intervention inBosnia? The argument that the Kurdish crisiswasto some extent a man-made disasterwhich the international community could notwash itshands of is also applicable in theformer Yugoslavia.249As one BBC Journalist poignantlysaid. “To intervene will cost lives; not tointervene will cost more. It is fundamentally aquestion of whetherwe care.”25°The legal position is also unsatisfactory. Althoughthegrounds for UNjurisdiction in the conflictwill be explored in greater detail in Part II, sufficeto say at this juncture that rather thanrepresent a renewed right of humanitarianintervention, the Bosnian crisishas served merely to reaffirm the inviolabilityof statesovereignty in the face of human rightsviolations on a scale the world has not witnessedsince World War II. Despite overwhelmingevidence of mass human rights violations theinternational community has insteadsought to uphold the outdated principles of nonintervention and sovereignty.248 SeePartThree ofthis thesis for a discussion ofthe militaryoperation and Michael Dewar, “Interventionin Bosnia-The Case Against” The World Today, 1992,32, for the view that when people are determinedtofight each other, there is precious little we can do aboutit.” Id. At the time of writing however, thereisrenewed pressureon theSerbs as NATOairstrikescontinue to bombard Serb positions, amove which arguablyhas interfered with the humanitarian operation.249See Norman Stone, “West reaps a bitter harvestby ignoring the seeds of history” The Times June 8th,1992°Martin Bell, BBC News February 8. 199376(iii) Somalia- Operation Restore HopeThe crisis in Somalia represents a clearcase in which a humanitarian relief effort ledinexorablyto a majormilitary action. TheUNauthorized, US-led action in Somalia is widelyperceived among legal scholars as a classic case of humanitarianintervention. Manycommentators believe the Somalia case is apowerful example for intervention where thethreat is to an existing humanitarian presence.The consequences of Somalia’s descentinto anarchy were described in early 1992 as “thegreatest humanitarian emergency in theworld.”251lnitially,the international community wasreluctant to intervene in Somalia, provoking bittercriticism from the UN Secretary Generalthat a double standardwas being appliedby Security Council members more concerned with“the rich man’s war” in the former Yugoslavia.252InJanuary 1991, the rebels of theHawiye clan’sUnitedSomali Congressclosed in onMogadishu, forcing GeneralMohammedto Nigeriawhere he received political asylum.Armed factions took over the country and asa twoyear drought worsened, armed men began to prey oncivilians for sustenance and loot.Heightened media coverage and an emotional plea from theUS ambassador in Kenya finallybrought Somalia to the attention of the internationalcommunity. By this late stage in thecrisis, thousands ofcivilians haddied ofstarvation andcountless more remained in imminentperil.253An estimated 300,000 people diedfrom the effects of drought and the‘ Statement by Andrew Natsios, Assistant Administrator for Food and F-lunger, USAgency lorInternational Development, before the House Select Committee on Hunger,January 30th, 1992252 See TrevorRowe, “Aid to SomaliaStymied” The WashingtonPost,July 29th, 1992; Jane Perlez, “SomaliaSelf-Destructs and the World Looks On” The New York Times,December 29th, 1991See Keith Richburg, ‘In Africa, Lost Lives, Lost Dollars: Incompetence,Negligence, MaladministrationAmong UN Woes” The Washington Post, September 21, 199277accompanying political chaos, and one millionSomalis fled to neighbouring countries. Forall practical and legal purposes the state ofSomalia had collapsed into anarchy.254The Security Council’s involvement in Somalia,was marked by the passing in 1992 of sixresolutions, all of which placed great emphasison humanitarian considerations.’5InApril,it resolved to establish a peacekeeping force,the UN operation in Somalia (UNOSOM),with humanitarian aid as one of its principal concerns.The lengthy delays in getting itoperational however, created thesense that the UN was not well-equipped to run such anoperation.256The stationing of a major, but largely ineffectiveinternational humanitarian operation inSomalia led to a deeper military involvement. Internationalrelief workers had themselvesbecome part of the problem and wereforced to pay ransom to gunmen in order that theycould carry out their tasks.257The UN SecretaryGeneral in various letters to the SecurityCouncil President in November, 1992 referred “...tothe extortion, blackmail and robbery towhich the international relief effort is subjected and to repeatedattacks on the personnelSee generally, Edward R.F.Sheehan, “In the Heart of Somalia’ TheNew York Review of Books, VolXL No’s 1 & 2, January 14, 1993 for an insight into theimpact of the war on Somali people and society.The firstwas Security Council Res 733, 23 Jan 1992 whichcalled for a ceasefire and weapons embargo,and among its numerous references to humanitarian issuesit requested ‘...the Secretary-General immediatelyto undertake the necessary actions to increase humanitarianassistance of the United Nations and itsspecialized agencies to the affected population in all partsof Somalia in liaison with the other internationalhumanitarian organizations and to this end to appoint acoordinator to oversee the effective delivery of thisassistance.6SeeJane Perlez, “Deaths in Somalia Outpace Delivery ofFood, New York Times The New York TimesJuly 19, 1992, at Al; Jeffrey Bartholet, “The Road to Hell” NewsweekSeptember 21, 1992, at 52. The UnitedNations belatedly began to send in troops to protect the reliefsupplies reaching SomaliaJd at 53Ibid. Looting by armed gunmen, of previous supplies destinedfor those in need prevented properdistribution.78and equipment of the UN and other reliefagencies.258 As the former US PresidentGeorge Bush stated a few days later,”...reliefgroups called for outside troops to providesecurity so they could feed people.”259Accordingly, the UN Security Councilauthorized military intervention on December 3 byunanimously adopting Security Council Resolution794, which authorized member states touse “all necessary means toestablish as soon as possible a secure environment forhumanitarian relief operations in Somalia.” UNSecurity Council Resolution 794 was thefirst UN resolution to authorizeexplicitly a massive military intervention by member stateswithin a country without any invitation from thegovernment. The concept of a threat tointernational peace and security is referred toin the resolution yet by contrast the term“humanitarian” occurs 18 times.ConceptualAppraisalAlthough the military interventionmarked a significant step forward for the formulation ofa new doctrine of humanitarian intervention, it tookplace in a country whose sovereigntywas already questionable due to the absence of anyviable government. 2600ne observerpointed out “[s]uch pushing and shovingwas used, not for the first time, to make theawkward facts of a crisis fit the procrusteanbed of the UN Charter. While this was notspecious, it in no way concealed the centrality ofthehumanitarian rationale for the Somalia258See generally UN Secretary General Boutros Boutros Ghali’ssix page letter of29 November, 1992p1President Bush, “Humanitarian mission to Somalia,” Addressto the Nation, Washington D.C. 4thDecember, 1992 US State Department Dispatch, 3:49, 7 December1992p865°Article 1 of the Montevideo Conventionstipulates that the requirements for statehood are a viablegovernment, a permanent population, adefined territory and the capacity to enter into relations withotherstates. Convention on the Rights and Duties ofStates. UNTS Num 881 26 December 193379operation.”1Yet, at the same time, the wholeoperation in Somalia demonstrates America’s dominancein world affairs. The spectacleofUS marines landing in Mogadishu, was unashamedly hypedby the media in the West,to the extent that it obscured the abject failure of theinternational response to the crisisprior to December,1992.262Moreover, from a legalstandpoint, although“OperationRestore Hope” is likely tobe viewedat least, as a successful demonstration of theAmerican commitment to humanitarianprinciples “[it] exposes the acute dangers inherentin the collective failure to restructureinternational humanitarian assistance policiesand multilateral relief and politicalorganizations to meet the realities of the post-ColdWar world.”263Thus, the military intervention in Somalia,while it undoubtedly saved countless lives, maynot be regarded as a precedent likely to be repeated infuture incidents. The UN wasrelegated to a backstage role while US politiciansand marines orchestrated the entiremultinational operation. The operation is unlikely to beseen as a vindication ofhumanitarian principles over concerns for sovereignty. The stateof Somalia had dissolvedinto anarchy and, for all practical purposes,had no ruling government in command. TheSomalian conflict does not therefore constitutean authoritative precedent.261Adam Roberts, supra note 9 at 440262See Simon Jenkins, “Blackman’s Burden” The Times(London) June 14th, 1993 commentating on howthe intervention made good television in the West.)°Jeffrey Clark, “Debacle in Somalia” ForeignAffairs, Summer 199380Conclusions on recent humanitarian interventionsIs it possible to conclude from the above considerationsthat there is a new consensus on acontemporary doctrine of humanitarian intervention ?Or, are these interventions merelyanother example of realpolitik ?Some might askwhy the internationalcommunity under the auspices ofthe United Nationswaswilling tointervenein Somalia,yetwas reluctanttobecomemore involved in the formerYugoslavia. The common illusion in politicalcircles is that Somalia was the doable war264whereas Bosnia raised more complex issuesof “nationalism’ and “ethnicity”.265 It hasproved far easier to justify sending aid torelieve victims of famine in Somalia as opposedto dealing with a war of ancient ethnic andnationalist issues in Bosnia. Then, of course,there is the confusing religious melange in theBalkan war.266 The UN’s reluctance toadopt amore forcefulintervention in the former Yugoslaviais largely attributable to the rolethat religion has played in the conflict, whereas in Somaliarelieving famine would appearto be the guiding principle. Moreover, there islittle doubt that the issue of self-determination in international law has had a significantimpact on the way the internationalcommunityhas perceived the crisis in the former Yugoslavia.The right to self-determinationhas beenwell-documented in internationallaw, yet has always been a hotspot ofcontroversy,2/’lSee Geoffrey York, “Why the US really caresabout saving Somalia” The Globe and Mail, January 27,1993 (citingreasonssuch as oil reserves, militaryinstalments, Islamicfundamentalism and geopolitical locationto explain the response for US intervention in Somalia)Note that even the language employed in thetwo conflicts reveals the different approaches takenregarding the humanitarian dimension. The warring factionsin Somalia are referred to as “clans” and theconflict has been described as “tribalism”, connoting acertain primitive nature to the whole situation whereas“ethnicity” and “nationalism” are used in theYugoslav conflict, words that have more relevance inWesternparlance.See Norman Stone supra note 227.81particularly when it arises inthe context of a humanitarian intervention.267 Self-determination, however, raises issuesthatfall outside the parameters ofthis briefdiscussion.Suffice to say, the international community’sdesire to prevent the secession of the FederalRepublic of Yugoslavia andpreserve the territorial integrity and sovereignty ofYugoslaviatriggered a tinderbox of fundamentalismand national fever.268 For this reason alone,neither the UN nor the big powers can washtheir hands of the subsequent war.269A military strategist might argue thatthe reluctance to conduct a more proactive“humanitarian intervention” in the Balkansis due, in large measure, to the logistics involved.Certainly, the mountainous terrain of the formerYugoslav republic is not conducive to alarge-scale invasion as was the case in theGulf crisis in 1991. Moreover, there is noidentifiable enemy in the Yugoslav conflict. Despitethe intense clan fighting in Somalia. thehumanitarian mission there has proved easier dueto the lack of effective government andthe superior warfare of the US-command.27°With the exception of a few incidents, thehumanitarian interventionin Somalia hasproved relatively straightforward compared to the267See eg. General Assembly 1514 (XV), 14 December 1960.para 6 Any attempt aimed at the partial ortotal disruption of the national unity and the territorialintegrity of a country is incompatible withthepurposes and principles of the Charter ofthe UN.” See also Western Sahara Case, ID Rep1975p12.Forconfirmation of the right ofself-determination by the InternationalCourt.(per Judge Dillard sep opinion)268See “Baker Backing For United Yugoslavia”The Financial Times (London) June 22/23, 1991, p2; seealso “Yugoslavia Breaks Apart, 2 Rebel RepublicsSecede” International Herald Tribune, June 26, 1991,p1.269Some theorists posit a different stance andargue that the West is not responsible for the humanitariancrisis. See Dr.N.J.Wheeler “Humanitarian Intervention”Millennium, Vol 21, No 3 (Winter 1992,p484)270Some commentators would disagree with theoptimistic conclusions of the US Administration.For anoverview ofthe crisis and US policy see egJonathan Stevenson,“Hope Restored in Somalia ?‘ Foreign Policy,Summer 1993 138-154 Stevenson is critical ofthe precedent set by Operation Restore Hopeand does notbelieve it is a viable model for future humanitarianinterventions.82potential quagmire inBosnia.271Humanitarian intervention, as hasbeen undertaken in the past, whetherjustified assuch ornot, has traditionally been afocused mission with a definite objective. Theintervention inNorthern Iraq, in 1991 for example,was against the oppressive regime ofSaddamHussein,and was of limited duration with aclearly defined strategy to provide humanitarian aid tothe Kurds. In the former Yugoslavia, althoughthere is little doubt that mass human rightsviolations are being systematicallyperpetrated in the conflict on all three sides, itis still notclear on whose side greater military interventionwould be mounted. The Serbs have,however, been singled out as the mainaggressors by the international community withNATO airstrikes being carried outover Serb positions in Bosnia.From a strict legal perspective the above discussionhas suggested so far that the traditionalnarrow circumscription of the doctrine ofhumanitarian intervention is no longer tenablegiven the changing political and legalclimate. Yet, at the same time, it may be concludedfrom these briefcase studies thatthere is still no general consensus concerningthe doctrineofhumanitarianintervention, but only an emerging,limited and fragilebody ofstate and UNpractice. More often than not, realpolitikwould appear to dominate Security Councildebatethan the application ofstrictlegal norms.There is, however, evidence that a law of universalhuman rights is gradually emergingand has reached a rudimentary stage of enforcementonthe international plane under the guise ofhumanitarian intervention, albeit a limited model.271See Patrick Glynn, “The DoableWar” The New Republic, August 16th, 1993 15. At thetime of theintervention senior US officials were quoted fortheir remarks on the Bush Administrations’ doctrine ofintervention. Cohn Powell, the ChiefofStaffChairman, stated that the ‘operation was simply a matter ofthecavalry coming to the rescue, straightening thingsout for a while and then letting the marshalscome back into keep things under control. Id at 1683More importantly, the unilateral use of military force toenforce human rights or preventinhumane activities would appear to have little support incontemporary practice, outsidethe scope of the United Nations framework. The UN SecurityCouncil has tentativelyemerged as a key instrument of utility for providing a legalframework for decisions tointervene. Whether the resurgence of the UnitedNations has been the result of the post-Cold War climate or, less optimistically, that theorganization offers a cloak oflegitimacy forotherwise abusive unilateral interventions, is notclear. Nonetheless, collectivehumanitarianism would appear to be the hallmark of presentand future interventions.Traditionalnotions ofabsolute sovereignty and non-intervention arealso disintegrating witha new tentative doctrine emerging where theprotection of human rights takes precedence.There is accordingly less emphasis on the inviolabilityof states, with the possible exceptionofthe intervention in the former Yugoslavia. Forhuman rights to transcend the dictates ofsovereignty, there must be a clear legal justification for theUN to intervene.Humanitarianism cannot be invoked as a pretextfor self-served intrusions. It is to thisconcern that this thesis now turns.84Part Two. THE BASIS OF UN JURISDICTION IN ACIVIL CONFLICT.Older distinctionsbetween internal and internationalwars seem to be meltingawaybecause ofthe direct or indirect involvementofother nations in internalconflicts. Just as human rights are now no longer a purelyinternal affair, itmaybe that internalwars must become a matterofconcern to the communityof nations because they so frequentlyaffect the possibilities of organizing adurable peace.Dean Rusk, former Secretary of State 1961-1969Part I of this thesis has sought to emphasize the changingnorms of humanitarianintervention. One ofthe more important conclusionsto be drawn from the discussion so faris the emergence of the United Nations as the main forum for dealingwith humanitariancrises. It follows that as the number of requests for interventionproliferates, the UnitedNations must also establish a concise normativeframework dictating at what point it shouldintervene and on the basis of a distinct legal rationale. While thedoctrine of humanitarianintervention itself evolves, the international community ispresented with a uniqueopportunity to formulate a coherent normative structure forconducting humanitarianoperations.Although humanitarian interventions are oftenmotivated by considerations of political selfinterest, UN members often attempt to justifytheir actions in terms of generally acceptedjuridical conceptions and precedents compatiblewith these conceptions. This section willtherefore examine some of these conceptions withina contemporary context.The authority of the United Nations to conduct a humanitarianintervention is traditionally85subsumed under three jurisdictionalbases.’(i) First, the UN Security Councilhas tended to characterise the events within a state as athreat to international peace andsecurityunderArticle 39 ofthe UN Charterand has takenjurisdiction under Chapter VII.(ii) Second, the UN has relied on the explicit or implicitconsent of only one or some of thewarring factions.(iii) Finally, the UN has tried to settle disputesthrough regional organizations under theprovisions of Chapter VIII.More recently, the UN has sought to avoid the prohibition in Article 2(7)on interventionin cases calling for “humanitarian assistance.” The SecurityCouncil has taken jurisdiction inthese situations by determining that the humanitariancrisis does not fall “essentially withinthe domestic jurisdiction of a state” because it“shocks the conscience” of the internationalcommunity. Due to the significance of this juridicaldevelopment this section will focus onthe expansion of the threat to the peace conceptto encompass humanitarian concerns andthe development of “human suffering” as a newground for UN competence, while onlybriefly touching upon the issue of consent and therole of regional organizations.Of all the rationales just mentioned, the finallegal basis for UN authority is not only the1It is important to note that in this context only forcefulinterventions are considered and thus, thejurisdictional bases for UN intervention in an internal crisiscorresponds to this. Accordingly, only measuresunder Chapter VII and VIII of the UN Charter are considered.There are other measures the UN can takewhich essentially amount to intervention. For instance,under Article 34 of Chapter VI, the Security Council“may investigate anydisputes oranysituationwhich might leadto international friction “to determinewhetherinternational peace and security is likely to be endangered.If it is, the Security Council can “recommendappropriate procedures or methods ofadjustment” as providedin fact-finding in the early stages ofa conflict.TheSecurity Council may be able to mobilize internationalpressure on theparties to exercise moderationandseek negotiated solutions. The role of the SecretaryGeneral and the General Assembly are also importantwhen considering the jurisdiction of theUnited Nations in an internal conflict. See infra note 4.86most controversial in political circles, it also posesparticular conceptual problems for thelegal analyst. This premise turns on thephrase “matters which are essentially within thedomesticjurisdiction ofany state,” in Article 2(7)ofthe UN Charter. This seemingly simplephrase creates numerous interpretational and conceptualdifficulties, too many to mentionin this context.2Asone commentator hasobserved “[T]he Charter concentrates on theproblem ofinternational war, ignoring theissues of civil war except in cases where domesticstrife appears likely to develop significantinternational ramifications.”3For instance, the difficulty in establishing UN competencein a humanitarian crisis does notlie in Article 2(7) ofthe UN Charterwhich prohibitsany intervention by the UnitedNations“in matters which are essentially withinthe domestic jurisdiction of any state” as it is clearfrom state practice that violations of humanrights no longer fall within the purview ofdomestic jurisdiction. The difficulty rather, lies in thefact that the UN Charter does notauthorize the international community touse force against a sovereign state unless there isa “threat to the peace, a breach of the peace, or anact of aggression” under Article 39. Afurther complication arises in that if any of these threegrounds is shown to exist, recourseto the doctrine of humanitarianintervention is not necessary to establish UN jurisdiction.Since the demise of the bipolar years the UN SecurityCouncil has emerged as a key figureFor a more detailed discussion see generally Louis B.Sohn,Cases on United Nations Law (UniversityCasebook Series) 1967; Linda B. Miller, World Disorder andLocal Disorder, The UN and Internal Conflicts(Princeton University Press) (1967) The Status of DomesticJurisdiction, Proceedings of the 4th SummerConference on International Law, Cornell Law School June18-20, 1962; James N. Rosneau InternationalAspects ofInternal Strife, (Princeton University Press)1964; R.Falk (eds) Legal Order in a Violent World,Princeton University Press (1968) R.Falk andS.Mendlovitz (eds) The Strategy Of World Order Vol 3 UnitedNations, (1966)mis Claude, “The UnitedNations and the use offorce,’ InternationalConciliation No.532 (March, 1961)p32687for providing a legal safeguard to decisionscharacterized as a ‘threat to internationalpeace.”4Many specific concerns have been cited aspossible justifications for intervention,includingthe starvation ofcivilians andthe protection ofaid workers. Nevertheless, in recentinterventions in Somalia and Bosnia the basic legal justificationof international militaryintervention would appear to remain the concept of a “threatto the peace” under Article39 of the UN Charter. The difficulty perceived by this approach is that it sets aprecedentin international law and gives the UN Security Council awide ambit in determining whichsituations constitute a threat to international peace and security despitethe lack ofdiscernable international effects. In the case of the Kurds, the cross-borderconsequenceswere considerable, yet in Somalia, the UN Security Council determined therewas a threatto international peace under Chapter VII despite the absence of asignificant impact on4Although the past and more recent practice of the UN suggests that iiis the Security Council thaishoulders primary responsibility for international disputesinvolving human rights deprivations, the GeneralAssemblyalsoretains authorityunderthe UnitingforPeace Resolution to exercise the plenarycoercive powersof the Security Council under Chapter VII ofthe Charter should the Security Council beunable or unwillingto act. Any decisions taken by the General Assembly in this capacity will be binding upon allmember statesandnon-members,insofaras the“maintenance ofinternational peaceandsecurityis concerned,” under Articles25 and 2(6) of the Charter. Professor Reisman for example, citesArticle 13 of the Charter as a legitimateground for a humanitarian interventionwhere the General Assemblywould be empoweredto “initiate studiesand make recommendations for thepurpose of...assisting in the realization ofhuman rightsand fundamentalfreedoms for allwithout distinction as to race, sex, language or religion.” He alsocites the broad human rightsjurisdiction of the UN as set out in the Preamble and Articles 1, 55 and56 of the Charter, which are whollygeneral and not attached to any one UN organ. A further ground, but a more dubiousground forhumanitarian intervention by the General Assembly is derived frominternational law. Reisman believes thaias a general principle of law, activities which an entity may perform byitself, it may perform in collaborationwithothers. SeeMichaelReisman,HumanitarianInterventiontoProtect theIbos, in Humanitarian Interventionand the United Nations, R.Lillich, ed (1971)Furthermore, the role of the UN Secretary General in a humanitarian interventionshould not be underestimated. The Secretary General is authorized under the UN Charter to performan initiating and promotiverole for humanitarian intervention in cases where he believes international actionis warranted. Under Article99ofthe Charter,” [tjhe SecretaryGeneral maybring to the attention of theSecurity Council any matter whichin his opinion may threaten the maintenance of international peaceand security.” It was, for example, theforceful leadership of Dr Boutros Boutros Ghali that brought theSomalian crisis to the attention of the UNSecurity Council. Unfortunately, consideration ofthese importantorgans ofthe United Nations is not possiblewithin the scope of this paper.88Somalia’s immediate neighbours. Massive human rightsviolations which are not deemed toconstitute such a threat are not considered a groundforjurisdiction. Moreover, the questionof state consent for the interposition of aninternational force has become more nuancedand variable in recent times, than in manyof the earlier applications of the doctrine. In hisAgenda for Peace Report, the Secretary Generalwent as far as to suggest that consent bythe host state may not be an invariable requirement ofpeacekeeping operations. All of theabove concerns will be dealt with in this section.Humanitarian crises as a threat to the peace under ChapterVIIForciblehumanitarianinterventionmaybeauthorizedunderthe collectivesecurityprovisionsof the UN Charter when the Security Council determines thata humanitarian crisisconstitutes a threat to international peace and security.5Gross human rights violationsoften precipitate transnational effectsand, as such, may constitute a threat to internationalpeace. The recent practice of the UN Security Council clearly supports thecontention thategregious human rights deprivations may constitute a threat to peace and thus mayactivateChapter VII enforcement measures.6As the Turkish delegate stated in Security Council debate duringthe Kurdish crisis “[T]hereis no way in which what is going on in Northern Iraqcan bejustified as an internal affair ofthat country. Given the scale ofthe human tragedy and its internal implications,this CouncilArticle 39, Chapter VII, UN Charter. In the case of the General Assembly, the authorityto authorizemilitary action to enforce human rights could be based on thepower under Articles 1O--14 of the Charter tomake recommendations to the organization or to member states.6See Reisman, “Humanitarian Intervention to Protect the Ibos,” in HumanitarianIntervention and theUnited Nations, 167, 187-191 (R.Lillich ed. 1973)89cannot allow itself to be relegated to therole of a mere spectator.’7Most major-post-war instances of genocidalviolations of human rights have, however, metwith inaction, for reasons ranging from “securityinterests” to simple lack ofinterest. Unlessegregious human rights violations arepresented in a way that will shock the public intoaction, political and economic interests will alwaystake precedence. During the Cold Waryears the UN rarelyauthorized any enforcementmeasures, despite many instances in whichseriousviolations ofhuman rights were closelylinked to breaches ofinternational peace andsecurity. The two precedents most relevant tothe present issue are the Security Council’sresolutionsrelating toSouthern Rhodesia and SouthAfrica, which in both instances includeda determination by the Council that international peaceand security were threatened as thepredicate for the decisions to impose bindingeconomic sanctions under the Council’senforcement authority.8Although the United Nations as anorganization did not attemptto put together a military force to act in thesetwo situations, nonetheless, the SecurityCouncil determined that the crises constituted threatsto the peace, thus paving the way forthe application ofcoercive measures, which couldlegitimately have included forcible action.In the case of Rhodesia, for example, theresolutions called upon the United Kingdom toquellthe rebellion ofthe racistminority regime, usingall “appropriate measureswhich wou]d7UN Security Council debate, Resolution 688 1992For Southern Rhodesia, see S/C Res/216 and 217/1965, SC Res/232/1966,SC Res/253/1968 ConcerningSouth Africa, see SC Res 181/1963 and SC Res 282/1970.See generally M.McDougal and M.Reisman“Rhodesia and the UN- Lawfulness of International Concern”62 American Journal of International Law(1969) 1.9(1prove effective.”9 Indeed, several casesthat are cited as instances of “humanitarianintervention” would likely have qualified as athreat or breach of the peace sufficient towarrant the involvement of the UN. TheSecurity Council might for example, have becomeinvolved in the humanitarian crisis in Uganda in the1970’s, which was surely a situation thatthreatened international peace and security.The Security Council could have passedresolutionsaimed at preservingthepeacebysanctioningUganda forits endemiclawlessnessand also could have approved the action thatTanzaniatook unilaterally to remove Idi Aminfrom power.On the other hand, violations of human rights,even on a massive scale, do not necessarilyconstitute threats to peace and security. Thereare, for example, numerous instances wheremassive human suffering occurs within astate’s boundaries which does not pose animmediate threat to international peace and security.The General Assembly debates in late199110and the UN Security Council Summit inJanuary199211demonstrated the strongviews concerningthelimitationsofSecurityCouncil actionwithina sovereignstate. However,despite opposition to greater UN intervention,history demonstrates that mass violations ofhuman rights or natural disasters within acountry’s borders inevitably have an impact onregional or international affairs. The very notionof “security” has been expanding in recentSee SC Res/217/1965, at para 5. The language used in this resolutionwas similar to the “necessary meanslanguage of Res.678 concerning the Gulf crisis and maybe read as an authorization by the UN SecurityCouncil to use force to prevent human rights violations.‘°See General Assembly Resolution AiRes! 46/82, AnnexNo 3 (1991) (upholding territorial limits onintervention)‘See the UN Security Council Summit Opening Addressesby Members, January 31, 1992 (The Chineseand Indian speeches are particulary significant)91years to include ethnic and environmental problems.’2At the UN Security Council Summitin January 1992, the UN SecurityCouncil specifically stated that “non-military sources ofinstability in the economic, social,humanitarian and ecological fields have become threatsto international peace and security.”3Merely because a particular humanitariancrisis does not display any evidence of serioustransnational consequences at the outset shouldnot prevent the UN Security Council fromtaking swift action to deal with the situation,which may pose a threat after a period oftime.Situations will undoubtedly arise wherethe humanitarian crisis in itself is serious enough towarrant action even though international peacewould not appear to be threatened. Thereis a certain irony in that force is permittedto preserve international peace and security, yetis illegal when it is massive human rights violationsthat are involved. However. realpolitikdictates that forcible humanitarian interventions willmore likely be determined to he threatsto the peace when the country inquestion is geo-politically significant. Refugees from thesenation-states or oil-rich states are likely to receive attention, while poorernations lose outbecause their complaints are not seen as being athreat to international peace. The UNcould recognize that large-scale atrocities such aswe are witnessing in Bosnia and Rwandaare an affront to the international communityand constitutes an inherent threat to thepeace, even where that threat is not apparent. TheSecurity Council’s resolutions overSomalia illustrate this development. For example,Security Council Resolution 794 wasexplicitly adopted under Chapter VII.12Examples, include the radiation emissions from the nuclearplani explosion at Chernobyl, Ukraine in1986 and atmospheric pollution from the burning of Kuwaitioil wells in 1992.13UN Security Council Summit Declaration, UN Doc S/3046New York, 31 January 199292The Security Council...determining that themagnitude of the human tragedy causedby the conflict in Somalia, furtherexacerbated by the obstacles being created to thedistribution of humanitarian assistance, constitutesa threat to international peace andsecurity...Acting under Chapter VII of theCharter of the United Nations.uu14Thus, by categorising events within a state asa threat to international peace, Resolution 794essentially expanded the concept of what amountsto a threat to international peace andsecurity. While this in itself is a significantdevelopment, its precedential value must not beover-stated when one considers the anarchiccircumstances within which this formulationoccurred.151nrecent months there has been growingevidence from Security Councilmembers to attach certain restrictions to anypossible expansion of the “threat tointernational peace” concept as a basis for UNcompetence. The US for instance, whilebroadening the concept to include militaryaggression, natural disasters and serious humanrights violations, has also stipulated that US interestsbeinvolved.16The British governmenthas also questioned whether the conflicts in Somaliaand Bosnia pose real “threats” asopposed to “tragedies”.17In view of this fact alternative legal rationalesshould therefore be explored.14Security Council Resolution 794, December 3, 199215The preamble to the resolution itselfdrawsattention to the state ofaffairs in Somalia, ‘Recognizing theunique character of the present situation in Somaliaand mindful of its deteriorating, comp’exandextraordinary nature, requiring an immediate and exceptionalresponse..” ibid16See The New York Times January 1994 andgenerally Part III for a discussion of US policy towardsUnited Nations peacekeeping.‘See Paul Lewis “Reluctant Peacekeepers: ManyUN Members Reconsider Role in Conflicts”,The NewYork Times, December 12, 1993 at A2293Issue of ConsentOne significant emergingfeature ofthe new doctrineofhumanitarian intervention is its nonconsensual character. Generally, the traditionalconsensual approach is relatively noncontroversial and where a governmentconsents to international assistance or humanitarianintervention such an action would usually be considered to belegitimate. Sometimes anentity such as the International Committee ofthe Red Cross (“ICRC”) might work inconjunction with rebel powers which have control on the groundin order to obtain thenecessary consent ofthe warring factions.’8The ICRCdoes have its own “right of initiative”under the four Geneva Conventions of August 12,1949, to act in international armedconflicts and a narrower one in internal armedconflicts or other situations requiringhumanitarian action.’9Where a governmentsconsent is lacking however, the situationbecomesmore problematic. The crucial issueforinternational lawyers is whether the UnitedNations and concerned international agencies areauthorized under international law toprovide humanitarian assistance without the consent of thetarget state. This is anincreasingly difficult conceptual and practical problem in aworld characterized by civil warand ethnic strife. The question of consent is particularypressing in situations where thereis no national government, as in Somalia, or wherea government is embroiled in a civil war,18See“Somali Fighting Keeps AidFroma Suffering City,” TheNew York Times (late ed, December 11, 1991at A7, col.1;l Examples of the ICRC’s pragmatic approachwould be its work alongside the Afghanistan-Pakistan border in the 1980’s and more recently, Sudan andSomalia.19The 2 Protocols additional to the 1949 Geneva Conventionswhich were adopted on June 8, 1977explicitly recognize the right of the ICRC to intervene forhumanitarian reliefwork. See ProtocolAdditionalto the Geneva Conventions 12 August 1949 and Relatingto the Protection of Victims ofInternational ArmedConflictsProtocol]) June 8 1977, Article 81, 1125 UNTS 3;ProtocolAdditional to the Geneva Conventions 12August 1949, andRelatingto the Protection ofVictims ofNon-InternationalArmed Conflicts (Protocol II) June8 1977 Article 18, 1125 UNTS 60994such as the Sudan.2°Some commentatorsbelieve that intervention without invitations fromany government present the greatestchallenge to the sovereignty of a state andthus shouldonly be considered as a last resortwhen a humanitarian situation clearly threatensinternational peace and security,or there is evidence of mass starvation or genocide.2’Often an operation is undertakenwithout the consent of the host state for pragmaticreasons. In some instances for example, acredible government does not exist or has ceasedto be viable and thus the questionofconsent is irrelevant.22This was precisely the situationencountered in Somalia.The Somalia affair is believed by many tobe the first case where the requirement forconsentwas overridden by humanitarianconcerns. However, closer analysis reveals thatthelegal basis for the UN interventionwould not appear to be a classic case of humanitarianintervention against the will of the government,but rather of intervention where there is asignificant absence of a viable government,thus throwing the country’s sovereignty into20Various theories have been expounded to explainthe requirement ofconsent or lack thereofas the casemay be. Oneapt analogy for the use offorcewithout the consent ofthe sovereign may be drawn from classicalproperty law. In Anglo-American commonlaw, commentators have often made reference to a landowners’absolute right to exclude physical intrusions. Yet,trespass has been permitted for reasons ofboth publicandprivate necessity, such as avoiding imminentdisaster or serious harm to another person. Thus, it is assertedthat concepts of sovereignty, often invoked inabsolutist terms, should be considered qualified in a similarmanner by instances ofvital humanitarian necessity.21See eg. Mary Ellen O’Connell “ContinuingLimits on UN Intervention in Civil War” 67 IndianaLawJournal 903-04 (1992) (arguing that “the UN hasnot abandoned the Charter prohibition on interventionincivil war” in order to preserve self-determinationand not exacerbate civil conflict). ThomasWeiss and JaratChopra, United Nations Peacekeeping: An ACUNSTeaching Text 31 (The Academic Council onthe UnitedNations System, 1992-91) (“For traditionalists, norequirement ofpeacekeeping is clearer than theconsent ofparties in conflict”) [hereinafterACUNS]22ACUNS Ibid at 36 (noting that “[a]s fracturedinternal conflicts grow and parties proliferate, strictadherence to the requirement of the consentof the parties in conflict to peacekeeping forcesappears lesslikely”)95doubt. Security Council members such as Ecuador concluded that, “Somalia isa countrywithout a government, without any responsible authority, without anyvalid nationalprinciples.”23TheSecretary-Generalhimselfcategorizedthe intervention in the “legally safecontext of a response to a threat to the peace.At present no government exists in Somalia that could request andallow suchuse offorce. It would therefore be necessary for the Security Council tomakea determination under Article 39 of the Charter that a threat to the peaceexists, as a result of the repercussions of the Somali conflict on the entireregion, and to decidewhatmeasures shouldbe taken to maintaininternationalpeace and security.24Despite attemptstonegotiate consentfromthewarring factions, theUNreluctantlydecidedto intervene in Somalia without the explicit consent of the hostgovernment.25Accordingly,the UN Security Council authorised Resolution 814 which specifically invoked ChapterVIImeasures with no reference to the requirement ofconsent.26Aithough the UN SecurityCouncil justified its actions by referring to the “general absence of the rule oflaw inSomalia,”27the overall conclusion ofthe Council was that consentwas not obtainable wheretherewas no government. Thus, due to the unique circumstances in Somalia, itsprecedentialsignificance is dubious. This is particulary so, when one considers the subsequentevents inHaiti, which, though outside the parameters of this brief analysis, clearly illustratethe UN’spreference for obtaining consent from the official government even where thegovernmentUN Doc.S/PV 3145 (1992) at 1324Ibid, p3UN DocS/24868 at 3 (By the end ofNovember 1992, the SecretaryGeneral concluded that the SecurityCouncil now has no alternative but to decide to adopt more forcefulmeasures) Id26UN Doc S/Res/814 (1993)27UN Doc, ibid96is essentially in exile.However, on 17 December, 1991 the UN GeneralAssembly passed a resolution to enhancethe effectiveness of the United Nationsto deal with humanitarian crises where access isdenied. The resolution was intended to dealwith two major problems:(1) coordinating international humanitarianassistance in emergencies and(2) pressuring governments to permitaid to people in need during civil wars andother internal conflicts.”29An emergency reliefcoordinator was established with a wide range of powers aimedatcoordinating the UN’s response to humanitarianemergencies.While the resolution affirms sovereignty and ensures the requirementofconsent is obtainedbefore intervention takes place, it is couched insufficiently vague language to avoid theconsensual requirement, thereby openingthe door to non-consensual humanitarianinterventions.30Thus, although the GeneralAssembly did not explicitly endorse the ideaofnon-consensual humanitarian intervention,which emphasizes the determination of manycountries to retain their right of consent to aUN humanitarian intervention, it is highlysignificant that the resolution states that the consent ofthe affected country “should beprovided” rather than “mustbeprovided”. This ambiguous phrase leaves open the possibilitythat in exceptional circumstances intervention may occur inthe absence ofconsent. In otheruSee generally, Crisis in Haiti: Seeking a PoliticalSolution, 1 (UNDPI, August 1993)29UN General Assembly A/Res/46-182 17December 199130”Sovereignty, territorial integrity and national unity ofstate must be fully respected in accordancewiththe Charter of the United Nations. In this context, humanitarianassistance should be provided with theconsent of the affected country and in principle onthe basis of an appeal by the affected country. Ibid.97words, it is inferred that the United Nationsshould seek consent from the targeted countrybut it may still intervene where it fails to obtainconsent; this is particulary so where thereis no explicit objection to the humanitarianassistance. It would not appear a coincidencethatthelanguage is imprecise. Accordingly,this important resolution strikes a subtle balancebetween state sovereignty and international humanitarianrelief efforts, leaving the UNconsiderable scope to decide whether a situationrequires humanitarian assistance even ifthe targeted state decides otherwise. As PaulLewis wrote in the New York Times, theGeneral Assembly resolution “marks another small but significantstep toward establishinga right of humanitarian intervention in internationallaw that would empower relieforganizations to assist the afflictedwherever they are.”3’Nevertheless, although this resolution representsa step towards more intrusive UNintervention, there remains a substantial bodyofopposition in the developing world againstthe trend towards non-consensual humanitarian intervention.Despite the Somalian conflict,as yet there has not been a solid endorsementofnon-consensual humanitarian intervention.Indeed, more recent UN practice in Haiti indicates thatthe requirement of consent fromthe target state, whether itbe obtained from the government inexile, or the warringfactionsin control, is likely to remain a prominentfeature of UN humanitarian interventions in thefuture. Ironically, the crises in Somalia and Haitihave also demonstrated the difficulty ofretrieving consent from states embroiled in civilwar. For this reason alone, the internationalcommunitymustseek alternativemethods ofestablishingUNjurisdictionin an internal crisis.31Paul Lewis, ‘UN to Centralize its Relief Efforts,The New York Times, December 18, 1991 al A19 Col1.98Regional DevelopmentsIt is not only developments on acollective UN basis that have attracted profound interestbut also those at a regionallevel.32OftentheUN will authorize a regional organization toresolve a dispute either becausethe regional body is more suited to dealing with thepeculiarities of the dispute or that the UNsimply does not have the resources or thepolitical will to deal with the crisis.33Regionalactions may be able to achieve the objectivesof humanitarian interventions withless risk of escalation and a greater tolerablility to theinternational community than under the umbrella ofthe UN, which more often than not isdominated by the great powers.Significantly, the latest crisis in Rwanda hasresuscitated the debate concerning the role ofregional organizations. The OAU is seekingto take a lead in resolving the conflict inRwanda.34Although this is largely in responseto the reluctance of the big powers tobecome involved in yet another resource drainingand complex ethnic conflict, Kofi Annan,32Secretary General Boutros Boutros Ghali recently indicatedhis desire to rely more on regionalorganizations for resolving humanitarian crises. See An AgendaFor Peace, UN Document A147/277-S/24111(1992) at 18-19 “[Ijn this eraofopportunity, regionalarrangementsoragencies canrender greatservice...Todaya new sense exists that they have contributions to make.”Id at 18. For an indepth study of the competenceof regional organizations to deal with conflicts See Moore,“The Role of Regional Arrangements in theMaintenanceofWorld Order,” in 3 TheFutureoftheInternationalLegalOrder 122, 143-150 (R.Falk & C.Blackeds. 1971) and more specifically Tiewul, “RelationsBetween the United Nations Organization and theOrganization of African Unity in the Settlement of SecessionistConflicts,” 16 Harvard International LawJournal 259, 286-302 passim (1975)UN Charter, article 53, (1) “The SecurityCouncil shall, where appropriate, utilize such regionalarrangementsoragencies for enforcementaction underits authority.But no enforcement action shall be takenunder regional arrangements or by regional agencies withoutthe authorization of the Security Council...” Id.In theareaofpacificsettlementofdisputes, participantsin regionalarrangements are instructed to appeal firstto their regional organizations. Members ‘entering into[regional] arrangements shall make every efforttoachieve pacific settlement of local disputes through regionalarrangements before referring them to theSecurity Council. UN Charter article 52,(2)Kofi Annan, BBC World Service News,CBC Network, May 2nd, 1994 730pm99the Under-Secretary General for PeacekeepingAffairs has warned that the OAU may notbe up to thejob.35In the crisis in Liberia however, the UNhas taken a backseat role, delegating jurisdictionto the regional organization comprising theEconomic Community of West African Statesknown as ECOWAS.36Nigeriaand its African neighbours have spent an estimated halfbillion dollars on the Liberian operation,which is one ofthe largest peacekeeping efforts inthe world and the only major one not runby the United Nations.37The legality oftheECOWAS intervention has, however, beencriticized for failing to comply with therequirements of Chapter VII of the UNCharter.38Article53 for instance, clearly states that‘no enforcement action shall be taken underregional arrangements or by regional agencieswithoutthe authorization oftheSecurityCounciL” ECOWAS however, created a five-nationforce (ECOMOG) and on August 26th,1990 over 4,000 soldiers arrived in Monrovia.Although the Security Councilinitially declined to pass comment on the legalstatus ofECOWAS in March 1993, the Security Council issuedthe fol]owing statement:Liberia represents a good example ofsystematic cooperation between theUnited Nations and a regional organization, asenvisaged in Chapter VIII ofthe Charter. The role ofthe Security Councilhas been one ofsupporting theinitiatives and endeavours ofECOWAS. I believethat it would be the wish ofthe Council to continue and expand, asappropriate, this cooperative35IbidFor background to the civil war in 1990 seeReport ofthe Secretaiy General on the Question ofLiberia,UN Doc S/25402 (1993) at 4See Reed Kramer ‘West African Operationsin Liberia”Africa News Service, May 11th,199438See Georg Nolte, “International Legal Aspectsof the Liberian Conflict,” HeidelbergJournal ofInternational Law 1993 at 10-13, 15-25100relationship between the United Nations and theconcerned regional body.39To supplement its statement ofsupport, the Security Council imposed a “general andcomplete embargo on all deliveriesofweapons and military equipment to Liberiauntil theSecurity Council decides otherwise.”4°Thus,despite several legal loopholes, the operationin Liberia may be regarded asan example ofjust how successful regionalorganizations canbe in confining disputes to theregion.Another clear example of the importanceof regional organizations is perhaps the work ofthe Conference on Security and Cooperation in Europe(“CSCE”). At Copenhagen on June29, 1990, representatives of the members of CSCEagreed on a large number of principlesthat may have a significant impact onhow the organization deals with humanitarian crisesin the future.4’The members expressed“their conviction that full respect for human rightsand fundamentalfreedoms and the developmentofsocieties based on pluralisticdemocracyand the rule of law are prerequisites forprogress in setting up the lasting order of peace.security, justice and cop-operationthat they seek to establish in Europe.”42Justover a yearlater, CSCE representatives met inMoscow to create an intrusive mechanism fortheprotection of human rights within memberstates.43Procedures were established to inviteinto a country a mission of CSCE- authorized experts to investigate and offer advisorySecretaiy General’s Report on Liberia supra note 36at 114°Security Council 788 (November 19th, 1992 at 3)41See Document ofthe Copenhagen Meetingofthe Conference on the Human Dimension ofthe CSCE,29 International Legal Materials 1305 (1990)42Ibid at 130743See Document of the Moscow Meetingof the Conference on the Human Dimensionof the CSCE. 30ILM 1670 (1991)101services to resolve a problem relating to humanrights.44In the absence of an invitation,the CSCE would be able to establish a mission ofrapporteurs that the target state mustpermit to enter its territoryand investigate the facts.45The Copenhagen and Moscow declarationsare important in that they replace the principleof non-interference in the internal affairs ofstates with a firm commitment to promotedemocraticpluralism,humanrightsandfundamentalfreedoms, adevelopmentwhich directlyinfluences state responsibility for humanitariancrises.46The success of regional organizations should not beover-stated however. The OAS in theDominicanRepublic crisis and the Organization ofEastern Caribbean States in the Grenadaincidents did not add much in the way of legitimacy to theoperations and arguably acted as“fig-leaves” to hide the true motivations. Asregards “ad hoc” regional groups, thedeclarations of the General Assembly have made it clear thatthe legal status of “ad hoc”groupings is the same in internationallaw as unilateral interventions.47Nonetheless, it is anticipated that as the number of candidatesfor intervention proliferatesIbid at 1674-75Ibid at 1675-76‘ A similar commitment has been developed bythe Organization of American States (OAS) whichadopted a Resolution on June 5, 1991 establishing a rapid-responsemechanism to anysudden or irregularinterruption of the democratic political institutional process or ofany of the legitimate exercise of power bythedemocraticallyelectedgovernment in anyofthe Organization’smemberstates OAS, GA Resolution 1080,reprinted in Dept ofState Dispatch, October 7 1991 at 750. Thisresolution became the basis of OAS actionin Haiti in late September 1991 and, earlier, in Peru. See OASP.C Res 567, reprinted in Dept of StateDispatch, October 7 1991 at 750.‘See generally Declaration on the Inadmissibility ofInterventionin the Domestic Affairs ofStates and theProtection of their Independence and Sovereignty. G.A.Res 2131 (XX)(Dec 21 1965) (the term “States” isdefined to cover “both individual states and groups ofStates”)Declaration on Principles ofInternationalLawConcerning Friendly Relations and Co-operation Among States inAccordance with the Charter of the UnitedNations. G.A Res 2625 (XXV) October 24,1970 (“No State,or group of States, has the right to intervene,directly or indirectly, for any reason whatever in the internal orexternal affairs of any other state”)102which the UN seems ill-equipped to deal with,the role of regional organizations as a legalbasis for humanitarian interventionis likely to increase.Human Suffering as a Ground forUN JurisdictionWe have reached a state in the ethicaland psychologicalevolution of Western civilization in whichthe massive anddeliberate violation ofhuman rights will nolonger be tolerated.Former UN Secretary General Perez de Cuellar,October 11,199148The UN Charter contains conflictingideals and norms. On the one hand it affirms humanrights and self-determination, yet provides limitedauthority for actual enforcement ofthesefundamental rights against a sovereign nation.Moreover, the UN cannot authorize the useof force to protect human rights unless there is aSecurity Council determination that theviolations amount to a threattothe peace. Without this determination, the Charterdoes notpermit military intervention for humanitarianpurposes.The basicUNinstruments on human rights arewell documented and exhaustively discussedelsewhere.49Some of the more prominentinstruments include the Universal DeclarationofHuman Rights, the International Covenanton Economic, Social and Cultural Rights, theInternational Covenant on Civil and PoliticalRights, the International Convention on theElimination of all forms of Racial Discrimination,the Convention on the Prevention andSee Stephen S.Rosenfeld, AS Borders ComeDown, The Washington Post, October 11 1991 A27For a complete documentation of the UNresolutions, declarations and conventions in this field seeL.Sohn and T. Buergenthal, 3 InternationalProtectionofHuman Rights, Cases andMaterials: BasicDocuments(ed 1975) and the companion volume bythe same authors, Basic Documents on InternationalProtection ofHuman Rights (1973)103Punishment of Genocide, theConvention on the Political Rights ofWomen, and theDeclaration on the Granting ofIndependence to Colonial Countries and Peoples.Whilesome of these instrumentsprovide for a limited degree of internationalsurveillance, noneof them provide for actualcollective or unilateral enforcement action. Thus,the SecurityCouncil’s role in the implementation ofinternational human rights law, while importantandnecessary, up until recentlyhas been limited by significant legal shortcomings.Nevertheless, there are two ways in whichviolations ofhuman rights fall outsidethe ban onintervention in Article 2(7) of the Charter.First by a Security Council determination of asituation which constitutes a threat tointernationalpeace and security; and second, byvirtueof that particular state’s violationsof international legal obligations in thefield of humanrights. The principle of non-interventionin internal affairs would therefore beinapplicablewhere the Security Council has determined thematter is no longer one of internalconcern.50In many contexts however,severe violations of human rights may be heldtoconstitute a threat to the peace, particularly inlight of the growing internationalizationofhuman rights norms.51In 1966 in the Rhodesiancrisis, for example, the Security Councilrecognized that the human rights violationsconstituted a threat to international peace.52°See ‘Global Interdependence cited by BoutrosBoutros Ghali’ The LA Times February 1 1992 atAl(stating that the Security Council leadershad announced that the international community cannotallow theprotection of human rights to stop at nationalfrontiers and that the United Nations shoulddiscard theoutdated principle of non-intervention in domesticaffairs)51See generally, Lori F.Damrosch, Commentaryon Collective Military Intervention to EnforceHumanRights, in Law andForce in the NewInternationalOrder 215 (Damrosch and Scheffer eds. 1991) (maintainingthe view that when human rightsviolations constitute a threat to internationalpeace and security, suchviolations override state sovereignty accordingto Article 2(7) and Article 39 of the UN Charter;)see alsoVladimir Kartashkin, Human Rights andHumanitarian Intervention, ibid at 202 (affirmingthat Chapter VIImeasures may be triggered because severalinternational documents define internationalcrimes asencompassing serious violations of human rightswhich jeopardize international peace and security.)52See “Rhodesia and the United Nations:TheLawfulness of International concern,” supranote 7 (bothauthors contended that the domesticjurisdiction requirement was irrelevant as theSecurity Council haddeemed that the situation had escalated to a threatto international peace and security.104Human rights have becomeincreasingly internationalized as stateshave undertakeninternational commitments to humanrights, either by treaty or custom.53Until the Gulf War, the actionsof the Security Council with regard toviolations ofinternational human rights have beenprimarily of a declaratory and hortatory nature.Previously,theCouncilmonitoreddevelopmentsin specificcases andeven condemnedthem,but it did not resort to ChapterVII of the UN Charter until the invasion ofKuwait. UNSecurity CouncilResolution 688 brokenew ground by specifically statingthat the repressionof the Kurdish people and thesubsequent mass displacement of thousands ofrefugeesconstituted a threat to internationalpeace and security.54By linking human rightsabuseswith threats to international peaceand security, the UN Security Council createda newrationale for forcible humanitarianintervention. Although alleviation of human sufferingdoes not appear as an express purpose orprinciple in the UN Charter, it may be regardedas a variant of basic human rights, inparticular the “right to life” or protection againstgenocide. This new legal basis, therefore,evolves from an interpretation of Article2(7) toencompass matters that do not necessarilyhave transborder effects, yet clearly do not fallwithin a state’s domesticjurisdiction. Thereare, however inherent conceptual and politicaldifficulties involved with expandingthe phrase “threats to international peace” to encompasshuman rights violations.It has been generally accepted among legalscholars that the term ‘human rights as embodied intheCharter includes the Universal Declaration ofHuman Rights and other significant human rightsdocumentsin its definition.Resolution 688 states that the flow ofrefugees, “threaten(s)international peace and security, reflectingthe language of Chapter VII.” See Nafziger, James A.R.“Self-Determination and Humanitarian Interventionin a Community of Power” 20 Denver Journal ofInternational Law and Policy (1991)105For instance, thefollowing year the Under-Secretary Generalfor Legal Affairs took adifferent legal position and statedthat: “[Tjhis episode illustrates quiteclearly that theorganization cannot participate inhumanitarian interventions thatviolate the territorialintegrity of a stateunless they are mandated under ChapterVII...or all the parties to theconflict and the Security Councilgives their consent to UN involvement.’Although the Security Councildetermined that the exodus ofthe Kurds posed a threat tointernationalpeace becauseofthe international effects on neighbouringcountries, the UN’sauthorization to intervene in Somalialess than two years later in the absence of anysucheffects would appear to render theconcept of a threat to internationalpeace almostmeaningless and has certainlyundermined the legitimacyof the UN. A more credibleapproach would have been to interpret Article2(7) as excluding serious violations of humanrights, allowing the UN to interveneon the basis of pure humanitarianconcerns inaccordance with the purposesof the UN Charter.These conceptualproblemsmaybe resolved byformulating anewpremise forhumanitarianintervention on the basis thatan abuse “shocks the conscience” of mankind.Thus, as analternative to the “threat to internationalpeace” exception, another possible argumenttojustify UN intervention on afirm legal basis could be tocreate a “human suffering”provision. This could allow the SecurityCouncil to authorize humanitarianinterventionregardless ofwhetherthe situationposed a threat to international peace.Obviously such anapproach would demand intellectual integrityin identifying appropriate circumstancesforCarl-August Fleischhauer (Under SecretaryGeneral for Legal Affairs and Legal Counsel ofthe UnitedNations), Proceedings ofthe 86thAnnualMeetingofthe American Society ofInternationalLaw, WashingtonDC (April 4th, 1992)106intervention. The grounds for interventioncould for instance, include genocide, large-scaleatrocities, natural and man-made disasters.This formulation may seem less rigid thanthecriteria discussed above, yet mayalso appear too narrow in that it focuses only on themostbarbaric acts of genocide. Although thereare inherent weaknesses with the concept, it isauseful doctrine and should befurther developed as a mechanism for overriding thedefenceof sovereignty. International lawshould recognize mass human suffering in itsown right asa legitimate argument againstsovereignty.Creating a “pure humanitariansuffering” approach to humanitarian intervention would,however, require an amendment of theUN Charter which is unlikely to take place in theforeseeable future since there are asignificant number of states which vehementlyopposeany diminution of their sovereignty.The United Nations should, however, recognizethatdisplaced individuals persecuted by theirown country are as much a matter of internationalconcern as refugees fleeing across borders.Codifying Humanitarian InterventionIt maybe stated that the lawgoverning humanitarian intervention is fast degenerating tothepoint where its normative value is, indeed,questionable. If this is the case, as indeeditappears to be, the most pressing taskconfronting international scholars isnot only toreappraise the doctrine but to clarifyvarious criteria to enable the international communitytojudge when a humanitarian interventionshould be authorized. As Professor JohnNortonMoore stated the problem “[S]urely theissue is whether we are able to develop a setofcriteria for normative appraisal, so thatwe can determine when humanitarianintervention107is normatively permissable, andwhen it is not. That is, what kinds ofgovernmental actions,in mistreating one’s own populationor in intervening, shouldbe impermissible.56The foregoing discussion has illustratedthat there is no one coherent rationalethat hasguided the international response in dealingwith humanitarian crises nor is therea viableinternational mechanismwhich offersa suitable frameworkfor decision-makingand promptaction. Public outrage and moralarguments seem to be the only unifyingtheme that drawsattention to these crises, often coming toolate. The UN seems to drift aimlessly from crisisto crisis despite the end of Cold Warpolitics. Yet, ironically, there has never been amoreopportune time in international relations toreassess the doctrine of humanitarianintervention and formulate a coherent,consistent and humane system for dealingwithvictims of human rights violations orinternally displaced persons.The contradictory implicationsof the UN Charter concerning statesovereignty andinternational human rights, have thus farprevented any articulation of criteriafor UNintervention in humanitarian crises. However,now that state sovereignty is no longer anabsolute legal fiction and the UN hasbecome a more acceptable forum for internationalcooperation, the formulation of coherentcriteria may not be quite so unobtainable aswasonce thought. For the UN to conduct ahumanitarian intervention in away that is widelyseen aslegitimate, carefullydrafted guidelinesareneeded. As one commentatorurges [T]hespecific purposes of such interventionshould be collectively discussed, approvedandpromulgated in advance, and not simplyoffered by those who carry them out, expost facto.56John Norton Moore, in R.Lillich,Humanitarian Intervention and the UnitedNations supra note 6 at p38108in embarrassed self-justification.”570ntheother hand, Cyrus Vance warns that “a decisionwhether and how to act in thecause of human rights is a matter for informedand carefuljudgement. No mechanistic formulaproduces an automatic answer.”58With these remarks in mind, it isnonetheless the contention ofthis paper thatcriteria mustbedeveloped forcollectiveinterventionunderthe auspices ofthe UnitedNationsin disputesthat start as an internalwar and spread to become one of internationalconcern.Iri his lastannual“Report on the work ofthe organization”,formerUN Secretary GeneralJavier Perezde Cuellar called for reinterpretation ofthe Charter principles of sovereigntyand nonintervention in domestic affairs to allow forintervention on humanitarian grounds,as wellas identification of the objective conditionsunder which it should be carried out.59Various criteria have been proposed bylegal scholars to enable the legitimacyofhumanitarian intervention to be evaluated.60For instance, it has been suggestedthat theremust be an immediate and extensivethreat to fundamental human rights; thatthe use offorce must be no more than proportional tothe original threat; that no greater destructionmust result than would otherwisehave been the case, and that prompt disengagementandSee Alan Henrikson, “How Can The Vision of aNew World Order be Realized ?“ FletcherForum ofWorld Affairs, Winter 1992 63, 70 Henrikson favourscriteria to circumscribe interventionist collectiveactionas well as to prescribe it.(”The UN Security Councilmay need, and indeed welcome, some restriction aswellas permission in this new area”) Id.58See Cyrus R.Vance, “Law Day Address onHuman Rights Policy,” University ofGeorgia School of Law.30 April 1977, quoted in Henrikson, ibid at71UN Doe. A/46/1, September 6, 1991,pp10-1160SeegenerallyLarryMinear,Thomas G.Weissand Kurt.M.Campbell “Humanitarianism andWar:Learningthe Lessons from Recent Armed Conflicts”Occasional Paper, 1991, no 8 (ThomasJ.Watson,Jr) for adiscussion of the criteria to be employed inhumanitarian crises. The authors cite for examplethe number ofpersons affected; the immediacy and severity ofthe threat to life; substantial flow of refugeesor displacedpersons; a pattern ofsignificant human rightsabuses; and the inability or unwillingness of thegovernment tocope with the crisis.109immediate reporting to the SecurityCouncil must follow. Other criteria that have beenstressed by adherents to thedoctrine are the lack or exhaustion ofother means ofrecourse,and the relative disinterestedness ofthe state taking the coercive remedial action.6’Lillich enumerates five similarconditions that would validate humanitarianintervention:immediacy of violation of humanrights; extent of violation of human rights;invitationtouseforcibleself-help; degree ofcoercivemeasuresemployed (ie,proportionality)and relative disinterestness of the actingstates.62Moore proposes five qualifications: animmediate and extensive threat to fundamentalhuman rights, particulary a threat ofwidespread loss of human life; a proportional useof force which does not threaten greaterdestruction of values than thehuman rights at stake; a minimal effect on authoritystructures; a prompt disengagement consistentwith the purpose of the action; andimmediate full reporting to the Security Counciland appropriate regional organizations.63Another commentator suggested that in orderto justify a humanitarian intervention, thehuman rights abuses must be systematic, widespreadand pervasive,64or that the violationsmust be persistent.65Althoughthe definition of“extreme” or “gross” violationsofhuman rights is admittedly fluid,61See H.Scott Fairley, “State Actors, HumanitarianIntervention and International Law”:ReopeningPandora’s Box,” 10 Georgia Journal of International and ComparativeLaw.62Lillich, “Forcible Self-Help” Iowa Law Review,p347-51;63John Norton Moore, “Control of Foreign Intervention inInternal Conflict,” 9 Virgina Journal ofInternational Law 1969 p205 at pp338Fernando Teson Humanitarian Intervention: an inquiryinto law and morality (TransnationalPublishers)(1988)11765Ellery Stowell Intervention in InternationalLaw (1921) 53110attempting to define each and every example of humanrights violation in legal discourse ispractically impossible. But it is useful to recallthat this thesis argues not necessarily forsubstantially more frequent uses of the doctrineof humanitarian intervention. Rather, thisthesis argues for clarifying or expanding thedefinition of gross human rights violations sothat the UN is not discouraged from takingaction arguably in violation of internationalprinciples. The distinction is crucial for the contemporarylegitimacy of the doctrine in thiscontext.From a practical perspective,states generally agree that only the most severe cases justifyarmed intervention. How does one then determinewhat is meant by severity ? At oneextreme, intervention would bepermissable only in situations where genocide has eitheroccurred or is imminent, and, at the other, interventionwould be allowed whenever a basiccivil or political right is violated.Predictably, there are strong opinions againstcodifying the concept of humanitarianintervention.66The case against too broad an application ofhumanitarian intervention maybe acutely summarized as follows. Even ifthe right to intervention is restricted to instancesof mass flight, intervention may take placein countries on the pretext that peace andsecurityofneighbouringstatesis threatened.Theargumentcontinues that codification wouldlead to further abuse as states couldbase theiractions on interpretations of legal provisions.rather than mere rhetorical statements. Somecommentators believe that any codifiedlawwould merely serve power politics and internationallaw would no longer protect the weakSeeT.M.Franckand Nigel.S.Rodley ‘AfterBangladesh:TheLawofHumanitarian Intervention by MilitaryForce’, 67 American Journal of International Law 275, 305(1973) (concluding that ‘a workable generaldefinition of humanitarian intervention”would be extremely difficult to formulate and virtually impossibleto apply rigorously”)111from the strong.67It follows that whateverobjective conditions are identified, it would stillbe impossible to distinguishbetween action based on purely humanitariangrounds andulterior motives of self-interest. Furthermore,the value of codification would be minimalbecause the international legal systemallows for mitigating circumstances as it is. Theprohibition on the use of force and interventionunder Article 2(4) is fragile enough and sooften breached that codification of yet anotherexception would only erode it further.68Howwould theUNdifferentiate a casewhichalleges a threat and one which produces a realthreat ? Or, that intervention on the grounds of “humanitarianism”is pretext ?Although these are certainly valid concerns,it may be stated that the concept ofhumanitarian intervention has not been sufficientlytested in history precisely because therehas been an absence ofidentifiable objective criteria.Rather than act as a fig-leaffor powerpolitics, clearly defined parameters would inhibitstates from characterizing their abusiveactions as humanitarian-driven. Furthermore, aswith any law, although it is an old adagecodification would surely restrict abuse and notjust affirm acceptable conduct. Clarificationof the doctrine of humanitarianintervention in legal terms would act as a deterrent againstfurther humanitarian crises.69AsJames Andersonconcludes “[S]o long as the United67J.ChOpraand T.Weiss, “Sovereignty is No LongerSacrosanct” Ethics and International Affairs, 1992 Vol6 at 99Ibid at 100Professor Wright argues that a legal right of humanitarianintervention would decrease the number ofhuman rights violations because the fear ofinterventionwould deter states from committing such abuses. SeeR.George Wright, ‘A Contemporary Theory of HumanitarianIntervention,” 4 Florida International LawJournal 435 (1989) Professor Wright states that “[A] broadertheory ofjustified humanitarian intervention,to the extent that it tends to enhance either the probabilityofthe severity ofsanctions imposed on inhumanegovernments, may well reduce the incidence of human rightsviolations through a classic deterrence effect.’He goes on to say that “[LjegaLizing the doctrine of humanitarianintervention would lead to a strengtheningof all international laws because it promotes the respectfor basic moral values.” Id at 454. “IHiumanitarian112Nations lacks carefully crafted guidelines,future intervention under its auspiceswill rely onad hoc justifications. Further, if the pastis any indication of the future, strongerstates willhave a disproportionateinfluence in determining the nature andscope of theseinterventions; an outcome at odds withhopes for a more equitable world order.”7°Certain qualifications arenevertheless warranted. For instance, the interventionmust benecessary, proportionate and strictlylimited to its humanitarian purposes.71AsFalk hasreiterated:u[Fllumanitarianintervention as distinctfrom war, seems to meto have somethingto do with the specificity ofthe objectiveand with its limitations on magnitude and durationof the undertaking.’72For example,an intervention under the guise of humanitarianmotivations to overthrow a governmentwould not be legal. This approach preservesthe truehumanitarian nature of the interventionand discourages the use of force as apretext forpoliticalinterference. Intervention could,forinstance, be warranted in instances ofgenocide.Arguably, the legal basis for forciblehumanitarian interventionin crises arising from theactofgenocide is alreadyestablishedbythe Genocide Convention. The 1948 Convention onthePrevention and Punishment ofthe Crime ofGenocide defines genocide as “[Ajcts of killing,seriousbodilyormental harm, preventionofbirths; forcibletransfer ofchildren or deliberateintervention may...contribute to the sense ofthebasic equitableness ofthe system of laws in such away as tostrengthen the system of laws on balance.” Idat 455 Although his remarks refer primarilyto unilateralintervention, they equally apply to collectivehumanitarian intervention in this context.70JamesAnderson “New World Order and StateSovereignty:Implications for UN-sponsored Intervention”Fletcher Forum of World Affairs Summer 1992 at135. Anderson favours amendmeni of the UN Chartertoallow for UN intervention on the grounds ofhuman suffering.‘For a definition of a threshold below whichhumanitarian intervention might be triggered, see TheodorMeron and Allan Rosas “A Declaration ofMinimum Humanitarian Standards,” 85 American JournalofInternational Law (1991)pp375-81Falk in Lillich, supra note 4 at p27113infliction of conditions of life calculatedto bring about the physical destructionof a group,if those acts are “committed withintent to destroy, in whole or in part, a national,ethnical,racial or religious group.”73It follows that the UN would be able toauthorize a forcible intervention underArticle VIIIofthe Conventionwhich provides that: “AnyContracting Party may call upon the competentorgans of the United Nations to take suchaction under the Charter of the United Nationsas they consider appropriate forthe prevention and suppression of actsof genocide or anyof the other acts enumerated in article Ill.”Then there is always the considerationofwhether a government shouldrisk the lives of itsown citizens to achieve a temporary cessation of aslaughter which is likely to he renewed.In caseswhere humanitarian interventionis likely to be attempted, internationallawyers andlegal scholars must take into considerationthe political context within whichthehumanitarian intervention is be to conducted.When contemplating UN action to protecthuman rights, the issue is not so muchthe legal authority ofthe United Nations to act, butratherwhether there will be sufficientpolitical consensus among Security Council membersin favour of action and whether agreement canbe reached on the goals of such an action.Realism dictates that a state will alwayshave more than one motivation for taking action inThe 1948 Convention on the Prevention andPunishment ofthe Crime ofGenocide, UN Res 260 A (111),arts I,IV,V,VI,VIII, December 9, 1948. TheConvention has attained the status of a jus cogensnorm ofinternational law and is generally acceptedto be a crime against the international community.74Convention on the Prevention andPunishmentofthe Crime ofGenocide, December 9, 1948,Article VIII,78 UNTS 277114any situation.75An altruistic humanitarianintervention is probably out of the question intoday’s international society as a statewill invariably have motives apart from humanitarianconcerns for intervening.76As asserted previously inthis paper the right to intervene must be based onmultinational,notunilateral action,underthe legal authority ofthe United Nations. Furthermore,the rightofhumanitarian intervention mustbe based on the need to protect the rights of individualsandnotjust on the moral obligationto protect minorities who have begun to leaveen masseto escape persecution. Moreover,it is submitted that categorically ruling out humanitarianintervention on the basis that the abuse is not “widespread”is not only morally suspect butinsensitive to contemporary realities.A humanitarian intervention based onobjective, predetermined factors would removethe“ad hoc” nature of current UN policy andensure that all victims of human rights violationswould at least receive attention from the internationalcommunity and possibly militaryassistance. International humanitarian aid should beprovided on an equitable basis to geopolitically “insignificant” countries and resource-richindustrialized countries. Although these“guidelines” could also include cases of civilwar where an outside power attempts to tip the75See Faroq Hassan “Realpolitik in InternationalLaw: After Tanzian-Uganda Conflict HumanitarianIntervention” Reexamined, 17 Willamette LawReview 859 (1981) Professor Hassan concludes that thenecessity for complete indifference beforeallowing humanitarian intervention is naive andabsurd, andconcludes that “if the predominant motive for the aggressionis humanitarian, a limited degree of nationalinterest should not conclusively preclude itsvalidity.”Id at 897.76See Lillich, supra note 62 at 350 (“The presence of[other] such motives does not invalidate the resortto forcible self-help if the overriding motive is theprotection ofhuman rights”.) See also Wright, supra note69 at 460 (“To insist on purity of motive isrealistically, to essentially abolish the legal doctrineofhumanitarian intervention”) Bazyler, “The Doctrine ofHumanitarian Intervention following the Atrocities inEthiopia and Kampuchea” Stanford Journal ofInternational Law 1987, 547.(”...states will rarelyinterveneunless they have other interests in addition to thehumanitarian intervention.” Id at 601-602115scales in itsfavour or secessionistmovements that embody aspirationsto self-determination,the focus here is on humanitarian issuesin keeping with the central hypothesisofthis thesis.While every effort should be madeto use non-forcible measures such as,“inter alia”,diplomatic persuasion, armsembargoes and negotiation of relief corridorsand cease-firezones, the target-state should be madeaware that if it does not comply with thewill of theinternational community, further forciblemeasures will be taken.77The above observations must,however, be tempered by recognition ofthe inherentpracticaldifficulties associated with the newideas and practices of humanitarianintervention.Humanitarian intervention,even wherejustifiable, can never be a crediblereplacement fora well thought out policy tosolve the underlying causes of the crisis. Nonetheless, anintervention limited to the provision ofhumanitarian aid raises ethical questions concerningthe ultimate objective. Keeping victimsalive in Bosnia in the interim without reallyaddressing the root causes of the conflict is morallyindefensible. As Tom Farer advocates“[r]escue, ifthere is to be any, will requireelimination ofthe threat at its source...Theremustin other words, be direct andsustained involvement in the politicalprocess of the targetstate.”78The approach of the international communityin the former Yugoslavia and Somalia,forinstance, largely ignores the issues at theroot of the conflict and also leaves lesspuhlicizeddisasters untouched such as Angola andRwanda. More often than not, self-interestandpolitical opportunism remain keyfactors in how nations behave in the internationalarenaand explainwhy humanitarian action isfavoured in some crises and not in others.Moreover,See James Anderson, supra note 70 at 13778Tom Farer ‘Intervention in Civil Wars: Amodest proposal 67 Columbia Law Review(1967) 266116binding international legal instrumentshave not been formulated to keep upwith emergingethics in international law, suchas the right to receive internationalemergencyassistance.79Formulatingcriteriafor humanitarian interventions should thereforebe put atthe top of the global agenda.ConclusionsThe discussion so far hasillustrated some of the conceptual difficultiesinherent in anenquiry into the UN’s jurisdictionalcompetence in internal affairs. In large measure,thelegal basis for this resurgencein UN intervention has always beenpresent in the UNCharter. Consent, elimination ofthreatsto international peace and security, andcooperationwith regional organizations are themselvestraditional sources of UN authority. However,emerging norms from recent UNpractice in Northern Iraq, Somalia,and Bosnia shed newlight on terms such as “threat tointernationalpeace”which would nowappear toencompasshuman suffering withoutdiscernable international effects. Therequirement of consent hasalso become more nuanced inrecent times. The upshot ofthis is an expanded UNauthorityto make executive decisions overthe governance ofstates, which was probablyunforseen bythe founders in 1945. The questfor a lawofhumanitarian intervention is clearlynot an easytask. Expanding the scope ofthe doctrine of humanitarian interventionis not completelydevoid of possible abuse. Nevertheless,some risks are worth taking inview of their valuedends. Expanding the definitionto include abuses which “shock mankind”is not only morallyadvantageous but is also attractive in terms ofits practical benefits for deciding whentointervene. To reduce the danger of abuse,the best way would be to restrict humanitarianintervention to collective action ineither Chapter VII of the UNCharter, or preferably onSee T.Weiss and Larry Minear, “DoInternational Ethics Matter ?“ Humanitarian Politicsin the Sudan”Ethics and International Affairs,Vol 5, 1991 p197-214117the basis of a new provision of “humansuffering.” Unfortunately, the contradictoryimplications concerning inviolable statesovereignty and universal human rights haveprecluded the formulation ofcoherent criteria to date. That is, however, no excuse forinaction now. If the United Nations doeseventually articulate intervention criteria, it mustensure the criteria are not toonarrow or too elastic; overly rigid requirements tend tojustifyinaction whereas criteria that aretoo elastic are susceptible to abuse. Yet it iscrucial thatany criteriathat are formulated preserve theUnited Nations’ scope for political manoeuvre.It is imperative that the Security Councilhas a range of policy options with forcibleintervention as a last resort. Finally, thecriteria must be drawn up in lucid language to avoidanyinterpretational difficulties which are oftenencountered with international agreements.The formulation of any criteria for interventionin a humanitarian crisis will undoubtedly bea long arduous process, requiring considerableenergy and long-term commitment fromtheinternational community. Should agreementon any criteria continue to proveelusive,sustainedattention on the moral attractions ofthe doctrine ofhumanitarian intervention willcontribute to future discussions andhopefully pave the way for consensus at some pointinthe coming years.118Part Three. OPERATIONAL ASPECTS OF UN HUMANITARIAN INTERVENTIONSThedilemmaconfronting all hopesofpeaceful internationalchangeandsettlementis that there can be no change and no settlement, not even peacefully, solong asstruggle is avoided. You may count on the fingers of one hand the occasions onwhich agreements have been made and changes of sovereignty or transfers ofterritory have occurred in the modern world without the assistance of thepossibility of a resort to force, if not of force itself.F.H.Hinsley, Power and the Pursuit ofPeaceAs the foregoing discussion illustrates, it is no longer tenable toassert that when genocide iscommitted on a massive scale military intervention is prohibited under international law.Whilethese developments have certainly increased the scope for a role for the UN insolvinghumanitarian crises, the use ofUN forces to support humanitarian objectivesraises a variety ofcomplex legal and operational issues which demand careful consideration.The precedingdiscussion has indicated certain changes in the norms of humanitarian intervention. Thus,itfollows that if our traditional notion of sovereignty has evolved, then so will the conceptofcollective security. Indeed, the present conceptual debate concerning the permissibilityofhumanitarian intervention, and on what grounds, is arguably a red herring for it ignorestheimmediatepractical concern foradequate measures toprohibit states from invoking humanitarianissues as a pretext for political self-interests. Even supposing the ideological debate aboutthesanctity ofthe right ofthe international community were to be unequivocallyresolved in favourofthedoctrine ofhumanitarian intervention, operational capabilities would still belacking at theinternational level.119It has been asserted, for instance, that:The argument cannot be solved by dialectics; it will only finally be resolved bythe actual course events take. The matter is not in the hands of the lawyers. Theactual direction in which events turn will probably be relatively little affected bylegal argument about the “right” meaning and interpretation of Articles 2(4) and51. The problem is not one ofdrafting legal precepts controlling the use of forcebut one of devising international institutions through whichthe use of force ininternational relationships can be legally ordered and controlled on aninternational instead of a sovereignty basis.1Like the Gulf war itself, the Kurdish crisis demonstrated the growing potential for collectivehumanitarian action as well the normative and structural inadequacies of the United Nationsitself. While the UN requires a more effective operational capacity for humanitarianinterventions, Western military establishments are currently not prepared or trained to dealeffectively with the diverse cultural and economic challenges associated with humanitarianoperations in developing countries. Part III ofthis thesis therefore seeks to establish how the UNcan conducthumanitarian military interventions in the 1990’s. Itshould be noted from the outsetthat the term “peacekeeping” in this section is somewhat outdated, since recent operations wouldappear to go beyond the traditional concept of peacekeeping. Thus, when the term is useditdoes not purport to encompass traditional peacekeeping tasks such as election-monitoringandsupervisory duties. The term “peacekeeping” has been subject to much obfuscation in recentcrises and it would be folly for a legal scholar to fall into the samejournalistictrap. Referenceis therefore made to “UN forces” instead of peacekeepers to avoidany confusion. Moregenerally, this section will consider the impact of the aforementioned developments in the areaof logistics support and command and control. The question of funding for UNpeacekeepingis only addressed to the extent that it impinges directly on the future direction ofUN operations.I Jennings,’General Course on Principles of International Law’ RecueilDes Coeurs, 325, 584 (1967)120While clearly central to the future of peacekeeping in humanitarian crises, the UN’sfinancialcrisis is beyond the scope of this study.The United Nations Charter and the use of forceThere is renewed hope that the UN Charter will be takenseriously as a legal basis forinternational control of internal conflict. UnderChapter VII of the Charter, the UN hasconsiderable authority to seize jurisdiction in aninternal conflict. Should the UN SecurityCouncil determine that a threat to the peace, breach of the peaceor act of aggression exists, itmay make recommendation for, or, decide upon,economic or military sanctions under Articles41 and 42 respectively. Article 42 of the UN Charter empowersthe Security Council to ‘takesuch action by air, sea, or land forces as may benecessary to restore international peace andsecurity”•2Article 45 provides that airforce units be made available to the SecurityCouncil bythe member states3whereas Article 43 enablesthe UN to obtain military forces from themember states. Article 43 is therefore essential to the entire systemofcollective security underthe UN Charter because it provides the main constitutionalbasis for UN military forces.4Article 43 calls on the member states of the UN to make available tothe Security Council the2Article 42 reads in pertinentpart: “Should the Security Councilconsiderthat measures provided for in Article41 would be inadequate...,it may take action by air, sea orland forces as may be necessary to maintain or restoreinternational peace and security.’ UN Charter Article 42.Article 45 orders member states to “hold immediatelyavailable national air -force contingents for combinedinternational enforcement action so that the UN can “take urgent military measures”...UN Charter, Article 45. ln1942, US President Henry Wallace said ofUN air corps: “Whenthis war comes to an end, the UN will have suchan overwhelming superiority in airpower thatwe shall beable to “bomb the aggressornations mercilessly until theyceased fighting.” quoted in Law and Force in the NewInternational Order. (Lori F. Damrosch and David i.Scheffer eds., 1991)[hereinafterLaw and Force]“Constitutional authority” means the legal authorization underthe UN Charter to take action to maintaininternational peace and security. It is now commonplace to speakof the constitutional law of the United Nations121armed forces necessary for the maintenanceof international peace and security. Under Article43, each member state would sign an agreement with theSecurity Council. This Article 43agreement would govern theprovision ofarmed forces bymember states to the Security Councilby requiring the member state to “earmark” acertain number and type of its own troops forfuture UN service. By signing an Article 43 specialagreement, a member state would assumea legal obligation to provided military forces tothe Security Council. Article 43 thereforeestablishes the overall framework and governing rules forall military forces contributed bymember states. It was envisaged that these militarycontingents would serve under the directionof a Military Staff Committee, which would be comprisedof representatives of the permanentfive and would advise the Security Council on the strategicdirection of military operations.5Almost immediately from the date of its inception Article43 was greeted with great distrust.6Thepoliticalantagonisms ofthe ColdWar madeimplementationofany agreements underArticle43 an unrealistic goal.7TheRussians were particulary hostileto a standing UN force underArticle 43 whereas the West preferred to concentrate itsattention on the creation of forces forNATO.UN Charter Articles 46-47. “Plans for theapplicationofarmed force shall be made by the Security Councilwith the assistance of the Military Staff Committee.” UN CharterArticle 46. The MSC has never played aninstrumental role in any UN conflict since its inception nor has itever been formally disbanded. Interestingly, inthe early stages of the Gulfcrisis, prior to the resignation ofEduardScheverdnardze as Soviet Foreign Minister.the USSR urged that a role be given to the MSC. For a discussion of thepotential role of the MSC see Ralph M.Goldman “Is it time to revive the UNMilitary StaffCommittee?” (1990)6On April 30th, 1947 the UN MSC issued areport to the Security Council in which it set forth generalprinciples forimplementinga UN force underArticle43. Althoughthe Security Council provisionallyadopted manyof the articles, the five permanent members failed to agreeon many aspects of the composition and organizationofarmed forces that would be committedunder the agreements:problems that would likely be encountered today -see Reportfrom the MSC to the President ofthe SecurityCouncil, Yearbook of the UN, 1945 at 403,To this date, no UN member state has signed anArticle 43 special agreement with the UN, despite the factthat the text of Article 43 asks member states to sign such special agreements “as soon aspossible.” UN CharterArticle 43.122Because of the failure to reach agreement oncreating Article 43 forces, the emphasis shiftedfrom enforcement to peacekeeping. UnitedNations peacekeeping thus arose out of the need toseek an alternative method of restoring international peaceand security and is conceptuallydistinct from the Security Council’s limitedpower to recommend enforcement action underArticle 39 ofthe Charter. Although it is commonknowledge that neither the Charter of the UNnor the travaux preparatoires of the SanFrancisco Conference contemplate the creation ofpeacekeeping operations, it ispossible to conclude that the peacekeeping forces have generallyacquired universal acceptance in the international community.8It would seem almost paradoxical to state, therefore, thatpeacekeeping is not defined orprescribed in the UN Charter. Instead, peacekeepingis an instrument that has largely been usedin situations where application of Chapter VI of theCharter has either been inadequate orutilization of Chapter VII is impossible, leadingto the conclusion by former UN SecretaryGeneral Dag Hammarskjold that peacekeeping was basedon Chapter “six and a half”.There is, however, no internationally agreed definitionofpeacekeeping. This is due largely tothe lack of a clear international constitutional basis for peacekeepingin the UN Charter, whichmakes a consensus definition difficult. The presentUnder-Secretary General of the Departmentof Peacekeeping Operation, Marrack Goulding has, however,formulated a coherent andworkable definition: “[U]nited Nations field operations inwhich international personnel civilianand/or military, are deployed with the consentof the parties and under UN command to help8This was not always the case. China and the Former USSRhave traditionally been opposed to the concept ofpeacekeeping. See The Certain Expenses Case, ICJ, Opinion ofONUC and UNICEF under Article 17 of theCharter. The support of the Soviet Union to peacekeeping,is however, unequivocal today which is largelyattributable to the dramatic turnaround ofSoviet Policy.; See generallySemenov, ‘The Charter of the UN and theQuestion of Peacekeeping Operations,” Soviet Yearbookof International Law, 1968 at 64.123control and resolve actual or potential international conflictsor internal conflicts which haveobvious international dimension.”9The question of the constitutionality of UN peacekeepingforces was, however, settled in theAdvisory Opinion of the International Court of Justiceon the Certain Expenses of the UnitedNations which may be cited in support of thisposition. The court concluded that as “theoperations were undertaken to fulfil a primepurposes ofthe United Nations, that is, to promoteand maintain a peaceful settlement of the situation,”peacekeeping operations were lawful andconsistent with the goals of the UN Charter.’°Peacekeepingoperations have, therefore,occupied a useful niche in the internationalsecurity system in the absence of Article 43agreements.Theoriginal functioning ofpeacekeeping was the monitoring by UNmilitary observers oftrucesand cease-fire agreements.“The Suez crisis of 1956 however, promptedthe introduction ofactual forces forpeacekeeping missions. The veryfirst UN force (UNEF) was designed to fulfilthe simplest of peacekeeping functions, interposition by separatingthe fighting parties and9Marrack Gouldmg, “The Changing Role of the United Nations in ConflictResolution and Peacekeeping”.Speech given at the Singapore Institute of Policy Studies, March 13, 1991 p9.See also Rosalyn Higgins’defmition:“Peacekeeping is the act of peaceftil third partyintervention where the practitioner remains whollyimpartial and uninvolved in the dispute of the partiesconcerned where its term of reference are funded onnegotiation and mediation and not on enforcement action” UNPeacekeeping.Past Lessons and Future Prospects”David Davies Memorial Institute of International Studies, 25thNovember 1971.‘°Certain Expenses ofthe United Nations Case, I.C.J Reports,1962, p151UNTSO (MiddleEast) UNMOGIP(Kashmir) were established1948 as peace “observation” missions and thuscan be distinguished from the peacekeeping force thatwas deployed in the Suez crisis. See text above. Recentobserver missions have been deployed to areas such as the borderbetween Iran and Iraq (UNIIMOG) and CentralAmerica (ONUCA). For an overview ofUN Peacekeeping andan evaluation of the UN operation in the Lebanon(UNOGIL) see IvanPogany “EvaluationofUNPeacekeeping”BritishYearbook ofInternationalLaw (1987) E.Suy“Legal Aspects of UN Peacekeeping Operations” NetherlandsInternational Law Review 1988pp318-20N.Sybesma-Knol “UN Peacekeeping: Why Not?” NetherlandsInternational Law Review 1988 pp32l-327; For anexcellent insight into earlier UN experiences with peacekeeping, seeR.Russell, “United Nations Experience withMilitary Forces:Political and Legal Aspects,” Brookings Staff Paper,August 1964.124providing buffer zones. Thus, through improvisation over theyears, “peacekeeping” has beenused to investigate and report on volatile situations, to monitortruces and ceasefires, to verifycompliance with agreements, to establish buffer zones and more recently, toprotect aid workersin the provision of humanitarian assistance to civilians caught up in civil war.Over the years, a number of interconnected and essential basicnorms have evolved forpeacekeeping operations -(i) the consent of the parties involved in the conflict to the establishment of theoperation, otits mandate, to its composition and to its appointed commanding officer;(ii) the continuing and strong support of the operation by themandating authority, the SecurityCouncil;(iii) a clear and practicable mandate;(iv) the non-use of force except in the last resort in self-defense (self-defensein this context,however includes resistance to attempts by forceful means to prevent the peacekeepersfromdischarging their duties)(v) the willingness of troop-contributing countries to provide adequate numbers ofcapablemilitary personnel and to accept the degree ofrisk which the mandate and the situationdemand;(vi) the willingness ofthe member states to make availablethe necessary financial and logisticalsupport.12Only the Security Council may explicitly authorize such a force. However,where the SecurityCouncil is paralysed by a veto from one or more of its permanent members,then the GeneralAssembly, acting under the Uniting forPeace Resolution of3November, 1950 may immediately‘2See Brian Urquhart “The Sheriff’s Posse”Survival May/June 1990 No.3 Vol XXXIIIp200125consider the matter and make recommendations forcollective measures, including, ifnecessary,the use of armed forces.’3Thefirstever UNPeacekeeping force- theUnited Nations Emergency Force (UNEF)- deployedto diffuse the Suez crisis in 1956 was created by aGeneral Assembly resolution, the directinvolvement of two of the permanent members of the SecurityCouncil (France and Britain)resulting in vetoes which rendered the Security Councilimpotent. UNEF established the legalprinciples of UN peacekeeping operations which havesince become the hallmark of allsubsequent operations. Nevertheless, by the late 1970’s theeffect of the Cold War onpeacekeeping became so debilitating that no UN peacekeepingforce was authorized by theUnited Nations between 1978 and 1988, when UNIFIL was emplaced andthe UN TransitionGroup in Namibia (UNTAG) was created on paper.The revival of UN forcesPeacekeeping operations prior to 1992 were little more than extensions ofprevious efforts,withthe obvious exception of the force in the Congo. Although they demandednew tasks such aselection monitoring, human rights verification and refugee repatriation,these were easilyaccommodated within the existing traditional peacekeeping structure.In most cases peacekeepingforces could rely on both a measure of effective cooperation bythe principal parties involvedand the continuous political support of the Security Council.13Res.377(V), November 3, 1950, General Assembly, 5th Sess, Official Records, Supp.Np.20, at 10-12(U.NDoc.A/1775) (1950); 45 American Journal ofInternational Law Supp 11951.It does not seem necessary to discusshere all the problems raised by the Uniting for Peace Resolution, as onlysome of its provisions are relevant to thesubject ofthis paper. For a discussion ofthese problems see J.Andrassy‘Uniting for Peace” 50 American Journalof International Law 563-582 (1956); Ruth B. Russell, supranote 11 pp9-lO, p19-21.126Since 1988 over 14 new peacekeeping operationshave been established, the number of UNsoldiers increasing four-fold in the firsthalf of1992.14Some of these operations involvetraditional, largely military type activitiessuch as the military observers deployed to the borderbetween Iraq and Kuwait while others demandnew tasks. Recent operations have been set upto help implement negotiated cease-firesbetween warring factions in Namibia, Angola,Cambodia, El Salvador and Mozambique. Theformer Yugoslavia has become the UN’s largestpeacekeeping commitment to date and has far-reachingimplications for the way in which UNpeacekeeping operations are organized and conductedin the future. The US-led operation inSomalia for example, flies directly in the faceofestablished practices of UN peacekeeping, bywhich only minimal force is used in self-defence.Both operations have added a new dimensionto the task ofpeacekeeping in the 1990’s: theprotectionofthe delivery ofhumanitarian suppliesto civilians caught up in a civil war.As the Secretary General Boutros Boutros Ghali stated:“[t]he 1990’shave given peacekeepinganother new task:the protection of the deliveryof humanitarian supplies to civilians caught upin a continuing conflict...“He then went on to say that more force mayhave to be used in theformer Yugoslavia “if the United Nations is to assertthe Security Council’s authority...”5Traditional peacekeeping forces simply cannotdeal with the demands of intrastate violence andthe humanitarian crises that arise from them.’6Manyof the peacekeeping operations deployedDr Boutros- Boutros Ghali “Empowering the UnitedNations” Foreign Affairs, 72:5 Winter 1992/93, p91IbidTheUnited Nations has been swamped by recent requestsfor peace-keeping operations to suppress civil strife.Rwanda is the latest casualty of the UN’s recent approach to limitedintervention. See Colum Lynch,“Overstretched’-UN lacks Will, Funds to Intervene, Officialsays,” The Boston Globe November 7 1993 (notingthat theUnder-Secretary General admits that the UN is overwhelmed byrequests for aid); Gretchen Lang, ‘Rwandain Grip ofFear After Failed Coup:Thousands Die in Ethnic Strife asOthers Flee Country; Officials are in Hiding’127between 1989 and 1992 were too small, too slowand ill-equipped for the task.’7As a result,UN troops in Bosnia have beenunable to achieve their goal and instead have become embroiledin a situation where violence continues unabatedaround them.18 The experience of UNoperations since and indeed, the principlemilitary lesson from Bosnia is that any kind ofpeacekeeping operation in a civil war is exceptionally difficult.From a legal perspective, the current status of recent operationsis unsatisfactory. Up untilrecently, the conceptual distinction between peacekeeping on theone hand and enforcementaction under Chapter VII of the Charter on the other, has beenstrictly maintained, with thepartial exception of Katanga. Recent operations have, however,moved the whole concept ofpeacekeeping into the grey area ofpeaceenforcement without actually defining the exact legalprovision on which these operations are based.Reporting to the Security Council in lateNovember 1992, the Secretary General noted thatin protecting the delivery of humanitariansupplies, UN troops were “pioneering a new dimensionofUNpeacekeeping” but added that thisdid not require a “revision of the peacekeepingrules of engagement.”9TheBoston GlobeNovember 7, 1993 (notingthatthe situationinRwanda and neighbouringBurundi is characterizedby an exiled democratic leader, ethnic cleansingand fleeing refugees); see also UN Doc Sf26631, 25th October1993 and UN Doe A/48fL.16, 2 November 199317See Julia Preston “UN Faces Crisis of Credibility”The Washington Post, February 7 1993 (noting thefinancial, practical and operational crisis concerning UN peacekeeping);Paul Lewis “UN is Finding its PlateIncreasingly Full,” The New York Times, 26th September 1993;Richard Bernstein “Sniping is Growing at the UNOver Weaknesses” The New York Times, June 21, 1993; LyndaHossie “UN in Tatters, peace by bitter peace” TheGlobe and Mail, Tuesday June 8th 1993sSee “Trapped Soldiers anger UN” The Globe and Mail,August 31, 1993 (noting the condemnation by theSecurity Council of the use of peacekeepers as pawns in thewar); Eve Ann Prentice, “Peace for all nations mayprove a goal beyond the UN” The Times (London) July 4th, 1993(noting that the UN’s campaign in Somalia andBosnia are increasingly criticized as at best ineffective and atworst doing more harm than good)19Further Report ofthe Secretary General Pursuant to SecurityCouncil Resolution 743 (1992) Sf24848 24thNovember 1992p16128Moreover, the current crises in Somaliaand Bosniahave fundamentally redrawn the parametersofUN peacekeeping. It would appear to be insufficientfor peacekeepers to merely implementagreements or separate antagonists. The internationalcommunity is now demanding that the UNdemarcate boundaries, disarm warring factionsand guarantee the delivery of humanitarian aidin war zones with or without the consent of the parties tothe conflict. These are clearly tasksthat call for more powerful peacekeepersto actually enforce the peace as opposed tothe lesstangible tasks previously sought inthe past.2°Accordingly, there is a growing bodyofopinion which supports the view that UN peacekeepersshould be able to use armed force in contradictionto their basic character to implement theirmandate. The rationale behind these proposals is largelyin response to the growing frustrationsover the inadequacies of current UN peacekeepingoperations. The UN operation in Bosnia forinstance, has been a classic case of how not to doit. The Secretary General’s special mediatorinsisted from the start that a cease-fire be inplace before deploying peacekeeping forces whichallowed extremists on both sides to delayUN action by violating successive ceasefires. Inaddition, by requiring that the two sides agree wherepeacekeeping forces would be deployed,the UN forced them to bargain on the central issue of borderseven as combat continued. Thisassured that the conflict would drag on until a militarystalemate emerged. By early 1993,however, the UN and its member states belatedlybegan to acknowledge that not all parties wereable or willing to agree fully to a peaceplan and to keep their military forces and factions undercontrol. Consequently, UN discussions began tofocus on a “peace-enforcement” unit of UNforces that would go beyond the traditional UN peacekeepingrole and be empowered to use20John Mackinlay, Powerful Peacekeepers”Survival, No. 3 Vol XXXIII May/June 1990129preemptive force to prevent outbreaks ofviolence. This was largely in response to fiercecriticism on the ground of themandate of the UN peacekeepers. One FrenchGeneralCommander compared the UNforce to a “goat tethered to a fence” while another declared that“there is a fantastic gap betweenthe resolutions ofthe Security Council, the will to executethoseresolutions and the means available to commanders.”21Notwithstanding these criticisms, by allowingso-called peacekeepers to use force to protecthumanitarian relief ignores the fundamentalpremise on which peacekeeping was based andmoves the whole concept of UN peacekeepinginto the murky waters of peace-enforcement, anarea hitherto unchartered by the UnitedNations. This section of the thesis, accordingly, takesthe view that UN peacekeeping operations can besufficiently strengthened without modifyingtheir basic principles. It will, therefore, examinethe concepts of peacekeeping and peace-enforcementin the lightofrecent crisesin Bosnia and Somalia. The hypothesis this section seeksto illustrateis thatpeacekeeping is an inappropriateinstrumentofpolicy fordealing with internalethnic warfare of the kind we are witnessing in Bosnia.It would almost seem pointless toreiterate the fact that not only arepeacekeepingand peace-enforcement, legally distinct conceptsunder the UN Charter, they also perform entirelyseparate functions. Instead of theorizing overwhether or not to arm peacekeepers, it is assertedthat the UN should concentrate its efforts oncreating a credible international enforcementmechanism under Article 43 of the UN Charter todeal specifically with humanitarian crisesin which there is no peace to keep. A peacekeepingforce should only be deployed in a conflictwhere there is an agreed ceasefire already in place.Only when the Security Council hasdetermined that the chances of achieving a ceasefireareSee Roger Cohen “Dispute GrowsOver UN’s Troops in Bosnia” The New York Times, January19th 1994130small and the situation warrants the useof force, would Chapter VII enforcement measures beactivated and a UN peace-enforcement deployedunder Article 43. This “two-tier” approachwould remove the conceptual and legal ambiguitiesofcurrent peacekeeping operations, therebyrestoring the credibility of the United Nations.The practical advantages of this approach arealso enormous. UN peacekeepers would beretained foruse in traditionalpeacekeeping situationssuch as monitoring ceasefires and verifyingcompliance with agreements, whereas a UN peace-enforcementarmy would have the militarycapability to implement Security Council resolutionson the ground. Such a force could havebeen deployed in Bosnia to break the Serbianstranglehold of Sarajevo and ensure the safedelivery of humanitarian aid. Thus, the question ofthe legal basis for United Nations armedforces is not only of conceptual importance butalso of immense practical significance for thefuture effectiveness of the world organization inkeeping the peace.Itwould beinstructive to articulate someofthe traditionalnorms ofpeacekeeping to demonstratehow certain principles have become contentiousin the light of recent peacekeeping operations.Traditional Norms of UN Peacekeeping(i) The non-use of forceThe essence ofpeacekeeping is the use ofsoldiersas the catalyst for peace ratherthan as the instruments ofwar.22The principle ofthe non-use of force was establishedby Secretary General Dag Hammarskjold22Brian Urquhart, “The Future ofUN Peacekeeping”Netherlands International Law Review, 1989,p52131when he created the first UN peacekeeping forcein 1956 (UNEF) to contain the Suez crisis.23The principle centred around the former CanadianPrime Minister, Lester.B.Pearson’s personalphilosophy ofpeace and also the recognitionthat the UN Charter did not permit the use of forceunless there was a Security Council determinationunder either Article 39 or Article 51 whichpermits individual or collective self-defence.24UNEF was accordinglybased on consent andnot coercion, thus Chapter VII did not apply.Hammarskjold’s definition of the use of force inself-defence was unequivocal in its legal analysis:A reasonable definition seems to have been established inthe case of UNEF,where the rule is applied that men engaged in the operationmay never take theinitiative in the use of armed force, but areentitled to respond with force to anattack with arms, including attempts to useforce to make them withdraw frompositions which they occupy under orders from the Commander,acting under theauthority of the Assembly and within the scope ofits resolutions.25The principle ofthe non-use of force for UN peacekeepers is accordinglybased on practical aswell as idealistic considerations.26The rationalebehind this principle is that the parties231t was, however, Lester B.Pearson that received the NobelPeace Prize in recognition of his efforts in UNPeacekeeping. For a full account ofUNEF, see Gabriella Rosner,The United Nations Emergency Force (1963)MAccording to Hammarskjold, the functions of the forcewould be “when a ceasefire is being established, toenter Egyptian territory with the consent of the Egyptiangovernment, in order to maintain quiet during and afterthe withdrawal ofnon-Egyptian troops and to secure compliancewith the other terms established in the resolutionofNovember 2, 1956. The force obviously should have no rightsother than those necessary for the execution ofits function, in cooperationwith local authorities. It would be morethan an observer corps, but in no way a militaryforce temporarily controlling the territory in which it is stationed;nor moreover, should the force have militaryfunctions exceeding those necessary to secure peaceful conditionson the assumption that the Parties to the conflicttake all necessary steps for compliance with the recommendationsofthe General Assembly. UN GA Doc A/3302p21. It was on the basis ofthis report from the Secretary Generalthat UNEF was established - Res 1001, GAOR,November 71956, Document A13308. The rightto use forcelater became abitterly contested issue between the UNSecretary General, Egypt and Israel. See General Bums, LtGen E.L.M. Between Arab and Israeli (1963)p272.GeneraI Assembly Document A/3943, para 178.2See F.T.Liu, “UN Peacekeeping and the Non-Use ofForce” InternationalPeace Academy, Occasional PaperSeries, (1992).132concerned, by consenting to a UN peacekeepingoperation, undertake to cooperate with the UNforceand honourcertain commitments. Any subsequentproblems between the UN peacekeepingforceand oneofthe host-factions can be resolved bydiplomatic negotiation and suasion; the useofforce therefore becomes not only unnecessary butcounterproductive. As Professor Goodrichhas correctly pointed out:peacekeeping operations have invariably been undertaken,not for the purpose ofinfluencing the conduct of states by coercivemethods, but rather to assist in theimplementation ofagreements already reachedand incidental thereto, to performsuch functions as observe, report and assistin the settlementof minor differencesand perform local police functions and ingeneral to do those things that arethought to contribute to the ultimate goal ofpeacefulsettlement or adjustment.27Consequently, it is thought the parties to a conflictwill be more amenable to the interjection ofa UN force if it is perceived to be impartialand non-combatant. In theory, therefore, thisprinciple is deceivingly simple. However, it encountered considerablepractical difficulties in theCongo.(a) The Congo CrisisOn June 30, 1960, the Congo gained independencefrom Belgium. Within two weeks, theCongolese army had begun to rebel, and the Katangaprovince declared its secession. At theurgent request of the Congolese government, the UNSecurity Council met to discuss the crisisand less than two months later, UN troopsnumbering 23,000 (ONUC) arrived in the Congo.2827Goodrich, The UN in a Changing World, (NewYork) 1974 at 149-150; See also Ruth Russell, supra note11 at 6-722ONUC was deployed in response to a request by President Joseph Kasavubuof the Congolese government.;see Telegram from Congo, UN SCOR, 15th Sess,Supp for July-Sept 1960 at 11, UN Doc S/4382 (1960) Two dayslater the Security Council called upon Belgium towithdraw and authorized the Secretary General to Lake thenecessary steps” to assist the Congolese military in dealingwith the crisis; Security Council Res 143 (1960) Foran analysis ofthe legal issues in the Congo See E.M.Miller,“Legal Aspects ofthe Congo Crisis American JournalofInternationalLaw 1971; King Gordon, TheUNin the Congo: A QuestforPeace (1962), Catherine Hoskyns,TheCongo: A Chronology ofEvents, Jan 1960-Dec (1961)which contains documentary appendices.133During most of its four year operation, operatingin a complex internal crisis, the principle ofnon-useofforceproved an exceptionally elusivenorm to follow. Initially, the Secretary Generalarticulated the non-use of force exceptin the last resort in his first report on ONUC, whichspecified that UN peacekeepers could not useforce on their own initiative but only in responseto an “attack with arms” in other words,deadly force.29Thus, if a UN soldier was subjectedto actual gunfire he could legitimatelyfire back but not if the enemy merely aimedhis gun inthe direction of the peacekeeper.However, politicalevents swiftlyovertookany legal theorizing over the legitimacyofforce whenthe breakdown oflaw and order became absolutein November 1960. ONUC was urged to dealfirmly with the military irregularities “by using forceand disarming them of weaponry; thesituation will certainly be hopeless unless somethingdrastic is done to deal with the ForcePublique.” (ANC)30Thisproposal was however,strongly rejected by the United Nations, theargument being that “the UN forceis in the Congo as a friend and partner, not as an army ofoccupation...Obviously,ifthe force began to use its arms to wound and kill Congolese, its doomwould be quickly sealed, for it cannot long surviveamidst a hostile public.’31Although no initial action was taken, ONUCwas later authorized by the UN to use force beyondself-defence.32Thismove ironically “sealed itsfate”. The harassment to which ONUC wasFirst Report ofthe Secretary General, para 5, UNSCOR, 15th Sess, Supp for Jul-Sept 1960 at 17.30British Major-General H.T.Alexander, Chiefofthe Gharnan defence staff, cited in F.T.Liu supra note 26atp1931RalphJ.Bunche, Special Representativeofthe SecretaryGeneral inthe Congo, Letterto theSecretary General,SC Document, S/445I32Although the UN was authorized to “take allappropriate measures to prevent the occurrence ofcivil war inthe Congo”, the use of force was not undertaken on thebasis of Articles 41 or 42 of Chapter VII.See Ruth Russell supra note 11at 109134subsequently subjected to clearly demonstratesthe complexities incurred by a traditionalpeacekeeping force which transcends the legal limitsof self-defence and becomes part of theconflict.(ii Traditional norm of impartialityThe principle that a peacekeeper restrain from resorting to armedforce unless absolutelynecessary is related to the norm of impartiality.It is imperative to the success of UNpeacekeeping, that the forcedoes nottake sidesin a conflict. Thecorrelation ofthese norms wasevident during ONUC’s deployment in the Congo which demandedthe interposition ofthe forcebetween the warring parties. The practical demandson the ground however, resulted in ONUCbecoming a party to the conflict in violation of its mandate andthe traditional norm ofimpartiality and non-engagement33.ONUC was deployed at the request ofthe newly independent Congolesegovernment, headed byPresident Joseph Kasavubu and his rival PrimeMinister Patrice Lumumba. Following theassassination of Lumumba,34theSecurity Councilauthorized the use of force to prevent civilwar, stop all military operations and control the armedfactions.35However, Katangeseresistance to ONUC continued to mount and soon ONUC and Katangeseforces were engagedThe Secretary General earlier stated that the force cannot be permitted to become aparty to any internalconflict.’ First Report ofthe Secretary General para 7 UN SCOR, 15th Sess,Supp for July-sept, 1960 at 17 UNDoc S14389 (1960); Oscar Schachter reaches a similar conclusion in, AuthorisedUses of Force by the UN andRegional Organizations, in Law and Force in which he arguesthat “the self-defence principle was stretched farbeyond its usual legal meaning.”Reported in UN SCOR, 16th Sess, Supp for Jan-March 1961 at 95, UN Doc S/4688/Add.1 (1961) For adetailed account ofLumumba’s arrest and death, see Note by theSecretary General, UN SCOR, 15th Sess, Suppfor October-December, 1960 at 67, UN Document S/4571 andAdd 1. (1960), Report to the Secretary General,UNSCOR, 16th Sess, Supp for Jan-March at 88 UN Doc S/468835Security Council Res 161 para A (1), B (2) (1961)135in battle across the province.36Asubsequent SecurityCouncil resolution37wasinterpreted bythe leader ofthe Katangese secession movement,Moise Tschombe as a declaration ofwar, thusescalating in the harassment of ONUC in Katanga.The principle of the non-use offorce except in self-defence as enunciatedin the Congo by DagHammarskjold was also defined in the Secretary General’sguiding principles for the operationsofthe United Nations force in Cyprus (UNFICYP)in1964.38The document represented a steptowards articulating legal guidelines forthe precise circumstances in which UN forces could useforce. Theconceptwas broadened toencompass attempts toforce withdrawal, attempts to disarmand violation ofthe premises. Troops were also authorised,in an important development, to usearmed force in order to resist “attempts by force to preventthem from carrying out theirresponsibilities as ordered by their commanders.”39Notwithstanding an authorization by the Security Council,the use of force, no matter whatcontext it is authorised is always restricted by the application ofthe customary legal normsrequiring necessity and proportionality.40Thus, minimum force was authorizedfor UNFICYP’s36For an account ofthe various clashes, see Report to the SecretaryGeneral, UN SCOR, 16th Sess, Supp forApril -June, 1961 at 22, UN Doc S/4791 (1961), &Report oftheONUC 0/C, UNSCOR, 16th Sess, Supp for July-September 1961 at 99, UN Doe S/4940 & Adds 1-9 (1961).Security Council Res 169, para 1 (1961) “The Security Council strongly deprecates the secessionistactivitiesillegally carried out by the provincial administration of Katanga,with the aid of external sources and manned forforeign mercenaries. Id38Aide Memoire, in Note concerning thefunction and operation ofUNFICYP, UNSCOR,19th Sess, Supp forApril-June, 1964 at 13, UN Doe S/5653 (1964)Ibid.Aide Memoire, para 18 (c). This turnofphrase later evolvedinto the UNEF II definitionofself-defenceto include “resistance to attempts by forceful meansto prevent the force from discharging its duties under themandate of the SC.” - Report ofthe Secretary General para 4(d) UNDoe S/i1052/Rev.4°Nicaragua v. US Case ICJ 1986 94 (June 27) (application of force inself-defence and necessary norms)136mandate and then only after “all necessarymeans of persuasion have failed.”41The application of customary norms of internationallaw is all the more compelling when oneconsiders that the UN Charter does not mention therules ofengagement for UN peacekeeping;emphasizing the entirely “ad hoc” nature of such operations.This assertion of course, rests onthe premise that UN peacekeeping operationshave, until very recently, not stemmed fromChapter VII which authorizes the use of force. Arguably, however,the legal authority for UNpeacekeepers to use force in self-defence, rests notonly on customary law but also Article 104of the UN Charter which permits the UN “such legal capacity asmay be necessary for theexercise of its functions.”Evolving norms of UN peacekeeping operations.At no time since its inception has the nature or the concept ofpeacekeeping been as open toredefinition as it is at this juncture. As the numberof operations proliferates, the essence ofpeacekeeping as a legal concept has begun to evolve.Recent peacekeeping operations have demanded new tasks of UN peacekeepers,arguablyinappropriate with their traditionally perceived imageof mediators. The UN has become moreand more involved in operations authorized underChapter VII of the UN Charter, moving theconcept of peacekeeping into a whole new grey area of peace-enforcement,which would nolonger appear to require the consent of the host state.The traditional concept of peacekeeping as mentioned relies entirely onthe consent andcooperation of the parties to the conflict. This has proved elusive insituations like Bosnia andSomaliawherepeacekeeping has been unsuccessfulin taking the forceful action required. While41Aide Memoire, para 18, supra note 38137this is attributable to the fact that the Security Councilhas deployed peacekeeping operations inconflicts where, in fact, there is no peace tokeep, the current tendency of the Security Councilis to continue to give UN peacekeepers more roomfor manoeuvre.42As Marrack Goulding, the UnderSecretary-General for Peacekeeping points out:In political, legal and military terms, and in termsof the survival of one’s owntroops, there is all the difference in the worldbetween being deployed with theconsent and cooperation of the parties tohelp them carry out an agreement theyhave reached and, on the other hand, beingdeployed without their consent andwith powers to use force to compel them to acceptthe decisions of the SecurityCouncil•nThis is an controversial development which has tarnished theimage of the United Nations as acredible peace-institution. However, it should benoted that the original mandate ofUNPROFOR was to secure thedelivery of humanitarian aid, to deter breaches of undertakingsand to mediate local disturbances. The UNpeacekeepers have proved invaluable in helping todistribute humanitarian aid to innocent civilianscaught up in the fighting. The crisis in theformer Yugoslavia has, however, demonstrated thatUN peacekeeping, conceived in its42See eg, Security Council resolutionson Haiti and Rwanda which, though too early for legal analysis.demonstrate the new proactive approach of the UN.Marrack Gouldmg “The evolution ofUnited Nations peacekeeping”International Affairs, 69 (3) July 1993,at 461See Paul Lewis ‘Reluctant Peacekeepers: ManyUN Members Reconsider Role in Conflicts” The New YorkTimes, December 12, 1993, at A22 (noting that the UN doesnot have the staff, expertise or funding to engage inextensive peace-keeping operations. The Council is losing its credibilityas its “unenforceable resolutions andstatements from this year alone are ignored.) Michael Gordon“New Strength for UN peacekeepers: US Might,”The New York Times, June 13, 1993 at A16 (questionsUN’s capacity to carry out extensive peace-keepingoperations without US firepower in Somalia and calls intoquestion impact this will have on the Organization’scredibility); “Heart ofGold, Limbs ofClay,” The Economist,June 12 1993 (argues that legitimacy ofthe SecurityCouncil is at stake because of its lack of democracy. Criticscharge that the Council has become little more thanan extraarmofWestern foreignpolicy and thatBoutros Ghalisuffers from “imperial over-reach”) “Open the Club,The Economist, August 29, 1992 at 14 (the South argues that “theCouncil is becoming a flag of convenience forold-timeneo-imperialists”), RichardBernstein “Snipingis Growingat the UN OverWeakness in Peacekeeping” TheNew York Times, June 21, 1993 at A6 (“notingthat the UN is in a mess due to its lack ofmoney, human resourcesand efficiency”)138traditional form, cannot hope to achieve anythingmore than the tasks assigned to it forhumanitarian purposes.As the former UN Secretary General Dag Hammarskjoldconcluded on the role ofpeacekeepingin a civil conflict: “It seems to me, on thebasis of the Congo experience, that the only soundway to inject an international armed force into a situationof that kind is to ensure that it is forclearly defined and restricted purposes, is fullyunder the control of the UN and alwaysmaintains its primary posture of arms for defence.”45(i) Departure fromImpartiality as a NormTraditional UN peacekeeping operations requirepeacekeepers to be absolutely impartial.However, in recent UN operations, for example, UNPROFOR andUNOSOM II, the UN hasbeen unable to retain its image as an impartialmediator and as a result has favoured one partyto the conflict more than another. In the formerYugoslavia, the Serbs have quite clearlyacquired thereputation ofthe aggressor side by the UNand have been blamed for the systematicrape and massacre of thousands of Muslimand Croats.46 Although it is difficult for UNpeacekeepers to remain impartial to horrific atrocitiessuch as the practice of ‘ethnic cleansing”there is evidence to suggest that atrocities have beencommitted on all three sides to the conflict.A similar situation occurred in Somalia whenUNOSOM II announced a shift in mandate totarget General Aideed personally. In the weeks followingthe attack on UN Pakistani troops inwhich 24 were killed, the New York Times reportednumerous assaults by US Rangers against‘UN Doe S15240 (February 4,1963)See Roger Boyes “Frontline Peacekeepersstumble into Bosnian showdown” The Times (London) September3 1992 (noting that the Serbs consider the UNto bejust another party to the conflict and that aid workers helpingpredominantly Muslim enclaves reinforces theSerbs impression that the UN is no longer impartial)139General Aideed’s home, commandcentre and forces. Although the US casualtiesthat weresustained were not sanctioned by the UN, nor, in fact, ever notified to the UN, the USpressured the Security Council to pass a resolutionending the “manhunt”.“Deploying a UN peace-force under ChapterVII would appear to obviate the requirement forimpartiality in an ethnic conflict with the unfortunateconsequence that the UN becomesembroiled in what is, essentially, a quagmire.It also becomes difficult for the UN to retain itscredibility as a “broker of the peace” duringdiplomatic negotiations.48However, not even theUN Secretary General believes it is possiblefor a UN force operating under Chapter VII toremain impartial in a civil war.49In sharp contrast to the debacle of Somalia andBosnia, the UN operation in Cambodia(UNTAC) remained strictly impartial, despitethe frequent attacks on UNTAC by the PDK(a.k.a, theKhmer Rouge) and the NADK (NationalArmy ofDemocratic Kampuchea). UNTACwas also refused access to areas under the control ofthe Khmer Rouge but chose not to enterthem forcibly.5°The circumstances were, however,notably different in Cambodia. The UN hadbeen able to broker a peaceful settlement prior tothe deployment of the peacekeeping force and‘°Security Council Resolution 885, para 8 (1993)For example, the UN is perceived by the Somalis asjust another warring faction and thus cannot make anysignificantheadway withnegotiationswith clan leaders. See egJulian Hopkins, Director ofCare (UK) Letter to theTimes (London) July 14th 199249SeeFurther Report ofthe SecretaryGeneral, UN Document S124848 (1992), para 49; “UN troopsmay haveto move beyond the usual peacekeeping mode ofimpartialitybetween two parties to a conflict who have both agreedto the United Nations role. They themselves maybecome a party to a conflict with whoever tries to block, rob ordestroy the convoy which they are protecting.” See also theSecretary General’s Agendafor Peace, infra note 11850”Somalia:Leam from Cambodia”, The New York Times,September 29th, 1993 (noting the difference betweenpeacekeeping andpartisan engagement.) While the KhmerRouge murdered theirpolitical opponents in front of UNpeacekeepers, the UN did not try to disarm the Khmer Rougeforcibly and relied mainly on diplomatic pressure tocurb human rights abuses. UN resolutions in Somalia by explicitlycalling for disarming warlords in Somalia havedenied scope for diplomatic flexibility and focused on militaryconfrontation instead.140thus proactive measures were not necessary.Nevertheless, the operation in Cambodia has beenconsidered a success resultingin free and fair elections in l992’ while UNPROFORandUNOSOM remain unable to fulfil theirmandate.The traditional norm of impartialitywould therefore appear to have been replaced by a greaterintolerance towards warring factionsor states which either attack UN troops directly or commitgross violations of international humanrights. While it is salutary that the UN is attempting todeal with such flagrant acts of violenceagainst human rights, it is open to conjecturewhetherUN peacekeepers should engage in areasofinherent complexities.(ii) Problems in UN Command and Controlof PeacekeepingIn addition to theoretical tensions surrounding UNpeacekeeping there are also growing signs ofdiscontent among national contingents ofthe traditional UN approach to command and controlof its peacekeeping operations.52Thisproblem becameacute in Somalia, where Italian andPakistani troops refused to be stationed incertain areas on the instructions of their nationalgovernments on the grounds that the deployment was toodangerous. The Americans recentlyindicated their withdrawal from UNSOM II unlessthe UN guaranteed that US troops would notbe used on patrol in volatile situations.5351Report ofthe Secretary General, paras 2 and 15, UNDocument S/25913 (1993) see also William Shaweross,“The Nightmare is Over” The New York TimesOctober, 12th 1993 (noting that the UN Peacekeeping actioninCambodia was a success) Report ofthe Secretary General,paras 2 and 15, UN Document S/25913 (1993)52DonatellaLorch, “Disunity Hampering UN SomaliaEffort,” The New York Times, July 12, 1993, at A8. TheItalians went so far as to mount a unilateralweapons search operation, in which 3 Italian soldiers werekilled; see“Italy threatens topull UNtroopsoutofSomalia,” TheGlasgowHerald, July 14 1993 (noting fierce Italian criticismof a UN military strike led by American helicopters); AlanCowell, “Italy in UN Rift, Threatens Recall of Somalitroops.” The New York Times, July 16 1993,Elaine Sciolino, “US Asks UN Not to Use AmericanTroops on Patrol” The New York Times, September 26,1993 (noting that the UN operation in Somaliahad become an American one yet pointing out thatunless theAmerican troops helped the UN peacekeepers,’it will limit the flexibilityof the peacekeeping forceand ultimately141In addition to the unwillingness of the Italiangovernment to the possible deployment of Italiantroops patrolling dangerous areas, there was the perceptionfrom Rome that the UN operationwas being run exclusively by UScommand.MThefeud culminated in the sacking of the Italiangeneral in Somalia in July l993.The Americansremained adamant that the military operationshould focus its efforts on arresting or even killingGeneral Aideed whereas the Italians andseveral other contingents demanded that the UN should get backto its original mandate ofprotecting humanitarian relief.56While the use of force in Somalia was authorised bythe international community, the overallconclusion is that it was an American operation, under UScommand and control. While thedelegation of the command and control of the UN force to the US militarywas a pragmaticdecision in recognition ofthe general reluctance ofthe US toplace troops under UN command,the subsequent feuding is indicative of the inherent problemsthat can result from such amove.affect the mission”; “UN Chief sees a Disaster in Somalia if USWithdraws Its Troops”, The New York Times,September 30th, 1993 Boutros Ghali was quoted as saying ‘Actualwithdrawal of the force would lead to the rapiddecomposition of the whole UNOSOM operation”.Id“Richard Dowden “UN Somalia Effort Crumbles Amid Raids and Bickering,” TheGuardian, July 1993,(highlighting the complaints ofaid agencies that US policy had made it toodangerous to work in Mogadishu andthat resentment ofthe American-led operation was running high)55’UN Tries to Clear Up Somalia Mess”, The Guardian, July 14 1993 (noting the UNwas considering the legalimplications of sacking the commander of a peacekeeping contingent)56”Italy seeks halt to peacekeeper’s fighting” The Globe andMail, July 12, 1993 (noting parliamentary andpublic oppositionin Italy to “warlike” operations); “Long amongmost obliging allies, Italy challenges Washington,UN” The GlobeandMail, July 16, 1993; “InfightingHampers UN inSomalia” The Guardian, July 23. 1993 (notingthat even Pakistan, close allies of the US, was calling for a fundamentalreview of the US-led operation inMogadishu stating that Pakistani troops were paying the price for earlier mistakesin the operation.)See Elaine Sciolino, “UN Secretary General has to direct hispeace efforts at Washington too’ The New YorkTimes, October 16th 1993 (noting bitter feudingbetween the Secretary General and the US Admin over Somalia)142Other criticisms may be made ofthe UN force in Bosnia. A report from a UN fact-finding teamfollowing the killing on January8th 1993 ofthe Bosnian Deputy Prime Minister found “...manyofthe freshlyarrived units in thearea had no experience or trainingforpeacekeeping operations.Systematic procedures had fallen by the wayside.. .while commanders attempted to solveoperational dilemmas between overreactionand underreaction with limited militarycapability.”58In a scathing attack on UN peacekeeping operations Lewis Mackenzie,drawing from hisexperience as a UN commander in the former Yugoslavia statedthat:Over thepast years, the numbers ofUN peacekeepersdeployed around the worldhas grown from fewer than 5,000 to well over 60,000and yet..there is still nomilitary style command centre at the UN: no-one on duty24 hours a day, 7 daysa week, no communications room withmaps of the various operational areas onthe wall, and mission-knowledgeable duty officersmanning the radios andkeeping a log of all the information and requests comingin from the field. Noarmy in the world would deploy its troops with so little direct controlover whatthey were doing. The UN shouldn’t either.59Within UNPROFOR for example, there were 6different Head-Quarters and no concerted,overall plan to meet the logistical needs of these groups.Part of the problem is due to theabsence of a central coordinating committee atthe United Nations in New York to oversee itsmilitary operations. As one French GovernmentOfficial asserted “[t]he fact is that UnitedNations command is proving too cumbersomefor a military mission. Everything takes too much58The Washington Post, February 7th 1993; “US Troops Reinforcementsin Somalia Delayed 9 Hours” The NewYork Times, October 6th, 1993-Lewis Mackenzie “Peacekeepers: The Road toSarajevo,” 1993 at 331.143time, and there is considerable [restrictiveness]among our soldiers.”6°Thesecriticisms illustrate theinadequacies ofcurrentUNpolicy to civil conflicts, adding supportfor the need to develop alternative approaches,not only in terms of new principles but also forthe role ofUN forces on the ground. Given theUS-led coalition’s prosecution of the Gulf Warand the lack of reporting once thedecision to authorize “all necessary means” was taken, thenature of centralized command and controlhas assumed a greater importance.”UN Troops and the Use of ForceClearly, UN forces have already assumed amore activist role in conflicts requiring the use offorce. While UN troops traditionally cannot useforce except in the last resort as self-defence,there is evidence to suggest that this norm is alsoevolving. It may for example, be argued thatthe insertion of the clause requiring “all necessarymeans” in the Security Council resolutionconcerning Bosnia and Somalia61has compelledinternational lawyers to re-examine theconceptual debate over the use offorce for UN peacekeepers.The creation of the ‘no-fly zone”over Bosnia62andthe subsequent shooting down ofSerbian planes invoke similar arguments.Ironically, this activist role was also evident inCambodia which has been cited as an exampleofa successful peacekeeping operation, where UNTAC wasauthorized to arrest and prosecutepersons for committing acts of political violence; arole which arguably goes beyond theparameters ofthe concept ofself-defence. The UNhad the authority to take pro-active measures60The literal translation may be incorrect. See RogerCohen “Dispute Grows over UN’s Troops in Bosnia’ TheNew York Times January 20, 199461See eg. SC.Res 770 (1992) and SCRes 836 (1993) for Bosnia, and SC Res 781, para 1(1992)for Somalia62Security Council Rea 781,paral (1992) and SecurityCouncil Res 816, para 4 (1993)144against a party whose violence was directedat someone than the UN.63Some legal commentators havecalled for a revision of the rules of engagement,their beliefbeing that if the UN is to continue toreceive requests for intervention in ethnicdisputes, UNpeacekeepers on the ground shouldbe given the military resources andproper mandate toenforceUNresolutions.MTheneed to arm peacekeepers with weaponry toface their adversariesis long overdue accordingto some experts. John Mackinlay argues,for instance, for the use offorce for peacekeepers which mustbe expressed in broad terms to span mostcontingencies.65It is possible to defeat the arguments fromscholars and politicians for expanding the role ofpeacekeepers to include the preemptive useof force. The exponents of this argument appear tooverlook the experience in the Congoin 1961 where fire-power was used to preventcivil warand deal with mercenary forces. ONUC becamethe subject of intense criticism and Africandisaffection while in Beirut in1983-4, the Multi-National Force, particularly theFrench andAmerican contingents lost 10% casualties and leftbehind a city more engulfed in strife thanwhen they arrived. The argumentagainstrevising the rules ofengagement for UN peacekeepersis further strengthened when one considersthe more successful operations in El Salvador,Cambodia, Angola and to a certain extentCyprus and Sinai in which the norms of impartialityand peaceful mediation were up-held.The idea of a peacekeepingforce using preemptive force contradicts thefundamental63See theAgreements on A ComprehensivePoliticalSettlement ofthe Cambodian Conflict (“ParisAgreement”)October 23,1991,31 ILM,183 (Article 16) TheSpecial Representative at the UNTAC Office hadsuch powers inJanuary 1993 and arrest and prosecutions ofoffenders commenced shortly thereafter; Report of the SecretaryGeneral, para 15, UN Doc Sf25289 (1993)See John Mackinlay, supra note 2065Ibid at p248 Mackinlay cites for example,unforseen acts of violence by unrepresentative minorities145assumptions on which peacekeepingis based. For the UN soldier caught in the midstof ethnicwarfare there is all the difference in the world betweentraditional peacekeeping and full-scalewar. There does not exist aconceptual device in the UN Charter for the progressive escalationfrom thepassive roleofpeacekeeping to conventionalwarfare, which demands much more fromUN forces. Indeed, one ofthe great virtues ofpeacekeeping operations is their non-combatant,and therefore neutral stance. The useofforce would likely destroy this characteristic and alongwith it, the vital co-operation of at least oneof the parties in conflict.66Thatdoes not mean,however, that UN troops cannot use preemptiveforce under the legal authority of Article 43 ofthe UN Charter. This concept will be exploredfurther on in this section.A peacekeeping force which descends into the conflictmay well become another party to theconflict instead of providing a solution.67As Brian Urquhart, an ardent supporter of UNpeacekeeping urges, “[T]here is an important differencebetween the show of strength and theuse of force.”68Moreover, asalready stated “successful” peacekeeping operations are often“buffer zone” peace forces sent in to well-defined areasof operation with an agreed ceasefirein place. Current crises ofthe intrastate variety wouldno longer appear amenable to the use ofbuffer zones. Often the warring factions in civilconflicts are so numerous and unaccountablethat identifyingthe potentialenemiesbecomes extremelydifficult and any diplomatic negotiationThis is one of the criticisms of the Somalian operationswhere UN troops have been criticised for their“warlike” approach. Concentrating on arresting or killing GeneralAideed have hampered diplomatic efforts andreliefwork.The Congo affair in 1961-3 demonstrates this problem - the authorizationto use force was expanded toincludepreventingcivilwar anddealingwith mercenariesalthoughthe consequentefforts to implement this mandateillustrates the difficulties this involves. The experience ofthe non-UN Multinational force in Beirut in the 1980’sis also an example of this problem.68supra note 22 at p202146a majorproblem.69On a more practical level there are also widespread doubts thatthe UN hasthe military experience to command and administeran enhanced peace-keeping force operatingin this proactive manner.7°An enhancement of UN peacekeepingoperations is not necessarily opposed.Peacekeeping,conceived in its traditional form,properly directed and financed is a vital componentof UNefforts to maintain international peace and security.Peacekeeping as an instrument of war,however, is inappropriate and any move to revisethe rules of engagement should be resisted.Peace-enforcement is an entirely different conceptand requires an approach that contradictsmany of the basic assumptions ofpeacekeeping.(i) The Former Yugoslavia - Peacekeepingor Peace-enforcement?The two tier model can best be illustrated byapplying it to the crisis in the former Yugoslaviaand Somalia where peacekeepers have comeunder increasing fire on the ground, yet haveneither the mandate nor the legal authority from theSecurity Council to use force except in self-defence. The crisis in the former Yugoslaviais amicrocosmofall ofthe issues discussed so far;peacekeeping or peace-enforcement, arming peacekeepersor maintaining their impartial andneutral role. Unfortunately, the UN experiencehighlights the inadequacies of the UNpeacekeeping force and demonstrates the need toformulate new ways ofdealing with intrastateconflicts under Chapter VII.From the outset the UN chose to deploy a traditional peacekeepingforce instead of a peace-enforcement army to ensure the delivery ofhumanitarian aid and the protection of relief69SeeJohn Mackinlay, supra note 20 at 243. This is preciselythe problem encountered in Somalia and Bosnia.7°Lewis Mackenzie supra note 59 at 131147workers. This was a fatal decision and one destinedto fail, as clearly there was no peace tokeep. The UN later sought to remedythe situation by increasing the mandate of thepeacekeeping force, (UNPROFOR) thusmoving the peacekeeping force into the murky watersofpeace-enforcement. From a conceptualpoint ofview the legal status of the UN operation inthe formerYugoslaviais thereforewholly unsatisfactoryand inadequatein terms ofits mandate.Original Deployment and Mandate ofUNPROFORThe United Nations initially became involvedin Yugoslavia71in November, 1991 when theSecretary General’s Personal Envoyfor Yugoslavia met with Yugoslav leaders, including thePresidents of Serbia and Croatia, to attempt apeaceful settlement to the Yugoslav conflict.7271Details ofthe background to the crisis are beyond the purview of this briefanalysis which confines itself toan examination of some of the legal issues and resulting practicaldilemmas facing the UN force. For a thoroughdelineationofthe events comprising Yugoslavia’sdissolutionthrough mid-1992 see Marc Weller, The InternationalResponse to the Dissolution of the Socialist Federal Republic ofYugoslavia, 86 American Journal of InternationalLaw, 569 (1992) AlanJames, “The UN in Croatia: an exercise infutility ?“ The World Today, May 1993p93-96;J.Zametica, The Yugoslav Conflict (Adeiphi Paper 270, 1992)seealso the excellent article by Charles Lewis NierIII, “The Yugoslavian Civil War” Dickinson Journal of InternationalLaw Vol 10:2 Winter 1992 304-331; JosefJoffe, “The New Europe: Yesterday’s Ghosts Foreign Affairs1992 29-37;V.P.Gagnon, Jr “Yugoslavia: Prospects For Stability” ForeignAffairs, 1992 17-35;Sabrina Petra Ramet, War in the Balkans” Foreign Affairs 199279-98; Charles Gatti “From Sarajevo to Sarajevo”Foreign Affairs 1992 64-78; Christopher Cviic, “YugoslaviaI: New Shapes from Old” The World Today August!September 1991125-127; Michele Ledic, “YugoslaviaII:thecostsofdivorce” TheWorld Today August!September1991 127-129; James Gow, “The use ofcoercion in theYugoslav crisis” The World Today November 1992 198-202. Rosalyn Higgins, “The New United Nations and FormerYugoslavia” International Affairs 69, 3 (1993) 465-483, 470.72TheEC took the initiative in the crisis, assuming a monitoringand negotiating role in an effort to bring peaceto the regionandpreventall-outwar; see The UnitedNations Yearbook 1991, 214 (describing the EC’s introductioninto the conflict and peacekeeping efforts thereafter) AnEC Ministerial Troika mission (ECMM)dispatched toYugoslavia to facilitate a truce and the return of all forcesto their previous positions, worked out a ceasefircagreement on July 31, 1991 with the aid of the Conferenceon Security and Cooperation in Europe (CSCE).However, in response to letters from the international communityrequesting that the United Nations reinforce ECefforts due to the rapidly deteriorating situation in Yugoslavia,a meeting ofthe UN Security Council was convenedon September 25, 1991. SeeLetterofSeptember 19, 1991 UN DocS/22903 (Austria); Letter ofSeptember 19, 1991UNDoc S/23053 (Canada); Letter ofSeptember 19, 1991 UNDoc S!2305 (Hungary); Letter ofSept 19, 1991, UNDoc S/23069 (Yugoslavia)148The Security Council, at its firstmeeting,unanimously adopted Resolution713 expressing “deepconcern” over the fighting inYugoslavia, the heavy loss of life, andin particular, theconsequences for the border areas of neighbouringcountries.73Apeacekeeping operation wasnot considered however, until all parties hadfully complied with the November ceasefireagreement. In the meantime, an armsembargo was imposed in Security Council Resolution724,1991 which further concluded that the conditionswere still not right for the deployment of apeacekeepingoperation.74However,thePermanentRepresentativeofYugoslavialater requestedthe Security Council to establish a peacekeepingforce75and a small group of UNpersonnelwere sent into the region to promotethe maintenance of the ceasefire. The establishmentof aUN Protection Force (UNPROFOR)was subsequently approved by the Security Council76andthe full deployment was eventually authorized’Its mission was “to create the conditions forpeace and security requiredfor the negotiation ofan overall settlementofthe Yugoslav crisis.”UNPROFOR was originally designed to bedeployed in three “United Nations Protected Areas”(UNPA’S) in Croatia, where there were largeSerb populations, to oversee the withdrawal ofthe‘Security Council Res 713, UN SCOR, 3009th mtg. UN DocSf23067 (1991)Security Council Resolution 724 UN SCOR,3023rd mtg, para 3, UN Doe S/Res1724 (1991) By this theSecurity Council presumably meant that there was noceasefire in place for the peacekeeping force to monitor.75Letterfrom Yugoslavia, UN Document5/23240 (1991)76Security Council Res 743 (Feb 21,1992)Security Council Resolution 749 (April7, 1992) Although the Security Council recalledits primaryresponsibility under the Charter..for the maintenanceof international peace and security The initialUN force(UNPROFOR) was not explicitly deployed underChapter VII. By April of 1992, 8,300 membersof UNPROFORwere deployed, and by July 23 of that year, almost allof the 14,000 members were in place. Thisestablished thesecond largest peacekeeping force inthe history of the UN, behind that of the UNTransitional Authority inCambodia (UNTAC). Troops were deployed to foursectors in three United Nations protected areas (UNPA’s) inCroatia, despite the continuingtension and reports ofdaily breaches of the January ceasefire; see “SecurityCouncilEstablishes Force to HandleYugoslav Crisis” The UN Chronicle, June 1992 at 16,149Yugoslav People’s Army (JNA), the demilitarization of theareas, and to ensure that the JNAdid not return.78Thus, in addition to overseeing themaintenance of a cease-fire, the originalmandate ofUNPROFOR was to demilitarizethe conflict areas in Croatia, ease ethnic tensions,and to facilitate the return of refugees and displaced persons.79The original mandate can, therefore, generally beconsidered to be a traditional peacekeepingmandate since the warring parties had essentially “invited”the UN to become involved, hadagreed in theory to a cease-fire, and because the SecurityCouncil did not specifically authorizethe initial deployment of UNPROFOR under ChapterVu.80It was further established that the“normal rules in United Nationspeacekeeping operationsfor the bearing and use ofarms wouldapply.”8’(b) Expanded Mandate of UNPROFORFighting soon spread to Bosnia-Herzegovina82despitethe ceasefire agreement reached in April,1991.t3TheUN Security Council therefore authorized the deploymentof UNPROFOR in Bosnia78Report ofthe Secretary General, UN Doc SJ23592 (1992), Annex III79Felice D.Gaer, “The former Yugoslavia, in A Global Agenda”Issues before the 48th General Assembly ofthe UN, 6-4180Some Serbian communities within Krajina, however, objected to UNintervention; see Further Report oftheSecretary General, para 8. UN Document S/23592 (1992)“Further Report ofthe Secretary General Pursuant to Security Council Res 721 (1991)9or a description of the early outbreak of hostilities and their toll onBosnia, see Further Report of theSecretary General paras 3-6, UN Doc S123900 (1992)83Report ofthe Secretary General Pursuant to Security Council 749,Annex II (providing in pertinent part thatthe three parties agree: to declare an immediate and total ceasefireon all territory in Bosnia-Herzegovina,‘to stopall activities that can provoke fear and instability among the population,””tosuspend all mobilization and removeall artillery,” and “to disband all irregular armed forces,in accordance with an agreed timetable’) The impossibilityof implementing this ceasefire agreement was shortly realized.150to protect Sarajevo airport and humanitariandeliveries in the country.84However, the SecurityCouncil initially decided not to give UNPROFOR amandate under Chapter VII of the UNCharter.85It was not until the humanitarian missionof the UN was severely impeded in May1993 by fierce military fighting and increasing civiliancasualties that the UN Security Councilexpanded the mandate of UNPROFOR into Bosniaunder Chapter V1L86 The language ofUNSC Res 836 was purposively unambiguousand called upon states under Chapter VII to take“all necessary measures, including the use of force, to facilitate..the delivery. .ofhumanitarianassistance”87Thus, the UN initially sought to adhere to traditionalnorms of peacekeeping by deployingUNPROFORto monitor ceasefires and generally report on thecrisis. Accordingly, Chapter VIIwas not invoked. It was only when peacekeepers were preventedfrom carrying out theirhumanitarian tasks that the UN Security Council, acted to increase their mandateand authorizedUNPROFOR to use “all necessary means” to deliver the aid. This phrase isnot onlyconceptually ambiguous, it does not clarify in what circumstancesthe soldier on the ground can84Security Council Res 758 (June 8,1992);Security Council Resolution 757para 17 (1992) had demandedconditions for unimpeded delivery of humanitarian supplies.UNPROFOR made negotiations to reopen Sarajevoairport for delivery ofthe supplies, but the agreementwas regularly violated. For an account ofthe implementationof the agreement, see Further Report ofthe Secretary General, UNDocument Sf24263 (1992)85Chapter VII does not seem to be implied in this case, as evidenced by the fact that Resolution758 specificallynotes thatthere was an “agreement ofall parties in Bosnia to the reopening oftheSarajevo airport for humanitarianpurposes, under the exclusive authority of the United Nations, and with theassistance of UNPROFOR,” thusshowing that the UN was attempting to solve the problem with cooperation as opposed to withforce.86UNPROFOR’S mandate was increased “in order to enable it, in the safeareas referred to in resolution 824(1993), to deter attacks against the safe areas, to monitor thecease-fire, to promote the withdrawal of military orparamilitary units other than those of the Government ofthe Republic of Bosnia-Hercegovinaand to occupy somekeypoints on the ground, in addition to participating in the delivery of humanitarian reliefto the population.Security Council Res 836, June 4, 199387Ibid. It is thought that the language was suitably vague tosecure the Russian vote.151use force beyond the parameters of self-defence.Several criticisms may therefore be made ofthe decision to deploy a peacekeeping forcein the former Yugoslavia.(c’) Critical Appraisalof UNPROFORThe deployment of a peacekeeping force to Yugoslaviawas quite clearly an inappropriateselection of instrumentality. Moreover, the statusof the subsequent force was legally unsound.UNPROFOR is being asked to engagein activities, ancillary to the basic nature ofpeacekeeping.While this in itselfis not necessarily fatal toits status as a peacekeeping force, it is neverthelessfutile to establish a UN operation with the objectiveof providing humanitarian aid, without aceasefire in place.UNPROFOR’s mandate is also unrealistic. Theonly truly peacekeeping function assigned toUNPROFOR was the request in Security Council Resolution781 to monitor compliance withthe ban on military flights in the airspace ofBosnia-Herzegovina.88Every aspect ofthe crisis in theFormer Yugoslaviahas thus made it unsuitable forpeacekeepingand appropriate for enforcement action. By allowingthe violence to continue without seekingto ensureaceasefire was in placehampered UNPROFOR’sability to implement its peacekeepingmandate. The UN Secretary General’s special mediatorinsisted from the start that a ceasefirebe in place before deploying peacekeeping forceswhich allowed extremists on both sides todelay UN action by violating successiveceasefires. In addition, by requiring that the two sidesagree where peacekeeping forces would bedeployed, the UN forced them to bargain on thecentral issue ofborders even as combat continued.This assured that the conflict would dragonuntil the warring parties reached a military stalemate.88Security Council Res 781, October,9 1992152Application of the “two-tier” model as advocatedin this discussion to the crisis would haveavoided the conceptual and practical difficultiesencountered with UNPROFOR. Ifthe SecurityCouncil, acting within its mandate to maintaininternational peace and security, had determinedthat the situation was unsuitable for peacekeepingon the basis that there was no peace to keep,Chapter VII enforcement measures could haveinstead been invoked to authorize an entirelydifferent enforcement army. The chances ofdiffusing the civil war would have been so muchgreater had such a force been deployed as a preventivemeasure along the borders ofBosnia andCroatia.89The present calls for arming the peacekeepers in Bosnia,and thus converting them to peace-enforcers, are unrealistic and too late to achieveany military or political gains. A UN force ofthis nature can only be successful if it is deployedeariy in the crisis. This inevitably calls fora political judgement and the necessary will to carry outany Security Council resolution. Theinevitable conclusion from the Yugoslaviancrisis is that the negotiations over the future ofseceding republics might have been more successful hadthe UN entered the crisis at an earlierdate with a full-scale peace-enforcement unit touse preemptive force to prevent outbreaks ofviolence. Sadly, the history books will recordthe UN action in Yugoslavia as a missedopportunity to implement a viable institutional mechanismfor destabilizing humanitarian crises.Similar conclusions may be deduced from the experiencein Somalia.891n mid-1991, the parties to the conflicthad yet tomobilizetroops, the republics were internally torn over whatthe future of the country would, or should be, the federalarmy was fragmentized and no-one seemed to be incharge; see Jill Smolowe, ‘Out of Control:In a CountryWhere All Sides are consumed by Ancient Animosities.Even the Army Seems Incapable ofHalting the Drive for Secession”TiME, July,15 1991, at 26153(ii) Somalia - Deployment andMandate ofUNOSOMIn March, 1992, the UN finally seized jurisdictionin the civil war in Somalia when the twomain warring factions, Au Mahdi Mohamedand General Mohamed Farah Aideed, signed acease-fire agreementwhich provided for a UN monitoring mission.9°In response tothis, theSecurity Council established the UnitedNations Operation in Somalia (UNOSOM).91Theoriginal conceptionofUNOSOMcomprised only 500 security personnel and were deployed withthe consentofthe principal factions, as there wasno Somali government for the UN to negotiateconsent with.92By November, however, the position ofthe UNforce became untenable and, consequently, theUN Secretary General recommended that theSecurity Council invoke Chapter VII measures inorder to secure the safe delivery of humanitarianaid to starving civilians.93The Security Council subsequently concluded that“...the magnitudeofthe human tragedy causedby the conflict in Somalia, further exacerbated bythe obstacles being created to the distributionof humanitarian assistance, constitutes a threat to internationalpeace and security” and dulyauthorized the use of “all necessary means toestablish as soon as possible a secure environmentfor humanitarian relief operations.“94Thus, it was clearthat the legal basis of the UN operationhad moved from a traditional peacekeeping action underChapter “Six and a half” to enforcement90The Situation in Sonwlia:Report ofthe Secretary General, paras6-8, UN Document S/23829 (1992)91Security Council Res 751 para 2. (1992) April 24,Report ofthe Secretary General, UN Doc Sf24451 (1992). Thus,UNOSOM was not a Chapter VII operationoriginally.93Letter from the Secretary General, p6,UN Document S/24868(1992) - reporting that cooperation withUNOSOM was almost non-existent, p2.Security Council Resolution 794 (December 3, 1992) para10.154action under Chapter VII of the Charter.The result ofthe new mandate underChapter VII was the Unified TaskForce (UNITAF) whichcomprised troops from over 20 nationsunder a US-unified command. The primary objectiveofUNITAF was to establish a secureenvironment for urgent humanitarianassistance, with themilitary command to be transferredback to the UN once the mission was accomplished.95Inaddition to easing the tremendous humansuffering caused by famine and civilwar, proponentshoped the mission would provide a model forhandling future international crises. As one USRepresentativestated, “[T]heUnited Nationsmustrestoreorder to Somalia....Somaliarepresentsthe type of problem the internationalcommunity will face in this new world. I believeit isappropriate that these problems be solved collectivelyby the community of nations rather thanby an individual country.”96UNITAF later evolved into UNOSOM IIwhich possessed similar enforcement powers underChapter VII although with a wider mandateof general security functions covering all ofSomalia.97Thus, like UNPROFORin the former Yugoslavia, the UN Security Councilincreased the mandate of UNOSOM toenforcement action under Chapter VII when it became95UN Doe S/24976 (1992)96J0Lewis,’ A Short-Term Commitment isNot Enough,” The Washington Post, December 5. 1992JamesJonah, UN Under-Secretary General for politicalaffairs, The Guardian, July 12, 1993 (quoted as saying“Ifwe failin Somalia the repercussions will be devastatingbecause it will show the UN cannot sustain such an operation.”)97FurtherReportoftheSecretary GeneralSubmittedinPursuance ofparags 18andl9ofResolution 794(1992),UN Document S/25354 (1993) at 12-18. For example,the mandate was designed to protect UN and nongovernmental personnel, equipment, and facilities, monitorcompliance with cease-fires, respond with force ifnecessary to violations of agreements, seizesmall arms, assist in repatriation activities and the removaloflandmines. It also empowers UNOSOM IIto provide help to Somalis in rebuilding their political, socialandeconomic life..and recreating a country basedon democratic governance.” Security Council Resolution 814March26, 1993155apparent that something other than a peacekeepingforce was required. The UN force has,however, come under intense criticismfor its “warlike” operation.(a) Critical Appraisal of UNOSOMThe UN Secretary General concludedthat “the Security Council now hasno alternative but todecide to adopt more forceful measures tosecure the humanitarian operations in Somalia.”Although this was certainly truedue to the sheer scale of civil violencethe subsequentdeployment of thousands of US troops underUS command (UNOSOM) was not the onlyalternative under the UN Charter.From a legal perspective, again the position is alsounsatisfactory. The status of the UN forcein Somalia is unclear leaving several possibilities open to conjecture.The UN force in Somalia(UNITAF)would appear to have been authorised underChapter VII ofthe UN Charter, the firstoccasion in which “peacekeeping” has been basedon enforcement measures. However, the initialUN force (UNOSOM) that was sentinto Somalia was not under a Chapter VII mandate.Consequently, in attempting to secure humanitarianrelief and monitor a cease-fire, UNOSOMwas inadequate to deal with the violence of ahighly volatile and dangerous environment.Moreover, the UN proved exceptionally slowin deploying peacekeepers to the areas of troublein Somalia and, as a result, lost vital time in providinghumanitarian aid to millions of starvingSomalis.The situation not only demonstrates the ineffectivenessof sending in a peacekeeping force witha restricted mandate, but also highlights the needto establish at the outset the legal status oftheforce and the mandate it is to begiven. As the UN Secretary General himselfadmitted:“UNOSOM II will not be able toimplement the . . . mandate unless it is endowed with156enforcement powers under Chapter VII ofthe Charter.“98Although the situation warranted more forcefulmeasures to deal with the clan warfare thedecision to send US troops under theguise ofa UN peacekeeping force was flawed. In keepingwith the central hypothesis of this paper a peacekeeping force should nothave been authorizedunder Chapter VII of the UN Charter.The “two-tier” approach would have been moreappropriate in these circumstancesenabling the Security Council to bypass the use ofpeacekeeping altogether once it had made the appropriatedetermination ofjurisdiction99and,instead, focus on the authorization ofa peace-enforcementunit under Article 43 ofChapter VII.Thus, for the third time in the history ofthe UN, the task of military actionhas been delegatedto the US rather than the UN. Even in a case ofhumanitarian intervention, an absence ofspecific national or strategic interests and against low-level militaryopposition, the authorizationof the use of force by the UN has still to be carried out by a few powerfulsovereign states.A Legal Basis for UN PeacekeepingThejuridical debate concerning the status ofUN peacekeepinghas been at the forefront of legaldiscourse and political analysis for many years.10°Thus, to indulgein a theoretical analysisof the constitutional basis for UNpeacekeepers would appear to be a frivolous exercise.However, as it is central to the hypothesis of this discussionthat UN peacekeeping be distinctFurtherReportofthe Secretary GeneralSubmittedin Pursuance ofParas. 18and 19ofRes. 794 (1992) at 13.Sce eg Part Two of this thesis for a discussion ofthejurisdictional bases of UN intervention.100See eg, the ICJ’s advisory opinion in theCertain Expenses ofthe UN, 1962 ICJ, 151, 166 July 20th, wherethe court concluded “obiter” that “peacekeeping operations wereundertaken to fulfil a prime purpose of the UnitedNations, that is, to promote and maintain a peacefulsettlement of the situation,” peacekeeping operations werelawful and consistent with the goals of the UN Charter, p151157from that of peace-enforcement, the argumentwould be strengthened if a legal basis can befound on which to place the concept ofpeacekeeping. Whilethe ad hoc nature ofpeacekeepingis oneofits main characteristics, acertain degree ofcodification is nevertheless desirable whendealing with the complexities of humanitariancrises.It has been argued for instance, that peacekeepingfalls within the broad ambit of Chapter VIconcerning thepacific settlement ofdisputes.In the case concerning the Certain Expenses of theUnited Nations, therepresentativeofNorwaysubmitted that “[W]ith regard to the ONUC action,it has been amply demonstrated that theauthority to undertake these steps falls under the expressor implied authority conferred upon the Security Councilunder Chapter VI of the Charter.”°’Professor Tunkin in the same case, however, concludedthat it is not possible to find theconstitutional basis for such operations in Chapter VIof the Charter)°2This submission restson the basic assumption that peacekeeping cannot fall withinthe ambit of peaceful measures inChapter VI because it envisages the use offorce in self-defence. Accordingly, DagHammarskjold devised the theory that peacekeeping wereauthorized under “Chapter VI and ahalf”, since peacekeeping falls outside Chapter VI yet doesnot constitute an enforcement actionunder Chapter VII. This would appear to be a correctanalysis and one that has generally beenaccepted; (that is until recent military operationsin Somalia and the former Yugoslavia.) Legalscholars continue to theorize, however, on the applicationof Chapter VII measures topeacekeeping.There is, for example, a respected body ofopinion that posits Article 41 of the Charter as the‘°‘ICJ Pleadings, Oral Arguments, Does, 1962 at 370. Seealso the Oral Statement by MCadiex, therepresentative of Canada, id, at 304-305.1021bid at 401158constitutional basis for peacekeeping operations sincethey could be characterized as “measuresnot involving the use of armed force.“103ProfessorSchwarzenberger states “. .the emphasis isthen put on the primary function of such a body whichcan be fulfilled without any resort toarmed force. On this assumption, the fact that theforce may use its weapons in self-defenceaffects its status as little as does a civilian’sexercise ofhis right of self-defence under municipallaw.“°An argument in the alternative and one that has attracted alarge body ofopinion is that Article40 provides the legal basis for UN peacekeeping.’°5Article 40 of the UN Charter allows theSecurity Council to “call upon the parties concerned tocomply with such provisional measuresas it deems necessary ordesirable...”Ironically, this view was supported by Dag Hammarskjoldwho stated that the legal nature and constitutionalbasis of ONUC ‘may be considered asimplicitly taken under Article 40 and in that sense, as based on an implicitfinding under Article39.“°The theory that Article 40 mayprovide the legal basis for peacekeeping, however, isnot only untenable, it is politically inadvisable. The establishmentofa peacekeeping force under103 See Professor Schwarzenberger “Report on Problemsof A UN Force 49 International Law AssociationConference (Hamburg:1960) at 138; See also “Problems of a UNForce” 9 Current Legal Problems (1956) at 253by Schwarzenberger.1°4lbidat 137. There is, ofcourse, the argument that peacekeepingoperations do notpurport to exclude the useof force as they in fact envisage force in self-defence and thuscannot fall within the ambit of Article 41 for thesame reasons as they are excluded from Chapter VI.‘°5See Oscar Schacter, “Legal Aspects ofthe UNAction in the Congo” American Journal ofInternational Law1961 at 6; Riad, “The UN Action in the Congo andits Legal Basis” Egyptian Review of International Law 1961at 21; Louis B.Sohn, “The Authority Of the UN toEstablish and Maintain a Permanent UN Force” AmericanJournal ofInternational Law 1958 at 230; D.W.Bowett, “UNForces:A Legal Study (1967) at 283.10615UN SCOR, 884th mtg, at 4 (1960). This was the status of ONUC inthe Congo according to OscarSchacter, “Legal Aspects of the UN Action in theCongo” American Journal of International Law 4-6 1961 andpossibly also ofUNIPOM, the constitutional basisfor which is not precisely specified; See Rosalyn Higgins, UNPeacekeeping Vol II at 429.159Article 40 is tantamount to a subsequentpronouncement of enforcement measures indicatedinthe remaining legal provisions of ChapterVu.’07As has already been reiterated, Chapter VIIenforcement provisions should be avoided as a legalbasis for UN peacekeeping’°8toavoid thepeacekeeping force becoming part of the hostilities.There is also the assertion that Article 29and Article 48 of the Charter constitutethe legal basis for peacekeeping. However, theseprovisions are normativelyambiguous and merely call upon UN membersto implement SecurityCouncilThe above considerations merely confirm that there isno one provision in either Chapter VI orChapter VII on which to base the legal status of UN forces.Recognizing this problem, severallegal scholars have developed various theoriesconcerning the ‘implied”, “general” and107The Security Council could confine itself to making recommendations under Article39; in such cases theprovisionalmeasures, (Peacekeeping, forinstance) would not bepreliminary steps toenforcement action. However,although Article 40 of the Charter explicitly requires the Security Council to recommendprovisional measuresbefore making any pronouncements under Article 39, an examination of Security Council practiceleads the writerto the conclusion that this a circular argument. For instance, UNEF IIwas created by Resolution 340 (1973) twodays theSecurity Councilhad maderecommendations forthesettlementofthe dispute. Similarpronouncementsare evident from an examination of SecurityCouncil resolutions in recent conflicts in Somalia and Bosnia. For acomprehensive legal analysis ofthe relationshipbetween the provisions ofChapterVII with particular reference toArticle 40, see Hans Kelsen, “Sanctions in International Law under theCharter of the United Nations” Iowa LawReview, Vol 31, (1946)p499-543.1°8The Security Council wouldappear to be moreconcerned with action “ex post facto” ie; enforcement actionfrthe crisis has erupted instead of adopting peacekeepingforces as a preemptive, provisional measure underArticle 40.09SeeProfessor Schwarzenberger, supra note103 for a discussionofArticle 48 (1). Professor Bowett criticizesthis approach and notes that Article 48(1) merely regulates the natureand the extent of the participation of memberstates in the implementation of a Security Councildecision already taken and does not provide the constitutionalbasis See Bowettsupranote 105 at284. See also Sheikh “UN PeacekeepingForces: Reappraisal ofRelevant CharterProvisions” Revuebelge dedroitmt(1971)ProfessorBowetthas alsocriticized the construction ofProfessor Draperthat Article 29 provides the legal basis forpeacekeeping for similar reasons; see Draper, ‘The Legal Limitationsupon the Employment ofWeapons by the UN Force inthe Congo International and Comparative Law Quarterly.1963 at 392 and Bowett id at 178.160“assumed” powers of the UN.”° These theoriesinvariably rest on the pronouncements of theICJ in the CaseofReparation for Injuries Sufferedin the Service ofthe United Nations “[U]nderinternational law, the organization mustbe deemed to have those powers which, though notexpressly provided in the Charter, are conferredupon it by necessary implication as beingessential to the performance of its duties.”11’While this may constitute a persuasive legalargument, in practice its utility is of littleconsequence unless there is the political inclinationto authorize a peacekeeping force on theseterms. The legal ambiguities concerning current peacekeepingoperations cannot however, bepermitted to continue for the simple reason that the credibility ofthe UN as an internationalpeace organization is at stake. This prognosis thusbegs two important questions:(1) Should the UN Charter be reviewed and revised?(2) Alternatively, should UN peacekeeping be codified?Review ofthe UN Charter has always been a controversial issue.To involve the UN in a formalrevision ofits Charter at this period in international relations wouldonly open a Pandora’s boxof complex issues and embroil the organizationin an ideological dilemma.”2Much can bedone to clarify the legal basis of peacekeeping withoutresorting to formal amendments of theUN Charter. Theidea is to get the Charter functioning asenvisaged by the drafters; not to tinkerwith procedural and legalistic amendments.110See eg John Halderman, “Legal Basis forUnitedNations Armed Forces,” AJIL 1962, at 972-973; Sohn AJIL(1958) at 230‘°ICJ Reports, 1949 at 182 - this theory formed the basis forthe oral submissions of a number ofgovernmentseg Denmark and Canada, see Pleadings, Oral Arguments, Docs1962 at 162 and 203112See US Congress Senate Committee on Foreign Relations,83d Congress, Senate doe, no 164, Review ofthe UN Charter.161Conclusions on the role ofpeacekeepingThe UN’s initiatives in the practical field ofinternational peacekeeping cannot be regardedlightly. Peacekeeping, despite its deficienciesand “ad hoc” approach, is a concept thatshouldnot be abandoned. However, it isclear that certain techniques of UN peacekeeping must beimproved, the legal status, for one, must be puton a firm footing. A detailed analysis ofpeacekeeping and the necessary changesis, however, beyond the parameters of this paper.”3Suffice to say, the international community hasrecognised this need and various studies areunderway.”4Any attempt to codify existing principlesofUN peacekeeping and practice shouldat the outset define the conceptof peacekeeping as distinct from coercive enforcementactionunder Chapter VII of the UN Charter.However, the argument against codification ofpeacekeeping principles is that it would narrow thecircumstances in which such a force couldbe deployed and could not possibly cover allexigencies.115The standard argument againstcodification of any legal norm forthat matter, is that it lends to a narrow definition of theconcept.Paradoxically, this is the argument submitted tosupport the proposals for codification, the“There is a dearth of literature on the subject of peacekeeping. Seeeg General H.T.Alexander “UNPeacekeeping Forces in Civil War situations at p187 ofE.Luard,The InternationalRegulation ofCivil Wars.(1972)For the view ofa military expert on somepractical difficulties facing UN troops in an internal conflict; seeMajor-General Indar Rikhye, “The Control ofUN Peacekeeping atUN Headquarters in E.Luardpl95for an evaluationof the command structure of UN forces.Many of his comments concerning peacekeeping operations wouldalsoapply to a pennanent UN army under Article 43. Major-GeneralRikhye also points out the inherent dangers ofmistaking a UN force for a solution of the basic problemand urges that a UN peacekeeping force should beconsidered in the overall framework of the UN Charter.“4See eg the Secretary General’s Report titledAnAgendaforPeace:“Preventive Diplornacy,PeacernakingandPeacekeeping.” June 17,1992 31 ILM.953 (1992)“SeeR.C.RSiekmann The CodificationofGeneralPrinciplesfor UN Peacekeeping Operations,” NetherlandsInternational Law Review, 1988 XXXV, 328-332162assertion being that current peacekeepingoperations have no legal basis andare lacking instrategy. Moreover, there would continue to bean interplay between the legal normsin anyinternational convention and thead hoc decisions as to their application. SecurityCouncilmembers would still have the ultimate sayin what circumstances a UN peacekeeping forceshould be deployed. This continualinterplay oflegal norms and policy would thereforecounteract any concerns of inflexibility.There is evidence ofa growing commitmentnot only to the ideals of UN peacekeeping but alsoto the recognition that it must be placedon a firm legal basis. The change inattitude of theSoviets is particularly encouraging.In its aide-memoire “Towards comprehensive securitythrough the enhancementofthe roleofthe United Nations” the Soviet Union indicated itsdesireto see thepositive experience and practiceofUnited Nations peacekeeping consolidated and puton a more solid legal and financial basis.”6There have also been recent moves to discuss adraft Convention on the Protection of UnitedNations Peacekeepers, prompted by the dramatic increasein deliberate attacks on peacekeepersand associated civilian personnel.”7The discussion thus far has sought to demonstratethat peacekeeping should not be authorisedunder Chapter VII of the UN Charter. Accordingly,there should be strict adherence to thevoluntary nature of UN peacekeeping whichrelies essentially on the consent of the host state.There must also be a structured approach topeacekeeping based upon well-defined principles‘16UN Doc A/43/629. The change in Soviet policytowards the UN was initiatedby Mikail Gorbachev’s articleon ‘perestrojka” See Pravda, 17 September 1984 UNDoc A/42/574; see also S/19143, Annex)“7See External Affairs LegalBureau ofCanada, 1993 Document. The draftconvention was due for discussionm the 6th Committee of the General Assembly,1993.163and objectives agreedin advance as opposed to an “ad hoc” approachbased upon the exigenciesofthe situation and to a large extentthe prevailing political will at thetime. Most important ofall, UN peacekeepers should not bedeployed into a situationwhich requires the use of force.The tragedy of Bosnia has illustratedthat UN peacekeeping is not able todeal effectively and,when necessary, forcefully,with violent and single-minded factionsin a civil war. Moreover,the experiences of both Bosnia andSomalia illustrate the difficulties a UNpeacekeeping forcecan run into when it transcendsthe legal limitations necessarily imposedon it by the norms ofimpartialityand the non-use offorce. Essentially,a UN peacekeeping operation isonly effectivewhen it acts as a buffer forcewith the full consent and cooperationof the parties to theconflict.118 When a situation involvesinternal faction and unidentifiable armedparties asopposed to discernable nationaltroops, the UN encounters difficulties.Ifit is to be assumed (or, indeed, expected)that the United Nations will continue tomove in thedirection ofmore forceful and proactiveaction in response to civil wars involvingan intolerablelevel of human suffering, it must develop acredible and effective enforcement mechanism.118UN forces have also recently becomeinvolved in some situations which have not required the useof force.For example, the UN has played aninstrumental role in the process of decolonizationand has recently helped topoliticallyreconstructand stabilizenewly independentstates. The UNTAG operation, for example, in Namibia,wasnot a peacekeeping force but an electionsupervisory operation. It successfully supervisedfree and fair electionsresulting in the independence of Namibiaon 21 March, 1990. For a discussion of the issuesinvolved see DavidStoelting, “The challenge of UN - monitoredelections in independent nations” Stanford Journalof InternationalLaw, p371 - 424, Spring 1992, v28 ; RichardJohnstone, “The Namibia dispute:the transitionalgovernment ofnational unity and the problem of enforcingResolution 435. v15 MelbourneUniversity Law Review p339 - 59,December 1985. Similar approacheswere used in Angola and El Salvador in 1992; see“Democracy under theGun,’ The Times (London), 10th January,1993 re:Angola. A larger UN force was deployedto Cambodia in 1991,which at the time ofwritingis withdrawing,having achieved its mandate. “UN Approves Troopsfor Rwanda” TheNew York Times “1992 (reporting on thedecisionby the UN Security Council todeploy a small peacekeeping forcewith a clearly defined mandate and deadlineto prepare for new elections and disarm irregular forces)164A UN Army Under Chapter VIIThe key necessity for the UN is to be ableto act earlier and more decisively in potentiallyexplosive humanitarian disasters. Apanel ofdiscussants convened by the Carnegie EndowmentforInternational Peace recently concluded that “...theUnited Nations must take steps to preparebetter for military enforcement actions...Ifcollectivesecurity is to be taken seriously, the UNmust be prepared, in the end, to use force.”119Creating a UN enforcement unit is therefore an appropriateresponse to the predicament ofcurrent peacekeeping actions. It is, however, a controversial proposal thatdemands not only afundamental change in the ways characteristic of UNoperations, but also in the way thatmember states perceive the world organization.In his 1992 Report titled An Agendafor Peace, the UNSecretary General Dr Boutros BoutrosGhali recommended the deployment of “peace-enforcementunits from member states, whichwould be available on call and would consist oftroops thathave volunteered for such service,”the idea being to enhance and extend traditional activitiesof UN forces into new areas. Thisconcept thus retains many features of traditional UNpeacekeeping but would go further, to theextent that the operation would be deployed withoutthe express consent of the parties involved.UN troops, would accordingly, be authorizedto use force to bring an end to civil violence.120It is this feature that distinguishes the concept ofpeacekeepingfrom that of peace-enforcement.Carnegie Endowment National Commission on America and theNew World, Changing Our ways:Americaand the New World (Washington D.C:Carnegie Endowmentfor International Peace) 1992,p67120This proposal is not entirely a new idea. In 1948 the then UN SecretaryGeneral Trygve Lie proposed thecreation ofa “small guard force, as distinctfrom a striking force”recruited by theUN Secretary General and placedat the disposal ofthe Security Council. Liearguedthat “even a smallUnitedNations force wouldcommand respect,for it would have all the authority of the UN behindit”. Lie, In the Cause ofPeace, (1954); Cordier & Foote,Public Papers ofthe Secretaries - General ofthe UnitedNations Vol 1 Trygve Lie 1946 - 1953; see also RuthRussell, supra note 11 at 1-45.165The UN Secretary General recommendedthe deployment of “peace-enforcement unitsfrommember states, which would be available oncall and would consist of troops that volunteeredfor such service”,121the idea being to enhance and extend traditional activitiesof UN forcesinto new areas.Dr Boutros Ghali argues that providing the UNwith military forces would provide an effectivemeans of deterring aggression and containinghumanitarian crises. He explains that ‘the readyavailability of armed forces on call couldserve, in itself, as a means of deterring breaches ofthe peace, since a potential aggressor wouldknow that the Council had at its disposal a meansof response.”122On the other hand, the Secretary General concedesthat a UN army formedunder the legal authority of Article 43 might not be able todeter aggression of a major nationand could only be deployed to meet “themilitary force of a lesser order.” Peace enforcementunits wouldtherefore engage inactive military combat where traditional peacekeeping operationswere regarded as being an inappropriate instrument to preventthe resumption ofhostilities. TheSecurity Council would “consider the utilizationof peace-enforcement units in clearly definedcircumstances and with their terms of referencespecified in advance.”23Though controversial, support for a UN militaryhas grown rapidly since the proposal of the UNSecretary General in his Agenda for Peace. Thenew era ofcooperation in the Security Councilhas prompted a number ofprominent observers, in addition tothe Secretary General, to call forthecreation ofa UN military force under theauthority ofArticle 43 to stamp out aggression and121supra note 114 at p966 - 967.22IbidIbid.166human suffering around the world.Of particular interest among academic circles is aplan putforward by Professor Alan Henriksonofthe FletcherSchool ofLaw and Diplomacy. Henriksonproposes the creationofa three tier UN military that would be comprisedofa Standing ReservePeace Force, a Rapid Response PeaceForce and a Permanent Peacekeeping Force, althoughheemphasizes that these would be “supplementary tothe United Nation’s pacific-settlement, ormediation activities and to its increasinglyimportanteconomic and social work” inkeeping withthe Secretary General’s Agenda for Peace.’24Henrikson believes that the internationalcommunity can no longer rely on “ad hoc” coalitionsled by the United States to maintaininternational peace and security. American politiciansare often overheard bemoaning US foreignpolicy, the general consensus being that “one Iraqis enough.” Henrikson advocates the creationofa rapid-response force which would be readyfor call on short notice and could be deployedto disputed international borders in order toprevent possible conflict.Richard Gardner, a Professor of ColumbiaUniversity and former US ambassador toItaly, alsoendorses the creation ofa UN rapid deploymentforce comprised of some 100,000 troopsfrommember states.’25Gardner’s proposals for a UN forcerest on the legal authority establishedin Article43. Such a force, he envisages, would be used bythe Security Council to prevent bothinterstate aggression and internal strife.’26‘‘ Alan K. Henrikson, “How can the Vision ofaNew World Order be Realized? “Fletcher Forum ofWorldAffairs, Winter 1992 at 63; Other internationallawyers that have lent support to the proposal forUN peaceenforcementunits includeDavid Scheffer, Senior Associateat theCarnegieEndowmentforInternationalPeace, Useofforce after the Cold War: Panama, Iraq and the NewWorld Order, in Right V. Might (Louis Henkin et al, eds1991) Scheffer argues that ‘international peace cannotdepend on the US of Secretary State flying 100,000 milesover many long months to build the necessary coalition.“Idat 155-56.‘Richard.N Gardner, “Collective Security and theNew World Order” Leaders, Jan- March 1992 at 24‘Ibid at 12167Politicians, newspapers and academicwriters have all lent support to the ideaofcreating a UNarmy. The New York Times has arguedin several recent editorials for the creation ofUNmilitary forces.’27New York Timescolumnist Flora Lewis hasurged the UN to ‘acquire apermanent force in readiness,loyal to its flag and to no state,” comprisedof Gurkhas from theIndian Army,128whereas political scientist Joseph S NyeJr proposes the creation of a UN“rapid-deployment force” of 60,000soldiers, with a core of 5,000troops who would trainregularly together.’29In a New York Times article, US SenatorDavid Boren suggested that 40 to 50 UN membernations contribute to a rapiddeployment force of 100,000 volunteers.He argued that such aforce would “help discourage regional conflicts,violations of basic justice, the proliferationofweapons and international terrorism.’30In a similar vein, Senator Joseph BidenintroducedSenateJoint Resolution 325, the “CollectiveSecurity Resolution Participation Resolution”,thaturged “the US president to takeall appropriate steps to negotiate, under Article43 of the UnitedNations Charter” a special agreementor agreements” with equitable termsunder whichdesignated forces from various countries,including the US, “would be availableto the Security127“Who can stop civil wars ?“ The New York Times,December 29, 1991; “The New World Army,” TheNewYork Tunes March 6th 1992; “The NewBlue Army,” The New York Times, September 20,1992 (Stating that “witha force capable of responding quickly,the United Nations could save lives, checkmassive tides of refugess anddiscourage warlords. In the world, as on a citystreet, the mere presence of a cop onthe beat matters.” A USAeditorial argued that “Ifthe world doesn’tlearn to resolve ethnic rivalries loosed by theCold War’s end, hundredsof Yugoslavias could crater the future,” See Editorial,“Beef Up the UN’s Peace Role”, USA Today,September28,1992.28Flora Lewis “Gurkhas can solve the UN’s problem”The New York Times, February 8, 1992‘28lbid‘3°David Boren, “The World Needs An Armyon Call,” The New York Times, August 26,1992168Council..for the purpose of maintaininginternational peace and security.”31Senator Paul Simon also proposes that“volunteers from “our” (US) armed forces..be madeavailable at the discretion ofthe president to help get food into Somalia, or provideair coverfor food and medicine going intoBosnia - or whatever situation is serious enoughto warrantUnited Nations SecurityCouncil action.”32President Bill Clinton, during his electoralcampaign, pledged his support for the creation of aUN military force. AClinton administration would “stand up forour interests, but we will shareburdens, where possible, through multilateralefforts to secure the peace, such as NATO andanew voluntary UN Rapid DeploymentForce.In Bosnia, Somalia, Cambodia and other war-tornareas ofthe world, multilateralaction holds promise as never before andthe UN deserves fulland appropriate contributions fromall the major powers.“Proposals for the creation ofa UNarmy are not however confined to academic circlesand haveled to contentious debate in Security Councilmeetings. At the UN Security Council SummitinJanuary 1992, several member states specificallyendorsed the creation of a UN force.’34‘31Ibjd‘32Paul Simon, “What roles for the US and the UN in Bosnia andSomalia ?‘ Press Release, August 23, 1992‘Bill Clinton, “Remarks ofGovernor Bill Clinton,’ LAWorld Affairs Council, August 13, 1992. Althoughformer President Bush was less enthusiastic about theproposal for a UN army, he did pledge stronger USsupportfor peacekeeping operations and offered to makeavailable to the UN, US military facilities and expertise. SeeJames Bone “America offers to train Army ofUNPeacekeepers” The Times (London) August 1992 In his lastUNaddress in office, former President Bush lent hissupport to the Secretary General’s Agenda for Peaceproposals,which he seemed to endorse in principle. Theformer President did not, however, commit the US toearmarkingtroops to serve in a UN army. However, inJanuary, 1993 the recently appointed US Representativeunder theClinton adminstration to the UN, MadelineAibright, called for the creation of a UN force and citedArticle 43 ofthe UN Charter, The New York Times January 29,1993.‘Sweden created a special rapid intervention unitsome time ago specifically for this purpose; For details,see Swedish Stand-By Force in theService ofthe United Nations (Stockholm: Ministryof Foreign Affairs, 1982)See UnitedNations SecurityCouncil SummitMeetingJanuary 31,1992,47th session, 3046th mtg UN Doe.S/23500;[hereinafter UNSC Summit] See eg the commentsofthe Austrian Chancellor Franz Vranitzkywho stated that there169France in particular displayed an especially keen interest inimplementing the provisions of theCharter although specific mention was not made to Article43.‘-Nevertheless, PresidentMitterand offered to “make available to the SecretaryGeneral a 1,000 man contingent forpeacekeeping operations, at any time on 48-hoursnotice” and also recommended the use of theMSC as envisaged by the UN Charter.’ PresidentYelstin endorsed the idea of a “UN rapid -response force11although he construed the idea in differentterms from the French proposal.’37Britain and America, however, notably failed to lend supportfor the creation of UN militaryforce under Article 43. PrimeMinisterJohn Major was quoted assaying “The UN does not needmilitary forces in order to accomplish its traditional role of playingthe “honest broker” inmust be authority to dispatch such a force before a conflict ignites,without necessarily obtaining the consent ofallthe parties to the potential conflict. Paul Lewis, “UN setto debate Peacemaking Role, The New York Times,September 6, 1992. “Leaders want to enhance UN’s Role” TheNew York Times, January 31, 1992 at A8; “WorldLeaders Pledge to Broaden Role of UN,” The New York Times, February 1, 1992.UNSC Summit supra note 134 at 18.136Ibid. The French President did not specify whether the troops for this UN forcewould remain with theirrespective national military establishments until mobilized by the United Nations, orinstead form a standing U Narmy. He was also unclear as to whether the authority to dispatch such a forcewould lie with the Security Councilor the UN Secretary General.‘37President Yelstin spoke of the need ofsuch a force to be ‘expeditiously activated inareas ofcrisis. to ensurepeaceand stability”...Heexpressed Russia’scommitment to “playingapracticalrole in United Nationspeacekeepingoperations and contribute to their logistical support”. UNSC Summit supra note 135at 47. A recent statement onRussia’s new military doctrine reaffirms Russia’s willingnessto commit troops to UN peacekeeping operations;Reported on CBC news, November 14th, 1993. See also “The Idea of a PotentUN Army Receives a MixedResponse,” The Washington Post, 29th October 1992. The former Soviet leader,Mikail Gorbachev probably didmore than any other world leader to focus attention on the possibilityofreviving Article 43. See article in Pravda,17 September 1987. Several small states also endorsed proposalsto establish a permanent UN army or Rapiddeployment force. Hungary, for instance stated that “dueconsideration should be given to the idea of the UnitedNationsinstitutinga force readily andconstantlyavailable thatcould be mobilized on very short noticeand deployedwithoutdelay...” UNSCSummit supra note 135 at 119. Austriacalled for a “reassessment ofArticle 43 by the UN’Id at 63- 64 while the comments ofBelgium, Zimbabweand Cape Verde Islands seemed to implicitly endorse thecreation ofa permanent UN force. Id at 72, 121 and 78. Ironically,their enthusiasm for a UN force would appearto be at odds with their approach to the issue ofsovereignty. See“Protection and Security of Small States: Reportofthe Secretary- General, U.N GAOR, 46th Session, at 50UN Document Af46/339 (1991) which reportedtheviews of several states on the issue ofprotecting small states bypermanent UN military forces.170international disputes.’38Canada, traditionally an ardentsupporter of UN peacekeepingmissions, has very recentlyindicated its willingness to participatein a strongerUN rapid-deploymentforce. In an innovativereport, chaired by an eminent panel of Canadiancitizens, recommendations were putforwardto improve UN peacekeepingoperations for deployment in well-definedareas and to create analtogether new approachfor more forceful interventions.‘39The reportis indicative of thegrowing concerns over the useofpeacekeepers in intrastate crises and itis anticipated that thenew Canadian government will adopt manyofthe proposals leading the way forother countriesto follow suit.A senior UN official andformer UN Under- Secretary General,Sir Brian Urquhart, who hasconsiderable experience in peacekeepingmatters, has lent his support to the chorusof expertswho strongly promote the use ofArticle 43 to give the UN sufficient forces to putan end torandom violence and intervene incivil wars such as in the former Yugoslavia andSomalia aswell as other countries where“sovereignty is also dissolving intoanarchy.”14°Urquhartenvisions “armed police actions”which would be deployed by the SecurityCouncil into criseswhere the cycle of violencecould not be broken except byfirm international intervention.Interestingly, Urquhart’s legal premisefor his proposal is based on a broaderinterpretation ofArticle 43 than originally intended by thephrase “international peace andsecurity” and thusOakely and Bone, “Leaders HailNew World Order,” The Times (London) February1, 1992 at 1.Canada 21, Canada and Common Securityin the Twenty-First Century; See “Foreign Policyfor ModernCanadians” The Ottawa Citizen, 21 March 1994;“A Promising Blueprint for CanadianSecurity” The Globe andMail Friday March 18 1994; “PanelPoints to new paths for foreign policy”The Financial Post March 18 1994.‘4°Brian Urquhart, “For a Military Force”New York Review of Books, June 10 1993171would appearto endorse military interventionspecifically into civil wars, hithertoexcludedfromUN competence.This proposal therefore goes further thantraditional legal scholarship and,indeed, theSecretary General’srecommendation in AgendaforPeace. DrBoutros Boutros Ghaliproposes a more formaland somewhat modest definition of peace-enforcementas ‘action tobring hostile parties to agreement,essentially through such peaceful meansas those foreseen inChapter VI of the UNCharter”.’4’Furthermore, he proposesthat “peace-enforcement unitsbe authorized underArticle 40 of the Charter by the SecurityCouncil but commanded by theUN Secretary General.‘42Thelegal basis of his proposal is,therefore, somewhat dubious;Article 40 authorizes the use ofprovisionalmeasures as a prerequisite toArticle 42 actions yetthe creation ofpeace-enforcementunits necessarily involves the use of forcewhich can only beauthorized properly under Article42. Accordingly, the Secretary Generalargues for a narrowerproposal than Article 43envisages. Whatever the terminologyused, “UN Rapid-Deployment”force, or “Peace-enforcementunits,” the proposal for a UNforce raises more questions thananswers. There is an almost overwhelmingvariety ofproblems that this proposal raisesrangingfrom the practical to the political.Legal Difficulties as regards the creationof a UN armyFrom a legal perspective, perhapsthe greatest difficulty is defining the circumstancesin which141supra note 114 at 960‘42Article40 ofthe UN Charter allowsthe Security Council to “call uponthe parties concerned to comply withsuch provisional measures as it deemsnecessary or desirable..” This was thelegal basis of ONUC in the Congocrisis according to Dag Hammarskjoldwho stated that the constitutional basis of ONUC“may be considered asimplicitly taken under Article 40 andin that sense, as based on an implicit findingunder Article 39. UNSCOR,884th mtg, at 4 (1960); See Oscar Schacter,“Legal Aspects of the UN Actionin the Congo AmericanJournal ofInternational Law, 4-6 1961172UN forces should intervene andin what role. This is a particulary pressingproblem if thedistinction between internal conflictsand crises ofinternational concern continues tofade as fastas it has in recent times. Thereare at least a dozen violent crises in the worldrequiring UNassistance. A UNenforcement-unitoreven alarger multinational force as envisagedby Sir BrianUrquhart could not possibly bedeployed to all areas. The questionremains as to how the UNwould determinewhich humanitariancrises should receive help. Would the UN SecurityCouncilfor example, ever consider deployinga UN enforcement-unit to theformer Soviet republics ofGeorgia, Azerbaijan and Nagorno - Karabakhin the face of a Russian veto?There is also the danger that the UNforce might simply become a reinforcement to theweakerside, not only discouraging it from facingits aggressor but also jeopardising alasting politicalsolution. The Bosnian-Muslimsin the former Yugoslavia is a good, if sad, case inpoint. Publicopinion has largely rallied tothe side of the Muslims as the victims of Serbianaggression yet,in a quagmire, the weaker side doesnot necessarily always have righton its side.143Indeed, the conceptual problems involvedwith this proposal have raised concerns asto whetherthe UN should, in fact, attempt to codifythe types of situation in which a UNarmy should bedeployed, similar to the UN GeneralAssembly’s codification of the definitionof aggression.’44An essential problem with any codification,however, that has emerged in the currentdebate isthe desirable degree of specificity: theemuneration of appropriate circumstancesin which theUN should conduct a humanitarianintervention might exclude unforseensituations requiring‘43Although the media has portrayed theMuslims as the subject of “ethnic cleansing”, theUnited Nations hasevidence ofwar crimes being committedon all three sides in the conflict, See eg UNChronicle, March 1993p4-12.Junep4-12.L44UN General Assembly Resolution 3314(XXIX) see also The Draft Code ofCrimes Against the Peace andSecurity ofMankind, Article 12, 83 AmericanJournal ofInternational Law 153. (1989)173assistance which do not fallstrictly within any agreed categories.Definitions of humanitarianintervention cannot be exhaustive,nor can they be extensive without becoming toorestrictive,yet flexibility requires generalprovisions which are then open to abuse)45There is also the suggestion that a UNarmy would not be “constitutional” underthe UNCharter. The argument follows thatsuch a force would in effect be beyondthe control ofmember states, thereby posing athreat to the sovereignty of individualmember states.While the weight of traditionallegal scholarship holds that agreementsunder Article 43 of theCharter are sufficient authorityfor a UN force, recent academic proposals discussedabovewould appear to go further.’46Sir BrianUrquhart, for example, advocates thecreation of aforce on a wider legal premisethan Article 43 originally envisaged. Onthe other hand, JohnHalderman writing in 1962 concludedthat the constitutionaljustificationfor UN armed forceslay in theplain language ofArticle 1(1): “totake effectivecollective measures for the preventionand removal ofthreats to the peace.” Haldermanbelieved that the words “to take” requiredthat145See generally Part Two146Many legal theorists would go so far as to assert thatthe signing ofArticle 43 agreements is inherentin UNmembership, a condition for which is acceptanceof the obligations contained in the Charter andability andwillingness to carry out those obligations” See egRussett and Sutterlin “The UN in a New World Order, ForeignAffairs 1991 at 78. During the early yearsof the United Nations, and even recently, it wasthought that suchagreements were a conditionprecedent tocollectivemeasures undertaken by the Security Council.Thiswouldappearto have been the view of governmentsat the San Francisco Conference. Article 106seems to support thisinterpretation. It reads: “Pending the coming intoforce of such speciaL agreements referredto in Article 43 as inthe opinion ofthe Security Council enable itto begin the exercise of its responsibilities under Article 42....’SeeRuth Russell, A History ofthe UnitedNations 1052 (1958). Moreover, for example, Article25 ofthe UN Charterrequires member states to “accept and carryout the decisions ofthe Security Council” and Article48 asks memberstates to “carry out the decisions ofthe SecurityCouncil for the maintenance ofinternationalpeace and security.Tn 1948 UN Secretary General Lie alsostated that action under Article 42required the agreements under Article43. See 3 UN GAOR Part 2, UN Doc.A/656 (1948).Hans Kelsen on the other hand, saysthat “the members ofthe United Nations are certainly notunder any obligation to conclude with theSecurity Council the agreementsreferred to in Articles 43 and 45, See egThe Law ofNations (1950) 756 whereas contemporarylegal scholarshipargues that “the negotiation ofArticle 43agreements is not merely an option available to UNmembers, it is a legalobligation ofmembership in the world organization’,Gardner, supra note 126 at 16.174action be taken by the United Nations and not byits member states acting independently.147Traditionallegal scholars such as Louis Sohn and OscarSchachter hold the view that a UN armyis entirely constitutional under Article43 of the UN Charter.148Opponents of such a proposalmaintain that the creation of a standing UN army or “peaceenforcement units” as proposed by the SecretaryGeneral in Agenda for Peace is a threat to theindividual sovereignty of member states differentfrom even what the framers of Article 43 hadenvisaged.’49Theobvious objection to such a force isindeed, the “spectre of supranationality”it creates.’5°John Gerlach for example,believes that small, weaker countries would betargeted for UN intervention as peace-enforcementmissions against a powerful state wouldinvolve too many risks.15’Besides a complete reexamination of theconcept of sovereignty, an147John Halderman “Legal Basis for United Nations Armed Forces”Vol 56 American Journal of InternationalLaw (1962) 971‘Louis B.Sohn, “The Authority ofthe United Nations to establishand Maintain a Permanent United NationsForce” American Journal ofInternationalLaw Vol 52 1958at 229; and Oscar Schachter, “Authorized Uses of Forceby the United Nations and Regional Organizations” in Law andForce, supra note 3149Article 43 requires member states to make arrangements forthe provision of forces so that the SecretaryGeneral can gather a force for each new crisis. It does not thereforeenvisage a permanent UN army. In 1944, theDumbarton Oaks conference debated the idea of establishing astanding army but ultimately rejected it, the fearbeing that the UN would become a “superstate or worldgovernment.” The US representative noted during onedebate that “The United Nations is not a world government.It is based on the principle ofsovereign equality of allof its members, therefore it could not have a permanent standingarmed force of its own in the same sense thatindividual nations possess such forces.” UN SCOR, 2d Sess, 43d mtg (1947).150Some commentators have referred to this as collectiveinternationalism. Richard Gardner of ColumbiaUniversity describes collective internationalism as “the construction of a peacefulworld order through multilateralcooperationand effective internationalorganization. RichardGardner “The Comeback ofLiberal Internationalism,”The Washington Quarterly, Summer 1990p23.The development of an enforcement mechanism under Article 43is thus, central to the collective internationalism goalwhich envisions a world in which regional and globalorganizationswouldbe responsiblefor solvingan array ofinternationaldifficulties; See also Joseph.S.NyeJr “WhatNew World Order?” Foreign Affairs, Spring 1991p96.Flora Lewis has also contributed to the debate and calls thestrategy “a way to resolve the dilemma between dangerousglobal unilatensm and sulky, equal dangerous.isolationism. It is neither utopian nor meanly narrow realpolitik.’Flora Lewis, The G-7 1/2 Directorate, ForeignPolicy, Winter 1991-92p40John Gerlach, Orbis, “A UN Army for a New World Order?” Spring1993 at 235;175exercise of this kind would demand considerableconsensus among Security Council members.This in itself, however, causesconceptual difficulties particularly if a UN force was to bedeployed into the territory of one ofthe permanent states.152There is however, the strong alternative argumentthat in order to prevent genocide or ethnicaggression, the United Nations must have themilitary capability to intervene in civil wars in adifferentrole to that ofpeacekeeping. As onecommentator has remarked “the Security Councilwill need more enforcement powerthan any member can wield against it.”153 Then there isthe argument that the mere existence of such aforce would act as a powerful deterrent in anypotentially explosive crisis.Circumstances in which a UN force couldbe deployedHow would the United Nations decide whichhumanitarian crises are worthy of intervention?Does the plight of the Kurds supersede thatof the Tibetans? There is a strong argument to bemade that the UN would become a world policemanfor fighting in intractable situations. Itfollows that “[V]irtually every region of the planetcontains areas in which turmoil is alreadyoccurring or threatens to break out. To seek to rightevery injustice would be quixotic; even toaddress a relatively small percentage would requirean enormous expenditure of blood and152Sir Anthony Parsons remains sceptical ofa greater UN role inenforcement measures. He points out that inthe present global atmosphere of defence cuts and peace dividends,it would be hard to envisage governmentsearmarking specific combat groups for UN enforcement inaddition to normal establishments. He also does notbelieve thatgovernments wouldputcombat forces under thecommand ofthe Secretary General or the Military StaffCommittee if their task was to fight a campaign rather thanacting in the historic peacekeeping non-threateningrole. See Sir Anthony Parsons “The UN in the Post Cold War EraForeign Affairs Summer 1992‘RobertC.Johansen, Lessons for CollectiveSecurity,” WorldPolicyJournal, Summer 1991 p569-70, (notingthe military logic to the idea that the United Nations shouldhave more power than any single country if it intendsto prevent an aggressive nation from disrupting the peace)176trsure.”154Although this is anobvious problem in the subjective nature of such decisions, acredible UNenforcement mechanism is preferable to thecurrent “ad hoc” approach of Bosniaand Somalia.The authorization of such a forcewould still require a political judgement fromthe SecurityCouncil members acting on the exigenciesofthe situation, yet it is arguable that with theforcesalready assembled the Security Councilwould be able to act earlier to prevent the spreadofhostilities. A UN forceof this nature could have been used in Bosnia,for example, to deterattacks on relief workers by thewarring factions and break the Serbian blockade toallowhumanitarian aid to get through to Sarajevo.’55Special military units could, for example, servehumanitarian purposes by assistingwith the demobilization of armed factions. However,a UNforce in Bosnia today would achieve limitedhumanitarian objectives as the practice of “ethniccleansing” has already destroyedmuch of the existing country. If the UN had actedin 1991when the city of Dubrovnik was under seige anddeployed a UN force, perhaps the spreadofhostilitiescould have been preventedinto Bosnia. Accordingly, one ofthe key advantagesofthisapproach is its preventive deployment todefuse a situation as opposed to an ameliorativeresponse, which has been characteristicof the UN in recent years.ConclusionsThecrisis in theformer Yugoslaviatragically illustrates the need to develop promptand effectivemeasures for future interventions. Asthe number of humanitarian crises proliferates,such as,for example the latest crisis in Rwandawhich demands immediate attention from the UN. itis‘54John Gerlach supra note 151 at 231‘See Ken Adelman “BreathingNew Life into the UN” The Washington Times,July 1st, 1992.177imperative that the UN devise new means todeal with humanitarian disasters.There are numerous proponentswho believe the hegemonic leadership of the USis a viablemechanism for humanitarian intervention.’56This thesis has, however, sought to demonstratethat multilateralism is the preferredoption in the post Cold War climate. In keeping, therefore,with the hypothesis presented, theoverriding conclusion is that collective security measuresshould be developed under the aegis of the UN.The prevailing climate of consensus andcooperation ofrecent years has greatly enhancedthe possibility ofinternational peacemaking inhumanitarian crises becoming a reality.The revolutionary and mostly positive changes of thelast two years are a cause for hope, particularlyin the general emphasis on the resolution ofconflict by a United Nations force. However,we should not underestimate the radical changeof attitude, especially on the part of powerful nations,that the transition from peacekeeping toa UN force under Article 43requires. In 1948 Trygve Lie, the then UN SecretaryGeneral,remarked that his proposal for a UN force “. . .would have required a degree of attention andimagination on the part of men in charge of theforeign policies of the principal member statesthat they seemed to be unable to give. .to projectsfor strengthening directly the authority andprestige of the United Nations as an institution.“57However,as this section has illustrated, inthe absence of such a force under Article 43, the UNhas employed other techniques such aspeacekeeping, which in some circumstances hasproved highly successful.There is however, increasing evidence thatthe international community has recognised theSee generally Charles Krauthammer, “TheUnipolar Moment”, Foreign Affairs (America and theWorld)1990/91 Vol 70, No.1 1991:23-33TrygveLie, In the Cause ofPeace, (1954); p99;Cordier and Foote, PublicPapers ofthe Secretaries-Genera?ofthe United Nations Vol 1 Trygve Lie 1946-1953178futility of sending in a peacekeepingforce to civil conflicts.8It is somewhat paradoxical,therefore, that there is also growingreluctance from Security Council members tobecomeinvolved in future humanitarian crises ofsuch complexity where there is no discernable enemyand no peace to keep.159TheUS,for instance, recently indicated that it would not becomedirectly involved incivil conflicts unless it is satisfied that thereis a genuine threat tointernational peace and security, a majorhumanitarian disaster, or a gross violation of humanrights.160Althoughthere are strong minded opinionsfrom leading international legal scholarsand politicalleaders concerning the feasibilityof the proposals for a UN peace-enforcementarmy, theinternational community need onlylook at the bitter humanitarian conflicts currentlyraging invarious parts of the world to realize thatdemand for a stronger world organizationwith themilitary strength to enforce its decisions on theground will only increase rather than diminish.Theorists may theorise, butUN soldierspinned under Serbian mortar-fire have to know whetherthey are keeping the peace or enforcing it.158A less forceful approach has beenadopted by the UNover Haiti for example; See Steven Holmes“UN forcetoRely on Haitians to Keep Order” The NewYork Times September 30th 1993 (emphasizing thenon-combatantroleof the UN peacekeeping force in Haiti in response tocriticisms of the Somalian operation); HowardFrench “USWithdraws Troops Ship From Haiti” The New York TimesOctober 12 1993 (citing UN officials bemoaning lack ofinternational initiativesin Haiti) see also James Bone“Somalia Debacle Curbs UN ambitions on WorldStage” TheTimes (London) October 12 1993 11 (reportingthatpeace-enforcement has proved impossiblefor UNpeacekeepers)“A Wise Stand Down in Somalia” New YorkTimes Editorial October 20th 1993 (“the hardlesson ofSomalia is thatUN peacekeepers cannot be arbiters of civil wars”)‘59See Paul Lewis “Clinton GivesLong List of Terms for Sending Troops toBosnia” The New York TimesSeptember 28, 19931°See Paul Lewis, “US PlansPeacekeeping Guidelines” The New York TimesThursday November 18 1993:Eric Schmitt, “US completes Drafting Limitson Troops Peacekeeping Role” The New YorkTimer, January 28th,1994 (the guidelines are a sharp departure fromClinton’s election campaign in which he calledfor the creation ofa “UN Rapid Deployment force”)179CONCLUSIONDevelopments in the internationalcommunity are talcing place so fast that today’s perspectiveon the situation may change tomorrow.This inevitably makes some of theobservations in thispaper somewhat tentative. As this finalconclusion is being written, the latest seriesof eventsin Sarajevo and Rwanda are sorelytesting some of the theses of thispaper, with no obvioussolution in sight.Nevertheless, it is clear that the internationalcommunity is slowly inching towards articulationofa law ofhumanitarian intervention whereconcern for human rights will displaceanachronisticnorms ofdomesticjurisdiction.Enhancing the role ofthe United Nationsin humanitarian crisesclearly demands a complete reappraisal oftraditional notions of absolute sovereigntyand noninterference in internalaffairs. Thereis strong evidence to suggest that certain doctrinalconceptssuch the inviolability ofstate sovereignty,are no longer applicable in contemporary internationalrelations in the area of human rights.Whether the nation-state system willever in fact bereplaced by a new concept ofsovereignty is unlikely in the immediatefuture. This thesis has,however, sought to demonstratethat the norm of sovereignty has evolved to encompasshumanrights. A rare opportunity exists in internationalrelations to harness the wave of concernforhumanity and place it at the forefrontof international decision-makingin the coming newcentury. The United Nations must fullydevelop this jurisprudence sothat a coherent andconsistent human rights doctrine emerges.It is also clear that traditional UNpeacekeeping operations are unable to meetthe demands ofthe post-Cold War world. Ifthe UNis to regain its credibility and legitimacyin the eyes of the180international community it mustdevisenew waysofconducting humanitarian military operations,quite different from its earlier practiceof relying on peacekeeping forces. A UN army, underthe command and control of the UN as opposed tothe big powers is therefore, an appropriateresponse to the present crisis facing peacekeepersin central Bosnia. The prevailing climate ofconsensus and cooperation ofrecent years wouldappear to have greatly enhanced the possibilityof international peacemaking by a credible UNforce becoming a reality. Much of the presentconfusion however, surrounding UNoperations stems from the misuse of the term“peacekeeping”. The international communityshould proceed cautiously when referring topeacekeeping, particularly as the line between peacekeepingand peacemaking has become moredifficult to delineate in recent times.It is possible to conduct an effective humanitarianintervention under the UN provided certainobjective criteria are followed. My final conclusionwould therefore be that ideologicai notionsofhumanitarian intervention are reconcilable with theoperational capacity ofUN forces on theground as long as the UN has clear objectives andthe member states are willing to cooperatewith the world organization. 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