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A reappraisal of humanitarian intervention Middleton, Kirsty Giselle 1994

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A REAPPRAISAL OF HUMANITARIAN INTERVENTIONbyKIRSTY GISELLE MIDDLETONLLB (Hons), The University of Strathclyde, 1992Diploma in Legal Practice, The University of Strathclyde, 1993A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE 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 partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes 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 shall not be allowed without my writtenpermission.(Signature)Department of L1\V\JThe University of British ColumbiaVancouver, CanadaDate_____________DE-6 (2/88)11AbstractA new threat to international peace and security exists in the post Cold War years. Thedemise of the Cold War has brought chaos in its wake as ethnic and religious disputes engulfseveral regions of the world often resulting in humanitarian tragedies. The tumultuousdevelopments of recent years have however, opened up new possibilities for internationalaction and cooperation under the auspices of the United Nations. Consequently, a radicalshift has taken place in the international community as recent humanitarian crises have notonly compelled the United Nations to take a prominent role in world affairs but also achance to expand the competence of the UN into areas previously regarded as being withinthe exclusive jurisdiction of member states. Moreover, the humanitarian crises of recentyears have called for a reappraisal of the controversial doctrine of humanitarian intervention.This thesis explores the theoretical justifications to support the doctrine under the UNCharter and general international law and also offers a contemporary appraisal of theapplicable norms in light of evolving conceptions of state sovereignty and non-interventionin internal affairs. The overall hypothesis is that not only is substantial change in thetheoretical norms appropriate but that the operational capability of the United Nations toconduct a humanitarian intervention must also be reexamined in light of recent events. Theremaining section of the thesis therefore considers how the United Nations can establish amore effective operational military capacity for future collective humanitarian interventions.111Table of ContentsAbstract.iiTable of Contents iiiAcknowledgement vIntroductionPart One THE DOCTRINE OF HUMANITARIAN INTERVENTION 7Traditional norms of Humanitarian Intervention 10(i) The non-use of force 12(ii) Non-intervention into domestic affairs 14(iii) State Sovereignty as a Barrier to HumanitarianIntervention 18Changing Views of the Doctrine of Humanitarian intervention 22(i) Classical School of Thought 22(ii) Neo-classical school of thought 26Humanitarian Intervention and the UN Charter 33A New Doctrine of Humanitarian Intervention 38(i) The Erosion of Absolute Sovereignty 42Conclusions on sovereignty and non-intervention in internal affairs52Collective Humanitarian Intervention 53A Conceptual Appraisal of Humanitarian Intervention in Practice 58Incident Studies 59(i) Humanitarian intervention and the Kurds 59(ii) The Former Yugoslavia 70(iii) Somalia - Operation Restore Hope 76Conclusions on recent humanitarian interventions 80Part Two THE BASIS OF UN JURISDICTION IN A CIVILCONFLICT 84Humanitarian crises as a threat to the peace under Chapter VII 88Issue of Consent 93Regional Developments 98Human Suffering as a Ground for UN Jurisdiction 102Codifying Humanitarian Intervention 106Conclusions 116ivPart Three OPERATIONAL ASPECTS OF HUMANITARIANINTERVENTIONS. 118The United Nations Charter and the use of force 120The revival for UN forces 125Traditional Norms of UN Peacekeeping 130(i) The non-use of force 130(a) The Congo Crisis 132(ii) Traditional norm of impartiality 134Evolving 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 Force 143(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 Peacekeeping 156Conclusions 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 175Conclusions 176Final Conclusion 179Bibliography 181VAcknowledgementsThis thesis could not have been written without the invaluable support of various people.First and foremost, I would like to express my sincere thanks to the Law Foundation ofBritish Columbia for funding my year in Canada, to Professor Potter, Professor KarinMickelson and Gillian Byrant for their advice and encouragement and to my supervisorProfessor Ivan Head for his words of wisdom, inspiration and wonderful hospitality!The friends that I have made in Vancouver deserve a special thanks. I would like to thankFrances Diepstraten and Jackie Robson in particular for being such wonderful friends to meover the year. I must also thank my classmates Christopher Hall, Keith Robinson, EmmaHenderson for their friendship and humour and to Elizabeth Kirk for her sheer sarcasm andof course, her much valued friendship! I must also thank James for being there for me overthe past year. Your correction of my grammar was especially helpful!Finally, I would like to thank Dr Rebecca Wallace, Professor of International Law at theUniversity of Strathclyde, Glasgow for helping to make it all possible for me. I could nothave got here without her hard work and encouragement.IINTRODUCTIONThe law is one thing, but the safeguard of a population is another, quiteprecious to which humanity cannot be indifferentStatement by the French Foreign Minister, Roland Dumas, April 5th 1991A new threat to international peace and security exists in the post-Cold War era. The endof the East-West confrontation has brought chaos in its wake as bitter ethnic and religiousdisputes supplant classical aggression, originally addressed by the framers of the UN Charter.Humanitarian crises have instead become the hallmark of the new world order. Televisedimages of Somali warfare, Bosnian orphans and now the massacre of thousands of civiliansin Rwanda continue to fill our screens, while sporadic reports from troubled countries asdisparate as Yemen, Tibet, Afghanistan and Zaire suggest ethnic rivalry may yet beunleashed.The tumultuous developments of recent times have ironically opened up new possibilitiesfor international action and cooperation in many areas of humanitarian activity, themultinational intervention in Northern Iraq being an obvious example. Consequently, aradical shift has taken place as events have compelled the United Nations to take aprominent role in humanitarian crises quite different from the earlier practice of the UnitedNations throughout the Cold War years. The thaw in East-West relations has not only giventhe UN a unique opportunity to reassert itself in international affairs, but also a chance toexpand the competence of the UN into areas previously regarded as within the exclusivejurisdiction of sovereign states.2The UN is, however, ill-equipped to deal with internal strife. Part of the problem lies inArticle 2(7) of the UN Charter, a disclaimer that delineates the jurisdiction of UN authority.Article 2(7) states thatNothing contained in the present Charter shall authorize the United Nationsto intervene in matters which are essentially within the domestic jurisdictionof any state or shall require the Members to submit such matters to settlementunder the present Charter; but this principle shall not prejudice theapplication of enforcement measures under Chapter VII.Despite the emphatic language of this provision, the centrality of sovereignty and nonintervention under traditional international law has not prevented the UN having a role,albeit a limited one, in controlling civil strife. The UN response to the Kurdish crisissuggested for example, that the international community will no longer tolerate blatant andexcessive human rights violations by a sovereign nation against its own citizens. Moreover,the ubiquitous reach of global telecommunications ensures that governments cannot keepinformation from their people and that domestic activities cannot be hidden frominternational scrutiny.Accordingly, this thesis seeks to demonstrate that certain norms of humanitarian interventionare no longer applicable in contemporary international relations. Substantial revision of thedoctrine of humanitarian intervention is therefore appropriate given the prominent rolecurrently accorded to the United Nations. The discussion throughout the paper will focusalmost exclusively on the authority of the United Nations to perform a humanitarianintervention. While varying degrees of intervention exist ranging from indirect forms ofpersuasion to economic sanctions, the display of force is the most controversial at thepresent time in international relations and thus, lends itself more easily to description and3evaluation. One should bear in mind, however, that the use of force as means of UN actionis not exclusive and is usually complementary and often interrelated to more pacific formsof intervention.’Theoretical considerations about the acceptability of intervention by the United Nationshave, however, remained secondary to the practical problem of how it should be conducted.So far the international community has failed to develop consistent policies and, indeed,effective mechanisms for overcoming the difficulty of sovereignty in order to providehumanitarian assistance.2 The humanitarian operations in the former Yugoslavia andSomalia have been conducted in an “ad hoc” fashion with no consistent policy or definedobjectives. Granted that most international lawyers have failed to address such proceduralproblems, Part II of this paper will seek to identify coherent and consistent criteria whichthe international community should adhere to when dealing with humanitarian crises. Theaim is to pursue a contemporary inquiry focusing on the issue of when humanitarianconcerns will override the prohibition on intervention in Article 2(7). It should be notedfrom the outset that Part I of this paper will focus almost exclusively on intervention in termsof humanitarianism and therefore, not under the two most cited principles, self-defenceunder Article 51 of the UN Charter or threat to international peace and security underFor a general overview of pacific measures, see Oscar Schachter, The United Nationsand Internal Conflict, in Law and Civil War in the Modem World 401, 401-442 passim(J.N.Moore ed. 1974)2 According to McDougal and Bebr “...the most difficult problem still confronting theframers of the United Nations’ human rights program is that of devising effective proceduresfor enforcement” See McDougal and Bebr, “Human Rights in the United Nations” 58American Journal International Law, (1964) 603 at 6294Article 39 of the Charter. Although reference to these principles will from time to time benecessary throughout the discussion, the study will be narrowly focused. The more traditionalinterpretation of the concept of threats to international peace will be explored in Part II.Recent humanitarian crises have not only highlighted the normative inadequacies of thedoctrine of humanitarian intervention but also revealed that the international community stilldoes not have in place an effective collective enforcement mechanism for protecting humanrights. UN peacekeepers have, instead, become embroiled in civil wars, contrary to theirtraditionally perceived image as mediators. As the UN involves itself in less ideal scenariosfor keeping the peace, it is evident that the applicable norms governing traditionalpeacekeeping have also changed. Accordingly, the aim of this final section is to highlightsome particular criticisms of the operational capacity of the UN to conduct a humanitarianmilitary intervention with reference to recent engagements in the former Yugoslavia andSomalia. This section does not therefore purport to trace the historical developments ofpeacekeeping but, rather, to discuss the evolving norms in light of recent events. Some legaland practical alternatives will be articulated in an attempt to resolve the current operationalcriticisms of UN peacekeeping. In order to preserve the collective nature of humanitarianinterventions, proposals will be made to create an international enforcement mechanismunder Article 43 to give the UN the means to intervene in internal crises. The conceptual,practical and political difficulties that this raises will not all be resolved, rather emphasized.It is important to point out at the outset just how big this topic is. The enormity of thesubject would be less daunting if more of its various aspects had been subject to academicresearch. Apart from topical and historical discussions of specific internal wars, however, the5interrelationship of civil strife, human rights and international institutional control has neverreally been the subject of systematic legal scholarship until fairly recently. Certainly, therehave been no shortage of recommendations throughout the post war years, yet closeranalysis reveals that traditional legal scholars have been largely influenced in their work bythe ideological political struggle that has been the hallmark of international relations since1945. The analytical aspects of internal war and human rights in the international communityhave therefore been neglected by political theorists and international lawyers, the focus beingmore on the threat of “international war” in light of the East-West divide. Accordingly, it isimportant to note the factual and normative ambiguity of much of the legal parlance usedthroughout this thesis. I do not attempt to define the concept of civil war which has, overthe years been subject to more obfuscation than clarification by international lawyers. Nordo I aim to engage in an ideological analysis of what amounts to intervention in this context.My intention was to avoid any linguistic problems and focus more on the critical policy issuesat stake within a contemporary normative framework.3In view of the definitional problemsconcerning the doctrine of humanitarian intervention, I have therefore tried to avoidbecoming involved in an overly juridical analysis, not only due to the constraints of time andspace but also to concentrate more directly on the salient policy issues facing theIn any case, the majority of international scholars find the traditional response andlanguage of international law inadequate to the occasion of external intervention in aninternal conflict. See generally Tom J.Farer, Harnessing Rogue Elephants:A Short Discourseon Foreign Intervention in Civil Strife in 2 The Vietnam War and International Law 1089(R.Falk ed. 1969); Moore, Toward an Applied Theory for the Regulation of Intervention inLaw and Civil War in the Modem World 9 (J.N.Moore ed 1974); Mcdougal, “Law as aProcess of Decision: A Policy-Orientated Approach to Legal Study” 1 Natural Law Forum53, 59 (1956); Falk, Janus Tormented: The International Law of Internal War inInternational Aspects of Civil Strife. 185, 206-208 (J.Rosenau ed. 1964)6international community.My overall hypothesis, is that the international community should adhere to the norms ofsovereignty and non-intervention within a contemporary context, but not at the expense ofhumanitarian concerns. Whilst I realise the issue cannot be reduced to simple moraldoctrine, I fail to see the sense in any so-called “humanitarian” intervention if it is not toprotect human rights.The thesis this paper intends to present is therefore simple. Not only are certain doctrinalconcepts no longer tenable in contemporary international relations, traditional UNpeacekeeping operations are also unable to resolve the wave of humanitarian crises of thepost-Cold War world. As the number of candidates for humanitarian interventionproliferates, it is imperative that the United Nations establish a normative frameworkdictating both when and how it should intervene in a humanitarian crisis. While there wouldappear to be adequate theoretical justification to support the doctrine against massivehuman rights violations, the United Nations must fully develop this jurisprudence so that acoherent practice of humanitarian intervention will develop. This paper has thus beenwritten with this aim in mind.7Part One. THE DOCTRINE OF HUMANITARIAN INTERVENTIONThe doctrine of humanitarian intervention is not a new concept.’ Military intervention byeither a foreign power or an international body, into the internal affairs of a sovereign state,for allegedly humanitarian reasons, has always been controversial. Whether, or under whatcircumstances, coercive intervention is permitted by international law has been widelydebated in international legal jurisprudence. At no period in international relations has itbeen easy to justify humanitarian intervention under positive international law.2 Traditionaldiscussion of humanitarian intervention focused on the legality of forcible unilateral actionthat one state undertakes to protect nationals of another country who 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 Pads 288 (Whewell trans. 1853) The doctrine of humanitarianintervention following Grotius was largely a theoretical argument. Specific invocation of the doctrine arosemostly in the latter half of the 19th century. See eg.Thomas E.Behuniak, ‘The Law of Unilateral HumanitarianIntervention by Armed Force: A Legal Survey,” 79 Military Law Review 157, 160 (1978) Professor Fonteyne’sin-depth analysis of the pre-World War II writings and state practices of humanitarian intervention led himto conclude that humanitarian intervention was legal before the UN Charter. See Jean-Pierre Fonteyne, “TheCustomary International Law Doctrine of Humanitarian Intervention - Current Validity Under the UNCharter,” 4 California Western International Law Journal 203 (1974)”[W]hile divergences certainly existed asto the circumstances in which resort could be had to the institution of humanitarian intervention, as well asto the manner in which such operations were to be conducted, the principle itself was widely, if notunanimously, accepted as an integral part of customary international law.” But see H.Lauterpacht, InternationalLaw & Human Rights, 32 (1950)(describing the use of the doctrine as sporadic and infrequent and castingdoubt on its recognition in international law) Id.The legal literature on the concept of unilateral humanitarian intervention is too extensive to list in itsentirety here, but a representative list would include Richard Lillich, “Forcible Self-Help by States to ProtectHuman Rights” 53 Iowa Law Review 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 of Unilateral Humanitarian Intervention by Armed Force:8intervention to the top of the global agenda, but now in the context of collective actionunder the auspices of the United Nations.4 Moreover, the United Nations authorizedhumanitarian interventions into Northern Iraq, Bosnia-Hercegovina and Somalia havebrought the issue of humanitarian intervention to the forefront of international legaldiscourse.5Any conclusions to be drawn from the following discussion must begin by recognizing thatthe jurisprudential debate concerning humanitarian intervention has changed.6 TheA Legal Survey” 79 Military Law Review 157 (1978); Jhabvala, “Unilateral Humanitarian Intervention andInternational Law 21 Indian Journal of International Law 208 (1981); Verwey, ‘Humanitarian interventionUnder International Law” 32 Netherlands International Law Review 357 (1985); Bazlyer, “Reexamining theDoctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia” 23 StanfordJournal of International Law 547 (1987)4See eg. Paul Lewis, “The Right to Intervene for a Humanitarian Cause,” The New York Times, July 12,1992 4 (Week in Review) at 22. The doctrine of humanitarian intervention is receiving widespread attentiondue to the end of the cold war and the hope that the United Nations might finally act in the fashion it wasdesigned. Id. Before the collapse of the Soviet Union as a rival superpower to the United States, “[c]old wartensions virtually assured paralysis, with the rival superpowers fearing that humanitarian intervention wouldbe directed against their interests..but with the cold war over, Western governments and humanitarianorganizations began pressing for new action to defend vulnerable people.” Since 1987, some UN members havetried to establish humanitarian intervention as a right under international law. There is evidence, however, thatthe United Nations is overburdened by the present crisis. Id See eg.”Too Much Stress at the U.N”, The NewYork Times, July 25, 1992 at A20. “The crisis switchboard at the United Nations is overloaded. Once paralysedby cold war rivalries, the world organization is nowadays asked to do too much: enforce peace in Sarajevo, facedown a truculent Saddam Hussein and clean up messes in Cambodia, Central America, Afghanistan and SouthAmerica.” Id.Arguably, the doctrine has always received considerable attention from legal theorists and thus, for thisreason alone it is not a new concept. Having said that, it is one of the contentions of this thesis thathumanitarian intervention only receives international attention in the aftermath of a humanitarian catastropheor civil war which the UN or the international community failed to resolve. The current debate discussing themerits of humanitarian intervention merely reconsiders issues that have been discussed for years although nowin a different political climate.For instance, in 1972, Professor Richard Lillich called for a reappraisal of thedoctrine following months of inactivity by the United Nations and the world community in the face of grosshuman rights deprivations in Bangladesh. See The International Protection of Human Rights by GeneralInternational Law, Second Interim Report of the Sub-Committee (R.Lillich, Rapporteur), in Report of theInternational Committee on Human Rights Of the International Law Association, 38 at 54, 1972.(”The doctrineof humanitarian intervention, whether unilateral or collective, surely deserves the most searching reassessmentgiven the failure of the United Nations to take effective steps to curb the genocidal conduct and alleviate themass suffering which took place in Bangladesh.”) Id.6 See Christopher Greenwood, “Is there a right of humanitarian intervention?” The World Today, 49:2February 1993 p40 (“...the law on humanitarian intervention has changed both 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.7 Moreover, the articulation of asubstantial body of human rights law has led to the growing recognition of a right of starvingcivilians to receive international assistance and of international bodies to provide it.8 It 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 itremains undisputed that there have been significant developments in the law of humanitarianintervention, 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 of humanitarian 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 economic privation as some of the 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 Resolution43/13 1 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, 44810override inherent organizing principles of the international system. Accordingly, the purposeof this introductory section is to examine the attempts which have been made to reformulate the so-called classical doctrine of humanitarian intervention in a manner relevantto the present international climate. The conclusion is that although there has beensubstantial change in the norms of humanitarian intervention, further reappraisal isappropriate. More generally, it may also be considered whether any lessons are to belearned from historical practice and legal scholarship in this area)°The starting point for an analysis of the doctrine of humanitarian intervention is anappreciation of its normative framework; namely, the principle of the non-use of force, andthe doctrine of non-intervention, a notion which correlates to the fundamental principle ofthe sovereign equality of states.Traditional norms of Humanitarian InterventionThe principles of equal sovereignty of all states and the correlative duty of non-interventionin domestic affairs are cornerstones of international relations.” The right of sovereignstates to enjoy exclusive jurisdiction over all matters within their own boundaries, howeveraberrant in their human impact, is perhaps the most basic principle of internationalof the numerous instances where humanitarian interventions occurred during the nineteenthand early twentieth centuries has however, been considered superfluous to this paper. For an extensive survey.See generally, M.Ganji International Protection of Human Rights 22-24 (1962); David Scheffer, “Toward aModern Doctrine of Humanitarian Intervention” University of Toledo Law Review, Vol 23, Winter 1992 at254, fn 4. Franck and Rodley, supra note 3, 275-305.‘ See generally, Ian Brownlie, Principles of Public International Law 287 (4th edition, 1990); see alsoJ.Brierly, The Law of Nations 7-16 (6th ed. 1963)11jurisprudence.12Th extreme sensitiveness of governments to interference with theirsovereign affairs is particularly acute in civil conflicts. Traditionally, it was the view thatrebellions, internal strife and uprisings fell within the exclusive domain of a sovereign state.The fear was that an intervention, even if couched in humanitarian terms, would subvert thepolitical, economic or military domain of the recipient country.The norm of non-intervention in the internal affairs of states is articulated in Article 2(7)of the UN Charter. Article 2(7) provides that ‘Nothing.. .shall authorize the United Nationsto intervene in matters which are essentially within the domestic jurisdiction of any state.”This principle of “domestic jurisdiction” has constituted a perennial challenge to thecompetence of the United Nations to intervene in the affairs of states in pursuit of achievinggreater respect for human rights. For decades the principle of non-interference in anotherstate’s domestic affairs has been crucial to the maintenance of world peace. While a detailedexamination of this paradigm is outside the narrow ambit of this inquiry, the followingdiscussion bears directly on the conclusions to be drawn from this paper as a whole and thecentral hypothesis advanced throughout it.The doctrine of non-intervention developed from principles of self-determination, internalorganization and independence.13In order for states to develop their ideals of democracy,intervention not only had to be actively discouraged but prohibited altogether. Therefore,12 See eg.Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law 84American Journal of International Law, 866-69 (1990) Malcolm.N.Shaw, International Law 276 (3d. ed. 1991)“International law is based on the concept of the state. The state in its turn lies upon the foundation ofsovereignty, which expresses internally the supremacy of the governmental institutions and externally thesupremacy of the state as a legal person.” Id13 See eg. A.Thomas & J.Thomas Jr, Non-intervention:The Law and its Import into the Americas (1950) at14.12members of the UN have traditionally interpreted the Charter in a manner based on thepremise of non-interference in states’s internal affairs. Article 2(4) for instance, requiresstates to refrain from the use of force against the territorial integrity or politicalindependence of other states and in a manner inconsistent with the purposes of the UN.(i). The non-use of forceThe prohibition on the use of force was not part of customary international law prior to 1945- at least, not in the form of an international instrument. Since its incorporation in Article2(4) of the UN Charter, however, the principle of the non-use of force has been generallyaccepted as the cornerstone of international law concerning relations between states.’4Article 2(4) provides that member states must refrain “...in their international relations fromthe threat or use of force against the territorial integrity or political independence of anystate.”5 Similar prohibitions are contained in the Charters of regional organizations suchas the Organization of American States, the Organization of African Unity and the Leagueof Arab States.’614 See eg.Ved P.Nanda, ‘Humanitarian Military Intervention” 23 World View (October 1980) (existing rulesof international law generally prohibit military intervention) The status of the non-intervention principle layat the heart of the ongoing debate between Professors Michael Reisman and Oscar Schacter. See eg.W.MichaelReisman, “Coercion and Self-Determination: Construing Charter Article 2(4)’ 78 American Journal ofInternational Law 642 (1984); Oscar Schacter, “The Legality of Pro-Democratic Invasion” 78 American Journalof International Law 645 (1984) and Oscar Schacter, “The Right of States to Use Armed Force” 12 MichiganLaw Review 1620 (1984)15 Article 2(4), UN Charter. It is commonly accepted that 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 of GeneralAssembly Resolution 3314 on the Definition of Aggression.16 See Organization of American States, art. 15, U.S.T. 2394; Organization of African Unity, May 25, 1963,art III 21.L.M 766 (“non-interference in the internal affairs of States”); League of Arab States, Mar.22, 1945,art 8, 70 U.N.T.S 237 (each member “shall respect the form of government obtaining in the other states of theLeague...and shall pledge itself not to take any action tending to change that form”).See also Treaty ofFriendship, Co-operation and Mutual Assistance (Warsaw Pact), May 14, 1955, art.8, 219 U.N.T.S 313This provision is, accordingly, interpreted by numerous publicists as proscribing the use ofaggressive force to include even military interventions for humanitarian purposes.’7 Forexample:Most authors interpret Article 2(4) as imposing a total ban on the use of forcein international relations except when another provision of the Charterexpressly recognizes or creates an exception to that ban. This broadinterpretation of Article 2(4) is confirmed by the travau preparatoires of theCharter, and in recent years has received the support of most of the memberstates of the United Nations.’8The prevailing view is that the use of force is illegal in international relations except in self-defence’9 and when authorized by the Security Council under Chapter VII of theCharter.2°The provisions banning the use of force are considered the most important(“principles of respect for each other’s independence and sovereignty and of non-intervention in each other’sdomestic affairs.”)‘7Michael Akehurst for example, suggested that “the United Nations debates on Cambodia in 1979provide some evidence that there is now a consensus among states in favour of treating humanitarianintervention as illegal.” see Michael Akehurst, Humanitarian Intervention, in Intervention in World Politics, 95(H.Bull ed.1984) Certainly, during UN debates in 1945, Thot a single state spoke in favour of the existence ofa right of humanitarian intervention.” Id at 97. see also Ian Brownlie, International law and the Non-use offorce(1963) at 342. [hereinafter International lawj ‘[lit is extremely doubtful if [humanitarian intervention] hassurvived the...general prohibition of resort to force to be found in the UN Charter. Id see also M.D.Verwey,“Humanitarian Intervention under International Law 32 Netherlands International Law Review 364, 377(1985). “The Charter bans the “use of force for any particular purpose, including a humanitarian one. Id18 M.Akehurst, ibid at 106; see also Watson, “Legal Theory, Efficacy and Validity in the Development ofHuman Rights Norms in International Law” 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 of the Charter provides that “[nothing] in the present Charter shall impairthe inherent right of individual or collective self-defence if an armed attack occurs against a Member of theUnited Nations”.20Chapter VII of the Charter reserves to the Security Council the exclusive right to use military forceagainst an aggressor. see Brownlie, International law supra note 17 at 33-34. “Chapter VII [of the Charterlconferred on the Security Council a broad competence to act on behalf of the international community withrespect to varying characteristics of unlawful unilateral resorts to force: threats to the peace, breaches of thepeace and acts of aggression.” Id. see also Bazyler, supra note.3 at 575 (“[T]he..individual use of force has beensuperseded by the United Nations Charter and its emphasis upon collective state action through the Security14provisions of the Charter and have been authoritatively reaffirmed on numerousoccasions.21The obvious and unfortunate effect of this strict construction is that the UNappears to be prohibited, as is any other foreign power, from intervening to protect humanrights.(ii). Non-intervention into domestic affairsThe principle of non-intervention is premised on respect for sovereignty, territorial integrityand political independence and thus, is a correlation to the principle of the non-use of forceembodied in Article 2(4) of the UN Charter.22 More importantly, Article 2(7) of the UNCharter specifically prohibits interference in the domestic affairs of another sovereign statealthough this disclaimer excludes the application of enforcement 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.21 See Oscar Schacter, The Right of States to use Armed Force supra note 14 at 1620. on aggression underthe UN Charter, see generally, Leland M.Goodrich and Edvard Hambro, Charter of the United Nations.’Commentary & Docs, 2nd Ed.(Boston:World Peace Foundation, 1949), pp262-622 See eg Andrew Scott, “Non-intervention and Conditional Intervention” Journal of Enternational AffairsVol 22, No2 (1968) (Non-intervention is an obvious corollary of national sovereignty, for if nationalsovereignty is good, interference with a state’s integrity must be bad.’) Id at 208Article 2(7) delineates the jurisdiction of UN authority:’Nothing contained in the present Charter shallauthorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction ofany state or shall require the Members to submit such matters to settlement under the present Charter; butthis principle shall not prejudice the application of enforcement measures under Chapter VII.24 See R.George Wright, A Contemporary Theory of Humanitarian Intervention” Florida InternationalLaw Journal.Vol 4 1989 43615to include even the verbal remarks of government officials concerning another state’saffairs.251n practice, however, the UN often involves itself in the peaceful resolution ofinternal affairs without objection eg.by way of committees and recommendations. ThePermanent Court of International Justice aptly summarized the essential thrust of the notionof intervention in the LOTUS case in 1927 when it stated thatthe first and foremost restriction imposed by international law on a state isthat - failing the existence of a permissive rule to the contrary - it may notexercise its power in any form in the territory of another State. In this sensejurisdiction is certainly territorial [emphasis added]; it cannot be exercised bya state outside its territory except by virtue of a permissive rule derived frominternational custom or from a convention.26More recently, the International Court of Justice noted in its decision on the merits in thecase of Nicaragua v. US in 1986 that, “in view of the generally accepted formulations, theprinciple of non-intervention forbids all States or groups of States to intervene directly orindirectly in internal or external affairs of other states.”27Numerous resolutions, declarations and conventions adopted by international organizationsreflect state acceptance of the principle of 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 International Order 3 (1974); Bazyler, supra note 3 at 547(citing authority)26 The SS Lotus (1927) PCIJ ser.A.No 9, 18-1927 See Case Concerning Militaiy and Paramilitaiy Activities in and Against Nicaragua (Nic v USA), 1986 ICJRep 14, 106-110. Earlier in the Corfu Channel case the Court had made a similar pronouncement stating that“the alleged right of intervention as the manifestation of the policy of force, such as has, in the past, given riseto most serious abuses and such as cannot...find a place in international law..especially when it would bereserved for the most powerful states, and might easily lead to perverting the administration of internationaljustice itself.” ICJ Rep 1949, Rep 4 at 3516Future declared:”Each state has a legal duty to refrain from intervention in the internalaffairs of any other state,” the authors pointing out that the “principle would reaffirm aprecept of the existing law.”29Similarly, the 1928 Convention on the Duties and Rights of States in the Event of Civil Strifeprohibited intervention even by nationals of one state in the affairs of another state.3°Likewise, the Montevideo Convention on Rights and Duties of States of 193331 explicitlystated that “no state has the right to intervene in the internal or external affairs ofanother.”32The principle of non-intervention was unequivocally endorsed by the United Nations in the1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States andthe Protection of their Independence and Sovereignty which stated that “No State mayuse or encourage the use of economic, political or any other type of measures to coerceanother State in order to obtain from it the subordination of the exercise of its sovereignright or to secure from it advantages of any kind.’° The UN General Assembly laterSee The International Law of the Future:Postulates, Principles and Proposals, Carnegie Endowment forInternational Peace, 38 American Journal of International Law, Supp 41 at 76 (1944)29 ibid° Convention Concerning the Duties and Rights of States in the Event of Civil Strife, 1948 February 20th, 46Stat, 2749 Article 1.31 Convention on the Rights and Duties of States, 1933, December 26th, 49 Stat 309732 Ibid, at Article 8GA Resolution 2131, (XX) UN GAOR, 20th Sess, Supp No.14, UN Doc AIRes/2131“ The Declaration reflected the General Assembly’s deep concern at “the increasing threat to universalpeace due to armed intervention and other direct or indirect forms of intervention threatening the sovereignpersonality and the political independence of states.” and holds that “armed intervention is SynOnymoUs withaggression” and “a violation of the Charter of the United Nations.” Thus, the resolution condemns armed17adopted a Declaration on Principles of Law Concerning Friendly Relations and CooperationAmong States, which approved the principles enunciated in the 1965 Declaration as the“basic principles” of international law. The 1970 Declaration stated that “the practice of anyform of intervention not only violates the spirit and letter of the Charter, but also leads tothe creation of situations which threaten international peace and security.Although declarations such as the above “are not ordinary international treaties orconventions” there is authoritative evidence to suggest that these declarations actuallyestablished new rules of international law binding upon all states.36Several eminent legal scholars have contributed to the jurisprudential debate concerning thenotion of non-intervention. Falk for instance, has reiterated that “non-intervention is adoctrinal mechanism to express the outer limits of permissable influence that one State mayexert upon another,37while Teson interprets intervention to mean proport io natetransboundary help, including forcible help, provided by governments to individuals inintervention “for any reason whatsoever” and makes no exceptions, not even for the protection of humanrights.” see GA Res 2131 (XX) Dec 21, 1965 20 GAOR, Supp 14 at 11-12 UN Doc. A16014Declaration on Principles of International Law Concerning Friendly Relations and Co-operation AmongStates in Accordance with the Charter of the United Nations, Res 2625 24th October 1970, 8th parag. There wasa similar general condemnation of intervention in a 1974 UN document which classified the following as“aggression:” The invasion or attack by the armed forces of a state of the territory of another State, or anymilitary occupation, however temporary, resulting from such invasion or attack..”, Article 3(a) of the Definitionof Aggression, approved by the UN General Assembly Res 3314 of December 14, 1974. However, Article 2of the same document gave the Security Council some discretion in particular cases to “conclude that adetermination that an act of aggression has been committed would not be justified in the light of otherrelevant circumstances..”Id36 Louis Sohn, “The Shaping of International Law” Georgia Journal of International Law and ComparativeLaw, 16 (1978) at 16. Similar arguments may be made to the effect that international treaties of sufficientscope may create customary law binding on non-signatories; see also Baxter, “Multilateral Treaties as Evidenceof Customary International Law’ 41 British Year Book of International Law 275 (1965-66)Richard Falk, Legal Order in a Violent World (1968) (Princeton University Press) 15918another state who themselves would be rationally willing to revolt against their oppressivegovernment.38It has however, been stated that “. ..the essence of intervention is force, or the threat of force,in case the dictates of the intervening power are disregarded..There can be no interventionwithout on the one hand, the presence of force, naked or veiled, and on the other hand, theabsence of consent on the part of the combatants.”39Si il rly, in Ellery Stowell’s well-known treatise, humanitarian intervention is defined as ‘the reliance upon force for thejustifiable purpose of protecting the inhabitants of another state from treatment which is soarbitrary and persistently abusive as to exceed the limits of that authority within which thesovereign is presumed to act with reason and justice.”40Thus, although it is conceded thatintervention may take various nuances,41 the use or threat of force remains paramount instate practice whenever the doctrine of humanitarian intervention has been invoked. It is thisconsideration that is presented in this paper.(iii) State Sovereignty as a Barrier to Humanitarian InterventionSovereignty as a concept is crucial when considering whether or not to intervene to protecthuman rights. Intervention implies violation or intrusion upon authority and while authority,38 Fernando R.Teson, Humanitarian Intervention:An Inquity into Law and Morality (1988) al 5; see alsoF.X.Lima, Intervention in International Law 53 (1971) “To intermediate in the domestic affairs of anothernation or to undertake to constrain its council is to do it an injury. (quoting Vattel) Id at 12T.Lawrence, Principles of International Law, 124,(5th edition 1913)° E.Stowell, Intervention in International Law (1921)41 See W.D.Verwey, Humanitarian Intervention under International Law’ 32 Netherlands InternationalLaw Review. 364 (1985) (quoting J.L Brierly, The Law ofNations 402 (1963) Intervention can refer to almostany acts of interference by one State in the affairs of another.” Id.19like sovereignty, is an abstraction, its concrete form consists of territorialboundaries.42Traditionally, governments intent on repressing their people have used thenotion of sovereignty to prevent life-saving assistance from the international communityreaching the needy. As recently as 1990 it was the belief of some theorists that “[I[f offensesagainst humanity even to the point of genocide in a few cases have not been sufficientjustification to override sovereign rights until now we probably should not expect it to be anydifferent in the future.”43The ethnically displaced, victims of human rights violations and civilians trapped in civilconflict have, for centuries, remained vulnerable to the very regimes that violated theirhuman rights. To appreciate the significance of the dramatic turnaround in internationalattitudes, one has only to look at the emphatic deference to state sovereignty over the years.The concept of sovereignty was the distinguishing feature of a new order established by theTreaty of Westphalia which prevented the humanitarian intentions of earlier founders ofinternational law becoming a reality.44The origins of the doctrine can be found, however.in the Roman Empire. It was argued that the source of law must be above the law andhence, the emperor at the time was so regarded. This essential element of sovereignty42 J.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 of Mankind in Gentili, Grotius and Suarez’ American Journalof International Law 85 (1991) ppllO-16; Hugo Grotius, De Jun BelliAc Pacis Libri Tres [The Law of War andPeace in Three Books], Prolegomena 14-15 (F.Kelsey trans.1925)(original 1625) It was Grotius who firstprovided a theoretical basis to modern international law. Accordingly, any critique of the concept of territorialsovereignty must in the final analysis address the Grotian theory; see eg H.Maine, Ancient Law 92-108 (1970)The writer demonstrates that Grotius derived his theory from the following postulates:(1) There is a determinable law of nature.Id at 92.(2) Each nation-state is sovereign.Id at 92.(3) Natural law is binding on nation-states inter se.Id20emerged at the end of the first century. However, the rebirth of sovereignty in the nation-state45 is customarily dated from the end of the Thirty Years War in 1648.46 Followingthree decades of war between Catholics and Protestants, the Peace of Westphalia separatedthe powers of church and state. In doing so, it transferred to nation-states the specialfeatures of church authority. Nation-states thus acquired the notion of sovereignty andbecame entities above the law that has since become frozen in the structure of internationalrelations.47 Modern re-statements of sovereignty derive their historical basis from theGrotian theory.48Traditionally defined, state sovereignty refers to a government’s exclusive rights to manageits own affairs without external interference and to conduct foreign affairs with othersovereign entities. For example, it was once stated that “[T]he principles of sovereignty andself-determination relieve publics of worrying about how and by whom others are governedand, in any event, foreign authority structures are too far removed from the daily concernsof citizens to warrant their sustained advocacy of convention-breaking behaviour.”49International esteem for the concept reached its zenith shortly after the end of the colonialThe term “nation-state” is used to avoid any confusion between state 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 of the emergence of territorial sovereignty seegenerally Au Khan “The Extinction of Nation-States” American Journal of International 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 Scientific Concept” Journal of Conflict Resolution Vol 13. no2(1969): 16621era.50 However, as detente took hold in the 1970’s and the Cold War began to thaw,serious inroads were made to the doctrine of state sovereignty as the United Nations madehuman rights one of its main priorities.5’Proponents of human rights began to argue thatthe United Nations should no longer genuflect before the notion of sovereignty and thatstates should be made accountable to international standards concerning human rights.2Accordingly, the issue at the forefront of legal discourse is whether the doctrine of nonintervention exists subject to certain exceptions where intervention may be justified “interalia”, on humanitarian grounds, or whether the exceptions themselves explain the scope ofthe doctrine.53 In this context opponents of the doctrine believe that a “humanitarianintervention occurs when a state or group of states interferes, by the use of force in orderto impose its will, in the internal or external affairs of another state, sovereign andindependent, without its consent, for the purpose of maintaining or altering the conditionsof things when the intervening state finds that the condition or its removal is contrary to the50James Anderson, “New World Order and State Sovereignty:Implications for UN-Sponsored Intervention”Fletcher Forum of World Affairs, Summer 1992 at 130‘ For years, Cold War dynamics prevented human rights concerns from receiving much attention, despitethe passing of the Universal Declaration of Human Rights.52 See generally Goodwin-Gill, The Refugee in International Law (1985) See also James Anderson, supranote 50 at 130. Anderson posits a theory of moral absolutism vs. moral relativism to explain the emergenceof human rights in international law and the tension between state sovereignty. Moral relativism dictates thateach state be judged on its own terms, according to its own values, norms and customs. According to thisparadigm, universal norms do not apply. In contrast, the absolutist model posits universal standards that applyequally across state borders. International opinion has shifted between moral relativism and moral absolutismwith respect to human rights. Since the end of the Cold War however, moral absolutism would appear to haveemerged as the dominant paradigm for judging internal state policies. IdThe Thomases believe for instance that “intervention is the exception’. supra note 13 Scoit-Fairleylikewise believes that any theory of humanitarian intervention must offer a legitimate exception from thisstated norm in contemporary international law when he says “humanitarian intervention is a particular speciesof an exception to a rule” H.Scott Fairley, “State Actors and Humanitarian lntervention:Opening Pandora’sBox” Georgia Journal of International and Comparative Law (1980) at 3122laws of humanity.”54Th s doctrine warrants further examination.Changing Views of the Doctrine of Humanitarian Intervention(i). Classical School of ThoughtAlthough its status has always been precarious, the doctrine of humanitarian intervention inits classical form was extensively invoked by numerous Western European States to justifytheir actions in the 18th and 19th centuries and has been well documented by variousscholars.55 The concept was just one of a number of theories that was used to ‘justify’ theenslavement of uncivilised peoples. Although a genuine humanitarian intervention was notalways guaranteed, a number of eminent publicists consistently maintained the legality of thedoctrine even if their formulations were couched in moralistic overtones.56 After WorldWar I however, and the creation of the League of Nations, special limitations were imposedon the right of states to resort to intervention.During the League of Nations, a new application of the doctrine was devised, largely dueto the proliferation of international organizations providing opportunities for concerted54Adapted from Thomas and Thomas’s definition supra note 13. see also Franck and Rodley, AjierBangladesh supra note 3 who believe in a different definition of humanitarian intervention as “Limited to thoseinstances in which a nation unilaterally uses military force to intervene in the territory of another state [or thepurpose of protecting a sizable group of indigenous people from life-threatening or otherwise unconscionableinfractions of their human rights that the national government inflicts or in which it acquiesces.” Id at 277See generally E.Stowell supra note 40 for an annotated bibliography of authorities who recognize thedoctrine, see also Fernando R.Teson, supra note 38.See Henry G. Hodges, The Doctrine of Intervention and Morality 5 (1988) quoting Hugo Grotius ‘AnySovereign may justly take up arms to chastise nations which are guilty of enormous faults against the laws ofnature.” (90.n.29)23action.57 The proponents of the doctrine during this period recognized that nonintervention in the affairs of another sovereign state was a generally accepted principle ofinternational law.58 Statements of the doctrine of humanitarian intervention therefore,usually consisted of general assertions of morality and lacked a sound legal basis.59 Yet,even the moral legitimacy of the doctrine under general international law was denied bysome commentators.60 More importantly, the doctrine of humanitarian intervention isthought to have been proscribed or, at least severely restricted by the UN Charter in1945.61The doctrine of humanitarian intervention has always been a controversial concept. Manystates for instance, characterize humanitarian intervention as a pretext designed to legitimizeinvasion of the weak by the strong.62 Some argue that humanitarian intervention is “simplya cloak of legality for the use of brute force by a powerful state against a weaker one,”63and that “experience has shown how readily more powerful states have used the pretext ofSee M.W.Graham, “Humanitarian Intervention” XXIII Michigan Law Review, l923-t,p3l2 al 328.ibidSee eg the Marten’s Clause in the Convention with Respect to the Laws and Customs of War on Land,which makes reference to the concept of “laws of humanity”.60See authorities cited and discussed in E.Stowell, supra note 40.61 Article 2(4), UN CharterSee Schacter supra note 14 at 1629 (“The reluctance of governments to legitimize foreign invasion in theinterest of humanitarianism is understandable in the light of past abuses by powerful states”)IdSee eg. Hassan, “Realpolitik in International Law: After Tanzanian - Ugandan Conflict,’ HumanitarianIntervention” Reexamined” 17 Willamette Law Review 859, 890 (1981); see also Jost Delbruck, “A Fresh Lookat Humanitarian Intervention Under the Authority of the United Nations” 67 Indiana Law Journal 687, 891(1992) (“[Tjhe door to purely arbitrary intervention, that is, acts of aggression in disguise, would be wideopen. “ )Id24a higher good to impose their will and values on weaker states.”64 One commentatorconcluded that “humanitarian intervention is so blatantly open to spurious claims that itshould not be countenanced.”65Others have colourfully suggested that the doctrine lacks“a means that is both conceptually and instrumentally credible to separate the few sheep oflegitimate humanitarianism from the herds of goats which can too easily slip through.”66The argument need not be left at the level of the hypothetical. The Indian intervention inEast Pakistan in 1971 and the Tanzanian intervention in Uganda in 1979, for instance,attracted criticism in the UN General Assembly and especially among certain legal scholarsfor allegedly using the doctrine of humanitarian intervention as a pretext for serving self-interests.67Other commentators such as Oscar Schachter have written that “governments by and large(and most jurists) would not assert a right to forcible intervention to protect the nationalsOscar Schacter, The Lawful Resort To Unilateral Use of Force’ Yale Journal of International Law 291(1985)Clark, Humanitarian intervention:Help to Your Friends and State Practice’ 13 Georgia Journal ofInternational Law 211, 213, (1983)Franck and Rodley, After Bangladesh supra note 3 at 28467The legal status of these operations is somewhat dubious since the governments in each case based theirclaim on the right of self-defence as enunciated in Article 51 of the Charter rather than on the doctrine ofhumanitarian intervention. India did initially justi1i its military action in 1971 partly on the grounds ofhumanitarian intervention in the UN Security Council. These statements were however, deleted from the finalrecord of the Security Council.Instead, India alleged that Pakistan had attacked india first 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(motivating force behind the intervention was not humanitarian concern, butself-interest and thus India’s intervention was not justifiable) Thus,”the Bangladesh case does not constitutethe basis for a definable, workable or desirable new rule of law which, in the future, would make certain kindsof unilateral military intervention permissible) Compare to Teson, supra note 38.(”The case..is an almostperfect example of humanitarian intervention.”) see also R.Lillich, Rapporteur, The International Protectionof Human Rights by General International Law, Second Interim Report of the Sub-Committee, in Repon ofthe International Committee on Human Rights of the International Law Association, 3t. 54 (197?);seuM.Akehurst “Humanitarian Intervention”, supra note 17 at p96.25of another country from atrocities carried out in that country.68 Tom Farer has also pointedout that even slaughters of near genocidal proportions do not consistently induce asubstantial number of states to call for armed rescue, much less to attempt it themselves.69He submits that there is not a single case in the entire post-war era where one state hasintervened in another for the exclusive purpose of halting mass murder, much less any othergross violation of human rights.70 Accordingly, opponents of the doctrine of humanitarianintervention contend that the prohibition on the use of force, which is enshrined in Article2(4) of the UN Charter, should be interpreted broadly and consistently with its plainlanguage. They argue that there is no scope for considering humanitarian intervention as avalid exception to the Article 2(4) norm.71 Most scholars during the Cold War eratherefore found that action taken in the name of humanitarian intervention rarely compliedstrictly with the norms of international law as enunciated in the UN Charter.72A recent British Foreign Policy document points out that to establish any semblance oflegality of humanitarian intervention it would be necessary to demonstrate that Article 2(4)Oscar Schacter, The Right of States to Use Armed Force, supra note 14 at 1629.Tom Farer, ‘An Inquiry into the Legitimacy of Humanitarian Intervention in Law and Force in theInternational Order (Lori F. Damrosch and David Scheffer eds. 1992) 186 at 192 [hereinafter Law and Force)70 Ibid at 193, Similarly, Michael Waizer claims to have found no examples of pure humanitarianintervention...”States don’t send their soldiers into other states, it seems, only in order to save lives. The livesof foreigners don’t weigh that heavily in the scales of domestic decision-making.” Michael Walzer, Just andUnjust Wars 101-108 (1977) at 10271See Ian Brownlie, International law supra note 17 for citations to the works ol these publicists; andBrownlie “Humanitarian Intervention” in Humanitarian Intervention and the United Nations, [hereinafterHumanitarian Intervention] Lillich (ed 1970.) see also T.Franck and N. Rodley, After Bangladesh supra note3 299-3072 See eg. Franck and Rodley, supra note 3 Professors Franck and Rodley concluded that “[some pastinvocations of humanitarian intervention] are so clearly bogus as to be worth examining only to indicate theabuse to which the asserted right is so commonly subject.”Id26does not apply to violations of human rights. The study however, concluded thatthe overwhelming majority of contemporary legal opinion is against theexistence of a right of humanitarian intervention, for three main reasons: First,the UN Charter and the corpus of modern international law do not seemspecifically to incorporate such a right; Secondly, state practice in the past twocenturies, and especially since 1945, at best provides only a handful of genuinecases of humanitarian intervention, and, on most assessments, none at all, andfinally, on prudential grounds, that the scope for abusing such a right arguesstrongly against its creation.73There is however, a school of thought which posits a contradictory interpretation of theCharter.(ii) Neo-classical school of thoughtInternational law distinguishes between two categories of intervention related tohumanitarian concerns: the protection of nationals and their property abroad by theintervening state; and humanitarian intervention per Se, where the basis for intervention isnot the link of nationality between the persons sought to be protected and the interveningstate, but the protection of individuals or groups of individuals from their OWfl state wherethe governing authority permits gross abuses of human rights or itse]f maltreats subjects ina manner which “shocks the conscience” of mankind.74Proponents of the doctrine of humanitarian intervention, accordingly, subscribe to the viewAnd Commonwealth Office Foreign Policy Document No. 148, reprinted in 57 British Yearbookof International Law 614 (1986).It is the latter conception of humanitarian intervention that this thesis is concerned with. SeeOppenheim who states ‘There is a substantial body of opinion and of practice in support of the view that whena state renders itself guilty of cruelties against and persecution of 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 manner may persist in conduct whichis considered to violate the universally recognized principles of decency and humanity.’27that if a state denies certain minimum basic 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 extreme cases.. where great evils existed, greatcrimes were being perpetrated, or where there was danger of race extermination.7Asimilar conclusion was reached by another commentator at the turn of the century thatintervention was permissable on the grounds of “tyrannical conduct of a government towardsits subjects, massacres and brutality in a civil war, or religious persecution.”76 Anotherobserver states that “while divergences certainly existed as to the circumstances in whichresort could be had to the manner in which such operations were to be conducted, theprinciple itself was widely, if not unanimously, accepted as an integral part of customaryinternational law.”77There are numerous scholars who belong to the so-called neo-classical school of thought.Richard Lillich for example, strongly supports the thesis of humanitarian intervention on thebasis of proportionality and of its limited duration in time. He believes that such interventionis legitimate not only when human rights are being violated, but also in the presence of aclear danger of such human rights violations.78 Most proponents of the doctrine ofhumanitarian intervention refer to the Charter and internationally recognized principles ofStowell, supra note 40‘ Hall, International Law, 302 (4th edition, 1895)Jean-Pierre L.Fonteyne, supra note 2 at 23578 Lillich, [Humanitarian InterventionJ supra note 71 at 130; see also 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 an invaluable insight into the doctrinal debate between Lillich andBrownlie.28international law rather than to customary law. For instance, Professors Reisman andMcDougal of Yale Law School hold that the UN Charter not only confirmed the legitimacyof humanitarian intervention, but also strengthenedH it.79 They cite the Preamble andArticle I of the UN Charter and point out that these provisions confirm the legitimacy of theuse of force for self-defence and humanitarian intervention.80 Article 2(4) of the UNCharter, according to Reisman and McDougal, prohibits the use of force only for“illegitimate purposes” such as encroachments upon territorial integrity or politicalindependence of states. Humanitarian intervention, in their opinion, does not violate thepurposes of the Charter but rather corresponds fully to the mandatory provisions of the UNCharter.8’A similar thesis is supported by international policy makers. For instance, the reportsubmitted by the Sub-Committee on Human 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, and it is not its existence but its limits that mayconstitute the subject matter of debates.82Despite opposition from some ILA members onthe grounds that the doctrine is contrary to the UN Charter, subsequent reports of theAssociation stated that the doctrine deserves to be treated most favourably and thatintervention for “humane” purposes is legitimate only in cases where gross violations areM.Reisman and M.Mcdougal, Humanitarian Intervention to Protect the Ibos, in Lillich, fHumanilariunIntervention] supra note 71 at 167-195801bk1, at 17281 Ibid at 17582 The International Law Association, Report of the Fifty-Fourth Conference, London 1972 at 633-64129“inevitabl&’ or “unavoidable’.83The International Court of Justice however, has not directlyruled on the legality of humanitarian intervention. Certain decisions nonetheless, do reflecton the value of human rights and humanitarian intervention generally.84Aside from legal theorizing, is there a basic moral justification for humanitarianintervention? It is often argued that humanitarian intervention of a military sort is inherentlyself-defeating. Indeed, it has been colourfully suggested that “guns do not have.. .the gift ofdiminishing the number of corpses or of disinfecting the atmosphere corrupted by theirsmoke.”85There is however, a strong moral argument in favour of the doctrine ofhumanitarian intervention.86S owell at the turn of the century, theorized for instance, thathuman rights violations in one country do have a “moral effect on the neighbouringpopulations.”87It is almost implausible at this juncture in international relations to suggest that any attemptto prevent the mass genocide of civilians by the national government can never be justifiedby moral suasion. Simply because atrocious violations of human rights take place overseashardly seems sufficient to justify inaction. As one eminent legal critic asserted: “[S]urely toThe International Law Association, Report of the Fifty-Fifth Conference, London, 1974 at 608-624See Militaiy and ParamilitatyActivities in andAgainst Nicaragua ‘Nicar. v. US) Merits, 1986 I.C.J 4 (June27); United States Diplomatic and Consular Staff in Tehran (US. v. Iran), 1980 1.CJ. 3 (May 24): LegalConsequences for States of the Continued Presence of South Africa in Namibia (South West AfricaNotwithstanding Security Council Resolution 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); South West Africa (Eth.vs.Africa.;Limber.v.s.Afr), 1966 1.C.J. 6 (July 18) (second phase); Reservations to the Convention on the Preventionand Punishment of the Crime of Genocide, 1951 I.C.J 15 (May 28). These decisions are however, inconclusiveas to the legality of the doctrine. For a review of the above cases, see Nigel.S Rodley, “I-luman Rights andHumanitarian Intervention:The Case Law of the World Court” 38 International Law and Comparative LawQuarterly 321 (1989).85Tanoviceane, Droit International de L’Intervention 12-13 (1884) quoted in Hassan, supra note 63Lillich, supra note 3 at 344. The doctrine of humanitarian intervention appeals to the average person’ssense of morality and justiceJd The doctrine “is the expression of a profound and innate sense of justicecorresponding to the natural feelings and reactions of the average person.” Id.see Stowell supra note 4030require a state to sit back and watch the slaughter of innocent people in order to avoidviolating blanket prohibitions against the use of force is to stress blackletter law at theexpense of far more important values.’88McDougal and Reisman have concluded thatin the contemporary world, international and peace and security and theprotection of human rights are inescapably interdependent and that the impactof the flagrant deprivation of the most basic human rights of the great massof the people of a community cannot possibly stop short within the territorialboundaries in which the physical manifestations of such deprivations firstoccur.89Even Michael Waizer who ironically presents one of the strongest moral arguments foradhering to traditional conceptions of the principle of non-intervention allows limitedintervention in response to human rights violations that “shock the moral conscience ofmankind.”90 Indeed, most legal critics of humanitarian intervention would appear to admitthe moral attractions of the doctrine.9’Opponents to the concept of universal human rights consistently fail to consider the moraluLl1Ch, “Forcible Self-Help Under International Law Naval War College Review 22 (1970) Lillich goeson to state that ‘it is a realistic assumption that no state with the capabilities to act will allow its ownnationals and the national of other states to be killed or injured abroad.”Id at 60-61 Similarly, Professor ArthurLeff succinctly summarized the position of many people who support the legalization of humanitarianintervention: “1 don’t much care about international law, Biafra or Nigeria. Babies are dying in Biafra.. Forgetall the blather about international law, sovereignty and self-determination, all that abstract garbage:babies arestarving to death.” Arthur Leff, “Food for Biafrans,” The New York Times, October 4, 1968 at A46.89 McDougal and Reisman, “Rhodesia and the United Nations:The Lawfulness of International Concern”62 American Journal of International Law 15 (1968)° Michael Walzer, “The Moral Standing of States”, Philosophy and Public Affairs 9 (Spring 1980) 209-2991 Even traditional opponents of the legal doctrine support, in principle, the moral premise ofhumanitarian intervention.”In theory, no moral person can take exception to a rule which, in the absence ofan effective international system to secure human rights, permits disinterested states to intervene surgicallyto protect severely endangered human rights and lives, wherever the need may arise.’ See Franck and Rodley,After Bangladesh, supra note 3 at 278 For a sense of some of the moral issues involved in killing one personin order to save countless others under various moral circumstances, see eg. Thomson, The Trolley Problem,in Rights, Restitution, and Risk 94 (W.Parent.ed. 1986)31premise on which the doctrine of humanitarian intervention is based. Their views may becriticized for offering what essentially amounts to an “arid textualist approach”92t existinginternational law, without comprehending the need to adapt the law in order to meet thedemands of contemporary international society.R.George Wright expounds an interesting theory of contemporary moral relativism tosupport the doctrine of humanitarian intervention. He states that:there is a sense in which moral and cultural relativism may actually pave theway for humanitarian intervention. The argument may be made that apotential intervenor should respect the popular institutional choice of aforeign people, however depraved or barbaric that choice may appear to someoutsiders. This argument may itself depend upon some non-relativist premisewhich may conflict with other non-relativist moral principles. But equallyimportantly, why is the would-be intervenor morally required to defer to thevalue choices of the potentially intervened-upon state ? It may be said thatmass killings are right for some societies, if wrong for others. It is not clear,however, why the intervening state might not equally demand the world’srespect for its choice to intervene. Perhaps intervening in the largely internalaffairs of other states is right for some states, if not for others. There may wellbe some relevant moral difference between what a society does internally, toitself, and what it does to unconsenting foreign states. Such a difference,however, takes on effective moral weight only when seen as a non-relativistmoral consideration, and as only one such consideration among others.93Thus, although it is possible to conclude that the doctrine of humanitarian intervention hasnever received authoritative recognition in positive international law, in view of theconflicting ideals of the UN Charter,94 its existence can nevertheless, be viewed asproviding an indication of the importance of upholding certain higher principles of humanity.See eg. Claydon, “Humanitarian International” Law 1 Queens intramural Law Journal, 36 (1969) at 57R.George Wright, supra note 24 at 444See M.Mcdougal and F.Feliciano, Law and Minimum World Public Order 536 (1961) who speak of theamorphous doctrines on “humanitarian intervention.”32Humanitarian intervention may, therefore, generally be justified on a variety of humanrights-based approaches.95 It was once thought that ‘...foreign authority structures are toofar removed from the daily concerns of citizens to warrant their sustained advocacy ofconvention-breaking behaviour.96There is however, a growing awareness that barbaric acts of aggression towards innocentcivilians are no longer morally acceptable. An analogy may for example, be drawn fromcommon law systems where an individual witnesses the perpetration of a violent crime. Thepsychological dynamics posed by this dilemma are essentially founded upon a basic notionof morality. It follows therefore that that individual is duty-bound under traditionalconceptions of morality to intervene to put a stop to such violence, provided he can do sowithout physically imperilling himself. In some jurisdictions, it is a crime not to offerassistance.97 Such an incident may be paralleled in the international context where it issubmitted that states are duty-bound to intervene to put a stop to human rights atrocities.98Thus, the implementation of at least some of the fundamental human rights must be seenas the first precondition for the foundations of stable and enduring international organizationSee generally, Louis Henkin, The Rights ofMan Today 108-09 (1978) Bilder, “Rethinking internationalHuman Rights: Some Basic Questions’, Wisconsin Law Review 1967, 17196 James N.Rosenau, supra note 49 at 166 A similar argument may be made that a child struck by a drunkdriver arouses more attention than a thousand civilians massacred by their own government in a far-flungcountry. see generally James Anderson, supra note 50 at 34see generally the work of psychologists Latane and Darley, Social Determinant of Bystander Interventionin Emergencies in Altruism and Helping Behaviour 13-27 (J.Macauley and L.Berkowitz eds. 1970)98 For a philosophical consideration of this duty in the context of charity, as opposed to humanitarianintervention, see Singer, Famine, Affluence and Morality in Philosophy, Politics and Society 33 (P.Laslet andJ.Fishkin, eds fifth series 1979)(”we ought to give until we reach the level...at which, by giving more, I wouldcause as much suffering to myself or my dependents as I would relieve by my gift”) Id.33and Law.99Humanitarian Intervention and the UN CharterA cursory perusal of the normative logic of the UN Charter as a whole, and its allocationof coercive jurisdiction leads to the conclusion that its overriding goals are the maintenanceof peace and the protection of human rights. There is a strong argument that the principlesand purposes upon which the UN was founded, in particular the support and promotion ofhuman rights throughout the international community, justifies humanitarian intervention.Indeed, some scholars argue that the two purposes are not inconsistent because the UNCharter’s prohibition on intervention “per se’ was never intended to apply to violations ofhuman rights.’00 Moreover, by ratifying the UN Charter, member states took on inherentobligations in the area of human rights.’0’Others subscribe to the view that the Chartermust be accorded a contemporary interpretation in view of the present expectations of theinternational community which allows intervention to protect human rights.102 Indeed, anumber of derivative resolutions passed since the inception of the UN Charter reaffirm theinviolability of human rights in international jurisprudence.’°3Yet, still, the promotion ofSee Falk, ‘The US and the Doctrine of Non-intervention in the internal Affairs of Independent States”5 Howard Law Journal 1959, p163 at pp166-167; Lauterpacht, “The Grotian Tradition in International LawXXIII British Yearbook of International Law 1946 p1 at p46‘°°See Jean-Pierre.L.Fonteyne, “Forcible Self-Help by States to Protect Human Rights:Recent Views fromthe United Nations” in Lillich, [Humanitarian Intervention] supra note 71 at 206-09101 Ibid at 200 (citing commentary of UN delegates as support for the theory)102 Teson, supra note 38 at 134-47103 See e.g Convention on the Elimination ofAll Forms ofDiscrimination Against Women, G.A.Res. 34/180,U.N GAOR 3d Comm, 34th Sess, Supp. No.46, at 193, U.N Doc AJ34/830 (1979) (declaring equality of womenand men),International Convention on the Elimination ofAll For,ns ofRacial discrimination, Mar.12, 1969, 660U.N.T.S 195 (seeking to end government sponsored practice of racial discrimination);International Conferenceon Human Rights (the “Proclamation of Tehran”), 1968 U.N.Y.B 538,539 (declaring that economic development34human rights ranks below the protection of state sovereignty and the maintenance of peaceas the aims of the world organization.’°4Nevertheless, under a traditional interpretation, the provisions of the UN Charter areauthority for the view that humanitarian intervention 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, Article 2(4) prohibits the use of force and Article2(7) protects sovereign states from UN intervention into “matters which are essentially withinthe domestic jurisdiction of any state”, equally, the Preamble and first Article of the Chartermake clear that the founders of the UN had as their intention a link between internationalpeace and security with fundamental human rights. The Preamble to the United NationsCharter states that “We the Peoples of the United Nations determined.. .to reaffirm faith infundamental human rights, in the dignity and worth of the human person, in the equal rightsof men and women..”05 The Preamble also provides that armed force shall only he usedcannot come about without protection of human rights),Intemational Covenant on Economic, Social andCultural Rights, G.A.Res 2200, U.N GAOR 3d Comm, 21st Sess, 1496th plen mtg. at 49, UN Doe AJ6316(1966) (recognizing the right to self-determination as a fundamental right);Convention on the Prevention andPunishment of the Crime of Genocide, Jan.12, 1951, 78 U.N.T.S 277 (outlawing all practices which intend todestroy a specific national, ethnic, racial or religious group); Universal Declaration on Human Rights, G.A.Res217A, 3(1), U.N GAOR Res 71, U.N Doc A1810 (1948) (calling on all states to recognize and affirm generalhuman rights for all peoples without limitation). For an overview of the UN responses to the protection ofhuman rights, see Louis B.Sohn and Thomas B.Burgenthal, International Protection of Human Rights(1973);Louis Sohn, ‘The Universal Declaration of Human Rights”, 8 J.Int’L Commission Jur 17, 23(1967).”[T]he Universal Declaration of Human Rights was adopted unanimously, without a dissenting vote,[so] it was considered as an authoritative interpretation of the Charter of the highest order.” Id.‘° Human rights had only a tenuous place among the concerns 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 of Human Rights: A Brief History, in The International Bill of Human Rightsociii (P.Williams ed.1981)105 The preamble to the Universal Declaration of Human Rights also emphasizes the United NationsCharter’s conceptualization of the indivisibility of human rights and international security.35if it is in the “common interest.”°6This phrase has been interpreted by some scholars tomean interests that are “common to all individuals on earth,” as opposed to all recognizedgovernments.’07Article 1(3) further provides that “the Purposes of the United Nations are...to achieveinternational cooperation in solving international problems of an economic, social, culturalor humanitarian character, and in promoting and encouraging respect for human rights.”Under Articles 55 and 56, members are committed “to take joint and separate action incooperation with the Organization “for the promotion of “equal rights and self-determinationof peoples,” including “universal respect for, and observance of, human rights”. In Article 68,the Economic and Social Council “shall set up commissions...for the protection of humanrights” whereas Article 76(c) stipulates that a basic objective of the trusteeship system is “toencourage respect for fundamental freedoms for all....”These provisions have led to claims that the furtherance of human rights is just as importantwithin the normative framework of the United Nations as the principle of non-interventionset out in Articles 2(4) and 2(7). Although, the ICJ argued in the Nicaragua case that theprotection of human rights “cannot be compatible” with military actions such as those carriedout by the United States in Nicaragua, the Court concluded that “. . .humanitarian aid...cannot be regarded as unlawful intervention....’.108 Indeed, this view is further supported106 UN Charter preamble, article 1.107 Teson supra note 38 at 133; see also Reisman “A Humanitarian Intervention to Protect the Ihos,” inLillich, [Humanitarian Intervention] supra note 71 at 177.108 Nicaragua v. United States, 1986 I.C.J 14, 134-35 (Merits) Not all scholars uphold this belief. LouisHenkin for example contends: “[c]learly it was the original intent of the Charter to forbid the use of force evento promote human rights...Human rights are indeed violated in every country...But the use of force remainsitself a most serious violation of human rights.” See Louis Henkin, Use of Force:Law and US policy in Right. V36by extensive UN work in the human rights field, the Universal Declaration of Human Rightsbeing the key document.’°9While the Charter does not explicitly authorize unilateral or collective humanitarianintervention by states, neither does it specifically abolish the traditional doctrine.”0Thistheory concludes, upon an evaluation of the legislative history of the UN Charter, thatbecause the drafters did not explicitly ban humanitarian intervention, it remains legal. Analternative proposition can be made that as law evolves over time, Article 2(4) should beaccorded a contemporary interpretation in view of the present political and technologicalclimate.”Some scholars would go as far to state that humanitarian intervention, far fromMight:Intemational Law and the Use of Force, 2nd Ed (1991) 109 [hereinafter Right v Might I Opponents ofhumanitarian intervention claim that the prohibition on the use of force embodied in Article 2(4) should beinterpreted consistently with its plain language, so that permitting an exception for humanitarian uses of forceis impermissible. See Ian Brownlie, International Law supra note 17 at 342; Tom Farer, “Human Rights inLaw’s Empire:The Jurisprudence War” 85 American Journal of International Law 117, 121 (1991)(arguing thatthe original intent of the drafters of the Charter was to forbid any use of force, even for humanitarianpurposes, and that state practice has not altered the contemporary meaning of the original text)‘°90.A Res. 217, UN GAOR, 3rd Sess, at 71, UN Doc A/810 (1948); see generally Richard Lillich,International Human Rights Instruments (2nd ed. 1988)‘10See Ian Brownlie International Law supra note 17 at 342; Contra to Reisman: “The advent of the UnitedNations has not excised this traditional customary right although it has set a structure of normative conditionsabout it.” Reisman, “Humanitarian Intervention To Protect the Ibos” 167, Lillich Humanitarian Intervention supranote 71“ This argument rests on the basic premise that the UN Charter is only concerned with inter-state warand not intrastate conflicts. Accordingly, the Charter should be interpreted against the current backdrop ofcomplex wars of ethnicity which have become the hallmark of the post-Cold War era. See eg. James Rosenau,Turbulence in World Politics: A Theory ofChange and Continuity (Princeton:Princeton University Press, 1990);Thomas M.Franck, “Who Killed Article 2(4)?” American Journal of International law 64 (1970), p809.Professor Reisman for instance, has argued that“[o]ne should not seek point-to-point conformity to a rule without constant regard for ihe policy orprinciple that animated its prescription, and with appropriate regard for the factual constellation in the mindsof the drafters...Article 2(4).. is premised on a political context and a technological environment that have beenchanging inexorably since the end of the 19th century.”W.M.Reisman, supra note 12 see also William Chip, “A UN Role in Ending Civil War”, 19 Columbia Journalof Transnational Law (1981) (“External reaction to internal events may have supplanted classical aggressionas 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 a strict interpretative construction, Article 2(4) prohibits the use of force in three specificsituations, none of which raise humanitarian concerns. Article 2(4) primarily prohibits forceagainst the territorial integrity of the target state. Humanitarian intervention, by definition,does not impair the territorial integrity and is only concerned with the protection of people’srights.113 The use of force is also prohibited where it interferes with the political affairsof a state. Again, however, a truly altruistic act of humanitarian intervention is not concernedwith the regime but only the rights of the individuals.’14 Finally, force is not permittedwhere its ultimate objective is inconsistent with UN goals. As already stated, human rightsare one of the primary goals of the UN and thus, the use of force for humanitarian purposeswould not appear to frustrate the UN Charter.”5112 Lillich, Humanitarian Intervention supra note 71 at 131 see also Teson supra note 38 at 131 jT]hepromotion of human rights is a main purpose of the United 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.113 Teson supra note 38 at 131. Legitimate humanitarian intervention is motivated only by the internationalcommunity’s desire to end human suffering or restore human rights, not by a state’s desire to conquer Landareaid114t is questionable however, even in today’s political climate whether the intervening power (the UN orotherwise) would not attempt to exercise some pressure on a recaltricant government) Teson ibid at 131115 This is the view shared by Professor Reisman and the Thomases 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 a challenge to the political independence of the stateinvolved and is not only not inconsistent with the Purposes of the United Nations but is rather in conformitywith the most fundamental peremptory norms of the Charter, it is distortion to argue that it is precluded byArticle 2(4). Insofar as it is precipitated by intense human rights deprivations and conforms to the generalinternational legal regulations governing the use of force-economy, timeliness, commensurance, lawfulness ofpurpose and so on-it represents a vindication of international law, and is, in fact, substitute or functionalenforcement;’ See “Humanitarian Intervention to Protect the Ibos” in Lillich Humanitarian Intervention supranote 71 at 177. Professor Julius Stone construes a similar interpretation of Articles 2(4) and Article 51, see“Book Review”, 59 American Journal of International Law 396 (1965).lan Brownlie, however, does not believe38Moreover, the two ideals are not inconsistent because the Charter’s principle of nonintervention was never intended to apply to violations of human rights. By ratifying the UNCharter, states implicitly undertook certain obligations in the field of human rights.”6 Ithas also been suggested that interpreting Article 2(7) to accommodate the new concern forhuman rights is 1egitimate.’7War in the name of “humanitarianism would not therefore.appear to be the oxymoron as was once thought.A New Doctrine of Humanitarian InterventionLet us give the world cause to say: These were dedicated men. They did notpose and postpone but strove humbly and honestly to lighten the afflictionsthat weigh so heavily on mankind.Ed Hambro, 25th Anniversary of 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 accordingly discredit this interpretation. He believes that ifone has recourse to the preparatory materials of the San Francisco Conference the phrase “against theterritorial integrity” was inserted at the “behest of small states wanting a stronger guarantee againstintervention” and thus, cannot be accorded a teleological interpretation.See Brownlie, in Lillich, HumanitarianIntervention supra note 71 at 222. Farer, similarly discredits such an interpretation of the norm, calling it“doctrinal manipulation” T.Farer, ‘Law and War” in The Future of the International Legal Order, III Black &Falk, (eds) (1971) at 15, 55.116 This assertion rests on a teleological interpretation of UN Charter Article 25.117 See Jean-Pierre Fonteyne, supra note 2 at 241; see also Felix Ermacora, “Human Rights and DomesticJurisdiction” (Article 2(7) of the Charter), 1224 Recueil Des Cours, bk.II, 371, 436 (1968) (concluding thaiegregious violations of human rights “are no longer essentially within the domestic jurisdiction of States, andtherefore the principle of non-intervention is not applicable.”Id39domestic. If it is not, then the prohibition in Article 2(7) does not apply. Thus, in order toshow that the Charter is implicitly compatible with the doctrine of humanitarian intervention,it must first be established that egregious violations of human rights are not essentiallymatters of domestic jurisdiction. In other words Articles 2(4) and Article 2(7) must be shownnot to apply.Despite the emphatic language of Article 2(7), the United Nations has on several occasionsheld that the concept of “domestic jurisdiction” does not exempt everything that takes placewithin a state’s borders.”8 Indeed, the relevancy of this principle of non-interventionwould appear to be rapidly diminishing in light of the current climate of intrastate ethnicconflict primarily because it is inconceivable that “though states founded for the sake of lifeand liberty, they cannot be challenged in the name of life and liberty.”19Internationally recognized human rights primarily address the way a state treats its owncitizens and thus this would appear to amount to 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 integral part of many national policies and moresignificantly, has dominated the activities of international organizations in recent years.’2°118 Domestic jurisdiction has been held, for example, not to prevent UN action on de-colonization andapartheid. See Declaration on the Granting of Independence to Colonial Countries, O.A.Res 1514, 15 U.NGAOR Supp (No.16) at 66, UN Doc A/4684 (1960) see also SC Res 181 UN Doc 5/5386 (1963), SC Res 392(S!Res/392) (1976) S.C.Res 418 SfRes/418 (1977) for the Security Council action against South Africa and itsgovernment policy of apartheid.“ Teson supra note 38 quoting Michael Walzer, Just and Unjust Wars 61 (1977)120 Even Brownlie, a staunch opponent of humanitarian intervention whether by unilateral or multilateralmeans, concedes that as compared with the earlier part of the century, domestic jurisdiction in the context ofhuman rights currently constitutes much less of a shelter against intervention, see generally Brownlie,Humanitarian Intervention, in Law and Civil War in the Modem World (J.N. Moore ed 1974)40At the University of Bordeaux in April 1991, and again in his annual report on the work ofthe United Nations in September 1991, the former Secretary General Javier Perez deCuellar stated “[W]e are clearly witnessing what is probably an irresistible shift in publicattitudes towards the belief that the defence of the oppressed in the name of morality shouldprevail over frontiers and legal documents.”21He went on to say in his annual report that a balance must be struck between adherenceto the doctrine of state sovereignty and the need to protect human rights:I believe that the protection of human rights has now become one of thekeystones in the arch of peace. I am also convinced that it now involves morea concerted exertion of international influence and pressure through timelyappeal, admonition, remonstrance or condemnation and, in the last resort, anappropriate United Nations presence, than what was regarded as permissableunder traditional international law... .It is increasingly felt that the principle ofnon-interference with the essential domestic jurisdiction of States cannot beregarded as a protective barrier behind which human rights could be massivelyor systematically violated with impunity. The fact that, in diverse situations, theUnited Nations has not been able to prevent atrocities cannot be cited as anargument, legal or moral, against the necessary corrective action, especiallywhere peace is also threatened. Omissions or failures due to a variety ofcontingent circumstances do not constitute a precedent. The case for notimpinging on the sovereignty, territorial and political independence of Statesis by itself indubitably strong. But it would only be weakened if it were tocarry the implication that sovereignty, even in this day and age, includes theright of mass slaughter or of launching systematic campaigns of decimation orforced exodus of civilian populations in the name of controlling civil strife orinsurrection. With the heightened interest in universalizing a regime of humanrights, there is a marked and most welcome shift in public attitudes. To try toresist it would be politically as unwise as it is morally indefensible. It shouldbe perceived as not so much a new departure as a more focused awarenessof one of the requirements of peace. 122121 Report on the Work of the Organization, UN Doc A146/1, September 6th, 1991, pp10-1; see also“Secretaiy-General’s Address at the University of Bordeaux,” UNDPT, Press Release SG/SM/4560 of April 24th,1991J.Perez de Cuellar, ibid at 1241Principles are indeed emerging that place the individual on an equal footing with the statein international law in support of the former Secretary General’s claims.’23For example, during Security Council debates concerning UN Resolution 688 in the Gulfcrisis it was declared that Article 2(7) does not apply to matters which are not fundamentallydomestic, such as human rights protection, with South Africa cited as an illustration.124The United Nations Relief Operation in East Pakistan (UNEPRO) assumes addedprecedential value in that neither the Secretary General nor the Government of Pakistanwere prepared to permit the prohibition in Article 2(7) ‘to stand in the way of the relief oflarge-scale human suffering in a situation of internal conflict.”25Furthermore, it wasasserted that the Secretary General initiated the beginning of a body of law by relyingexplicitly upon the statement of fundamental purposes in the Charter and his responsibilityas the executive of the organization, to insure that human well-being was protected andhumanitarian principles upheld.”26Mor over, there is growing evidence in legal discourseand state practice that severe violations of human rights are deemed to constitute a threatto international peace and thus, as they are not considered to be solely within a state’s‘ As one scholar predicted in 1950, “as the feeling of general interest in humanity increases, and with iia world-wide desire for something approaching justice and an international solidarity, interventions undertakenin the interests of humanity will also doubtless increase.” Henry G 1—lodges The Doctrine of HumanitarianIntervention (1915) at 91124 See UN Doc S/PV 2982 at 58 (1991) (providing text of the Resolution debates.) The implications ofResolution 688 will be discussed further on in this section.125 Quoted from text of second Hague lecture delivered by B.Morse on the United Nations ReliefOperation in Bangladesh, 9 August 1977126 ibid.42domestic jurisdiction, they are excluded from Article 2(7).127 As the eminent scholar LouisHenkin once said “...that which is governed by international law or agreement is ipso factoand by definition not a matter of domestic jurisdiction.”It may therefore be concluded that conformity with essential human rights obligations is nolonger encompassed within exclusive domestic jurisdiction but has developed into an issuejustifying international concern.’29(i) The Erosion of Absolute SovereigntyThe time of absolute and exclusive sovereignty has passed;it’s theory wasnever matched by reality.UN Secretary General Boutros Boutros Ghali, Agenda for Peace Report, 1992The doctrine of absolute sovereignty is no longer sacrosanct.130 The notion that statesshould stand silent and impotent to the gross mistreatment of individuals simply because the127 See Lilllch, Humanitarian Intervention, supra note 71 (observing that as it becomes more appareni thaiinternational peace and security and the enforcement of human rights go hand in hand, member states can nolonger claim protection from the domestic jurisdiction clause.) On human rights generally as an internationalconcern beyond the domestic jurisdiction of states, see generally Martin Dixon and Robert McCorquodale,Cases and Materials on International Law (London:Blackstone Press Ltd, 1991) p1155. M.N.Shaw, InternationalLaw 3rd ed. (Cambridge:Grotius Publications)(1991), p196‘ R.Myers, “A New Remedy for Northern Ireland: The Case For UN Peacekeeping Intervention in anInternal Conflict” 11 New York University Journal of International and Comparative Law (1990) 116 (quotingL.Henkin, “Human Rights and Domestic Jurisdiction” Paper presented at the American Society of InternationalLaw Conference June 1977)129See Jack Donnelly, Universal Human Rights in Theoi’y and Practice (Ithaca:Cornell University Press,1989); Terry L. Deibel “Internal Affairs and International Relations in the Post-Cold War The WashingtonQuarterly, Summer 1993 ppl3-33 (citing a variety of policy reasons why the principle of domestic jurisdictionis no longer inviolable. This concept will be further explored in Part Two of the thesis as a basis of UNcompetence in internal conflicts.130 See generally Chopra and Weiss supra 4243abuse comes from the people’s own government is no longer tenable.’3’The premise ofnational sovereignty is being challenged by the millions of displaced refugees fleeing theircountries, ethnic groups struggling for self-determination and the proliferation of regionaland international organizations which have jurisdiction across state borders.Nation-states are no longer the only actors in international affairs.’32 There is increasedawareness of the individual in international law, which makes specifically targetedintervention possible, enabling society “...to fulfil the UN Charter’s ambition of working tosave succeeding generations from the scourge of war, to reaffirm. ..the dignity and worth ofthe human person, in the equal rights of men and women and nations large and small topromote social progress and better standard of life in larger freedom.’133National sovereignty has also been diminished by the sheer volume of international treatiesand conventions protecting individual human rights.’34Moreover, developments incommunications technologies mean that international public opinion can be quicklymobilized by the media making it increasingly difficult for regimes and insurgent forces to131 See eg, ‘Landscape of Death” TIME, December 14, 1992 at 30.”The harrowing faces of starvation, theinert shapes of death. These are images that have finally brought the world to Somalia’s rescue. Id BrianUrquhart, “Sovereignty vs Suffering” The New York Times, April 17, 1991132 Numerous 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 separate identity. See Teson supra 38 note, at 16. Peoplecreate a government for their own benefit and protection. Id. The theory continues that “[Blecause the ultimatejustification of the existence of state is the protection and enforcement of the natural rights of the citizens,a government that engages in substantial violations of human rights betrays the very purpose for which it existsand so forfeits not only its domestic legitimacy, but its international legitimacy as well. Id at 113.133 Former US President George Bush, UN General Assembly Address 46th Sess (September 23 (1991)New York City, in 27 Weekly Compilation of Presidential Documents 1324, 1325See eg All Khan, supra note 46 at 199.(The conditions of global life free individuals from the physicaland psychological boundaries of the nation-state) Id.44persecute ethnic groups with impunity.’35 Public revulsion against the bloody struggles inthe Sudan, Bosnia-Hercegovina, Somalia, Angola and Mozambique certainly contributed tothe international action against such atrocities.’36Economic interdependence has also created a global market which prevents the exercise ofabsolute territorial sovereignty.’37The fact that the G-7 nations must act in concert onmajor economic policies also reflects increasing awareness of economic and financialglobalisation. Moreover, the growth of international human rights doctrine, as alreadyasserted, has had a significant impact on the notion of sovereignty.’38Human rights areno longer the exclusive purview of states and national authorities are increasingly held toaccount for their human rights practices.’39 The implementation of various human rightsmeasures through the United NationsttO and regional organizations,‘41for example,135 The Cable News Network (CNN), available in more 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 most a satellite dish away)136 See eg. Christine Ellerman, ‘Command of Sovereignty Gives Way to Concern for Humanity” VanderbiltJournal of Transnational Law Vol 26: 1993 341-37 (noting that recent events have created an awareness thatonly force can stop some serious human rights violations) Id.137 See J.Jackson and W.Davey, Legal Problems of International Economic Relations 2-4 (2nd.ed. 1986)(describing how the current state of international economic relations create an environment ofinterdependence.)138 See eg T.Burgenthal and Mahler, Public International Law in a Nutshell 116 (1990) (tracing the originsof the international law of human rights to the adoption of the Charter of the United Nations.139 In September 1991, George Bush made a speech to the UN praising international co-operation andaspiring to a ‘new world order”. He also spoke of protecting human rights and enforcing state compliance with“standards of human decency”. While he assured that no state would “surrender one iota of its ownsovereignty,” the underlying message suggested a legitimation of humanitarian intervention. See George Bush,Address to the 46th Sess of the UN General Assembly, supra note 133140 Universal Declaration ofHuman Rights and other treaties such as the International Covenant on Civiland Political Rights and its Optional Protocol 16 Dec 1966, 999 UNTS 171: Convention on the Prevention andPunishment of the Crime ofGenocide, 9 December 1948 78 UNTS 277 have all given form to the human rightsprinciples enunciated in the Charter.45specifically include non-forcible measures such as monitoring of practices, observer missions‘42and individual mechanisms. International organizations have also contributed to theerosion of the doctrine by prevailing over governments that block relief agencies. There isfor instance, a plethora of private relief agencies in Bosnia-Hercegovina, that have carriedout their own aid operations, without any assistance from their governments.Whether in fact the power structure of nation-states ever accurately reflected classicformulations of the concept, clearly absolute sovereignty is no longer tenable. The emergingnorm of 11the common heritage of mankind” has made serious inroads into the exclusivity andinviolability of the concept of sovereignty.143 Indeed, it would not be overly pessimistic tuconclude at this juncture that the failure of the concept to adequately reflect contemporaryinternational society has effectively relegated it to increasing conceptual and indeed, practical141Economic cooperation or regional protection of human rights are often the primary goals of theseorganizations, the EC being the best example of this phenomenon. Article 2 of the Treaty of Rome declaredthe goal of the European Economic Community:“The Community shall have as its task, by establishing a common market and progressivelyapproximating the economic policies of Member States, to promote throughout the Community a harmoniousdevelopment of economic activities, a continuous and balanced expansion, an increase in stability, anaccelerated rising of the standard of living and closer relations between the States belonging to it.IdSee also the European convention For the Protection ofHuman Rights and Fundamental freedoms, opened forsignature 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 of the European Community. All members of the European Community,however, are parties to the Convention. This convention is supplemented by seven protocols. See eg. B.Carterand P.Trimble, International Law:Selected Documents 429-50 (1991).142 In August 1991, the United Nations Observer Mission in El Salvador (ONUSAL) became the firstmilitary civilian operation with the task of monitoring human rights abuses. For an overview of the humanrights machinery see John Tessitore and Susan Woolfson, (eds) Issues Before the 45th General Assembly of theUnited Nations (Lexington:UNA-U.S.A/lexington Books, 1991) (In the last decade, the United Nations “hasdeveloped an impressive array of new enforcement machinery-machinery that is not widely known but hasfundamentally changed what the United Nations can and does accomplish to aid individual victims of humanrights violations”)Id ppll9-l20143 See particularly Antonio Cassesse, International Law in a Divided World (Oxford:Clarendon Press, 1986)p391 (“[T]he common heritage of mankind enshrined in the 1979 Convention on the Moon and Other CelestialBodies and the 1982 Convention on the Law of the Sea, marks the passage from the traditional postulate ofsovereignty to that of cooperation”) Id. On the concept of “the common heritage of mankind” generally, seeChapter 4 of Cassese.46insignificance. Professor Reisman has aptly summarized the position as follows:The validity of humanitarian intervention is not based upon the nation-state-oriented theories of international law; these theories are little more than twocenturies old. It is based upon an antinomic but equally vigorous principle,deriving from a long tradition of natural law and secular values: the kinshipand minimum reciprocal responsibilities of all humanity, the inability ofgeographical boundaries to stem categorical moral imperatives, and ultimately,the confirmation of the sanctity of human life, without reference to place ortransient circumstances.144Reisman continues:But why, we may ask, should the independence of state be more sacred thanthe law which gives it that independence? Why adopt a system which makesit necessary to gloss over constant violations of the very principles which aredeclared to be most worthy of respect from all? If, where such intolerableabuses do occur, it be excusable to violate at one and the same time theindependence of a neighbour and the law of nations, can such a precedent ofdisrespect for law prove less dangerous to international security than therecognition of the right, when circumstances justify, to ignore thatindependence which is the ordinary rule of state life ?‘The erosion of absolute sovereignty is not confined to theoretical debate in legal circles. Atthe UN Security Council Summit, in the aftermath of the Gulf crisis, the concept ofsovereignty was at the forefront of international discourse.’46 Although the leaders ofChina and India stressed non-interference in their internal affairs, they were met by strongopposition from other world leaders who emphasized the fact that times have changed andthat governments can no longer hide behind the shield of sovereignty.147 While most of144 Reisman, supra note 12 at 642145 Ibid“ See generally, UN SC Summit meeting, Jan 31, 1992, 47th session, 3046th mtg. UN Doc S/23500147 For example, John Major, the British Prime Minister said ‘]the opening line of our Charter, the Charterof the United Nations, doesn’t talk about states or governments, it talks about people.... 1 hope, like thefounders of the United Nations themselves, that we can today renew the resolve enshrined in the Charter, the47the leaders spoke favourably of the need to protect human rights as a common global value,some suggested more directly that this value could be superior to even nationalsovereignty.’48Boris Yeltsin, for instance, said that human rights are not an internal matterof states, but rather obligations under the UN Charter,” and maintained that the SecurityCouncil had a “collective responsibility for the protection of human rights andfreedoms.”49 Although Germany was not represented at the summit, Foreign MinisterHans-Dietrich Genscher stated in a speech to the General Assembly in 1991 that“...sovereignty must meet its limits in the responsibility of states for mankind as awhole.. .When human rights are trampled underfoot, the family of nations is not confined tothe role of spectator...It must intervene...”50Th Chinese Prime Minister Li Peng washowever, opposed to the idea of expanding the concept of greater intervention and insistedthat China would consistently oppose all external interventions in the internal affairs ofsovereign states “using human rights as an excuse.”51An important document issued by the UN Secretary General in July, 1992 has also asignificant impact on the way the international community views sovereignty. At the UNSummit the UN Secretary General Dr Boutros Boutros Ghali stated that:State sovereignty takes a new meaning 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 of the Charter in the interests of all 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” The New York Times February 1, 1992149 Ibid.150 See Tad Daley, “Can the UN Stretch to Fit its Future ?“ Bulletin of Atomic Scientists 1991 Vol 2 at40151 See Lewis supra note 14848Violation of state sovereignty is and will remain an offence against the globalorder, but its misuse also may undermine human rights and jeopardize apeaceful global life. Civil wars are no longer civil and the carnage they inflictwill not let the world remain indifferent...152Following on from this, Security Council leaders issued a challenge to the Secretary Generalto produce a report within six months “on ways of strengthening and making more efficientwithin the framework and provisions of the Charter the capacity of the United Nations forpreventive diplomacy, for peacemaking and for peacekeeping”.’33On July 17th, 1992, the UN Secretary General presented a comprehensive document to theSecurity Council aptly entitled “An Agenda for Peace”, which reflects the growing need ofthe UN to adopt a more systematic and intrusive approach towards aggression and internalstrife.’54The Secretary General’s approach to the issue of sovereignty is, however, disappointing andindeed, somewhat surprising, particulary as it is one of the central themes of Agenda forPeace. Dr Boutros Boutros Ghali recommends radical new measures designed to enhancethe role of the United Nations in internal crises, yet would appear to adhere to traditionalnotions of absolute sovereignty. This is despite his claim that “the time of absolute andexclusive sovereignty...has passed; its theory was never matched by reality”, and his call for“a balance between the needs of good internal governance and the requirements of an ever152 UN Security Council Summit Opening Addresses, January 31, 1992 ILM 31(1992)153 UN Security Council Summit Meeting Declaration UN Document S/23500 (1992). For full text of thedeclaration “New Risks for Stability and Security “The New York Times, February 1, 1992‘54An Agenda for Peace: “Preventive Diplomacy, Peacemaking and Peacekeeping.’June 17, 1992 31 ILM. 953 (1992) The Report identifies 4 important, interconnected UN security functions;preventive diplomacy; peacekeeping; peacemaking and post-conflict peace building49more interdependent world.”55 Dr Boutros Boutros Ghali’s affirmation of conventionalconcepts is in sharp contrast with the views of his predecessor, Javier Perez de CueHar whospoke of the limits of absolute sovereignty during his last term in office.’56Th SecretaryGeneral is also reticent in his report about international control over large - scale violationsof human rights. Although the Report does recommend action for more coordinated UNassistance to “internally displaced persons, “if...assistance to displaced persons within asociety is essential to a solution,” this is couched in vague and ambiguous language, theSecretary General failing to specify what this would encompass.’57Professor Reisman hasinterpreted this as implying that “a matter, hitherto within the general area of domesticjurisdiction, is now actionable by the Security Council.’58 However, this assertion wouldappear to go too far. The term “intervention” does not feature in the report at al] incontradiction to the request of the UN Summit declaration which explicitly endorsed igreater role for the UN in the area of human rights.’59Recently, the General Assmebly, passed a truly remarkable resolution on humanitarian aidwhich set forth some radical principles concerning current UN practice in overcoming thebarrier of state sovereignty for humanitarian intervention. The resolution stated thathumanitarian assistance “should be provided (not “shall”) with the consent of the affected155 ibid at p959l56 eg Annual Report of the Secretaiy General on the Work of the Organization, September 13 1991 DocA/46/1 at p4-S.157 supra note 154 at 965.158 Michael Reisman, “Peacemaking’ Yale Journal of International Law. Vol 18: 415. 1993 al 417.‘59supra note 153 for text of declaration50country (not “state’ or “government”) and in principle on the basis of an appeal by theaffected country”.’6°During the 1991 General Assembly debate on emergency assistancein wars, redefinitions of sovereignty were also apparent. The ICRC argued “[i]n terms of theexisting right to assistance, humanitarian assistance cannot be regarded as interference. Farfrom infringing upon the sovereignty of states, humanitarian assistance in armed conflicts,as provided for by international law, is, rather, an expression of that sovereignty.”61Dr Boutros Ghali’s handling of the sovereignty issue is out of line, therefore, with currentthinking and practice.’62 The rationale behind his affirmation of traditional ideologiesseems to be driven more by political considerations and a desire to satisfy the criticisms ofhis opponents in the Third World. This may partly explain the extensive discussion in thereport of what Dr Boutros Ghali has elsewhere called “the democratization of internationalrelations.”63 Eliminating sovereignty altogether from the international forum is simply outof the question in the foreseeable future as member states are not likely to renounce theirsovereignty to a world organization. The Third World is particulary sensitive to the wholeissue of sovereignty for a number of historic. Although sovereignty as legal fiction continuesto evolve, the widespread view among legal scholars is that it remains the best mechanism160 UN General Assembly AIResI4ó/182 14 April 1992, concerning the “Strengthening of the coordinationof humanitarian emergency assistance of the United Nations.”161 UN GAOR 46th Sess, UN Doc A/46 1991 Record of 42nd meeting at 60. At the same session, theSoviet Union noted that any reservation about humanitarian intervention’ can he addressed by relormula0ngthe issue as “humanitarian solidarity.”Id.162 See eg. Thomas G.Weiss, “New Challenges for UN Military Operations: Implementing an Agenda ForPeace” 16 Washington Quarterly 15 (1993). “As efforts in Bosnia, Somalia and Iraq illustrate, humanitarianismhas made its appearance as the driving rationale behind new international military forces. The precedent ofhuman rights is therefore critical in looking toward future UN military efforts.”Id.163 Dr Boutros Boutros Ghali, “Empowering the United Nations” Foreign Affairs, Summer, 199251for organizing international society.’TM It may be that over time, the criteria of statehoodwill evolve to include more complex subjective grounds, as opposed to the traditionalobjective standards of territory, population, government and sovereignty.’65 Is there, forinstance a willingness to observe international law ? Was the regime in power electeddemocratically ? Are human rights standards being observed ?It is not however, the intention of this thesis to indulge in an overly theoretical andjurisprudential analysis of the nation-state paradigm.’66 As the former UN SecretaryGeneral Javier Perez de Cuellar rightly concluded in his final report “[W]e need not impaleourselves on the horns of a dilemma between respect for sovereignty and the protection ofhuman rights. The last thing the United Nations needs is a new ideological controversy.What is involved is not the right of intervention but the collective obligation of states to164 Only nation-states may become members of the United Nations. The principle organs of the UnitedNations, including the General Assembly, the Security Council and the Economic and Social Council, allconsist of nation-states. Only nation-states may appear as litigants before the International Court of Justice.(Article 34, para 1 Statute of the International Court of Justice). Even specialized agencies in economic, social,cultural, educational, health and related fields are established by “intergovernmental agreements amongnation-states. Regional charters of America, Africa and Europe reaffirm similar principles that enshrine thenation-state as the cornerstone of international society;Charter of the Organization of American States, April30, 1948, article 20, 2U.S.T 2394, T.I.A.A No 2361, 119 UNTS. 3 Charter of the Organization of African Unity,May 25, 1963, art III, para 3 479 U.N.T.S 39 reprinted in 21.L.M 766 (1963); Conference on Security andCooperation in Europe:Helsinki Final Act, August 1, 1975, art III, reprinted in ILM 1292, 1294 (1975)165 See generally, J.Crawford, ‘The Criteria for Statehood in International Law, British Yearbook ofInternational Law 48 (1976-77) pp93-182.‘ Some scholars have expounded various reformulations of the concept. see Ali Khan supra note 46 fora critique of the Grotian theory. Khan advocates the concept of free state to replace traditional conceptionsof sovereignty in the field of human rights and economic activity, the right to be free from both external andinternal subjugation being the main characteristic of his conceptualization of sovereignty. Khan would alsodiscard the term “international law” since it emphasizes nations rather than people and would replace it with“global” law which is a more appropriate term because it includes the law of human rights and global markets.For a contemporary theory of what sovereignty has become see generally Chopra and Weiss supra note 42 at10652bring relief and redress in human rights emergencies.”167Conclusions on sovereignty and non-intervention in internal affairsThe rights of individuals would appear to be gradually displacing concerns for the protectionof a state’s sovereignty.’ There has been a perceptible move away from the anachronisticprinciple of domestic jurisdiction in the area of human rights. While human needs do notyet override sovereignty in all instances, the latest pronouncements from the United Nationsare a significant step along the path of establishing more rights for civilians of internalwar.169Accordingly, the increased awareness of the role of individuals in internationa] lawand the direct application of international legal instruments to aggrieved persons has helpedto permeate the wall of sovereignty.170Traditional notions of sovereignty must therefore adapt to meet the requirements of basichuman rights and international order whilst the principle of non-intervention must becomemore flexible. Yet at the same time a balance must be struck between the competing normsof non-intervention and international human rights standards; sovereignty cannot he viewed167 United Nations Doc A/46/1 plO.‘ See eg Lillich, ‘Forcible Self-Help” supra note 3(affirming that the interdependence of internationalpeace and security and the protection of human rights supports the argument that human rights no longer Callwithin exclusive domestic jurisdiction of a state.) Id. see also Cyril E.Black, Challenge to an Evolving LegalOrder, The Future of the International Legal Order, in Black & Richard A.Polk, eds.Vol 1.(Princeton:PrincetonUniversity Press, 1969) pp 23-36; Wolfgang Freidman, The Changing Structure ofInternational Law (New York:Columbia University Macmillan, 1964)169 This process is a continuation of the efforts by the ICRC to protect prisoners, the wounded andinnocent civilians from states during wartime. See the Four Geneva Conventions of August 12, 1949 and thetwo Additional Protocols of December 12, 1977 (Geneva: ICRC, 1989)170 See generally, Jarat Chopra, “The New Subjects of International Law” Brown Foreign Affairs Journal(Spring 1991) p27-3053as an absolute legal fiction but as a flexible device. Likewise, the principle of nonintervention can be overridden by humanitarian concerns when atrocities rise to anunacceptable level, for example, which “shock the conscience of mankind”. Intervention bythe United Nations, in whatever capacity it sees fit would therefore be appropriate.Intervention, in this context, is not therefore confined to measures under Chapter VII of theUN Charter. It follows that if traditional conceptions of sovereignty are no longer applicable.the doctrine of humanitarian intervention does not violate this ancient principle. On theother hand, if humanitarian intervention is permitted as part of an expanded definition ofsovereignty and humanitarian solidarity, then it does not conflict with what is left oftraditional sovereignty. Humanitarian interventions, non-state actors, internationalorganizations and human rights could all be included as exceptions to the anomaly ofpartially absolute sovereignty. Thus, rather than redefine sovereignty altogether which wouldonly serve to perpetuate its significance, sovereignty can be circumvented by focusing onhuman rights as a legitimate justification for humanitarian intervention. This would surelybe a more advantageous intellectual and practical exercise, than engage the UN in anotherideological dilemma.Collective Humanitarian InterventionIt has become increasingly evident that another emerging norm of the new doctrine othumanitarian intervention is the willingness of the international community to resort to theUnited Nations as an instrument of humanitarianism. Although it has been stated that“intervention does not gain in legality under customary international law by being collective54rather than individual”71the general consensus among legal publicists and statesthemselves is that humanitarian intervention is only legitimate if it is carried out under theauspices of the United Nations.’72 In the post-Cold War era there is renewed opportunityfor collective action within the United Nations.It is thought that an intervention by a multilateral organization guarantees the strength ofinternational support free from the pursuit of national interests or political goals. Collectiveaction is also thought to decrease the ability of individual states to use humanitarianintervention as a pretext for interfering in another states’ affairs. As Lori F.Damrosch states“...the proposals for internationalization of force seem to present an attractive alternative toaccepting the contentions of those who would shake off the Charter’s constraints or whowould engage in far-fetched feats of “interpretation’ to defend unilateral intervention.’173Indeed, any humanitarian action performed or endorsed by an international organization,is preferable to unilateral action which carries with it the risk of abuse.174 It has been171 Quincy Wright, “Legality of Intervention under the UN Charter’ 51 Proceedings of the AmericanSociety of International Law, 79,86 (1957)172 Even Brownile supports the view that humanitarian interventions by the United Nations are preferableto unilateral action. He says that “Under Chapter VII of the Charter, action may be taken in instances ofviolations of human rights which give rise to a threat to the peace” Brownhie International law supra note 17at 226 Schwarz similarly contends that “In modern literature and practice, only intervention on behalf of theUnited Nations or assimilated organizations seems to be admitted as lawful.’ U Schwarz, Confrontation andIntervention in the Modern World 179 (1970). Kevin Ryan, “Human Rights, Intervention and Self-Determination” Denver Journal of International Law and Policy, Vol 20 1991 55-74 (Ryan says that it isessential that nations refer cases of human rights violations to international bodies, to seek to find asbroadbased a consensus as possible on the facts that allegedly justify the use of force)173 Lori F.Damrosch, Comment on Collective Military Intervention to Enforce Human Rights in Law andForce supra note 69 at 216174 See Reisman, Humanitarian Intervention to Protect the Ibos in Lillich, Humanitarian Intervention supranote 71 see also, Farer, “Defending Human Rights in the Post-Reagan Era:Candor and Competence 28Virginia Journal International Law. 855 (1988) (ruling out consideration of unilateral military interventionfor human rights purposes); Schachter, “The Lawful Resort to Unilateral Use of Force. to Yale Journal of55stated for example, that unilateral humanitarian intervention cannot achieve the samelaudable objectives as an international collective action because “. . .in the absence of aninternational organization, solidly built upon one clear law, it is to be feared that the spiritof domination which finds itself in this noble institution, that of the desire to protect allhuman beings, would be a facile pretext for well camouflaged victories.”’75Indeed, any doctrine that allows a state to act unilaterally is subject to potentialabuse.’76Collective action on the other hand, is assured of broad support among all whorespect basic human rights because “. ..it in no way affects the legality of intervention;itreinforces an intervention and does not serve to conceal an unwarranted incursion.”177Action through an international organization such as the UN, or multilateralism, as it is oftenreferred to by political scientists, is distinct from multinational action, which amounts toindividual states independently cooperating in a particular venue, as a form of self-help.Collective action on the other hand is conducted according to standard operating proceduresdevised and agreed prior to a crisis, and which are consistently applied whatever theInternational Law, 291 (1985) (“1 would underline the importance of rejecting the contention that force maybe used unilaterally to achieve such laudable ends as freedom, self-rule and human rights’)1:75 Aroneanu, “La genre internationale d’intervention pour cause d’humanite”, 19 Rev tnt D.Pen. 173(1948)In a similar vein, Brownlie has asserted:”A rule allowing junilateral] humanitarian intervention...is ageneral license to vigilantes and opportunists to resort to hegemonical intervention.’ Brownlie, Thoughts onKind-Hearted Gunmen, in Lillich, Humanitarian Intervention supra note 71. Similarly, human rights scholarLouis Henkin has observed: “A humanitarian reason for military interventions...easy to fabricate. ..every caseof intervention I can think of ...[has been] justified on some kind of humanitarian ground Henkin, Remarkson Biafra, Bengal and Beyond:Internationa Responsibility and Genocidal Conflict” Proceedings of theAmerican Society of International Law 1972 95, 96176 Some scholars disagree with this assertion, stating that the possibility of abuse does not necessarilyrender a doctrine illegal. See eg Myers McDougal and Florentino Feliciano, Law and Minimum World PublicOrder 416 (1960)(”A policy of permitting individual initiative is, of course, again like the policy of allowingself-defence, susceptible to perverting abuse;but this susceptibility is an attribute common to all legal policy,doctrine or rule’)Id.1:77 Stowell, supra note 40 at 13756configuration of subjective interests of community members)78However, while collective decision-making removes national interests from trulyhumanitarian motives, it raises other problems. There should be no assumption thathumanitarian intervention on a UN basis will be widely accepted by either the target stateor its allies, or will always lead to capitulation. The concern is that the multiplicity ofinterests represented on the Security Council would not guarantee the predominance ofcommunity policies as opposed to the self-interest of states otherwise choosing to interveneunilaterally.Many states are prepared to resist pressure from the United Nations, or those acting in itsname.179 It is a common illusion that if collective action is taken under the auspices of aninternational organization the state at whom it is aimed will voluntarily comply with itsdemands. The notion that collective decision-making by the United Nations Security Councilautomatically eliminates any legal deficiencies, is not necessarily a legitimate claim.’80178 For example, the procedure established under Chapter VII of the Charter.179 The United Nations is for instance considered to be an enemy in Somalia by the warring factions andin the former Yugoslavia the Serbs seem intent on defying international pressure from the UN.180 The following exchange between Professors Weston and Richard Falk elucidates these points:Professor Weston’...one should try to exhaust the highest levels of multinational participation first ofall-say, in terms of global organizational intervention - and thereafter 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 to intervene actively through the use of force except inthe most limited circumstances. And if we shift to a regional organization type of intervention, such as mightbe undertaken by the OAS, then are we not risking a rubber-stamp operation such as prevailed in theDominican Republic?AS I see it, then, the real problem is not one of multilateral versus unilateral, excepi in a policypreference sense, but rather one which requires us to grapple with the kinds of unilateral intervenlions we arcgoing to allow, one which requires us to grapple with probabilities rather than possibilities.’‘What I would like to see is a discussion that focuses on the real-world possibilities of humanitarianintervention, not on some “wouldn’t-it-be-nice-if” kind of debate, and then to try to answer questions of anormative nature about those real-world possibilities. What are, in fact, the real possibilities of getting57Although the United States supremacy in the United Nations is no longer a foregoneconclusion, the ability of the US to influence the General Assembly and dominate theSecurity Council is nevertheless, a significant factor when assessing collective humanitarianinterventions. It is against this backdrop that recent expressions of discontent from variousregions of the world have led to bitter attacks upon the legitimacy of Security Councildecisions. Governments often hide under the fig-leaf of the United Nations as an excuse forinaction in a humanitarian crisis.The Third World remains particularly sensitive about the revival of the UN as a forum forenforcing human rights as a possible “[t]rojan horse” for big-power intervention after theCold War.’8’This reluctance to revive the UN and also the whole issue of sovereignty isdue in large part to numerous historical and contemporary political reasons. Many statesbelieve that it is possible that the Security Council’s involvement could also result in a globalinternationalization of a conflict that would otherwise have been confined not only to aparticular region but to the territory of a single state.Although these are legitimate fears, it is essential that the United Nations and the SecurityCouncil in particular, become more active in taking appropriate action to put a stop to massviolations of human rights.’82 With the end of the Cold War, there exists a uniquemultilateral interventionary activity going on? Are they real, or aren’t they? If they aren’t real, then let us starttalking elsewhere...”“Professor Falk: There is a tendency, I think, to become too much a prisoner of recent international historyand to overly discount the potentialities for consensus to be crystallized within the United Nations.”Conference Proceedings, in Lillich, Humanitarian Intervention supra note 71For an articulation of Third World views and concerns, see Olga Pellicer, “Uniting or Dividing theUnited Nations” Occasional Paper no.10 (Providence RI Watson Institute 1992)182 See Helman and Ratner, supra note 7 at 93 (calling for a more systematic and intrusive approach from58opportunity to implement fully the provisions of the UN Charter aimed at maintaininginternational peace and security and protecting the individual. This surely, is the mostrealistic and pragmatic way of ensuring peace and safeguarding fundamental rights andfreedoms. Humanitarian intervention involves a number of legal, political and practicalproblems. No other organization than the United Nations is in a position to take diplomaticor military action required by most instances of humanitarian crises.’83 The distinctionbetween such interventions and those tainted with political self-interests will always bedifficult to delineate unless the action is initiated by a credible international organization.A Conceptual Appraisal of Humanitarian Intervention in PracticeLegal theorizing concerning the ideology of intervention has, however, been swiftly overtakenby policy and practice. Since 1991 there have been several cases in which interventions withan element of UN support have had a fundamental humanitarian purpose. They illustratesome of the central difficulties of developing a new doctrine of humanitarian intervention,one that can be applied consistently and uniformly. Yet, at the same time, they provideevidence of an emerging contemporary doctrine of humanitarian intervention.The recent humanitarian interventions in Iraq, Somalia and in the former Yugoslavia raisemany awkward questions, two of which are considered here:(1) Is humanitarian involvement in conflicts - in the form of the provision of food, shelter,and protection under the auspices of the United Nations becoming the norm ? Or. isinternational organizations in dealing with “failed states”) Id.183 See generally, B.De.Schutter, “Humanitarian Intervention:A United Nations Task” Californian WesternInternational Law Journal Vol 3 1972 21-3659humanitarian intervention still likely to be carried out by a state acting unilaterally ?(2) Can we conclude from recent and contemporary practice that a new consensus isemerging on humanitarian intervention in a state, without the approval of its authorities, andwith the purpose of preventing widespread suffering or death among the inhabitants ?Incident Studies(i). Humanitarian intervention and the KurdsThe UN relief operation in Northern Iraq, following the Gulf war in 1990/91, resuscitateda conceptual reappraisal of the political and legal attributes of the doctrine of humanitarianintervention, the circumstances that warrant it, and how it should be authorized andenforced.’’ Resolution 688 was unprecedented in that it brought the whole issue ofinternational human rights and the competing norm of non-intervention to the forefront ofinternational concern and legal discourse.’85 The Kurdish crisis demonstrated that thenorm of non-intervention is not impervious when it conflicts with gross violations of humanrights. Moreover, the notion that Iraq could invoke absolute state sovereignty in the crisiswas overridden by humanitarian concerns. To what extent the crisis establishes new normsof humanitarian intervention is considered in this context.1A thorough examination of the historical and conceptual background to the crisis is not possible,although Part II of this thesis will explore in greater depth the expansion of the threat to the peace conceptas a basis for UN competence. For a comprehensive overview of the events preceding the humanitarianintervention in 1991 See Howard Adelman “Humanitarian Intervention:The Case of the Kurds” InternationalJournal of Refugee Law Vol 4 No.1 1992; Judy A. Gallant, “Humanitarian intervention and Security CouncilResolution 688:A Reappraisal in Light of a Changing World Order” American University Journal ofInternational Law and Policy Vol 7:1992 881; Michael E.Harrington, Operation Provide Comfort: APerspective in International Law” Connecticut Journal of International Law Vol 8:635 1993; Sarah E.Whitesell, “The Kurds: An International Incident Study” Denver Journal of International Law and Policy, Vol21: 2 1993 454-479.185 For 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 an economically independent ethnic group living inNorthern Iraq, historically linked by cultural, religious and linguistic ties for centuries.186The Kurdish population constitutes Iraq’s second largest ethnic group, the country’s largestethnic minority.’87The government of Sunni Arab and its leader, Saddam Hussein, havepersecuted the Kurds for years in blatant disregard for human rights. Evidence of massmurders, chemical warfare and forced exodus from Kurdistan, [as it is commonly known],has been available, yet the international community has consistently failed to overcome thebarrier of state sovereignty to put a stop to the atrocities.’88Th Kurds’ struggle forautonomy from the Iraqi government has never resulted in any more than partial recognitionfrom the international community. That is, until the events following the Gulf war in 1991.In the aftermath of the war against Iraq, Kurdish insurrections took place in Northern Iraqand Shia Muslims uprisings in the South. Iraqi authorities responded by relentlessly attackingthe Kurdish population, forcing over 2 million refugees to flee their homes.’89 The media’sportrayal of thousands of refugees, starving and exposed in freezing temperatures proved‘ See generally David McDowell, The Kurds: The Minority Rights Group Report. No.23, 5-9 (1985).187 Although the Iraqi government refuses to provide population figures, one 1989 estimate places theKurdish population at 2 1.6%. See eg. Simon Henderson, Instant Empire:Saddam Hussein s Ambition for Iraq,26-27 (1991)188 See 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.‘t9See David Scheffer, Use of Force After the Cold War:Panama, Iraq and the New World Order, in Rightv. Might supra note 108 at 144 (noting that the Iraqi government drove 2 million Kurds and Shiites intoTurkey, Iran, and Southern Iraq)61intolerable to the international community.’90 The barbaric treatment of the Kurdishpopulation by the Iraq regime demanded international action that transcended claims ofstate sovereignty and political interests. According to some estimates, starvation andexposure were claiming lives of over 1,000 Kurdish refugees daily.’911n response to intensepublic pressure, world leaders finally appealed to the UN Security Council to end therepression of the Kurds and Shia Muslims.The UN Security Council subsequently passed Resolution 688 which “[condemned] therepression of the Iraq civilian population in many parts of Iraq, including most recently inKurdish populated areas, the consequences of which threaten international peace andsecurity in the region.”92 The resolution further ‘[insisted] that Iraq allow immediateaccess by international humanitarian organizations to all those in need of assistance in allparts of Iraq and to make available all necessary facilities for their operations,” and“[demanded] that Iraq cooperate with the Secretary-General to those ends.”93Resolution688 triggered a multinational operation to establish “safe havens” for the Kurds within thesovereign state of Iraq. It was explicitly stated that the proposed safe havens were a“humanitarian concept”.’94.‘90See Judy Jones, ‘Parliament and Politics:MP’s Demand More Action by West in Support of Kurds;Kurdish Refugee Crisis:Commons Statement” The Independent, April 16, 1991 at 9, Haberman, “Kurds EndureMud and Cold and Fear the Worst” The New York Times, April 11th, 1991 at Al, co 3.191 See Elaine Sciolino, “Kurds Will Die in Vast Numbers Without 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 authorizing international intervention to protect the Kurds on April 5th, the UN SecurityCouncil approved for the first time “the right to interfere” on humanitarian grounds in theinternal affairs of a member state. As one French jurist noted:“[Ajithough cross-border humanitarian aid long has been tolerated if notlegally binding activity by non-government organizations for moving food,medicines and other help to the needy, the Security Council vote marked forthe first time governments openly gave their seal of approval to suchpractices.”195This was despite the claims of the Iraqi government that Res 688 conflicted with theprinciple of non-intervention enshrined in Article 2(7) of the UN Charter.196The Security Council however, overcame the legal dilemma posed by Article 2(7) bycharacterizing the consequences of the Kurdish crisis, namely the massive outflow of refugeesfrom Iraq to neighbouring countries, as a threat to international peace and security. Byfocusing more on the imminent threat to regional security and interstate relations betweenIran, Turkey and Saudi Arabia, the Security Council was able to characterize the crisis asa threat to international peace rather than confront Saddam Hussein’s human rights195 Mario 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 of humanitarian intervention. Roland Dumas, theForeign Minister of France, stated that he believed, “the Kurdish crisis could act as a detonator’ for re-thinkingof the concept of non-intervention. See “G-7 Backs Greater UN Role in Internal Conflicts”, Reuters (BCcycle),July 16th, 19911% “Iraqi UN Envoy says Res 688 is Unjust”, BBC Sumnza,y of World Broadcasts, Part 4, The Middle East,April 9, 1991. Iraq also questioned the legitimacy of Res 688 stating that “it represents yet another exampleof the Council’s use of double standards in dealing with Iraq, “basing their claim on the oppression of Kurdsby Turkey, Iran, Syria and the USSRJd.197 For a discussion of the legal arguments, See Paul Lewis, “Legal Scholars Debate Refugee Plan.Generally Backing US Stand” The New York Times April 19, 1991 at A8 (maintaining that Res 688 was thefirst time the Council found that huge exodus of refugees or displaced people in their own nation threatenedinternational peace and security) Mario Bettati, supra note 195 at A25 (quoting United Nations HighCommissioner for Refugees Sadako Ogata as stating that Res 688, which permitted humanitarian interventionby United Nations agencies in Iraq, marked the first time the Security Council recognized large populationdisplacement as a threat to international peace and security).63violations. Both Iran and Turkey feared that the mass exodus of Kurdish refugees into theircountries would result in civil and ethnic unrest.198 The Turkish representative to the UNargued that the scale of human tragedy and its implications 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 deem necessary to prevent the anarchy and chaosreigning on the Iraqi border from spilling over into our country.”20°Likewise, the Iranianrepresentative to the UN expressed his concern over the Iraqi shelling of Iranian bordertowns, in which three border guards were killed.201The primary purpose of the intervention in Northern Iraq was to provide relief to the Kurdsand to protect them from the Iraqi army,202nd consequently to ensure that reliefoperations were not at risk.203 The plans specifically embodied a limited purpose ofsecuring a safe region for the Kurds so that they could receive humanitarian aid and returnto their homes. Although the initiative was essentially unilateral the decision was taken to198 UN SCOR, 46th Sess, 2982nd mtg at 6-7, 13-15, UN Doc S/PV 2982 (1991) (comments of the Reps ofTurkey and Iran respectively)‘98lbid at 6200 Ibid at 7201 Letter dated 3 April 1991 from the Permanent Rep of the Islamic Republic of Iran to the UN Addressedto the Secretaiy General, UN SCOR, 46th Sess, UN Doc S/22436 (1991)202 Chris Hedges, “Kurds Unearthing New Evidence of Iraqi Killings” The New York Times, December 7,1991, at Al; “Kurdish Refugees, by Thousands Flee Vengeance of Iraqi Army” The New York Times , April4th, 1991 at Al col 4.203 See Elaine Sciolino, “New Activity by Military Purely Humanitarian, President Says.” The New YorkTimes April 12. 1991 at Al col 364place the operation under the auspices of the United Nations.204 Accordingly, it wasdecided in Security Council deliberations to establish a multinationa] force to provide theneeded relief.205Conceptual AppraisalFrom a practical standpoint, the UN operation in Northern Iraq did restore some degreeof order and saved numerous lives. Armed troops had never before offered militaryassistance to humanitarian aid agencies.206Yet, it has been criticized among legal circlesfor its precedential value.207 There was also consternation in UN circles.208Withoutdenigrating the significant achievements of the operation, certainly in terms of its limitedlegal basis and in the special circumstances preceding the crisis, UN Security CouncilResolution 688 would not appear to set an authoritative precedent for a new doctrine of204 John Major, the British Prime Minister suggested a plan for safe havens which subsequently receivedEC approval, see W.Tuohy and R Tempest, “Europeans see Haven for Kurds;Refugees: Britain’s Plan toCreate a Shelter Zone in Northern Iraq wins EC Endorsement” The LA Times, April 9th, 1991 at A6;see WDrazdiak, “Europeans to Press Bush to Back Enclave Plan; EC Responds to Outrage Over Kurds Plight” TheWashington Post, April 11th, 1991 at A34205 W.Drozdiak and D.Ottaway, “US Allies Want Refugee Havens Established in Iraq:European BackProtective Zone for Kurds” The Washington Post, April 9th, 1991 at Al; Stanley Meisler, “UN ApprovesDispatching of Peacekeepers,” The LA Times, April 10th, 1991 at A4.204See Scheffer, How the UN Balances Concerns for Sovereignty and Suffering - (UNA) August 6th 1991[hereinafter UNA] Address of the Annual Meeting of the Conference on Washington Representatives on theUnited Nations, American University Journal of International Law. (suggesting that relief agencies may nowenjoy the right to protection) The Report concludes that Res 688 was significant in that it did not require aidagencies to obtain the consent of the Iraqi government before operating within its borders.Id207 For example, James Mayall’s overall conclusion at the time was that “it would be imprudent in practice.and wrong in theory, to generalize from the international obligations towards the Kurds in favour ol aninternational enforcement mechanism for human rights wherever they are abused. See Mayall, “Nonintervention, Self-determination and the New World Order” International Affairs 67:3 July 1991 p425208See the views of Stephen Lewis, Clovis Maksud and Robert C. Johansen in “The United Nations Alterthe Gulf War” World Policy Journal Vol 8, no 3, Summer 1991, pp537-7465humanitarian intervention as was once thought.209 Although the international interventiondoes create legal justification for similar action,21°it does not compel states to act in sucha way in future cases, largely due to 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 authorization for humanitarian intervention “[I]tis unlikely that most governments would approve a broad right of the United Nations tointroduce troops for humanitarian purposes against the wishes of the government.”211Likewise, David Scheffer concludes:The allied deployment should not be regarded as a new type of lawful militaryintervention to stop a government’s acts of repression and the consequentsuffering of its own people. Indeed, the intervention was the right action butfor the wrong reason. The Bush administration [which invoked Resolution 688as grounds for its intervention] would have been more honest if it had invokedthe broad view of humanitarian intervention- controversial though it may be-orhad argued that the UN Charter’s prohibition of interference in the internalaffairs of member states, Article 2(7), is inapplicable, where member-statesare continuing to take enforcement measures under Chapter Vu.212Scheffer goes on to say thatLaw here matters. The Kurdish exodus from Iraq demanded an immediate209 It has been stated for instance that the Iraqi case was a poor example on which to base generalprinciples; and more significantly, it illustrated that there is no mechanism in place to distinguish trulyhumanitarian motivations from biased national interests. See Chopra and Weiss, supra note 42 at 96210 By this assertion I am referring to the conceptualization of the outflow of refugees as a threat tointernational peace and security which I will explore in Part II of this thesis.211 Oscar Schacter, “United Nations Law in the Gulf Conflict’ American Journal of International Law 85(1991) p469. Schacter goes on to say that additional factors in the Iraqi case included the mass exodus ofKurds and Shiltes into Turkey and Iran, detracting from the purely internal character of the situation and thefact that the predicament of the minorities was partly a result of the 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 invoking enforcement procedures under Chapter VII of the UNCharter.212 David Scheffer, Right vs Might supra note 108 at 146-4766response. The need for the American and European intervention was criticalunder the circumstances. But the reasons invoked to use military forceoverseas are important, for they establish precedents, affect the way othergovernments and the United Nations react and deeply influence the durationand magnitude of a nation’s commitment.213Former US President Bush for example, repeatedly referred to “humanitarian concerns” and“humanitarian need” as the basis for United States military operation in Northern Iraq. TheUS President expressly stated that the effort was purely ‘humanitarian”, and the operationwould consist of temporary relief stations to encourage the Kurds to move to areas wherethey could be provided with food, clothing and medicine.214 Similarly, the US Ambassadorto the UN at the time, Thomas Pickering, spoke the following month of “a shift in worldopinion toward a re-balancing of the claims of sovereignty and those of extremehumanitarian need.”215The formal legal basis of the safe havens operation however, was by no means exclusivelyhumanitarian. The tension between the competing norms of state sovereignty andinternational human rights doctrine was evident in political debate around the world. TheBritish Foreign Secretary, when pressed on the legal basis of the humanitarian operationstated that “[W]e are vigorously pursuing this proposal for safe havens. Our aim is to createplaces and conditions in which the refugees can feel secure. We are not talking of aterritorial enclave, a separate Kurdistan or a permanent UN presence. We support theIbid at 47215 Quoted in Richard Gardner, “International law and the Use of Force:Paper 11, Annual Conference ofthe International Institute for Strategic Studies, New Dimension in International Security, Adeiphi Paper 266(London:IISS, Winterl99/2)p6867territorial integrity of Iraq. But we have to get the refugees off the mountains.”216Thus, it would appear that the UN authorization for the creation of safe havens was basedmore on the legal grounds of threats to international peace and security under Article 39 ofthe Charter, bearing in mind that the coalition had explicit authorization to restoreinternational peace and security in the area under Resolution 678.217Furthermore, the action occurred in the immediate aftermath of an international war undercircumstances for which the allies had considerable reason to feel responsible for the plightof the Kurds, not least because of the American’s previous incitement to the Kurdish peopleto rebeL218 It would not therefore, be unduly cynical to comment that the operationprovided a welcome degree of comfort to the countries that contributed to it.219The government of Iraq protested officially that the UN action violated Article 2(7) of theUN Charter. Many of the Third World States expressed particular concern over Resolution688 on the grounds that it could set a precedent for intervention into domestic affairs and216 House of Commons Debates, Vol 189, Col 21: April 1991 When questioned again in a radio interviewabout the legality of the imposition of the no-fly zone vis a vis Iraq’s sovereignty, the Foreign Secretary replied“But we operate under international law. Not every action that a British government or an Americangovernment or a French government takes has to be underwritten by a specific provision in a UN resolutionprovided we comply with international law. International law recognises extreme humanitarian need... We areon strong legal as well as humanitarian ground in setting up this “no fly” zone” Interview on BBC Radio 4‘Today Programme, 19 August 1991. Transcript available from the Foreign and Commonwealth Office.217 UN SCOR Res 678, ILM 1991.218 See David Scheffer, [UNA] supra note 206 (noting that Res 688 was preceded by a war authorized bythe United Nations, world opinion was united in condemnation of Saddam Hussein and Turkey refused toaccept Kurdish refugees); Oscar Schacter, supra note 211 at 468-69 (explaining that additional factors in theIraqi case included the mass exodus of Kurds and Shiites into Turkey and Iran, detracting from the purelyinternal character of the situation and the fact that the predicament of the Kurds was partly a result of theallied action against Iraq.)219 See Adam Roberts, supra note 9 (Certainly [it] led to some self-congratulation and perhaps to excessivetrust in humanitarianism as a response to tragedy) Id at 43868as such was incompatible with the principle of non-intervention.220The Soviet Union andChina were concerned about the precedent of a blue-helmeted humanitarian force deployedwithout a host governments’ consent; their fear being that the Baltic republics or Tibet mightask for the same type of UN assistance. The notion of sending in a UN force to replaceWestern troops in Iraq was rejected in favour of sending UN guards which would still beviable symbols of the UN’s presence, although they would be supported militarily by Westernsoldiers and fire-power, leading some commentators to conclude that rather than constitutea reformulation of the doctrine of humanitarian intervention, the coalition’s actions mayinstead be viewed in customary law terms as a variant of traditional conceptions of the rightof a victor over the state concerned to determine the future of that country.22’Moreover,while the operation was, in name, an international humanitarian intervention by the UN, theUS, France and Britain played a key role in the decision-making and the course of action.From a conceptual perspective however, Res 688 is significant in that the UN SecurityCouncil explicitly recognized that the Iraqi government could not retreat behind the mantleof state sovereignty. The principle of non-intervention in the internal affairs of Iraq was thusinapplicable.222 Iraq’s barbaric aggression towards the Kurdish population could not he‘20Resolution 688 received the least support of all of the Gulf War resolutions, only 10 out of the 15Security Council members voted for its adoption, Cuba, Yemen and Zimbabwe opposed it, China and Indiapredictably abstaining.221 Adam Roberts, supra note 9 at 437222See Schacter supra note 211 at 468 (maintaining that Iraq’s barbaric suppression of minoritiessignificantly strained the principle of non-intervention in domestic affairs); Stanley Meisler and NormanKempster, “World Leaders Urge UN to Safeguard Rights Everywhere; Summit:Chiefs of State Declare it isTime to Abandon the Tradition of Non-Interference in Nation’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 cannot permit the protection of human rights to stop at nationalfrontiers and that the United Nations should discard the outdated principle of non-intervention in state’s69categorised as a matter for domestic jurisdiction.Although Resolution 688 was adopted under a unique set of circumstances223 itscontribution to the development of a new conception of humanitarian intervention under theaegis of the United Nations is valuable.2’As the French Minister of Humanitarian Action,Bernad Kouchner stated, “Soon it will no longer be acceptable to cross a border to wage warbut not to do the same to make peace and save lives.”225 A]though these remarks areperhaps overly optimistic on the basis of this one intervention, subsequent events on theinternational arena have demonstrated that the Kurdish crisis was not just an isolatedincident.Regardless of the conceptual debate concerning the precedential value of Resolution 688,the UN’s intervention in Northern Iraq explicitly recognised that states can no longer invokethe doctrine of state sovereignty to evade international human rights obligations.226 Forthat reason alone, Resolution 688 was a watershed for humanity.domestic affairs).223 See James H.Anderson, supra note 50 at 129 (finding that not all future silualions of SeriouS humanrights violations will be preceded by such unmitigated interstate belligerency)224 See Scheffer, U.N.A supra note 208 at 9(asserting that the creation of safe havens established a strongprecedent in protecting relief workers) see also Right V Might, supra note 114 at 129 (stating that theprecedents created by the Security Council during the Gulf War should reinforce the credibility of andconfidence in collective procedures)225 “Interview With Bernad Kouchner” Le Monde, 30 April 1991 p2. The French Minister went so far asto assert that the right of humanitarian intervention should be added to the Universal Declaration of HumanRightsJd In a similar vein, French Foreign Minister Roland Dumas suggested the conceptualization of a dutyto intervene. Just as Nazi Germany’s murder of the Jews brought about the concept of a “crime againsthumanity”, Dumas stated that Saddam Husseins’ mistreatment of Iraq’s Kurdish population argues forrecognition of a “duty to intervene” to prevent gross violations of human rights. See William Safire, ‘Duty ToIntervene” The New York Times April 15 1991See Greenwood, supra note 6 at 36 stating that “It is difficult to resist the conclusion that theintervening states were in practice asserting a right of humanitarian intervention of some kind’.Id70(ii). The Former YugoslaviaHumanitarianism has played a central role in the international response to the crisis in theformer Yugoslavia. However, the difficulty of any analysis of the humanitarian role in theformer Yugoslavia derives not so much from the fact that the events are still continuing butthat the humanitarian considerations are just a small part of a much larger and inherentlycomplex ethnic conflict.227 It is for these reasons that the United Nations humanitarianoperation has been largely ineffective.2Unlike the Gulf crisis, the Yugoslav conflict has tested the willingness of the internationalcommunity to act in cases of less than vital interest, that is purely humanitarian issues.Although the UN was moderately successful in brokering a ceasefire between Serbia andCroatia for most of 1992, the UN has dismally failed to prevent the carving up of the stateof Bosnia and the subsequent “ethnic cleansing” of the Muslim population.229The limited role of the United Nations in Bosnia is to some extent understandable given the227 For background to the conflict see generally, Norman Stone, The Sunday Times, August 9, 1992 at 9;Alan James, “The UN in Croatia: an exercise in futility ?“ The World Today, May 1993 p93-96; J.Zametica,The Yugoslav Conflict (Adeiphi Paper 270, 1992)see also the excellent article by M.Weller, “The InternationalResponse to the Dissolution of the Social Federal Republic of Yugoslavia” American Journal of Internationallaw 1992 p569; see also Charles Lewis Nier III “The Yugoslavian Civil War” Dickinson Journal of InternationalLaw Vol 10:2 Winter 1992 304-33 1. For a political analysts’ view see Josef Joffe “The New Europe: Yesterday’sGhosts Foreign Affairs 1992 29-37; V.P.Gagnon, Jr “Yugoslavia: Prospects For Stability” Foreign Affairs, 199217-35; Sabrina Petra Ramet “War in the Balkans” Foreign Affairs 1992 79-98; Charles Gatti “From Sarajevoto Sarajevo” Foreign Affairs 1992 64-78 Christopher Cviic, “Yugoslavia I: New Shapes from Old” The WorldToday August! September 1991 125-127; Michele Ledic “Yugoslavia ll:the costs of divorce’ The World TodayAugust! September 1991 127-129; James Gow “The use of coercion in the Yugoslav crisis” The World TodayNovember 1992 198-202.228 See James Bone, “When in Trouble Blame the UN” The Times (London) August 17 1993See John F.Burns, “Serbs’ Campaign for Ethnic Purity Divides Up a Busload of Orphans The New YorkTimes, August 3, 1992, at Al; Stephen Engleberg, “Bosnians Provide Accounts of Abuse in Serbian Camps”The New York Times, August 4, 1992, at Al.71complex circumstances.230 Various factors contributed to the UN’s slow response. First,the UN hesitated because its members initially saw the Yugoslav crisis as primarily aninternal affair within the meaning of Article 2(7) of the Charter. It is possible, however, todefeat the argument that the conflict amounted to a civil war and thus fell within theprohibition in Article 2(7). By recognizing Croatia as an independent state with bordersprotected by international lawn’ the international community had transformed the conflictfrom an internal affair to one warranting international concern.232The fact that Croatia,Bosnia-Hercegovina and Slovenia were later admitted to the UN as fully fledged statesstrengthen this hypothesis.233By November 1991, however, UN members recognized that mounting numbers of refugeesand civilian casualties, as well as the dangers of escalation, had blurred the line separatingdomestic and international jurisdiction necessitating some global response. As the crisisworsened, however, humanitarian issues dominated Security Council resolutions and various° See generally, Jane M.O.Sharp, “Intervention in Bosnia-The Case for The World Today, 1992, 29, 31(citing various reasons, legal and political, why the international community initially hesitated to intervene.)seealso Brian Wilson, “Bosnian plight is Europe’s Shame” The Glasgow Herald, July 18, 1993231 eg.Colln Warbrick, Recognition of States” International and Comparative Law Quarterly, 1993p479232 See The Independent, 14 February 1992; Chuck Sudetic, “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 at all; See also Christopher Greenwood, supra note 6 at 38 for the supporting view that the situationceased to be one of civil war within a single state and became instead a complicated mixture of internationaland internal conflicts.See also Marc Weller, “UN Puts Belgrade in a legal limbo” The Times (London) Sept24 1992 for a discussion of the legal limitations of Serbia and Montenegro assuming the membership of theFormer Yugoslavia at the UN72other international statements.2The Security Council 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 overall settlement of the Yugoslav crisis.’235 Bycontrast, the mission of UNPROFOR in Bosnia has been from the outset in July 1992narrowly humanitarian, “to ensure the security and functioning of Sarajevo airport and thedelivery of humanitarian assistance.”2Safe havens were created in Bosnia to protect Muslim enclaves similar to the Kurdish crisisalthough they were called UN Protected Areas (UNPA’s.)237 This was presumably adiplomatic manoeuvre to allay fears that the sovereignty of Croatia was under threat.238By Christmas 1992 the UN and the International Committee of the Red Cross (ICRC) hadhelped to deliver some $750m worth of international assistance to starving refugees. This wasfacilitated in large measure by the expanded mandate of UNPROFOR into Bosnia, adecision taken mainly for humanitarian reasons and not to impose peace on the warringfactions. However, the widespread feeling is that the humanitarian operation is merely aSee generally, Embargo against Federal Republic of Yugoslavia tightened, The UN Chronicle, March1993 4-12 for a discussion of the various resolutions. See also “Situation worsens as peace process continues”UN Chronicle June 1993 4-12UN Security Council Res 743, 21 feb 1992 op para.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 of Force in Bosnia Havens” The LA Times June 5 1993;Edward Luce,”Agreement for UN to run Sarajevo” The Guardian August 19th 1992See generally Marc Weller, “UN Security Council Stumbles Over Safe Havens” The Times (London)April 21 1993 for an analysis of the legal premise for establishing safe havens. Weller accuses the UN oldouble standards by comparing the Iraqi precedent to Bosnia. He concludes that when it came to rescuing theKurds the international community was less concerned with blackletter law than it is presently occupied within Bosnia at the expense of the civilian population.73pretext for avoiding a more forceful military role, on the grounds that the peacekeepersinvolved in humanitarian relief could become embroiled in the fighting.239Subsequent diplomatic talks have achieved little success despite the valiant efforts of theinternational negotiators Lord Owen and Cyrus Vance and the general pressure exerted onthe Bosnian Serbs by the international community. At the time of writing, however, theinternational community has stepped up its action in Bosnia and has authorised the use ofair-strikes, carried out by NATO but under the legal authority of UN resolutions.24°Itremains to be seen just how successful this policy will be. Although tougher measures wereclearly warranted against the Serbs, the fear is that bombing Serb positions will only lead tothe UN becoming another party to the conflict and therefore compromise the UN’shumanitarian relief efforts.24’Conceptual AppraisalThe moral argument for humanitarian intervention in the former Yugoslavia is unambiguous.It has been stated that tolerating the doctrine of the “ethnically cleansed” state marks theend of civilisation.242 War camps, murder, rape and torture are obvious infringements ofhumanitarian law whereas the practice of “ethnic cleansing” specifically contravenes the 1948Genocide Convention.243Moreover, the feeling in the international community that historySee Paul Koring “Safe Areas really Danger Zone for UN’ The Globe and Mail June 8 993240 James Bone,” NATO agrees with the UN on joint control of air strikes” The Times August 10th 1993241 See “Playing with fire:Nato threats mean nothing to Bosnia’s Serbs” The Times August 26th 1993242 George Soros, “Why Appeasement must not have another chance” The Times August 2, 1993243 Principles of international humanitarian law have been consistently violated in the Bosnian conflict,leading one prominent member of the ICRC to conclude that “In this conflict international humanitarian lawis a dead letter. Unacceptable practices are going on, including mass expulsions and the concentration of74was repeating itself on a scale comparable to the holocaust contributed to pressurize worldleaders into taking action.244 As one journalist succinctly put it “ Compassion, conscience.anger, passion itself are part of the equation...as our television screens show images ofsuffering etched in the faces of innumerable anonymous people, so many of themchildren.”245The response of the international community has been criticized for a variety of reasons, notleast because of the “extraordinary and disturbing fragmentation in the locus of decisionmaking.”246The EC initially took a lead role in the crisis, relegating the UN to its ColdWar function as a diplomatic talk-shop 2471t was only when it became clear over time thatthe EC was unable to achieve any substantive peace on the ground that the task was passedto the United Nations.Yet the costs of becoming involved in what amounts to essentially a quagmire havepeople in camps based on their ethnic origin.” Pierre-Andre Conod, Chief Delegate of the InternationalCommittee of the Red Cross (ICRC), see Tim Judah “Shades of the great dictators darken the Balkans” TheTimes (London) Wednesday April 20th 1993. Although a war crimes tribunal was established to deal with actsof genocide and violations of humanitarian law, its role has, to date, been largely ineffective. See James Bone.“Human Rights group presses for tribunal on Bosnia war crimes” The Times August 13 1992. There washowever, an application for a declaratory judgement to the IJ in 1992 on the issue of genocide as a war crimein the former Yugoslavia. See generally the introductory remarks by Paul Sasz on the Genocide Case, 31 ILM1992244 See Hella Pick, “Exiling our Empathy” The Guardian, November 18 1992 (proclaiming that it isintolerable for such a situation to be allowed to persist in Europe, not all that far from our comfortablehomes). Paddy Ashdown “Bosnia:Heroism betrayed” The Independent August 5 1993 (calling for internationalmilitary intervention to save Sarajevo)245 Hella Pick, ibid.246 Higgins, supra note 233 at 472 (The fragmentation of decision-making on Yugoslavia has beenremarkable. Much of it represents not a considered analysis as to what things are best done by the UN andby regional agencies, but a reflection of political considerations extraneous to the Yugoslav problem) Id247 See Higgins supra note 233 at 474 for a discussion of the European initiative and the role of regionalarrangements generally. Higgins concludes that the Yugoslav experience is not a desirable model for futurehumanitarian interventions. Id. See also Fareed Zakaria, “Yugoslavia is Europe’s Business International HeraldTribune, August 10, 199275prevented the international community becoming more heavily involved.248Although thiscan be partly explained by the inherent complexities of the conflict, the accusations ofdouble standards at the UN are vociferous. Can international law be so senseless, that itpermits a limited humanitarian intervention to rescue Kurdish refugees, yet can be invokedto prevent humanitarian intervention in Bosnia? The argument that the Kurdish crisis wasto some extent a man-made disaster which the international community could not wash itshands of is also applicable in the former Yugoslavia.249 As one BBC Journalist poignantlysaid. “To intervene will cost lives; not to intervene will cost more. It is fundamentally aquestion of whether we care.”25° The legal position is also unsatisfactory. Although thegrounds for UN jurisdiction in the conflict will be explored in greater detail in Part II, sufficeto say at this juncture that rather than represent a renewed right of humanitarianintervention, the Bosnian crisis has served merely to reaffirm the inviolability of statesovereignty in the face of human rights violations on a scale the world has not witnessedsince World War II. Despite overwhelming evidence of mass human rights violations theinternational community has instead sought to uphold the outdated principles of nonintervention and sovereignty.248 See Part Three of this thesis for a discussion of the military operation and Michael Dewar, “Interventionin Bosnia-The Case Against” The World Today, 1992, 32, for the view that when people are determined tofight each other, there is precious little we can do about it.” Id. At the time of writing however, there isrenewed pressure on the Serbs as NATO airstrikes continue to bombard Serb positions, a move which arguablyhas interfered with the humanitarian operation.249 See Norman Stone, “West reaps a bitter harvest by 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 clear case in which a humanitarian relief effort ledinexorably to a major military action. The UN authorized, US-led action in Somalia is widelyperceived among legal scholars as a classic case of humanitarian intervention. Manycommentators believe the Somalia case is a powerful example for intervention where thethreat is to an existing humanitarian presence.The consequences of Somalia’s descent into anarchy were described in early 1992 as “thegreatest humanitarian emergency in theworld.”251lnitially, the international community wasreluctant to intervene in Somalia, provoking bitter criticism from the UN Secretary Generalthat a double standard was being applied by Security Council members more concerned with“the rich man’s war” in the former Yugoslavia.252 In January 1991, the rebels of theHawiye clan’s United Somali Congress closed in on Mogadishu, forcing General Mohammedto Nigeria where he received political asylum. Armed factions took over the country and asa two year drought worsened, armed men began to prey on civilians for sustenance and loot.Heightened media coverage and an emotional plea from the US ambassador in Kenya finallybrought Somalia to the attention of the international community. By this late stage in thecrisis, thousands of civilians had died of starvation and countless more remained in imminentperil.253An estimated 300,000 people died from the effects of drought and the‘ Statement by Andrew Natsios, Assistant Administrator for Food and F-lunger, US Agency lorInternational Development, before the House Select Committee on Hunger, January 30th, 1992252 See Trevor Rowe, “Aid to Somalia Stymied” The Washington Post, 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 million Somalis fled to neighbouring countries. Forall practical and legal purposes the state of Somalia 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 emphasis on 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 the sense that the UN was not well-equipped to run such anoperation.256The stationing of a major, but largely ineffective international humanitarian operation inSomalia led to a deeper military involvement. International relief workers had themselvesbecome part of the problem and were forced to pay ransom to gunmen in order that theycould carry out their tasks.257 The UN Secretary General in various letters to the SecurityCouncil President in November, 1992 referred “. . .to the extortion, blackmail and robbery towhich the international relief effort is subjected and to repeated attacks on the personnelSee generally, Edward R.F.Sheehan, “In the Heart of Somalia’ The New York Review of Books, VolXL No’s 1 & 2, January 14, 1993 for an insight into the impact of the war on Somali people and society.The first was Security Council Res 733, 23 Jan 1992 which called for a ceasefire and weapons embargo,and among its numerous references to humanitarian issues it requested ‘...the Secretary-General immediatelyto undertake the necessary actions to increase humanitarian assistance of the United Nations and itsspecialized agencies to the affected population in all parts of Somalia in liaison with the other internationalhumanitarian organizations and to this end to appoint a coordinator to oversee the effective delivery of thisassistance.6See Jane Perlez, “Deaths in Somalia Outpace Delivery of Food, New York Times The New York TimesJuly 19, 1992, at Al; Jeffrey Bartholet, “The Road to Hell” Newsweek September 21, 1992, at 52. The UnitedNations belatedly began to send in troops to protect the relief supplies reaching SomaliaJd at 53Ibid. Looting by armed gunmen, of previous supplies destined for those in need prevented properdistribution.78and equipment of the UN and other relief agencies.258 As the former US PresidentGeorge Bush stated a few days later,”. ..relief groups called for outside troops to providesecurity so they could feed people.”259Accordingly, the UN Security Council authorized military intervention on December 3 byunanimously adopting Security Council Resolution 794, which authorized member states touse “all necessary means to establish as soon as possible a secure environment forhumanitarian relief operations in Somalia.” UN Security Council Resolution 794 was thefirst UN resolution to authorize explicitly a massive military intervention by member stateswithin a country without any invitation from the government. The concept of a threat tointernational peace and security is referred to in the resolution yet by contrast the term“humanitarian” occurs 18 times.Conceptual AppraisalAlthough the military intervention marked a significant step forward for the formulation ofa new doctrine of humanitarian intervention, it took place in a country whose sovereigntywas already questionable due to the absence of any viable government. 2600ne observerpointed out “[s]uch pushing and shoving was used, not for the first time, to make theawkward facts of a crisis fit the procrustean bed of the UN Charter. While this was notspecious, it in no way concealed the centrality of the humanitarian rationale for the Somalia258 See generally UN Secretary General Boutros Boutros Ghali’s six page letter of 29 November, 1992 p1President Bush, “Humanitarian mission to Somalia,” Address to the Nation, Washington D.C. 4thDecember, 1992 US State Department Dispatch, 3:49, 7 December 1992 p865° Article 1 of the Montevideo Convention stipulates that the requirements for statehood are a viablegovernment, a permanent population, a defined territory and the capacity to enter into relations with otherstates. Convention on the Rights and Duties of States. UNTS Num 881 26 December 193379operation.”1Yet, at the same time, the whole operation in Somalia demonstrates America’s dominancein world affairs. The spectacle of US 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 crisis prior to December, 1992.262Moreover, from a legal standpoint, although “Operation Restore Hope” is likely to be viewedat least, as a successful demonstration of the American commitment to humanitarianprinciples “[it] exposes the acute dangers inherent in the collective failure to restructureinternational humanitarian assistance policies and multilateral relief and politicalorganizations to meet the realities of the post-Cold War world.”263Thus, the military intervention in Somalia, while it undoubtedly saved countless lives, maynot be regarded as a precedent likely to be repeated in future incidents. The UN wasrelegated to a backstage role while US politicians and marines orchestrated the entiremultinational operation. The operation is unlikely to be seen as a vindication ofhumanitarian principles over concerns for sovereignty. The state of Somalia had dissolvedinto anarchy and, for all practical purposes, had no ruling government in command. TheSomalian conflict does not therefore constitute an authoritative precedent.261 Adam Roberts, supra note 9 at 440262 See 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” Foreign Affairs, Summer 199380Conclusions on recent humanitarian interventionsIs it possible to conclude from the above considerations that there is a new consensus on acontemporary doctrine of humanitarian intervention ? Or, are these interventions merelyanother example of realpolitik ?Some might ask why the international community under the auspices of the United Nationswas willing to intervene in Somalia, yet was reluctant to become more involved in the formerYugoslavia. The common illusion in political circles is that Somalia was the doable war264whereas Bosnia raised more complex issues of “nationalism’ and “ethnicity”.265 It hasproved far easier to justify sending aid to relieve victims of famine in Somalia as opposedto dealing with a war of ancient ethnic and nationalist issues in Bosnia. Then, of course,there is the confusing religious melange in the Balkan war.266 The UN’s reluctance toadopt a more forceful intervention in the former Yugoslavia is largely attributable to the rolethat religion has played in the conflict, whereas in Somalia relieving famine would appearto be the guiding principle. Moreover, there is little doubt that the issue of self-determination in international law has had a significant impact on the way the internationalcommunity has perceived the crisis in the former Yugoslavia. The right to self-determinationhas been well-documented in international law, yet has always been a hotspot of controversy,2/’l See Geoffrey York, “Why the US really cares about saving Somalia” The Globe and Mail, January 27,1993 (citing reasons such as oil reserves, military instalments, Islamic fundamentalism and geopolitical locationto explain the response for US intervention in Somalia)Note that even the language employed in the two conflicts reveals the different approaches takenregarding the humanitarian dimension. The warring factions in Somalia are referred to as “clans” and theconflict has been described as “tribalism”, connoting a certain primitive nature to the whole situation whereas“ethnicity” and “nationalism” are used in the Yugoslav conflict, words that have more relevance in Westernparlance.See Norman Stone supra note 227.81particularly when it arises in the context of a humanitarian intervention.267 Self-determination, however, raises issues that fall outside the parameters of this brief discussion.Suffice to say, the international community’s desire to prevent the secession of the FederalRepublic of Yugoslavia and preserve the territorial integrity and sovereignty of Yugoslaviatriggered a tinderbox of fundamentalism and national fever.268 For this reason alone,neither the UN nor the big powers can wash their hands of the subsequent war.269A military strategist might argue that the reluctance to conduct a more proactive“humanitarian intervention” in the Balkans is due, in large measure, to the logistics involved.Certainly, the mountainous terrain of the former Yugoslav republic is not conducive to alarge-scale invasion as was the case in the Gulf crisis in 1991. Moreover, there is noidentifiable enemy in the Yugoslav conflict. Despite the intense clan fighting in Somalia. thehumanitarian mission there has proved easier due to the lack of effective government andthe superior warfare of the US-command.27°With the exception of a few incidents, thehumanitarian intervention in Somalia has proved relatively straightforward compared to the267 See eg. General Assembly 1514 (XV), 14 December 1960. para 6 Any attempt aimed at the partial ortotal disruption of the national unity and the territorial integrity of a country is incompatible with thepurposes and principles of the Charter of the UN.” See also Western Sahara Case, ID Rep 1975 p12. Forconfirmation of the right of self-determination by the International Court.(per Judge Dillard sep opinion)268 See “Baker Backing For United Yugoslavia” The Financial Times (London) June 22/23, 1991, p2; seealso “Yugoslavia Breaks Apart, 2 Rebel Republics Secede” International Herald Tribune, June 26, 1991, p1.269 Some theorists posit a different stance and argue that the West is not responsible for the humanitariancrisis. See Dr.N.J.Wheeler “Humanitarian Intervention” Millennium, Vol 21, No 3 (Winter 1992, p484)270 Some commentators would disagree with the optimistic conclusions of the US Administration. For anoverview of the crisis and US policy see eg Jonathan Stevenson, “Hope Restored in Somalia ?‘ Foreign Policy,Summer 1993 138-154 Stevenson is critical of the precedent set by Operation Restore Hope and does notbelieve it is a viable model for future humanitarian interventions.82potential quagmire in Bosnia.271Humanitarian intervention, as has been undertaken in the past, whether justified as such ornot, has traditionally been a focused mission with a definite objective. The intervention inNorthern Iraq, in 1991 for example, was against the oppressive regime of Saddam Hussein,and was of limited duration with a clearly defined strategy to provide humanitarian aid tothe Kurds. In the former Yugoslavia, although there is little doubt that mass human rightsviolations are being systematically perpetrated in the conflict on all three sides, it is still notclear on whose side greater military intervention would be mounted. The Serbs have,however, been singled out as the main aggressors by the international community withNATO airstrikes being carried out over Serb positions in Bosnia.From a strict legal perspective the above discussion has suggested so far that the traditionalnarrow circumscription of the doctrine of humanitarian intervention is no longer tenablegiven the changing political and legal climate. Yet, at the same time, it may be concludedfrom these brief case studies that there is still no general consensus concerning the doctrineof humanitarian intervention, but only an emerging, limited and fragile body of state and UNpractice. More often than not, realpolitik would appear to dominate Security Council debatethan the application of strict legal norms. There is, however, evidence that a law of universalhuman rights is gradually emerging and has reached a rudimentary stage of enforcement onthe international plane under the guise of humanitarian intervention, albeit a limited model.271 See Patrick Glynn, “The Doable War” The New Republic, August 16th, 1993 15. At the time of theintervention senior US officials were quoted for their remarks on the Bush Administrations’ doctrine ofintervention. Cohn Powell, the Chief of Staff Chairman, stated that the ‘operation was simply a matter of thecavalry coming to the rescue, straightening things out for a while and then letting the marshals come back into keep things under control. Id at 1683More importantly, the unilateral use of military force to enforce human rights or preventinhumane activities would appear to have little support in contemporary practice, outsidethe scope of the United Nations framework. The UN Security Council has tentativelyemerged as a key instrument of utility for providing a legal framework for decisions tointervene. Whether the resurgence of the United Nations has been the result of the post-Cold War climate or, less optimistically, that the organization offers a cloak of legitimacy forotherwise abusive unilateral interventions, is not clear. Nonetheless, collectivehumanitarianism would appear to be the hallmark of present and future interventions.Traditional notions of absolute sovereignty and non-intervention are also disintegrating witha new tentative doctrine emerging where the protection of human rights takes precedence.There is accordingly less emphasis on the inviolability of states, with the possible exceptionof the intervention in the former Yugoslavia. For human rights to transcend the dictates ofsovereignty, there must be a clear legal justification for the UN to intervene.Humanitarianism cannot be invoked as a pretext for self-served intrusions. It is to thisconcern that this thesis now turns.84Part Two. THE BASIS OF UN JURISDICTION IN A CIVIL CONFLICT.Older distinctions between internal and international wars seem to be meltingaway because of the direct or indirect involvement of other nations in internalconflicts. Just as human rights are now no longer a purely internal affair, itmay be that internal wars must become a matter of concern to the communityof nations because they so frequently affect the possibilities of organizing adurable peace.Dean Rusk, former Secretary of State 1961-1969Part I of this thesis has sought to emphasize the changing norms of humanitarianintervention. One of the more important conclusions to be drawn from the discussion so faris the emergence of the United Nations as the main forum for dealing with humanitariancrises. It follows that as the number of requests for intervention proliferates, the UnitedNations must also establish a concise normative framework dictating at what point it shouldintervene and on the basis of a distinct legal rationale. While the doctrine of humanitarianintervention itself evolves, the international community is presented with a uniqueopportunity to formulate a coherent normative structure for conducting humanitarianoperations.Although humanitarian interventions are often motivated by considerations of political selfinterest, UN members often attempt to justify their actions in terms of generally acceptedjuridical conceptions and precedents compatible with these conceptions. This section willtherefore examine some of these conceptions within a contemporary context.The authority of the United Nations to conduct a humanitarian intervention is traditionally85subsumed under three jurisdictional bases.’(i) First, the UN Security Council has tended to characterise the events within a state as athreat to international peace and security under Article 39 of the UN Charter and has takenjurisdiction under Chapter VII.(ii) Second, the UN has relied on the explicit or implicit consent of only one or some of thewarring factions.(iii) Finally, the UN has tried to settle disputes through 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 Security Council has taken jurisdiction inthese situations by determining that the humanitarian crisis does not fall “essentially withinthe domestic jurisdiction of a state” because it “shocks the conscience” of the internationalcommunity. Due to the significance of this juridical development this section will focus onthe expansion of the threat to the peace concept to encompass humanitarian concerns andthe development of “human suffering” as a new ground for UN competence, while onlybriefly touching upon the issue of consent and the role of regional organizations.Of all the rationales just mentioned, the final legal basis for UN authority is not only the1 It is important to note that in this context only forceful interventions are considered and thus, thejurisdictional bases for UN intervention in an internal crisis corresponds 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 any disputes or any situation which might lead to international friction “to determine whetherinternational peace and security is likely to be endangered. If it is, the Security Council can “recommendappropriate procedures or methods of adjustment” as provided in fact-finding in the early stages of a conflict.The Security Council may be able to mobilize international pressure on the parties to exercise moderation andseek negotiated solutions. The role of the Secretary General and the General Assembly are also importantwhen considering the jurisdiction of the United Nations in an internal conflict. See infra note 4.86most controversial in political circles, it also poses particular conceptual problems for thelegal analyst. This premise turns on the phrase “matters which are essentially within thedomestic jurisdiction of any state,” in Article 2(7) of the UN Charter. This seemingly simplephrase creates numerous interpretational and conceptual difficulties, too many to mentionin this context.2As one commentator has observed “[T]he Charter concentrates on theproblem of international war, ignoring the issues of civil war except in cases where domesticstrife appears likely to develop significant international ramifications.”3For instance, the difficulty in establishing UN competence in a humanitarian crisis does notlie in Article 2(7) of the UN Charter which prohibits any intervention by the United Nations“in matters which are essentially within the domestic jurisdiction of any state” as it is clearfrom state practice that violations of human rights no longer fall within the purview ofdomestic jurisdiction. The difficulty rather, lies in the fact that the UN Charter does notauthorize the international community to use force against a sovereign state unless there isa “threat to the peace, a breach of the peace, or an act of aggression” under Article 39. Afurther complication arises in that if any of these three grounds is shown to exist, recourseto the doctrine of humanitarian intervention is not necessary to establish UN jurisdiction.Since the demise of the bipolar years the UN Security Council 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 and Local Disorder, The UN and Internal Conflicts(Princeton University Press) (1967) The Status of Domestic Jurisdiction, Proceedings of the 4th SummerConference on International Law, Cornell Law School June 18-20, 1962; James N. Rosneau InternationalAspects of Internal Strife, (Princeton University Press) 1964; R.Falk (eds) Legal Order in a Violent World,Princeton University Press (1968) R.Falk and S.Mendlovitz (eds) The Strategy Of World Order Vol 3 UnitedNations, (1966)mis Claude, “The United Nations and the use of force,’ International Conciliation No.532 (March, 1961)p32687for providing a legal safeguard to decisions characterized as a ‘threat to internationalpeace.”4Many specific concerns have been cited as possible justifications for intervention,including the starvation of civilians and the protection of aid workers. Nevertheless, in recentinterventions in Somalia and Bosnia the basic legal justification of international militaryintervention would appear to remain the concept of a “threat to the peace” under Article39 of the UN Charter. The difficulty perceived by this approach is that it sets a precedentin international law and gives the UN Security Council a wide ambit in determining whichsituations constitute a threat to international peace and security despite the lack ofdiscernable international effects. In the case of the Kurds, the cross-border consequenceswere considerable, yet in Somalia, the UN Security Council determined there was a threatto international peace under Chapter VII despite the absence of a significant impact on4Although the past and more recent practice of the UN suggests that ii is the Security Council thaishoulders primary responsibility for international disputes involving human rights deprivations, the GeneralAssembly also retains authority under the Uniting for Peace Resolution to exercise the plenary coercive powersof the Security Council under Chapter VII of the Charter should the Security Council be unable or unwillingto act. Any decisions taken by the General Assembly in this capacity will be binding upon all member statesand non-members, insofar as the “maintenance of international peace and security is concerned,” under Articles25 and 2(6) of the Charter. Professor Reisman for example, cites Article 13 of the Charter as a legitimateground for a humanitarian intervention where the General Assembly would be empowered to “initiate studiesand make recommendations for the purpose of ...assisting in the realization of human rights and fundamentalfreedoms for all without distinction as to race, sex, language or religion.” He also cites the broad human rightsjurisdiction of the UN as set out in the Preamble and Articles 1, 55 and 56 of the Charter, which are whollygeneral and not attached to any one UN organ. A further ground, but a more dubious ground forhumanitarian intervention by the General Assembly is derived from international law. Reisman believes thaias a general principle of law, activities which an entity may perform by itself, it may perform in collaborationwith others. See Michael Reisman, Humanitarian Intervention to Protect the Ibos, in Humanitarian Interventionand the United Nations, R.Lillich, ed (1971)Furthermore, the role of the UN Secretary General in a humanitarian intervention should not be underestimated. The Secretary General is authorized under the UN Charter to perform an initiating and promotiverole for humanitarian intervention in cases where he believes international action is warranted. Under Article99 of the Charter,” [tjhe Secretary General may bring to the attention of the Security Council any matter whichin his opinion may threaten the maintenance of international peace and security.” It was, for example, theforceful leadership of Dr Boutros Boutros Ghali that brought the Somalian crisis to the attention of the UNSecurity Council. Unfortunately, consideration of these important organs of the United Nations is not possiblewithin the scope of this paper.88Somalia’s immediate neighbours. Massive human rights violations which are not deemed toconstitute such a threat are not considered a ground for jurisdiction. Moreover, the questionof state consent for the interposition of an international force has become more nuancedand variable in recent times, than in many of the earlier applications of the doctrine. In hisAgenda for Peace Report, the Secretary General went as far as to suggest that consent bythe host state may not be an invariable requirement of peacekeeping operations. All of theabove concerns will be dealt with in this section.Humanitarian crises as a threat to the peace under Chapter VIIForcible humanitarian intervention may be authorized under the collective security provisionsof the UN Charter when the Security Council determines that a humanitarian crisisconstitutes a threat to international peace and security.5 Gross human rights violationsoften precipitate transnational effects and, as such, may constitute a threat to internationalpeace. The recent practice of the UN Security Council clearly supports the contention thategregious human rights deprivations may constitute a threat to peace and thus may activateChapter VII enforcement measures.6As the Turkish delegate stated in Security Council debate during the Kurdish crisis “[T]hereis no way in which what is going on in Northern Iraq can be justified as an internal affair ofthat country. Given the scale of the human tragedy and its internal implications, this CouncilArticle 39, Chapter VII, UN Charter. In the case of the General Assembly, the authority to authorizemilitary action to enforce human rights could be based on the power under Articles 1O--14 of the Charter tomake recommendations to the organization or to member states.6 See Reisman, “Humanitarian Intervention to Protect the Ibos,” in Humanitarian Intervention and theUnited Nations, 167, 187-191 (R.Lillich ed. 1973)89cannot allow itself to be relegated to the role of a mere spectator.’7Most major-post-war instances of genocidal violations of human rights have, however, metwith inaction, for reasons ranging from “security interests” to simple lack of interest. Unlessegregious human rights violations are presented in a way that will shock the public intoaction, political and economic interests will always take precedence. During the Cold Waryears the UN rarely authorized any enforcement measures, despite many instances in whichserious violations of human rights were closely linked to breaches of international peace andsecurity. The two precedents most relevant to the present issue are the Security Council’sresolutions relating to Southern Rhodesia and South Africa, which in both instances includeda determination by the Council that international peace and security were threatened as thepredicate for the decisions to impose binding economic sanctions under the Council’senforcement authority.8Although the United Nations as an organization did not attemptto put together a military force to act in these two situations, nonetheless, the SecurityCouncil determined that the crises constituted threats to the peace, thus paving the way forthe application of coercive measures, which could legitimately have included forcible action.In the case of Rhodesia, for example, the resolutions called upon the United Kingdom toquell the rebellion of the racist minority regime, using all “appropriate measures which 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 cases that are cited as instances of “humanitarianintervention” would likely have qualified as a threat or breach of the peace sufficient towarrant the involvement of the UN. The Security Council might for example, have becomeinvolved in the humanitarian crisis in Uganda in the 1970’s, which was surely a situation thatthreatened international peace and security. The Security Council could have passedresolutions aimed at preserving the peace by sanctioning Uganda for its endemic lawlessnessand also could have approved the action that Tanzania took 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. There are, for example, numerous instances wheremassive human suffering occurs within a state’s boundaries which does not pose animmediate threat to international peace and security. The General Assembly debates in late199110 and the UN Security Council Summit in January 199211 demonstrated the strongviews concerning the limitations of Security Council action within a sovereign state. However,despite opposition to greater UN intervention, history demonstrates that mass violations ofhuman rights or natural disasters within a country’s borders inevitably have an impact onregional or international affairs. The very notion of “security” has been expanding in recentSee SC Res/217/1965, at para 5. The language used in this resolution was similar to the “necessary meanslanguage of Res.678 concerning the Gulf crisis and may be read as an authorization by the UN SecurityCouncil to use force to prevent human rights violations.‘° See General Assembly Resolution AiRes! 46/82, Annex No 3 (1991) (upholding territorial limits onintervention)‘ See the UN Security Council Summit Opening Addresses by 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 Security Council 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 humanitarian crisis does not display any evidence of serioustransnational consequences at the outset should not prevent the UN Security Council fromtaking swift action to deal with the situation, which may pose a threat after a period of time.Situations will undoubtedly arise where the humanitarian crisis in itself is serious enough towarrant action even though international peace would not appear to be threatened. Thereis a certain irony in that force is permitted to preserve international peace and security, yetis illegal when it is massive human rights violations that are involved. However. realpolitikdictates that forcible humanitarian interventions will more likely be determined to he threatsto the peace when the country in question is geo-politically significant. Refugees from thesenation-states or oil-rich states are likely to receive attention, while poorer nations lose outbecause their complaints are not seen as being a threat to international peace. The UNcould recognize that large-scale atrocities such as we are witnessing in Bosnia and Rwandaare an affront to the international community and constitutes an inherent threat to thepeace, even where that threat is not apparent. The Security Council’s resolutions overSomalia illustrate this development. For example, Security Council Resolution 794 wasexplicitly adopted under Chapter VII.12 Examples, include the radiation emissions from the nuclear plani explosion at Chernobyl, Ukraine in1986 and atmospheric pollution from the burning of Kuwaiti oil wells in 1992.13 UN Security Council Summit Declaration, UN Doc S/3046 New York, 31 January 199292The Security Council...determining that the magnitude of the human tragedy causedby the conflict in Somalia, further exacerbated by the obstacles being created to thedistribution of humanitarian assistance, constitutes a threat to international peace andsecurity...Acting under Chapter VII of the Charter of the United Nations. uu14Thus, by categorising events within a state as a threat to international peace, Resolution 794essentially expanded the concept of what amounts to a threat to international peace andsecurity. While this in itself is a significant development, its precedential value must not beover-stated when one considers the anarchic circumstances within which this formulationoccurred.15n recent months there has been growing evidence from Security Councilmembers to attach certain restrictions to any possible expansion of the “threat tointernational peace” concept as a basis for UN competence. The US for instance, whilebroadening the concept to include military aggression, natural disasters and serious humanrights violations, has also stipulated that US interests be involved.16The British governmenthas also questioned whether the conflicts in Somalia and Bosnia pose real “threats” asopposed to “tragedies”.17In view of this fact alternative legal rationales should therefore be explored.14 Security Council Resolution 794, December 3, 199215 The preamble to the resolution itself draws attention to the state of affairs in Somalia, ‘Recognizing theunique character of the present situation in Somalia and mindful of its deteriorating, comp’ex andextraordinary nature, requiring an immediate and exceptional response..” ibid16 See The New York Times January 1994 and generally Part III for a discussion of US policy towardsUnited Nations peacekeeping.‘ See Paul Lewis “Reluctant Peacekeepers: Many UN Members Reconsider Role in Conflicts”, The NewYork Times, December 12, 1993 at A2293Issue of ConsentOne significant emerging feature of the new doctrine of humanitarian intervention is its nonconsensual character. Generally, the traditional consensual approach is relatively noncontroversial and where a government consents to international assistance or humanitarianintervention such an action would usually be considered to be legitimate. Sometimes anentity such as the International Committee of the Red Cross (“ICRC”) might work inconjunction with rebel powers which have control on the ground in order to obtain thenecessary consent of the warring factions.’8The ICRC does 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 armed conflicts or other situations requiringhumanitarian action.’9Where a governments consent is lacking however, the situationbecomes more problematic. The crucial issue for international lawyers is whether the UnitedNations and concerned international agencies are authorized under international law toprovide humanitarian assistance without the consent of the target state. This is anincreasingly difficult conceptual and practical problem in a world characterized by civil warand ethnic strife. The question of consent is particulary pressing in situations where thereis no national government, as in Somalia, or where a government is embroiled in a civil war,18See “Somali Fighting Keeps Aid From a Suffering City,” The New York Times (late ed, December 11, 1991at A7, col.1;l Examples of the ICRC’s pragmatic approach would be its work alongside the Afghanistan-Pakistan border in the 1980’s and more recently, Sudan and Somalia.19 The 2 Protocols additional to the 1949 Geneva Conventions which were adopted on June 8, 1977explicitly recognize the right of the ICRC to intervene for humanitarian relief work. See Protocol Additionalto the Geneva Conventions 12 August 1949 and Relating to the Protection of Victims of International ArmedConflicts Protocol]) June 8 1977, Article 81, 1125 UNTS 3; Protocol Additional to the Geneva Conventions 12August 1949, and Relating to the Protection of Victims ofNon-International Armed Conflicts (Protocol II) June8 1977 Article 18, 1125 UNTS 60994such as the Sudan.2°Some commentators believe that intervention without invitations fromany government present the greatest challenge to the sovereignty of a state and thus shouldonly be considered as a last resort when a humanitarian situation clearly threatensinternational peace and security, or there is evidence of mass starvation or genocide.2’Often an operation is undertaken without the consent of the host state for pragmaticreasons. In some instances for example, a credible government does not exist or has ceasedto be viable and thus the question of consent is irrelevant.22This was precisely the situationencountered in Somalia.The Somalia affair is believed by many to be the first case where the requirement forconsent was overridden by humanitarian concerns. However, closer analysis reveals that thelegal basis for the UN intervention would 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 explain the requirement of consent or lack thereof as the casemay be. One apt analogy for the use of force without the consent of the sovereign may be drawn from classicalproperty law. In Anglo-American common law, commentators have often made reference to a landowners’absolute right to exclude physical intrusions. Yet, trespass has been permitted for reasons of both public andprivate necessity, such as avoiding imminent disaster or serious harm to another person. Thus, it is assertedthat concepts of sovereignty, often invoked in absolutist terms, should be considered qualified in a similarmanner by instances of vital humanitarian necessity.21 See eg. Mary Ellen O’Connell “Continuing Limits on UN Intervention in Civil War” 67 Indiana LawJournal 903-04 (1992) (arguing that “the UN has not abandoned the Charter prohibition on intervention incivil war” in order to preserve self-determination and not exacerbate civil conflict). Thomas Weiss and JaratChopra, United Nations Peacekeeping: An ACUNS Teaching Text 31 (The Academic Council on the UnitedNations System, 1992-91) (“For traditionalists, no requirement of peacekeeping is clearer than the consent ofparties in conflict”) [hereinafter ACUNS]22 ACUNS Ibid at 36 (noting that “[a]s fractured internal conflicts grow and parties proliferate, strictadherence to the requirement of the consent of the parties in conflict to peacekeeping forces appears lesslikely”)95doubt. Security Council members such as Ecuador concluded that, “Somalia is a countrywithout a government, without any responsible authority, without any valid nationalprinciples.”23The Secretary-General himself categorized the intervention in the “legally safecontext of a response to a threat to the peace.At present no government exists in Somalia that could request and allow suchuse of force. It would therefore be necessary for the Security Council to makea 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 decide what measures should be taken to maintain internationalpeace and security.24Despite attempts to negotiate consent from the warring factions, the UN reluctantly decidedto intervene in Somalia without the explicit consent of the host government.25Acco dingly,the UN Security Council authorised Resolution 814 which specifically invoked Chapter VIImeasures with no reference to the requirement of consent.26Aithough the UN SecurityCouncil justified its actions by referring to the “general absence of the rule of law inSomalia,”27the overall conclusion of the Council was that consent was not obtainable wherethere was no government. Thus, due to the unique circumstances in Somalia, its precedentialsignificance is dubious. This is particulary so, when one considers the subsequent events inHaiti, which, though outside the parameters of this brief analysis, clearly illustrate the UN’spreference for obtaining consent from the official government even where the governmentUN Doc.S/PV 3145 (1992) at 1324 Ibid, p3UN Doc S/24868 at 3 (By the end of November 1992, the Secretary General concluded that the SecurityCouncil now has no alternative but to decide to adopt more forceful measures) Id26 UN Doc S/Res/814 (1993)27 UN Doc, ibid96is essentially in exile.However, on 17 December, 1991 the UN General Assembly passed a resolution to enhancethe effectiveness of the United Nations to deal with humanitarian crises where access isdenied. The resolution was intended to deal with two major problems:(1) coordinating international humanitarian assistance in emergencies and(2) pressuring governments to permit aid to people in need during civil wars andother internal conflicts.”29An emergency relief coordinator was established with a wide range of powers aimed atcoordinating the UN’s response to humanitarian emergencies.While the resolution affirms sovereignty and ensures the requirement of consent is obtainedbefore intervention takes place, it is couched in sufficiently vague language to avoid theconsensual requirement, thereby opening the door to non-consensual humanitarianinterventions.30Thus, although the General Assembly did not explicitly endorse the ideaof non-consensual humanitarian intervention, which emphasizes the determination of manycountries to retain their right of consent to a UN humanitarian intervention, it is highlysignificant that the resolution states that the consent of the affected country “should beprovided” rather than “must be provided”. This ambiguous phrase leaves open the possibilitythat in exceptional circumstances intervention may occur in the absence of consent. In otheru See generally, Crisis in Haiti: Seeking a Political Solution, 1 (UNDPI, August 1993)29UN General Assembly A/Res/46-182 17 December 199130”Sovereignty, territorial integrity and national unity of state must be fully respected in accordance withthe Charter of the United Nations. In this context, humanitarian assistance should be provided with theconsent of the affected country and in principle on the basis of an appeal by the affected country. Ibid.97words, it is inferred that the United Nations should seek consent from the targeted countrybut it may still intervene where it fails to obtain consent; this is particulary so where thereis no explicit objection to the humanitarian assistance. It would not appear a coincidencethat the language is imprecise. Accordingly, this important resolution strikes a subtle balancebetween state sovereignty and international humanitarian relief efforts, leaving the UNconsiderable scope to decide whether a situation requires humanitarian assistance even ifthe targeted state decides otherwise. As Paul Lewis wrote in the New York Times, theGeneral Assembly resolution “marks another small but significant step toward establishinga right of humanitarian intervention in international law that would empower relieforganizations to assist the afflicted wherever they are.”3’Nevertheless, although this resolution represents a step towards more intrusive UNintervention, there remains a substantial body of opposition in the developing world againstthe trend towards non-consensual humanitarian intervention. Despite the Somalian conflict,as yet there has not been a solid endorsement of non-consensual humanitarian intervention.Indeed, more recent UN practice in Haiti indicates that the requirement of consent fromthe target state, whether it be obtained from the government in exile, or the warring factionsin control, is likely to remain a prominent feature of UN humanitarian interventions in thefuture. Ironically, the crises in Somalia and Haiti have also demonstrated the difficulty ofretrieving consent from states embroiled in civil war. For this reason alone, the internationalcommunity must seek alternative methods of establishing UN jurisdiction in an internal crisis.31 Paul Lewis, ‘UN to Centralize its Relief Efforts, The New York Times, December 18, 1991 al A19 Col1.98Regional DevelopmentsIt is not only developments on a collective UN basis that have attracted profound interestbut also those at a regional level.32Oft n the UN will authorize a regional organization toresolve a dispute either because the regional body is more suited to dealing with thepeculiarities of the dispute or that the UN simply does not have the resources or thepolitical will to deal with the crisis.33 Regional actions may be able to achieve the objectivesof humanitarian interventions with less risk of escalation and a greater tolerablility to theinternational community than under the umbrella of the UN, which more often than not isdominated by the great powers.Significantly, the latest crisis in Rwanda has resuscitated the debate concerning the role ofregional organizations. The OAU is seeking to take a lead in resolving the conflict inRwanda.34Although this is largely in response to the reluctance of the big powers tobecome involved in yet another resource draining and complex ethnic conflict, Kofi Annan,32 Secretary General Boutros Boutros Ghali recently indicated his desire to rely more on regionalorganizations for resolving humanitarian crises. See An Agenda For Peace, UN Document A147/277-S/241 11(1992) at 18-19 “[Ijn this era of opportunity, regional arrangements or agencies can render great service...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 theMaintenance ofWorld Order,” in 3 The Future of the International Legal Order 122, 143-150 (R.Falk & C.Blackeds. 1971) and more specifically Tiewul, “Relations Between the United Nations Organization and theOrganization of African Unity in the Settlement of Secessionist Conflicts,” 16 Harvard International LawJournal 259, 286-302 passim (1975)UN Charter, article 53, (1) “The Security Council shall, where appropriate, utilize such regionalarrangements or agencies for enforcement action under its authority. But no enforcement action shall be takenunder regional arrangements or by regional agencies without the authorization of the Security Council...” Id.In the area of pacific settlement of disputes, participants in regional arrangements are instructed to appeal firstto their regional organizations. Members ‘entering into [regional] arrangements shall make every effort toachieve pacific settlement of local disputes through regional arrangements 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 Peacekeeping Affairs has warned that the OAU may notbe up to the job.35In the crisis in Liberia however, the UN has taken a backseat role, delegating jurisdictionto the regional organization comprising the Economic Community of West African Statesknown as ECOWAS.36 Nigeria and its African neighbours have spent an estimated halfbillion dollars on the Liberian operation, which is one of the largest peacekeeping efforts inthe world and the only major one not run by the United Nations.37 The legality of theECOWAS intervention has, however, been criticized for failing to comply with therequirements of Chapter VII of the UN Charter.38Article 53 for instance, clearly states that‘no enforcement action shall be taken under regional arrangements or by regional agencieswithout the authorization of the Security CounciL” ECOWAS however, created a five-nationforce (ECOMOG) and on August 26th, 1990 over 4,000 soldiers arrived in Monrovia.Although the Security Council initially declined to pass comment on the legal status ofECOWAS in March 1993, the Security Council issued the fol]owing statement:Liberia represents a good example of systematic cooperation between theUnited Nations and a regional organization, as envisaged in Chapter VIII ofthe Charter. The role of the Security Council has been one of supporting theinitiatives and endeavours of ECOWAS. I believe that it would be the wish ofthe Council to continue and expand, as appropriate, this cooperative35IbidFor background to the civil war in 1990 see Report of the Secretaiy General on the Question of Liberia,UN Doc S/25402 (1993) at 4See Reed Kramer ‘West African Operations in Liberia” Africa News Service, May 11th, 199438 See Georg Nolte, “International Legal Aspects of the Liberian Conflict,” Heidelberg Journal ofInternational Law 1993 at 10-13, 15-25100relationship between the United Nations and the concerned regional body.39To supplement its statement of support, the Security Council imposed a “general andcomplete embargo on all deliveries of weapons and military equipment to Liberia until theSecurity Council decides otherwise.”4°Thus, despite several legal loopholes, the operationin Liberia may be regarded as an example of just how successful regional organizations canbe in confining disputes to the region.Another clear example of the importance of 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 CSCE agreed on a large number of principlesthat may have a significant impact on how the organization deals with humanitarian crisesin the future.4’The members expressed “their conviction that full respect for human rightsand fundamental freedoms and the development of societies based on pluralistic democracyand the rule of law are prerequisites for progress in setting up the lasting order of peace.security, justice and cop-operation that they seek to establish in Europe.”42 Just over a yearlater, CSCE representatives met in Moscow to create an intrusive mechanism for theprotection of human rights within member states.43 Procedures were established to inviteinto a country a mission of CSCE - authorized experts to investigate and offer advisorySecretaiy General’s Report on Liberia supra note 36 at 114° Security Council 788 (November 19th, 1992 at 3)41 See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,29 International Legal Materials 1305 (1990)42Ibid at 130743See Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE. 30ILM 1670 (1991)101services to resolve a problem relating to human rights.44 In the absence of an invitation,the CSCE would be able to establish a mission of rapporteurs that the target state mustpermit to enter its territory and investigate the facts.45The Copenhagen and Moscow declarations are important in that they replace the principleof non-interference in the internal affairs of states with a firm commitment to promotedemocratic pluralism, human rights and fundamental freedoms, a development which directlyinfluences state responsibility for humanitarian crises.46The success of regional organizations should not be over-stated however. The OAS in theDominican Republic crisis and the Organization of Eastern Caribbean States in the Grenadaincidents did not add much in the way of legitimacy to the operations and arguably acted as“fig-leaves” to hide the true motivations. As regards “ad hoc” regional groups, thedeclarations of the General Assembly have made it clear that the legal status of “ad hoc”groupings is the same in international law as unilateral interventions.47Nonetheless, it is anticipated that as the number of candidates for intervention proliferatesIbid at 1674-75Ibid at 1675-76‘ A similar commitment has been developed by the Organization of American States (OAS) whichadopted a Resolution on June 5, 1991 establishing a rapid-response mechanism to anysudden or irregularinterruption of the democratic political institutional process or of any of the legitimate exercise of power bythe democratically elected government in any of the Organization’s member states OAS, GA Resolution 1080,reprinted in Dept of State Dispatch, October 7 1991 at 750. This resolution became the basis of OAS actionin Haiti in late September 1991 and, earlier, in Peru. See OAS P.C Res 567, reprinted in Dept of StateDispatch, October 7 1991 at 750.‘ See generally Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States 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 of States”) Declaration on Principles of International LawConcerning Friendly Relations and Co-operation Among States in Accordance 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 or external affairs of any other state”)102which the UN seems ill-equipped to deal with, the role of regional organizations as a legalbasis for humanitarian intervention is likely to increase.Human Suffering as a Ground for UN JurisdictionWe have reached a state in the ethical and psychologicalevolution of Western civilization in which the massive anddeliberate violation of human rights will no longer be tolerated.Former UN Secretary General Perez de Cuellar, October 11,199148The UN Charter contains conflicting ideals and norms. On the one hand it affirms humanrights and self-determination, yet provides limited authority for actual enforcement of thesefundamental rights against a sovereign nation. Moreover, the UN cannot authorize the useof force to protect human rights unless there is a Security Council determination that theviolations amount to a threat to the peace. Without this determination, the Charter does notpermit military intervention for humanitarian purposes.The basic UN instruments on human rights are well documented and exhaustively discussedelsewhere.49 Some of the more prominent instruments include the Universal Declarationof Human Rights, the International Covenant on Economic, Social and Cultural Rights, theInternational Covenant on Civil and Political Rights, the International Convention on theElimination of all forms of Racial Discrimination, the Convention on the Prevention andSee Stephen S.Rosenfeld, AS Borders Come Down, The Washington Post, October 11 1991 A27For a complete documentation of the UN resolutions, declarations and conventions in this field seeL.Sohn and T. Buergenthal, 3 International Protection ofHuman Rights, Cases and Materials: Basic Documents(ed 1975) and the companion volume by the same authors, Basic Documents on International Protection ofHuman Rights (1973)103Punishment of Genocide, the Convention on the Political Rights of Women, and theDeclaration on the Granting of Independence to Colonial Countries and Peoples. Whilesome of these instruments provide for a limited degree of international surveillance, noneof them provide for actual collective or unilateral enforcement action. Thus, the SecurityCouncil’s role in the implementation of international human rights law, while important andnecessary, up until recently has been limited by significant legal shortcomings.Nevertheless, there are two ways in which violations of human rights fall outside the ban onintervention in Article 2(7) of the Charter. First by a Security Council determination of asituation which constitutes a threat to international peace and security; and second, by virtueof that particular state’s violations of international legal obligations in the field of humanrights. The principle of non-intervention in internal affairs would therefore be inapplicablewhere the Security Council has determined the matter is no longer one of internalconcern.50 In many contexts however, severe violations of human rights may be held toconstitute a threat to the peace, particularly in light of the growing internationalization ofhuman rights norms.51 In 1966 in the Rhodesian crisis, for example, the Security Councilrecognized that the human rights violations constituted a threat to international peace.52° See ‘Global Interdependence cited by Boutros Boutros Ghali’ The LA Times February 1 1992 at Al(stating that the Security Council leaders had announced that the international community cannot allow theprotection of human rights to stop at national frontiers and that the United Nations should discard theoutdated principle of non-intervention in domestic affairs)51 See generally, Lori F.Damrosch, Commentary on Collective Military Intervention to Enforce HumanRights, in Law and Force in the New International Order 215 (Damrosch and Scheffer eds. 1991) (maintainingthe view that when human rights violations constitute a threat to international peace and security, suchviolations override state sovereignty according to Article 2(7) and Article 39 of the UN Charter;) see alsoVladimir Kartashkin, Human Rights and Humanitarian Intervention, ibid at 202 (affirming that Chapter VIImeasures may be triggered because several international documents define international crimes asencompassing serious violations of human rights which jeopardize international peace and security.)52 See “Rhodesia and the United Nations:The Lawfulness of International concern,” supra note 7 (bothauthors contended that the domestic jurisdiction requirement was irrelevant as the Security Council haddeemed that the situation had escalated to a threat to international peace and security.104Human rights have become increasingly internationalized as states have undertakeninternational commitments to human rights, either by treaty or custom.53Until the Gulf War, the actions of the Security Council with regard to violations ofinternational human rights have been primarily of a declaratory and hortatory nature.Previously, the Council monitored developments in specific cases and even condemned them,but it did not resort to Chapter VII of the UN Charter until the invasion of Kuwait. UNSecurity Council Resolution 688 broke new ground by specifically stating that the repressionof the Kurdish people and the subsequent mass displacement of thousands of refugeesconstituted a threat to international peace and security.54 By linking human rights abuseswith threats to international peace and security, the UN Security Council created a newrationale for forcible humanitarian intervention. Although alleviation of human sufferingdoes not appear as an express purpose or principle in the UN Charter, it may be regardedas a variant of basic human rights, in particular the “right to life” or protection againstgenocide. This new legal basis, therefore, evolves from an interpretation of Article 2(7) toencompass matters that do not necessarily have transborder effects, yet clearly do not fallwithin a state’s domestic jurisdiction. There are, however inherent conceptual and politicaldifficulties involved with expanding the phrase “threats to international peace” to encompasshuman rights violations.It has been generally accepted among legal scholars that the term ‘human rights as embodied in theCharter includes the Universal Declaration of Human Rights and other significant human rights documentsin its definition.Resolution 688 states that the flow of refugees, “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 of International Law and Policy (1991)105For instance, the following year the Under-Secretary General for Legal Affairs took adifferent legal position and stated that: “[Tjhis episode illustrates quite clearly that theorganization cannot participate in humanitarian interventions that violate the territorialintegrity of a state unless they are mandated under Chapter VII...or all the parties to theconflict and the Security Council gives their consent to UN involvement.’Although the Security Council determined that the exodus of the Kurds posed a threat tointernational peace because of the international effects on neighbouring countries, the UN’sauthorization to intervene in Somalia less than two years later in the absence of any sucheffects would appear to render the concept of a threat to international peace almostmeaningless and has certainly undermined the legitimacy of the UN. A more credibleapproach would have been to interpret Article 2(7) as excluding serious violations of humanrights, allowing the UN to intervene on the basis of pure humanitarian concerns inaccordance with the purposes of the UN Charter.These conceptual problems may be resolved by formulating a new premise for humanitarianintervention on the basis that an abuse “shocks the conscience” of mankind. Thus, as analternative to the “threat to international peace” exception, another possible argument tojustify UN intervention on a firm legal basis could be to create a “human suffering”provision. This could allow the Security Council to authorize humanitarian interventionregardless of whether the situation posed a threat to international peace. Obviously such anapproach would demand intellectual integrity in identifying appropriate circumstances forCarl-August Fleischhauer (Under Secretary General for Legal Affairs and Legal Counsel of the UnitedNations), Proceedings of the 86th Annual Meeting of the American Society of International Law, WashingtonDC (April 4th, 1992)106intervention. The grounds for intervention could for instance, include genocide, large-scaleatrocities, natural and man-made disasters. This formulation may seem less rigid than thecriteria discussed above, yet may also appear too narrow in that it focuses only on the mostbarbaric acts of genocide. Although there are inherent weaknesses with the concept, it is auseful doctrine and should be further developed as a mechanism for overriding the defenceof sovereignty. International law should recognize mass human suffering in its own right asa legitimate argument against sovereignty.Creating a “pure humanitarian suffering” approach to humanitarian intervention would,however, require an amendment of the UN Charter which is unlikely to take place in theforeseeable future since there are a significant number of states which vehemently opposeany diminution of their sovereignty. The United Nations should, however, recognize thatdisplaced individuals persecuted by their own country are as much a matter of internationalconcern as refugees fleeing across borders.Codifying Humanitarian InterventionIt may be stated that the law governing humanitarian intervention is fast degenerating to thepoint where its normative value is, indeed, questionable. If this is the case, as indeed itappears to be, the most pressing task confronting international scholars is not only toreappraise the doctrine but to clarify various criteria to enable the international communityto judge when a humanitarian intervention should be authorized. As Professor John NortonMoore stated the problem “[S]urely the issue is whether we are able to develop a set ofcriteria for normative appraisal, so that we can determine when humanitarian intervention107is normatively permissable, and when it is not. That is, what kinds of governmental actions,in mistreating one’s own population or in intervening, should be impermissible.56The foregoing discussion has illustrated that there is no one coherent rationale that hasguided the international response in dealing with humanitarian crises nor is there a viableinternational mechanism which offers a suitable framework for decision-making and promptaction. Public outrage and moral arguments seem to be the only unifying theme that drawsattention to these crises, often coming too late. The UN seems to drift aimlessly from crisisto crisis despite the end of Cold War politics. Yet, ironically, there has never been a moreopportune time in international relations to reassess the doctrine of humanitarianintervention and formulate a coherent, consistent and humane system for dealing withvictims of human rights violations or internally displaced persons.The contradictory implications of the UN Charter concerning state sovereignty andinternational human rights, have thus far prevented any articulation of criteria for UNintervention in humanitarian crises. However, now that state sovereignty is no longer anabsolute legal fiction and the UN has become a more acceptable forum for internationalcooperation, the formulation of coherent criteria may not be quite so unobtainable as wasonce thought. For the UN to conduct a humanitarian intervention in a way that is widelyseen as legitimate, carefully drafted guidelines are needed. As one commentator urges [T]hespecific purposes of such intervention should be collectively discussed, approved andpromulgated in advance, and not simply offered by those who carry them out, ex post facto.56John Norton Moore, in R.Lillich, Humanitarian Intervention and the United Nations supra note 6 at p38108in embarrassed self-justification.”570nthe other hand, Cyrus Vance warns that “a decisionwhether and how to act in the cause of human rights is a matter for informed and carefuljudgement. No mechanistic formula produces an automatic answer.”58With these remarks in mind, it is nonetheless the contention of this paper that criteria mustbe developed for collective intervention under the auspices of the United Nations in disputesthat start as an internal war and spread to become one of international concern.Iri his lastannual “Report on the work of the organization”, former UN Secretary General Javier Perezde Cuellar called for reinterpretation of the Charter principles of sovereignty and nonintervention in domestic affairs to allow for intervention on humanitarian grounds, as wellas identification of the objective conditions under which it should be carried out.59Various criteria have been proposed by legal scholars to enable the legitimacy ofhumanitarian intervention to be evaluated.60 For instance, it has been suggested that theremust be an immediate and extensive threat to fundamental human rights; that the use offorce must be no more than proportional to the original threat; that no greater destructionmust result than would otherwise have been the case, and that prompt disengagement andSee Alan Henrikson, “How Can The Vision of a New World Order be Realized ?“ Fletcher Forum ofWorld Affairs, Winter 1992 63, 70 Henrikson favours criteria to circumscribe interventionist collective actionas well as to prescribe it.(”The UN Security Council may need, and indeed welcome, some restriction as wellas permission in this new area”) Id.58 See Cyrus R.Vance, “Law Day Address on Human Rights Policy,” University of Georgia School of Law.30 April 1977, quoted in Henrikson, ibid at 71UN Doe. A/46/1, September 6, 1991, pp10-160See generally Larry Minear, Thomas G.Weiss and Kurt.M.Campbell “Humanitarianism and War:Learningthe Lessons from Recent Armed Conflicts” Occasional Paper, 1991, no 8 (Thomas J.Watson,Jr) for adiscussion of the criteria to be employed in humanitarian crises. The authors cite for example the number ofpersons affected; the immediacy and severity of the threat to life; substantial flow of refugees or displacedpersons; a pattern of significant human rights abuses; and the inability or unwillingness of the government tocope with the crisis.109immediate reporting to the Security Council must follow. Other criteria that have beenstressed by adherents to the doctrine are the lack or exhaustion of other means of recourse,and the relative disinterestedness of the state taking the coercive remedial action.6’Lillich enumerates five similar conditions that would validate humanitarianintervention:immediacy of violation of human rights; extent of violation of human rights;invitation to use forcible self-help; degree of coercive measures employed (ie,proportionality)and relative disinterestness of the acting states.62 Moore proposes five qualifications: animmediate and extensive threat to fundamental human rights, particulary a threat ofwidespread loss of human life; a proportional use of force which does not threaten greaterdestruction of values than the human rights at stake; a minimal effect on authoritystructures; a prompt disengagement consistent with the purpose of the action; andimmediate full reporting to the Security Council and appropriate regional organizations.63Another commentator suggested that in order to justify a humanitarian intervention, thehuman rights abuses must be systematic, widespread and pervasive,64 or that the violationsmust be persistent.65Although the definition of “extreme” or “gross” violations of human rights is admittedly fluid,61 See H.Scott Fairley, “State Actors, Humanitarian Intervention and International Law”:ReopeningPandora’s Box,” 10 Georgia Journal of International and Comparative Law.62 Lillich, “Forcible Self-Help” Iowa Law Review,p347-51;63 John Norton Moore, “Control of Foreign Intervention in Internal Conflict,” 9 Virgina Journal ofInternational Law 1969 p205 at pp338Fernando Teson Humanitarian Intervention: an inquiry into law and morality (TransnationalPublishers)( 1988)11765 Ellery Stowell Intervention in International Law (1921) 53110attempting to define each and every example of human rights violation in legal discourse ispractically impossible. But it is useful to recall that this thesis argues not necessarily forsubstantially more frequent uses of the doctrine of humanitarian intervention. Rather, thisthesis argues for clarifying or expanding the definition of gross human rights violations sothat the UN is not discouraged from taking action arguably in violation of internationalprinciples. The distinction is crucial for the contemporary legitimacy of the doctrine in thiscontext.From a practical perspective, states generally agree that only the most severe cases justifyarmed intervention. How does one then determine what is meant by severity ? At oneextreme, intervention would be permissable only in situations where genocide has eitheroccurred or is imminent, and, at the other, intervention would be allowed whenever a basiccivil or political right is violated.Predictably, there are strong opinions against codifying the concept of humanitarianintervention.66The case against too broad an application of humanitarian intervention maybe acutely summarized as follows. Even if the right to intervention is restricted to instancesof mass flight, intervention may take place in countries on the pretext that peace andsecurity of neighbouring states is threatened. The argument continues that codification wouldlead to further abuse as states could base their actions on interpretations of legal provisions.rather than mere rhetorical statements. Some commentators believe that any codified lawwould merely serve power politics and international law would no longer protect the weakSee T.M.Franck and Nigel.S.Rodley ‘After Bangladesh:The Law of Humanitarian 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.67 It follows that whatever objective conditions are identified, it would stillbe impossible to distinguish between action based on purely humanitarian grounds andulterior motives of self-interest. Furthermore, the value of codification would be minimalbecause the international legal system allows for mitigating circumstances as it is. Theprohibition on the use of force and intervention under Article 2(4) is fragile enough and sooften breached that codification of yet another exception would only erode it further.68How would the UN differentiate a case which alleges 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 sufficiently tested in history precisely because therehas been an absence of identifiable objective criteria. Rather than act as a fig-leaf for powerpolitics, clearly defined parameters would inhibit states from characterizing their abusiveactions as humanitarian-driven. Furthermore, as with any law, although it is an old adagecodification would surely restrict abuse and not just affirm acceptable conduct. Clarificationof the doctrine of humanitarian intervention in legal terms would act as a deterrent againstfurther humanitarian crises.69A James Anderson concludes “[S]o long as the United67J.ChOpra and T.Weiss, “Sovereignty is No Longer Sacrosanct” Ethics and International Affairs, 1992 Vol6 at 99Ibid at 100Professor Wright argues that a legal right of humanitarian intervention would decrease the number ofhuman rights violations because the fear of intervention would deter states from committing such abuses. SeeR.George Wright, ‘A Contemporary Theory of Humanitarian Intervention,” 4 Florida International LawJournal 435 (1989) Professor Wright states that “[A] broader theory of justified humanitarian intervention,to the extent that it tends to enhance either the probability of the severity of sanctions imposed on inhumanegovernments, may well reduce the incidence of human rights violations through a classic deterrence effect.’He goes on to say that “[LjegaLizing the doctrine of humanitarian intervention would lead to a strengtheningof all international laws because it promotes the respect for basic moral values.” Id at 454. “IHiumanitarian112Nations lacks carefully crafted guidelines, future intervention under its auspices will rely onad hoc justifications. Further, if the past is any indication of the future, stronger states willhave a disproportionate influence in determining the nature and scope of theseinterventions; an outcome at odds with hopes for a more equitable world order.”7°Certain qualifications are nevertheless warranted. For instance, the intervention must benecessary, proportionate and strictly limited to its humanitarian purposes.71A Falk hasreiterated: u[Fllumanitarian intervention as distinct from war, seems to me to have somethingto do with the specificity of the objective and with its limitations on magnitude and durationof the undertaking.’72 For example, an intervention under the guise of humanitarianmotivations to overthrow a government would not be legal. This approach preserves the truehumanitarian nature of the intervention and discourages the use of force as a pretext forpolitical interference. Intervention could, for instance, be warranted in instances of genocide.Arguably, the legal basis for forcible humanitarian intervention in crises arising from the actof genocide is already established by the Genocide Convention. The 1948 Convention on thePrevention and Punishment of the Crime of Genocide defines genocide as “[Ajcts of killing,serious bodily or mental harm, prevention of births; forcible transfer of children or deliberateintervention may...contribute to the sense of the basic equitableness of the system of laws in such a way as tostrengthen the system of laws on balance.” Id at 455 Although his remarks refer primarily to unilateralintervention, they equally apply to collective humanitarian intervention in this context.70James Anderson “New World Order and State Sovereignty:Implications for UN-sponsored Intervention”Fletcher Forum of World Affairs Summer 1992 at 135. Anderson favours amendmeni of the UN Charter toallow for UN intervention on the grounds of human suffering.‘ For a definition of a threshold below which humanitarian intervention might be triggered, see TheodorMeron and Allan Rosas “A Declaration of Minimum Humanitarian Standards,” 85 American Journal ofInternational Law (1991) pp375-81Falk in Lillich, supra note 4 at p27113infliction of conditions of life calculated to bring about the physical destruction of a group,if those acts are “committed with intent to destroy, in whole or in part, a national, ethnical,racial or religious group.”73It follows that the UN would be able to authorize a forcible intervention under Article VIIIof the Convention which provides that: “Any Contracting Party may call upon the competentorgans of the United Nations to take such action under the Charter of the United Nationsas they consider appropriate for the prevention and suppression of acts of genocide or anyof the other acts enumerated in article Ill.”Then there is always the consideration of whether a government should risk the lives of itsown citizens to achieve a temporary cessation of a slaughter which is likely to he renewed.In cases where humanitarian intervention is likely to be attempted, international lawyers andlegal scholars must take into consideration the political context within which thehumanitarian intervention is be to conducted. When contemplating UN action to protecthuman rights, the issue is not so much the legal authority of the United Nations to act, butrather whether there will be sufficient political consensus among Security Council membersin favour of action and whether agreement can be reached on the goals of such an action.Realism dictates that a state will always have more than one motivation for taking action inThe 1948 Convention on the Prevention and Punishment of the Crime of Genocide, UN Res 260 A (111),arts I,IV,V,VI,VIII, December 9, 1948. The Convention has attained the status of a jus cogens norm ofinternational law and is generally accepted to be a crime against the international community.74Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, Article VIII,78 UNTS 277114any situation.75 An altruistic humanitarian intervention is probably out of the question intoday’s international society as a state will invariably have motives apart from humanitarianconcerns for intervening.76As asserted previously in this paper the right to intervene must be based on multinational,not unilateral action, under the legal authority of the United Nations. Furthermore, the rightof humanitarian intervention must be based on the need to protect the rights of individualsand not just on the moral obligation to protect minorities who have begun to leave en 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 on objective, predetermined factors would remove the“ad hoc” nature of current UN policy and ensure that all victims of human rights violationswould at least receive attention from the international community and possibly militaryassistance. International humanitarian aid should be provided on an equitable basis to geopolitically “insignificant” countries and resource-rich industrialized countries. Although these“guidelines” could also include cases of civil war where an outside power attempts to tip the75See Faroq Hassan “Realpolitik in International Law: After Tanzian-Uganda Conflict HumanitarianIntervention” Reexamined, 17 Willamette Law Review 859 (1981) Professor Hassan concludes that thenecessity for complete indifference before allowing humanitarian intervention is naive and absurd, andconcludes that “if the predominant motive for the aggression is humanitarian, a limited degree of nationalinterest should not conclusively preclude its validity.”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 the protection of human rights”.) See also Wright, supra note69 at 460 (“To insist on purity of motive is realistically, to essentially abolish the legal doctrine ofhumanitarian intervention”) Bazyler, “The Doctrine of Humanitarian Intervention following the Atrocities inEthiopia and Kampuchea” Stanford Journal of International Law 1987, 547.(”...states will rarely interveneunless they have other interests in addition to the humanitarian intervention.” Id at 601-602115scales in its favour or secessionist movements that embody aspirations to self-determination,the focus here is on humanitarian issues in keeping with the central hypothesis of this thesis.While every effort should be made to use non-forcible measures such as, “inter alia”,diplomatic persuasion, arms embargoes and negotiation of relief corridors and cease-firezones, the target-state should be made aware that if it does not comply with the will of theinternational community, further forcible measures will be taken.77The above observations must, however, be tempered by recognition of the inherent practicaldifficulties associated with the new ideas and practices of humanitarian intervention.Humanitarian intervention, even where justifiable, can never be a credible replacement fora well thought out policy to solve the underlying causes of the crisis. Nonetheless, anintervention limited to the provision of humanitarian aid raises ethical questions concerningthe ultimate objective. Keeping victims alive in Bosnia in the interim without reallyaddressing the root causes of the conflict is morally indefensible. As Tom Farer advocates“[r]escue, if there is to be any, will require elimination of the threat at its source.. .There mustin other words, be direct and sustained involvement in the political process of the targetstate.”78The approach of the international community in the former Yugoslavia and Somalia, forinstance, largely ignores the issues at the root of the conflict and also leaves less puhlicizeddisasters untouched such as Angola and Rwanda. More often than not, self-interest andpolitical opportunism remain key factors in how nations behave in the international arenaand explain why humanitarian action is favoured in some crises and not in others. Moreover,See James Anderson, supra note 70 at 13778 Tom Farer ‘Intervention in Civil Wars: A modest proposal 67 Columbia Law Review (1967) 266116binding international legal instruments have not been formulated to keep up with emergingethics in international law, such as the right to receive international emergencyassistance.79Formulating criteria for humanitarian interventions should therefore be put atthe top of the global agenda.ConclusionsThe discussion so far has illustrated some of the conceptual difficulties inherent in anenquiry into the UN’s jurisdictional competence in internal affairs. In large measure, thelegal basis for this resurgence in UN intervention has always been present in the UNCharter. Consent, elimination of threats to international peace and security, and cooperationwith regional organizations are themselves traditional sources of UN authority. However,emerging norms from recent UN practice in Northern Iraq, Somalia, and Bosnia shed newlight on terms such as “threat to international peace” which would now appear to encompasshuman suffering without discernable international effects. The requirement of consent hasalso become more nuanced in recent times. The upshot of this is an expanded UN authorityto make executive decisions over the governance of states, which was probably unforseen bythe founders in 1945. The quest for a law of humanitarian intervention is clearly not an easytask. Expanding the scope of the doctrine of humanitarian intervention is not completelydevoid of possible abuse. Nevertheless, some risks are worth taking in view of their valuedends. Expanding the definition to include abuses which “shock mankind” is not only morallyadvantageous but is also attractive in terms of its practical benefits for deciding when tointervene. To reduce the danger of abuse, the best way would be to restrict humanitarianintervention to collective action in either Chapter VII of the UN Charter, or preferably onSee T.Weiss and Larry Minear, “Do International Ethics Matter ?“ Humanitarian Politics in the Sudan”Ethics and International Affairs, Vol 5, 1991 p197-214117the basis of a new provision of “human suffering.” Unfortunately, the contradictoryimplications concerning inviolable state sovereignty and universal human rights haveprecluded the formulation of coherent criteria to date. That is, however, no excuse forinaction now. If the United Nations does eventually articulate intervention criteria, it mustensure the criteria are not too narrow or too elastic; overly rigid requirements tend to justifyinaction whereas criteria that are too elastic are susceptible to abuse. Yet it is crucial thatany criteria that are formulated preserve the United Nations’ scope for political manoeuvre.It is imperative that the Security Council has a range of policy options with forcibleintervention as a last resort. Finally, the criteria must be drawn up in lucid language to avoidany interpretational difficulties which are often encountered with international agreements.The formulation of any criteria for intervention in a humanitarian crisis will undoubtedly bea long arduous process, requiring considerable energy and long-term commitment from theinternational community. Should agreement on any criteria continue to prove elusive,sustained attention on the moral attractions of the doctrine of humanitarian intervention willcontribute to future discussions and hopefully pave the way for consensus at some point inthe coming years.118Part Three. OPERATIONAL ASPECTS OF UN HUMANITARIAN INTERVENTIONSThe dilemma confronting all hopes of peaceful international change and settlementis that there can be no change and no settlement, not even peacefully, so long 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 of PeaceAs the foregoing discussion illustrates, it is no longer tenable to assert 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 in solvinghumanitarian crises, the use of UN forces to support humanitarian objectives raises 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 concept ofcollective security. Indeed, the present conceptual debate concerning the permissibility ofhumanitarian intervention, and on what grounds, is arguably a red herring for it ignores theimmediate practical concern for adequate measures to prohibit states from invoking humanitarianissues as a pretext for political self-interests. Even supposing the ideological debate about thesanctity of the right of the international community were to be unequivocally resolved in favourof the doctrine of humanitarian intervention, operational capabilities would still be lacking 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 of drafting legal precepts controlling the use of forcebut one of devising international institutions through which the 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 of this thesis therefore seeks to establish how the UNcan conduct humanitarian military interventions in the 1990’s. It should 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 used itdoes not purport to encompass traditional peacekeeping tasks such as election-monitoring andsupervisory 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 same journalistic trap. Referenceis therefore made to “UN forces” instead of peacekeepers to avoid any 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 UN peacekeepingis only addressed to the extent that it impinges directly on the future direction of UN operations.I Jennings,’General Course on Principles of International Law’ Recueil Des Coeurs, 325, 584 (1967)120While clearly central to the future of peacekeeping in humanitarian crises, the UN’s financialcrisis 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 taken seriously as a legal basis forinternational control of internal conflict. Under Chapter VII of the Charter, the UN hasconsiderable authority to seize jurisdiction in an internal conflict. Should the UN SecurityCouncil determine that a threat to the peace, breach of the peace or 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 empowers the Security Council to ‘takesuch action by air, sea, or land forces as may be necessary to restore international peace andsecurity” •2 Article 45 provides that airforce units be made available to the Security Council bythe member states3 whereas Article 43 enables the UN to obtain military forces from themember states. Article 43 is therefore essential to the entire system of collective security underthe UN Charter because it provides the main constitutional basis for UN military forces.4Article 43 calls on the member states of the UN to make available to the Security Council the2 Article 42 reads in pertinent part: “Should the Security Council consider that measures provided for in Article41 would be inadequate..., it may take action by air, sea or land forces as may be necessary to maintain or restoreinternational peace and security.’ UN Charter Article 42.Article 45 orders member states to “hold immediately available 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 of UN air corps: “When this war comes to an end, the UN will have suchan overwhelming superiority in air power that we shall be able to “bomb the aggressor nations mercilessly until theyceased fighting.” quoted in Law and Force in the New International Order. (Lori F. Damrosch and David i.Scheffer eds., 199 1)[hereinafter Law and Force]“Constitutional authority” means the legal authorization under the UN Charter to take action to maintaininternational peace and security. It is now commonplace to speak of the constitutional law of the United Nations121armed forces necessary for the maintenance of international peace and security. Under Article43, each member state would sign an agreement with the Security Council. This Article 43agreement would govern the provision of armed forces by member states to the Security Councilby requiring the member state to “earmark” a certain number and type of its own troops forfuture UN service. By signing an Article 43 special agreement, a member state would assumea legal obligation to provided military forces to the Security Council. Article 43 thereforeestablishes the overall framework and governing rules for all military forces contributed bymember states. It was envisaged that these military contingents would serve under the directionof a Military Staff Committee, which would be comprised of representatives of the permanentfive and would advise the Security Council on the strategic direction of military operations.5Almost immediately from the date of its inception Article 43 was greeted with great distrust.6The political antagonisms of the Cold War made implementation of any agreements under Article43 an unrealistic goal.7The Russians were particulary hostile to a standing UN force underArticle 43 whereas the West preferred to concentrate its attention on the creation of forces forNATO.UN Charter Articles 46-47. “Plans for the application of armed force shall be made by the Security Councilwith the assistance of the Military Staff Committee.” UN Charter Article 46. The MSC has never played aninstrumental role in any UN conflict since its inception nor has it ever been formally disbanded. Interestingly, inthe early stages of the Gulf crisis, prior to the resignation of Eduard Scheverdnardze as Soviet Foreign Minister.the USSR urged that a role be given to the MSC. For a discussion of the potential role of the MSC see Ralph M.Goldman “Is it time to revive the UN Military Staff Committee?” (1990)6 On April 30th, 1947 the UN MSC issued a report to the Security Council in which it set forth generalprinciples for implementing a UN force under Article 43. Although the Security Council provisionally adopted manyof the articles, the five permanent members failed to agree on many aspects of the composition and organizationof armed forces that would be committed under the agreements: problems that would likely be encountered today -see Report from the MSC to the President of the Security Council, Yearbook of the UN, 1945 at 403,To this date, no UN member state has signed an Article 43 special agreement with the UN, despite the factthat the text of Article 43 asks member states to sign such special agreements “as soon as possible.” UN CharterArticle 43.122Because of the failure to reach agreement on creating Article 43 forces, the emphasis shiftedfrom enforcement to peacekeeping. United Nations peacekeeping thus arose out of the need toseek an alternative method of restoring international peace and security and is conceptuallydistinct from the Security Council’s limited power to recommend enforcement action underArticle 39 of the Charter. Although it is common knowledge that neither the Charter of the UNnor the travaux preparatoires of the San Francisco Conference contemplate the creation ofpeacekeeping operations, it is possible to conclude that the peacekeeping forces have generallyacquired universal acceptance in the international community.8It would seem almost paradoxical to state, therefore, that peacekeeping is not defined orprescribed in the UN Charter. Instead, peacekeeping is an instrument that has largely been usedin situations where application of Chapter VI of the Charter has either been inadequate orutilization of Chapter VII is impossible, leading to the conclusion by former UN SecretaryGeneral Dag Hammarskjold that peacekeeping was based on Chapter “six and a half”.There is, however, no internationally agreed definition of peacekeeping. This is due largely tothe lack of a clear international constitutional basis for peacekeeping in the UN Charter, whichmakes a consensus definition difficult. The present Under-Secretary General of the Departmentof Peacekeeping Operation, Marrack Goulding has, however, formulated a coherent andworkable definition: “[U]nited Nations field operations in which international personnel civilianand/or military, are deployed with the consent of the parties and under UN command to help8This was not always the case. China and the Former USSR have traditionally been opposed to the concept ofpeacekeeping. See The Certain Expenses Case, ICJ, Opinion of ONUC 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 of Soviet Policy.; See generally Semenov, ‘The Charter of the UN and theQuestion of Peacekeeping Operations,” Soviet Yearbook of International Law, 1968 at 64.123control and resolve actual or potential international conflicts or internal conflicts which haveobvious international dimension.”9The question of the constitutionality of UN peacekeeping forces was, however, settled in theAdvisory Opinion of the International Court of Justice on the Certain Expenses of the UnitedNations which may be cited in support of this position. The court concluded that as “theoperations were undertaken to fulfil a prime purposes of the 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.’°Peacekeeping operations have, therefore,occupied a useful niche in the international security system in the absence of Article 43agreements.The original functioning of peacekeeping was the monitoring by UN military observers of trucesand cease-fire agreements. “The Suez crisis of 1956 however, prompted the introduction ofactual forces for peacekeeping missions. The very first UN force (UNEF) was designed to fulfilthe simplest of peacekeeping functions, interposition by separating the fighting parties and9Marrack Gouldmg, “The Changing Role of the United Nations in Conflict Resolution 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 party intervention where the practitioner remains whollyimpartial and uninvolved in the dispute of the parties concerned where its term of reference are funded onnegotiation and mediation and not on enforcement action” UN Peacekeeping.Past Lessons and Future Prospects”David Davies Memorial Institute of International Studies, 25th November 1971.‘° Certain Expenses of the United Nations Case, I. C.J Reports, 1962, p151UNTSO (Middle East) UNMOGIP (Kashmir) were established 1948 as peace “observation” missions and thuscan be distinguished from the peacekeeping force that was deployed in the Suez crisis. See text above. Recentobserver missions have been deployed to areas such as the border between Iran and Iraq (UNIIMOG) and CentralAmerica (ONUCA). For an overview of UN Peacekeeping and an evaluation of the UN operation in the Lebanon(UNOGIL) see Ivan Pogany “Evaluation of UN Peacekeeping” British Yearbook of International Law (1987) E. Suy“Legal Aspects of UN Peacekeeping Operations” Netherlands International Law Review 1988 pp318-20N.Sybesma-Knol “UN Peacekeeping: Why Not?” Netherlands International Law Review 1988 pp32l-327; For anexcellent insight into earlier UN experiences with peacekeeping, see R.Russell, “United Nations Experience withMilitary Forces:Political and Legal Aspects,” Brookings Staff Paper, August 1964.124providing buffer zones. Thus, through improvisation over the years, “peacekeeping” has beenused to investigate and report on volatile situations, to monitor truces and ceasefi res, to verifycompliance with agreements, to establish buffer zones and more recently, to protect aid workersin the provision of humanitarian assistance to civilians caught up in civil war.Over the years, a number of interconnected and essential basic norms have evolved forpeacekeeping operations -(i) the consent of the parties involved in the conflict to the establishment of the operation, otits mandate, to its composition and to its appointed commanding officer;(ii) the continuing and strong support of the operation by the mandating authority, the SecurityCouncil;(iii) a clear and practicable mandate;(iv) the non-use of force except in the last resort in self-defense (self-defense in this context,however includes resistance to attempts by forceful means to prevent the peacekeepers fromdischarging their duties)(v) the willingness of troop-contributing countries to provide adequate numbers of capablemilitary personnel and to accept the degree of risk which the mandate and the situation demand;(vi) the willingness of the member states to make available the 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 for Peace Resolution of 3 November, 1950 may immediately‘2See Brian Urquhart “The Sheriff’s Posse” Survival May/June 1990 No.3 Vol XXXIII p200125consider the matter and make recommendations for collective measures, including, if necessary,the use of armed forces.’3The first ever UN Peacekeeping force - the United Nations Emergency Force (UNEF)- deployedto diffuse the Suez crisis in 1956 was created by a General Assembly resolution, the directinvolvement of two of the permanent members of the Security Council (France and Britain)resulting in vetoes which rendered the Security Council impotent. UNEF established the legalprinciples of UN peacekeeping operations which have since become the hallmark of allsubsequent operations. Nevertheless, by the late 1970’s the effect of the Cold War onpeacekeeping became so debilitating that no UN peacekeeping force was authorized by theUnited Nations between 1978 and 1988, when UNIFIL was emplaced and the UN TransitionGroup in Namibia (UNTAG) was created on paper.The revival of UN forcesPeacekeeping operations prior to 1992 were little more than extensions of previous efforts, withthe obvious exception of the force in the Congo. Although they demanded new 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 by the principal parties involvedand the continuous political support of the Security Council.13 Res.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 of International Law Supp 11951. It does not seem necessary to discusshere all the problems raised by the Uniting for Peace Resolution, as only some of its provisions are relevant to thesubject of this paper. For a discussion of these problems see J.Andrassy ‘Uniting for Peace” 50 American Journalof International Law 563-582 (1956); Ruth B. Russell, supra note 11 pp9-lO, p19-21.126Since 1988 over 14 new peacekeeping operations have been established, the number of UNsoldiers increasing four-fold in the first half of 1992.14 Some of these operations involvetraditional, largely military type activities such as the military observers deployed to the borderbetween Iraq and Kuwait while others demand new tasks. Recent operations have been set upto help implement negotiated cease-fires between warring factions in Namibia, Angola,Cambodia, El Salvador and Mozambique. The former Yugoslavia has become the UN’s largestpeacekeeping commitment to date and has far-reaching implications for the way in which UNpeacekeeping operations are organized and conducted in the future. The US-led operation inSomalia for example, flies directly in the face of established practices of UN peacekeeping, bywhich only minimal force is used in self-defence. Both operations have added a new dimensionto the task of peacekeeping in the 1990’s: the protection of the delivery of humanitarian suppliesto civilians caught up in a civil war.As the Secretary General Boutros Boutros Ghali stated: “[t]he 1990’s have given peacekeepinganother new task:the protection of the delivery of humanitarian supplies to civilians caught upin a continuing conflict. ..“ He then went on to say that more force may have to be used in theformer Yugoslavia “if the United Nations is to assert the Security Council’s authority...”5Traditional peacekeeping forces simply cannot deal with the demands of intrastate violence andthe humanitarian crises that arise from them.’6 Many of the peacekeeping operations deployedDr Boutros- Boutros Ghali “Empowering the United Nations” Foreign Affairs, 72:5 Winter 1992/93, p91IbidThe United Nations has been swamped by recent requests for peace-keeping operations to suppress civil strife.Rwanda is the latest casualty of the UN’s recent approach to limited intervention. See Colum Lynch,“Overstretched’-UN lacks Will, Funds to Intervene, Official says,” The Boston Globe November 7 1993 (notingthat the Under-Secretary General admits that the UN is overwhelmed by requests for aid); Gretchen Lang, ‘Rwandain Grip of Fear After Failed Coup:Thousands Die in Ethnic Strife as Others Flee Country; Officials are in Hiding’127between 1989 and 1992 were too small, too slow and ill-equipped for the task.’7 As a result,UN troops in Bosnia have been unable to achieve their goal and instead have become embroiledin a situation where violence continues unabated around them.18 The experience of UNoperations since and indeed, the principle military 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 operations is unsatisfactory. Up untilrecently, the conceptual distinction between peacekeeping on the one hand and enforcementaction under Chapter VII of the Charter on the other, has been strictly maintained, with thepartial exception of Katanga. Recent operations have, however, moved the whole concept ofpeacekeeping into the grey area of peace enforcement without actually defining the exact legalprovision on which these operations are based. Reporting to the Security Council in lateNovember 1992, the Secretary General noted that in protecting the delivery of humanitariansupplies, UN troops were “pioneering a new dimension of UN peacekeeping” but added that thisdid not require a “revision of the peacekeeping rules of engagement.”9The Boston Globe November 7, 1993 (noting that the situation in Rwanda and neighbouring Burundi is characterizedby an exiled democratic leader, ethnic cleansing and fleeing refugees); see also UN Doc Sf26631, 25th October1993 and UN Doe A/48fL.16, 2 November 199317 See 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; Lynda Hossie “UN in Tatters, peace by bitter peace” TheGlobe and Mail, Tuesday June 8th 1993s See “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 the war); 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 at worst doing more harm than good)19 Further Report of the Secretary General Pursuant to Security Council Resolution 743 (1992) Sf24848 24thNovember 1992 p16128Moreover, the current crises in Somalia and Bosnia have fundamentally redrawn the parametersof UN peacekeeping. It would appear to be insufficient for peacekeepers to merely implementagreements or separate antagonists. The international community is now demanding that the UNdemarcate boundaries, disarm warring factions and guarantee the delivery of humanitarian aidin war zones with or without the consent of the parties to the conflict. These are clearly tasksthat call for more powerful peacekeepers to actually enforce the peace as opposed to the lesstangible tasks previously sought in the past.2°Accordingly, there is a growing body of opinion which supports the view that UN peacekeepersshould be able to use armed force in contradiction to their basic character to implement theirmandate. The rationale behind these proposals is largely in response to the growing frustrationsover the inadequacies of current UN peacekeeping operations. The UN operation in Bosnia forinstance, has been a classic case of how not to do it. The Secretary General’s special mediatorinsisted from the start that a cease-fire be in place before deploying peacekeeping forces whichallowed extremists on both sides to delay UN action by violating successive ceasefires. Inaddition, by requiring that the two sides agree where peacekeeping forces would be deployed,the UN forced them to bargain on the central issue of borders even as combat continued. Thisassured that the conflict would drag on until a military stalemate emerged. By early 1993,however, the UN and its member states belatedly began to acknowledge that not all parties wereable or willing to agree fully to a peace plan and to keep their military forces and factions undercontrol. Consequently, UN discussions began to focus on a “peace-enforcement” unit of UNforces that would go beyond the traditional UN peacekeeping role and be empowered to use20John Mackinlay, Powerful Peacekeepers” Survival, No. 3 Vol XXXIII May/June 1990129preemptive force to prevent outbreaks of violence. This was largely in response to fiercecriticism on the ground of the mandate of the UN peacekeepers. One French GeneralCommander compared the UN force to a “goat tethered to a fence” while another declared that“there is a fantastic gap between the resolutions of the Security Council, the will to execute thoseresolutions and the means available to commanders.”21Notwithstanding these criticisms, by allowing so-called peacekeepers to use force to protecthumanitarian relief ignores the fundamental premise on which peacekeeping was based andmoves the whole concept of UN peacekeeping into the murky waters of peace-enforcement, anarea hitherto unchartered by the United Nations. This section of the thesis, accordingly, takesthe view that UN peacekeeping operations can be sufficiently strengthened without modifyingtheir basic principles. It will, therefore, examine the concepts of peacekeeping and peace-enforcement in the light of recent crises in Bosnia and Somalia. The hypothesis this section seeksto illustrate is that peacekeeping is an inappropriate instrument of policy for dealing with internalethnic warfare of the kind we are witnessing in Bosnia. It would almost seem pointless toreiterate the fact that not only are peacekeeping and peace-enforcement, legally distinct conceptsunder the UN Charter, they also perform entirely separate functions. Instead of theorizing overwhether or not to arm peacekeepers, it is asserted that the UN should concentrate its efforts oncreating a credible international enforcement mechanism under Article 43 of the UN Charter todeal specifically with humanitarian crises in which there is no peace to keep. A peacekeepingforce should only be deployed in a conflict where there is an agreed ceasefire already in place.Only when the Security Council has determined that the chances of achieving a ceasefire areSee Roger Cohen “Dispute Grows Over UN’s Troops in Bosnia” The New York Times, January 19th 1994130small and the situation warrants the use of force, would Chapter VII enforcement measures beactivated and a UN peace-enforcement deployed under Article 43. This “two-tier” approachwould remove the conceptual and legal ambiguities of current peacekeeping operations, therebyrestoring the credibility of the United Nations.The practical advantages of this approach are also enormous. UN peacekeepers would beretained for use in traditional peacekeeping situations such as monitoring ceasefires and verifyingcompliance with agreements, whereas a UN peace-enforcement army would have the militarycapability to implement Security Council resolutions on the ground. Such a force could havebeen deployed in Bosnia to break the Serbian stranglehold of Sarajevo and ensure the safedelivery of humanitarian aid. Thus, the question of the legal basis for United Nations armedforces is not only of conceptual importance but also of immense practical significance for thefuture effectiveness of the world organization in keeping the peace.It would be instructive to articulate some of the traditional norms of peacekeeping to demonstratehow certain principles have become contentious in the light of recent peacekeeping operations.Traditional Norms of UN Peacekeeping(i) The non-use of forceThe essence of peacekeeping is the use of soldiers as the catalyst for peace ratherthan as the instruments of war.22The principle of the non-use of force was established by Secretary General Dag Hammarskj old22 Brian Urquhart, “The Future of UN Peacekeeping” Netherlands International Law Review, 1989, p52131when he created the first UN peacekeeping force in 1956 (UNEF) to contain the Suez crisis.23The principle centred around the former Canadian Prime Minister, Lester.B.Pearson’s personalphilosophy of peace and also the recognition that the UN Charter did not permit the use of forceunless there was a Security Council determination under either Article 39 or Article 51 whichpermits individual or collective self-defence.24 UNEF was accordingly based 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 in the case of UNEF,where the rule is applied that men engaged in the operation may never take theinitiative in the use of armed force, but are entitled to respond with force to anattack with arms, including attempts to use force to make them withdraw frompositions which they occupy under orders from the Commander, acting under theauthority of the Assembly and within the scope of its resolutions.25The principle of the non-use of force for UN peacekeepers is accordingly based on practical aswell as idealistic considerations.26 The rationale behind this principle is that the parties231t was, however, Lester B.Pearson that received the Nobel Peace Prize in recognition of his efforts in UNPeacekeeping. For a full account of UNEF, see Gabriella Rosner, The United Nations Emergency Force (1963)MAccording to Hammarskjold, the functions of the force would be “when a ceasefire is being established, toenter Egyptian territory with the consent of the Egyptian government, in order to maintain quiet during and afterthe withdrawal of non-Egyptian troops and to secure compliance with the other terms established in the resolutionof November 2, 1956. The force obviously should have no rights other than those necessary for the execution ofits function, in cooperation with local authorities. It would be more than 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 conditions on the assumption that the Parties to the conflicttake all necessary steps for compliance with the recommendations of the General Assembly. UN GA Doc A/3302p21. It was on the basis of this report from the Secretary General that UNEF was established - Res 1001, GAOR,November 71956, Document A13308. The right to use force later became a bitterly contested issue between the UNSecretary General, Egypt and Israel. See General Bums, Lt Gen 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 of Force” International Peace Academy, Occasional PaperSeries, (1992).132concerned, by consenting to a UN peacekeeping operation, undertake to cooperate with the UNforce and honour certain commitments. Any subsequent problems between the UN peacekeepingforce and one of the host-factions can be resolved by diplomatic negotiation and suasion; the useof force therefore becomes not only unnecessary but counterproductive. As Professor Goodrichhas correctly pointed out:peacekeeping operations have invariably been undertaken, not for the purpose ofinfluencing the conduct of states by coercive methods, but rather to assist in theimplementation of agreements already reached and incidental thereto, to performsuch functions as observe, report and assist in the settlement of minor differencesand perform local police functions and in general to do those things that arethought to contribute to the ultimate goal of peaceful settlement or adjustment.27Consequently, it is thought the parties to a conflict will be more amenable to the interjection ofa UN force if it is perceived to be impartial and non-combatant. In theory, therefore, thisprinciple is deceivingly simple. However, it encountered considerable practical difficulties in theCongo.(a) The Congo CrisisOn June 30, 1960, the Congo gained independence from Belgium. Within two weeks, theCongolese army had begun to rebel, and the Katanga province declared its secession. At theurgent request of the Congolese government, the UN Security Council met to discuss the crisisand less than two months later, UN troops numbering 23,000 (ONUC) arrived in the Congo.2827 Goodrich, The UN in a Changing World, (New York) 1974 at 149-150; See also Ruth Russell, supra note11 at 6-722ONUC was deployed in response to a request by President Joseph Kasavubu of 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 to withdraw and authorized the Secretary General to Lake thenecessary steps” to assist the Congolese military in dealing with the crisis; Security Council Res 143 (1960) Foran analysis of the legal issues in the Congo See E.M.Miller, “Legal Aspects of the Congo Crisis American Journalof International Law 1971; King Gordon, The UN in the Congo: A Quest for Peace (1962), Catherine Hoskyns, TheCongo: A Chronology of Events, Jan 1960-Dec (1961) which contains documentary appendices.133During most of its four year operation, operating in a complex internal crisis, the principle ofnon-use of force proved an exceptionally elusive norm to follow. Initially, the Secretary Generalarticulated the non-use of force except in the last resort in his first report on ONUC, whichspecified that UN peacekeepers could not use force on their own initiative but only in responseto an “attack with arms” in other words, deadly force.29 Thus, if a UN soldier was subjectedto actual gunfire he could legitimately fire back but not if the enemy merely aimed his gun inthe direction of the peacekeeper.However, political events swiftly overtook any legal theorizing over the legitimacy of force whenthe breakdown of law and order became absolute in November 1960. ONUC was urged to dealfirmly with the military irregularities “by using force and disarming them of weaponry; thesituation will certainly be hopeless unless something drastic is done to deal with the ForcePublique.” (ANC)30This proposal was however, strongly rejected by the United Nations, theargument being that “the UN force is in the Congo as a friend and partner, not as an army ofoccupation... Obviously, if the force began to use its arms to wound and kill Congolese, its doomwould be quickly sealed, for it cannot long survive amidst a hostile public.’31Although no initial action was taken, ONUC was later authorized by the UN to use force beyondself-defence.32This move ironically “sealed its fate”. The harassment to which ONUC wasFirst Report of the Secretary General, para 5, UN SCOR, 15th Sess, Supp for Jul-Sept 1960 at 17.30British Major-General H.T.Alexander, Chief of the Gharnan defence staff, cited in F.T.Liu supra note 26 atp1931Ralph J.Bunche, Special Representative of the Secretary General in the Congo, Letter to the Secretary General,SC Document, S/445 I32Although the UN was authorized to “take all appropriate measures to prevent the occurrence of civil war inthe Congo”, the use of force was not undertaken on the basis of Articles 41 or 42 of Chapter VII.See Ruth Russell supra note 11 at 109134subsequently subjected to clearly demonstrates the complexities incurred by a traditionalpeacekeeping force which transcends the legal limits of self-defence and becomes part of theconflict.(ii Traditional norm of impartialityThe principle that a peacekeeper restrain from resorting to armed force unless absolutelynecessary is related to the norm of impartiality. It is imperative to the success of UNpeacekeeping, that the force does not take sides in a conflict. The correlation of these norms wasevident during ONUC’s deployment in the Congo which demanded the interposition of the forcebetween the warring parties. The practical demands on the ground however, resulted in ONUCbecoming a party to the conflict in violation of its mandate and the traditional norm ofimpartiality and non-engagement33.ONUC was deployed at the request of the newly independent Congolese government, headed byPresident Joseph Kasavubu and his rival Prime Minister Patrice Lumumba. Following theassassination of Lumumba,34the Security Council authorized the use of force to prevent civilwar, stop all military operations and control the armed factions.35 However, Katangeseresistance to ONUC continued to mount and soon ONUC and Katangese forces were engagedThe Secretary General earlier stated that the force cannot be permitted to become a party to any internalconflict.’ First Report of the 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, Authorised Uses of Force by the UN andRegional Organizations, in Law and Force in which he argues that “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 of Lumumba’s arrest and death, see Note by the Secretary General, UN SCOR, 15th Sess, Suppfor October-December, 1960 at 67, UN Document S/4571 and Add 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 Security Council resolution37was interpreted bythe leader of the Katangese secession movement, Moise Tschombe as a declaration of war, thusescalating in the harassment of ONUC in Katanga.The principle of the non-use of force except in self-defence as enunciated in the Congo by DagHammarskjold was also defined in the Secretary General’s guiding principles for the operationsof the United Nations force in Cyprus (UNFICYP) in 1964.38 The document represented a steptowards articulating legal guidelines for the precise circumstances in which UN forces could useforce. The concept was broadened to encompass attempts to force withdrawal, attempts to disarmand violation of the premises. Troops were also authorised, in an important development, to usearmed force in order to resist “attempts by force to prevent them 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 of the customary legal normsrequiring necessity and proportionality.40Thus, minimum force was authorized for UNFICYP’s36 For an account of the various clashes, see Report to the Secretary General, UN SCOR, 16th Sess, Supp forApril -June, 1961 at 22, UN Doc S/4791 (1961), & Report of the ONUC 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 secessionist activitiesillegally carried out by the provincial administration of Katanga, with the aid of external sources and manned forforeign mercenaries. Id38Aide Memoire, in Note concerning the function and operation of UNFICYP, UNSCOR, 19th Sess, Supp forApril-June, 1964 at 13, UN Doe S/5653 (1964)Ibid. Aide Memoire, para 18 (c). This turn of phrase later evolved into the UNEF II definition of self-defenceto include “resistance to attempts by forceful means to prevent the force from discharging its duties under themandate of the SC.” - Report of the Secretary General para 4(d) UN Doe S/i 1052/Rev.4° Nicaragua v. US Case ICJ 1986 94 (June 27) (application of force in self-defence and necessary norms)136mandate and then only after “all necessary means of persuasion have failed.”41The application of customary norms of international law is all the more compelling when oneconsiders that the UN Charter does not mention the rules of engagement for UN peacekeeping;emphasizing the entirely “ad hoc” nature of such operations. This assertion of course, rests onthe premise that UN peacekeeping operations have, 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 not only on customary law but also Article 104of the UN Charter which permits the UN “such legal capacity as may 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 of peacekeeping been as open toredefinition as it is at this juncture. As the number of 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 image of mediators. The UN has become moreand more involved in operations authorized under Chapter 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 on the consent andcooperation of the parties to the conflict. This has proved elusive in situations like Bosnia andSomalia where peacekeeping has been unsuccessful in taking the forceful action required. While41Aide Memoire, para 18, supra note 38137this is attributable to the fact that the Security Council has deployed peacekeeping operations inconflicts where, in fact, there is no peace to keep, the current tendency of the Security Councilis to continue to give UN peacekeepers more room for manoeuvre.42As Marrack Goulding, the Under Secretary-General for Peacekeeping points out:In political, legal and military terms, and in terms of the survival of one’s owntroops, there is all the difference in the world between being deployed with theconsent and cooperation of the parties to help them carry out an agreement theyhave reached and, on the other hand, being deployed without their consent andwith powers to use force to compel them to accept the decisions of the SecurityCouncil •nThis is an controversial development which has tarnished the image of the United Nations as acredible peace-institution. However, it should be noted that the original mandate ofUNPROFOR was to secure the delivery of humanitarian aid, to deter breaches of undertakingsand to mediate local disturbances. The UN peacekeepers have proved invaluable in helping todistribute humanitarian aid to innocent civilians caught up in the fighting. The crisis in theformer Yugoslavia has, however, demonstrated that UN peacekeeping, conceived in its42 See eg, Security Council resolutions on Haiti and Rwanda which, though too early for legal analysis.demonstrate the new proactive approach of the UN.Marrack Gouldmg “The evolution of United Nations peacekeeping” International Affairs, 69 (3) July 1993,at 461See Paul Lewis ‘Reluctant Peacekeepers: Many UN Members Reconsider Role in Conflicts” The New YorkTimes, December 12, 1993, at A22 (noting that the UN does not have the staff, expertise or funding to engage inextensive peace-keeping operations. The Council is losing its credibility as 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 (questions UN’s capacity to carry out extensive peace-keepingoperations without US firepower in Somalia and calls into question impact this will have on the Organization’scredibility); “Heart of Gold, Limbs of Clay,” The Economist, June 12 1993 (argues that legitimacy of the SecurityCouncil is at stake because of its lack of democracy. Critics charge that the Council has become little more thanan extra arm ofWestern foreign policy and that Boutros Ghali suffers from “imperial over-reach”) “Open the Club,The Economist, August 29, 1992 at 14 (the South argues that “the Council is becoming a flag of convenience forold-time neo-imperialists”), Richard Bernstein “Sniping is Growing at the UN Over Weakness in Peacekeeping” TheNew York Times, June 21, 1993 at A6 (“noting that the UN is in a mess due to its lack of money, human resourcesand efficiency”)138traditional form, cannot hope to achieve anything more than the tasks assigned to it forhumanitarian purposes.As the former UN Secretary General Dag Hammarskjold concluded on the role of peacekeepingin a civil conflict: “It seems to me, on the basis of the Congo experience, that the only soundway to inject an international armed force into a situation of that kind is to ensure that it is forclearly defined and restricted purposes, is fully under the control of the UN and alwaysmaintains its primary posture of arms for defence.”45(i) Departure from Impartiality as a NormTraditional UN peacekeeping operations require peacekeepers to be absolutely impartial.However, in recent UN operations, for example, UNPROFOR and UNOSOM II, the UN hasbeen unable to retain its image as an impartial mediator and as a result has favoured one partyto the conflict more than another. In the former Yugoslavia, the Serbs have quite clearlyacquired the reputation of the aggressor side by the UN and have been blamed for the systematicrape and massacre of thousands of Muslim and Croats.46 Although it is difficult for UNpeacekeepers to remain impartial to horrific atrocities such as the practice of ‘ethnic cleansing”there is evidence to suggest that atrocities have been committed on all three sides to the conflict.A similar situation occurred in Somalia when UNOSOM II announced a shift in mandate totarget General Aideed personally. In the weeks following the attack on UN Pakistani troops inwhich 24 were killed, the New York Times reported numerous assaults by US Rangers against‘ UN Doe S15240 (February 4,1963)See Roger Boyes “Frontline Peacekeepers stumble into Bosnian showdown” The Times (London) September3 1992 (noting that the Serbs consider the UN to be just another party to the conflict and that aid workers helpingpredominantly Muslim enclaves reinforces the Serbs impression that the UN is no longer impartial)139General Aideed’s home, command centre and forces. Although the US casualties that weresustained were not sanctioned by the UN , nor, in fact, ever notified to the UN, the USpressured the Security Council to pass a resolution ending the “manhunt” .“Deploying a UN peace-force under Chapter VII would appear to obviate the requirement forimpartiality in an ethnic conflict with the unfortunate consequence 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” during diplomatic negotiations.48However, not even theUN Secretary General believes it is possible for a UN force operating under Chapter VII toremain impartial in a civil war.49In sharp contrast to the debacle of Somalia and Bosnia, the UN operation in Cambodia(UNTAC) remained strictly impartial, despite the frequent attacks on UNTAC by the PDK(a.k.a, the Khmer Rouge) and the NADK (National Army of Democratic Kampuchea). UNTACwas also refused access to areas under the control of the 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 to the deployment of the peacekeeping force and‘° Security Council Resolution 885, para 8 (1993)For example, the UN is perceived by the Somalis as just another warring faction and thus cannot make anysignificant headway with negotiations with clan leaders. See eg Julian Hopkins, Director of Care (UK) Letter to theTimes (London) July 14th 199249See Further Report of the Secretary General, UN Document S124848 (1992), para 49; “UN troops may haveto move beyond the usual peacekeeping mode of impartiality between two parties to a conflict who have both agreedto the United Nations role. They themselves may become a party to a conflict with whoever tries to block, rob ordestroy the convoy which they are protecting.” See also the Secretary General’s Agenda for Peace, infra note 11850”Somalia:Leam from Cambodia”, The New York Times, September 29th, 1993 (noting the difference betweenpeacekeeping and partisan engagement.) While the Khmer Rouge murdered their political opponents in front of UNpeacekeepers, the UN did not try to disarm the Khmer Rouge forcibly and relied mainly on diplomatic pressure tocurb human rights abuses. UN resolutions in Somalia by explicitly calling for disarming warlords in Somalia havedenied scope for diplomatic flexibility and focused on military confrontation instead.140thus proactive measures were not necessary. Nevertheless, the operation in Cambodia has beenconsidered a success resulting in free and fair elections in l992’ while UNPROFOR andUNOSOM remain unable to fulfil their mandate.The traditional norm of impartiality would therefore appear to have been replaced by a greaterintolerance towards warring factions or states which either attack UN troops directly or commitgross violations of international human rights. While it is salutary that the UN is attempting todeal with such flagrant acts of violence against human rights, it is open to conjecture whetherUN peacekeepers should engage in areas of inherent complexities.(ii) Problems in UN Command and Control of PeacekeepingIn addition to theoretical tensions surrounding UN peacekeeping there are also growing signs ofdiscontent among national contingents of the traditional UN approach to command and controlof its peacekeeping operations.52This problem became acute in Somalia, where Italian andPakistani troops refused to be stationed in certain areas on the instructions of their nationalgovernments on the grounds that the deployment was too dangerous. The Americans recentlyindicated their withdrawal from UNSOM II unless the UN guaranteed that US troops would notbe used on patrol in volatile situations.5351Report of the Secretary General, paras 2 and 15, UN Document S/25913 (1993) see also William Shaweross,“The Nightmare is Over” The New York Times October, 12th 1993 (noting that the UN Peacekeeping action inCambodia was a success) Report of the Secretary General, paras 2 and 15, UN Document S/259 13 (1993)52 Donatella Lorch, “Disunity Hampering UN Somalia Effort,” The New York Times, July 12, 1993, at A8. TheItalians went so far as to mount a unilateral weapons search operation, in which 3 Italian soldiers were killed; see“Italy threatens to pull UN troops out of Somalia,” The Glasgow Herald, July 14 1993 (noting fierce Italian criticismof a UN military strike led by American helicopters); Alan Cowell, “Italy in UN Rift, Threatens Recall of Somalitroops.” The New York Times, July 16 1993,Elaine Sciolino, “US Asks UN Not to Use American Troops on Patrol” The New York Times, September 26,1993 (noting that the UN operation in Somalia had become an American one yet pointing out that unless theAmerican troops helped the UN peacekeepers,’ it will limit the flexibility of the peacekeeping force and ultimately141In addition to the unwillingness of the Italian government to the possible deployment of Italiantroops patrolling dangerous areas, there was the perception from Rome that the UN operationwas being run exclusively by US command.MThe feud culminated in the sacking of the Italiangeneral in Somalia in July l993. The Americans remained adamant that the military operationshould focus its efforts on arresting or even killing General Aideed whereas the Italians andseveral other contingents demanded that the UN should get back to its original mandate ofprotecting humanitarian relief.56While the use of force in Somalia was authorised by the international community, the overallconclusion is that it was an American operation, under US command and control. While thedelegation of the command and control of the UN force to the US military was a pragmaticdecision in recognition of the general reluctance of the US to place troops under UN command,the subsequent feuding is indicative of the inherent problems that can result from such amove.affect the mission”; “UN Chief sees a Disaster in Somalia if US Withdraws Its Troops”, The New York Times,September 30th, 1993 Boutros Ghali was quoted as saying ‘Actual withdrawal of the force would lead to the rapiddecomposition of the whole UNOSOM operation” .Id“ Richard Dowden “UN Somalia Effort Crumbles Amid Raids and Bickering,” The Guardian, July 1993,(highlighting the complaints of aid agencies that US policy had made it too dangerous to work in Mogadishu andthat resentment of the American-led operation was running high)55’UN Tries to Clear Up Somalia Mess”, The Guardian, July 14 1993 (noting the UN was considering the legalimplications of sacking the commander of a peacekeeping contingent)56”Italy seeks halt to peacekeeper’s fighting” The Globe and Mail, July 12, 1993 (noting parliamentary andpublic opposition in Italy to “warlike” operations); “Long among most obliging allies, Italy challenges Washington,UN” The Globe and Mail, July 16, 1993; “Infighting Hampers UN in Somalia” The Guardian, July 23. 1993 (notingthat even Pakistan, close allies of the US, was calling for a fundamental review of the US-led operation inMogadishu stating that Pakistani troops were paying the price for earlier mistakes in the operation.)See Elaine Sciolino, “UN Secretary General has to direct his peace efforts at Washington too’ The New YorkTimes, October 16th 1993 (noting bitter feuding between the Secretary General and the US Admin over Somalia)142Other criticisms may be made of the UN force in Bosnia. A report from a UN fact-finding teamfollowing the killing on January 8th 1993 of the Bosnian Deputy Prime Minister found “... manyof the freshly arrived units in the area had no experience or training for peacekeeping operations.Systematic procedures had fallen by the wayside. . . while commanders attempted to solveoperational dilemmas between overreaction and 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 stated that:Over the past years, the numbers of UN peacekeepers deployed around the worldhas grown from fewer than 5,000 to well over 60,000 and yet.. there is still nomilitary style command centre at the UN: no-one on duty 24 hours a day, 7 daysa week, no communications room with maps of the various operational areas onthe wall, and mission-knowledgeable duty officers manning the radios andkeeping a log of all the information and requests coming in from the field. Noarmy in the world would deploy its troops with so little direct control over whatthey were doing. The UN shouldn’t either.59Within UNPROFOR for example, there were 6 different 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 at the United Nations in New York to oversee itsmilitary operations. As one French Government Official asserted “[t]he fact is that UnitedNations command is proving too cumbersome for a military mission. Everything takes too much58The Washington Post, February 7th 1993; “US Troops Reinforcements in Somalia Delayed 9 Hours” The NewYork Times, October 6th, 1993- Lewis Mackenzie “Peacekeepers: The Road to Sarajevo,” 1993 at 331.143time, and there is considerable [restrictiveness] among our soldiers.”6°These criticisms illustrate the inadequacies of current UN policy to civil conflicts, adding supportfor the need to develop alternative approaches, not only in terms of new principles but also forthe role of UN forces on the ground. Given the US-led coalition’s prosecution of the Gulf Warand the lack of reporting once the decision to authorize “all necessary means” was taken, thenature of centralized command and control has assumed a greater importance.”UN Troops and the Use of ForceClearly, UN forces have already assumed a more activist role in conflicts requiring the use offorce. While UN troops traditionally cannot use force except in the last resort as self-defence,there is evidence to suggest that this norm is also evolving. It may for example, be argued thatthe insertion of the clause requiring “all necessary means” in the Security Council resolutionconcerning Bosnia and Somalia61has compelled international lawyers to re-examine theconceptual debate over the use of force for UN peacekeepers. The creation of the ‘no-fly zone”over Bosnia62and the subsequent shooting down of Serbian planes invoke similar arguments.Ironically, this activist role was also evident in Cambodia which has been cited as an exampleof a successful peacekeeping operation, where UNTAC was authorized to arrest and prosecutepersons for committing acts of political violence; a role which arguably goes beyond theparameters of the concept of self-defence. The UN had the authority to take pro-active measures60 The literal translation may be incorrect. See Roger Cohen “Dispute Grows over UN’s Troops in Bosnia’ TheNew York Times January 20, 199461See eg. SC.Res 770 (1992) and SC Res 836 (1993) for Bosnia, and SC Res 781, para 1(1992) for Somalia62 Security Council Rea 781,paral (1992) and Security Council Res 816, para 4 (1993)144against a party whose violence was directed at someone than the UN.63Some legal commentators have called for a revision of the rules of engagement, their beliefbeing that if the UN is to continue to receive requests for intervention in ethnic disputes, UNpeacekeepers on the ground should be given the military resources and proper mandate toenforce UN resolutions.MThe need to arm peacekeepers with weaponry to face their adversariesis long overdue according to some experts. John Mackinlay argues, for instance, for the use offorce for peacekeepers which must be expressed in broad terms to span most contingencies.65It is possible to defeat the arguments from scholars and politicians for expanding the role ofpeacekeepers to include the preemptive use of force. The exponents of this argument appear tooverlook the experience in the Congo in 1961 where fire-power was used to prevent civil warand deal with mercenary forces. ONUC became the subject of intense criticism and Africandisaffection while in Beirut in 1983-4, the Multi-National Force, particularly the French andAmerican contingents lost 10% casualties and left behind a city more engulfed in strife thanwhen they arrived. The argument against revising the rules of engagement for UN peacekeepersis further strengthened when one considers the more successful operations in El Salvador,Cambodia, Angola and to a certain extent Cyprus and Sinai in which the norms of impartialityand peaceful mediation were up-held.The idea of a peacekeeping force using preemptive force contradicts the fundamental63See the Agreements on A Comprehensive Political Settlement of the Cambodian Conflict (“Paris Agreement”)October 23,1991,31 ILM,183 (Article 16) The Special Representative at the UNTAC Office had such powers inJanuary 1993 and arrest and prosecutions of offenders commenced shortly thereafter; Report of the SecretaryGeneral, para 15, UN Doc Sf25289 (1993)See John Mackinlay, supra note 2065 Ibid at p248 Mackinlay cites for example, unforseen acts of violence by unrepresentative minorities145assumptions on which peacekeeping is based. For the UN soldier caught in the midst of ethnicwarfare there is all the difference in the world between traditional peacekeeping and full-scalewar. There does not exist a conceptual device in the UN Charter for the progressive escalationfrom the passive role of peacekeeping to conventional warfare, which demands much more fromUN forces. Indeed, one of the great virtues of peacekeeping operations is their non-combatant,and therefore neutral stance. The use of force would likely destroy this characteristic and alongwith it, the vital co-operation of at least one of the parties in conflict.66Tha does not mean,however, that UN troops cannot use preemptive force under the legal authority of Article 43 ofthe UN Charter. This concept will be explored further on in this section.A peacekeeping force which descends into the conflict may well become another party to theconflict instead of providing a solution.67 As Brian Urquhart, an ardent supporter of UNpeacekeeping urges, “[T]here is an important difference between the show of strength and theuse of force.”68 Moreover, as already stated “successful” peacekeeping operations are often“buffer zone” peace forces sent in to well-defined areas of operation with an agreed ceasefirein place. Current crises of the intrastate variety would no longer appear amenable to the use ofbuffer zones. Often the warring factions in civil conflicts are so numerous and unaccountablethat identifying the potential enemies becomes extremely difficult and any diplomatic negotiationThis is one of the criticisms of the Somalian operations where UN troops have been criticised for their“warlike” approach. Concentrating on arresting or killing General Aideed have hampered diplomatic efforts andrelief work.The Congo affair in 1961-3 demonstrates this problem - the authorization to use force was expanded toinclude preventing civil war and dealing with mercenaries although the consequent efforts to implement this mandateillustrates the difficulties this involves. The experience of the non-UN Multinational force in Beirut in the 1980’sis also an example of this problem.68supra note 22 at p202146a major problem.69On a more practical level there are also widespread doubts that the UN hasthe military experience to command and administer an enhanced peace-keeping force operatingin this proactive manner.7°An enhancement of UN peacekeeping operations is not necessarily opposed. Peacekeeping,conceived in its traditional form, properly directed and financed is a vital component of UNefforts to maintain international peace and security. Peacekeeping as an instrument of war,however, is inappropriate and any move to revise the rules of engagement should be resisted.Peace-enforcement is an entirely different concept and requires an approach that contradictsmany of the basic assumptions of peacekeeping.(i) The Former Yugoslavia - Peacekeeping or Peace-enforcement?The two tier model can best be illustrated by applying it to the crisis in the former Yugoslaviaand Somalia where peacekeepers have come under increasing fire on the ground, yet haveneither the mandate nor the legal authority from the Security Council to use force except in self-defence. The crisis in the former Yugoslavia is a microcosm of all of the issues discussed so far;peacekeeping or peace-enforcement, arming peacekeepers or maintaining their impartial andneutral role. Unfortunately, the UN experience highlights the inadequacies of the UNpeacekeeping force and demonstrates the need to formulate new ways of dealing with intrastateconflicts under Chapter VII.From the outset the UN chose to deploy a traditional peacekeeping force instead of a peace-enforcement army to ensure the delivery of humanitarian aid and the protection of relief69See John Mackinlay, supra note 20 at 243. This is precisely the problem encountered in Somalia and Bosnia.7° Lewis Mackenzie supra note 59 at 131147workers. This was a fatal decision and one destined to fail, as clearly there was no peace tokeep. The UN later sought to remedy the situation by increasing the mandate of thepeacekeeping force, (UNPROFOR) thus moving the peacekeeping force into the murky watersof peace-enforcement. From a conceptual point of view the legal status of the UN operation inthe former Yugoslavia is therefore wholly unsatisfactory and inadequate in terms of its mandate.Original Deployment and Mandate of UNPROFORThe United Nations initially became involved in Yugoslavia71 in November, 1991 when theSecretary General’s Personal Envoy for Yugoslavia met with Yugoslav leaders, including thePresidents of Serbia and Croatia, to attempt a peaceful settlement to the Yugoslav conflict.7271Details of the background to the crisis are beyond the purview of this brief analysis which confines itself toan examination of some of the legal issues and resulting practical dilemmas facing the UN force. For a thoroughdelineation of the events comprising Yugoslavia’s dissolution through mid-1992 see Marc Weller, The InternationalResponse to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 American Journal of InternationalLaw, 569 (1992) Alan James, “The UN in Croatia: an exercise in futility ?“ The World Today, May 1993p93-6;J. Zametica, The Yugoslav Conflict (Adeiphi Paper 270, 1992)see also the excellent article by Charles Lewis NierIII, “The Yugoslavian Civil War” Dickinson Journal of International Law Vol 10:2 Winter 1992 304-331; JosefJoffe, “The New Europe: Yesterday’s Ghosts Foreign Affairs 1992 29-37;V.P.Gagnon, Jr “Yugoslavia: Prospects For Stability” Foreign Affairs, 1992 17-35;Sabrina Petra Ramet, War in the Balkans” Foreign Affairs 1992 79-98; Charles Gatti “From Sarajevo to Sarajevo”Foreign Affairs 1992 64-78; Christopher Cviic, “Yugoslavia I: New Shapes from Old” The World Today August!September 1991125-127; Michele Ledic, “Yugoslavia II: the costs of divorce” The World Today August! September1991 127-129; James Gow, “The use of coercion in the Yugoslav crisis” The World Today November 1992 198-202. Rosalyn Higgins, “The New United Nations and Former Yugoslavia” International Affairs 69, 3 (1993) 465-483, 470.72The EC took the initiative in the crisis, assuming a monitoring and negotiating role in an effort to bring peaceto the region and prevent all-out war; see The United Nations Yearbook 1991, 214 (describing the EC’s introductioninto the conflict and peacekeeping efforts thereafter) An EC Ministerial Troika mission (ECMM) dispatched toYugoslavia to facilitate a truce and the return of all forces to their previous positions, worked out a ceasefircagreement on July 31, 1991 with the aid of the Conference on Security and Cooperation in Europe (CSCE).However, in response to letters from the international community requesting that the United Nations reinforce ECefforts due to the rapidly deteriorating situation in Yugoslavia, a meeting of the UN Security Council was convenedon September 25, 1991. See Letter ofSeptember 19, 1991 UN Doc S/22903 (Austria); Letter ofSeptember 19, 1991UN Doc S/23053 (Canada); Letter of September 19, 1991 UN Doc S!2305 (Hungary); Letter ofSept 19, 1991, UNDoc S/23069 (Yugoslavia)148The Security Council, at its first meeting, unanimously adopted Resolution 713 expressing “deepconcern” over the fighting in Yugoslavia, the heavy loss of life, and in particular, theconsequences for the border areas of neighbouring countries.73Apeacekeeping operation wasnot considered however, until all parties had fully complied with the November ceasefireagreement. In the meantime, an arms embargo was imposed in Security Council Resolution 724,1991 which further concluded that the conditions were still not right for the deployment of apeacekeeping operation.74However, the Permanent Representative of Yugoslavia later requestedthe Security Council to establish a peacekeeping force75 and a small group of UN personnelwere sent into the region to promote the maintenance of the ceasefire. The establishment of aUN Protection Force (UNPROFOR) was subsequently approved by the Security Council76 andthe full deployment was eventually authorized’ Its mission was “to create the conditions forpeace and security required for the negotiation of an overall settlement of the Yugoslav crisis.”UNPROFOR was originally designed to be deployed in three “United Nations Protected Areas”(UNPA’S) in Croatia, where there were large Serb populations, to oversee the withdrawal of the‘ Security Council Res 713, UN SCOR, 3009th mtg. UN Doc Sf23067 (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 no ceasefire in place for the peacekeeping force to monitor.75Letter from Yugoslavia, UN Document 5/23240 (1991)76Security Council Res 743 (Feb 21,1992)Security Council Resolution 749 (April 7, 1992) Although the Security Council recalled its primaryresponsibility under the Charter. .for the maintenance of international peace and security The initial UN force(UNPROFOR) was not explicitly deployed under Chapter VII. By April of 1992, 8,300 members of UNPROFORwere deployed, and by July 23 of that year, almost all of the 14,000 members were in place. This established thesecond largest peacekeeping force in the history of the UN, behind that of the UN Transitional Authority inCambodia (UNTAC). Troops were deployed to four sectors in three United Nations protected areas (UNPA’s) inCroatia, despite the continuing tension and reports of daily breaches of the January ceasefire; see “Security CouncilEstablishes Force to Handle Yugoslav Crisis” The UN Chronicle, June 1992 at 16,149Yugoslav People’s Army (JNA), the demilitarization of the areas, and to ensure that the JNAdid not return.78 Thus, in addition to overseeing the maintenance of a cease-fire, the originalmandate of UNPROFOR was to demilitarize the conflict areas in Croatia, ease ethnic tensions,and to facilitate the return of refugees and displaced persons.79The original mandate can, therefore, generally be considered 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 Security Council did not specifically authorizethe initial deployment of UNPROFOR under Chapter Vu.80 It was further established that the“normal rules in United Nations peacekeeping operations for the bearing and use of arms wouldapply.”8’(b) Expanded Mandate of UNPROFORFighting soon spread to Bosnia-Herzegovina82despite the ceasefire agreement reached in April,1991.t3The UN Security Council therefore authorized the deployment of UNPROFOR in Bosnia78Report of the 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 UN intervention; see Further Report of theSecretary General, para 8. UN Document S/23592 (1992)“Further Report of the Secretary General Pursuant to Security Council Res 721 (1991)9or a description of the early outbreak of hostilities and their toll on Bosnia, see Further Report of theSecretary General paras 3-6, UN Doc S123900 (1992)83 Report of the Secretary General Pursuant to Security Council 749, Annex II (providing in pertinent part thatthe three parties agree: to declare an immediate and total ceasefire on all territory in Bosnia-Herzegovina, ‘to stopall activities that can provoke fear and instability among the population,””to suspend 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 humanitarian deliveries in the country.84 However, the SecurityCouncil initially decided not to give UNPROFOR a mandate under Chapter VII of the UNCharter.85 It was not until the humanitarian mission of the UN was severely impeded in May1993 by fierce military fighting and increasing civilian casualties that the UN Security Councilexpanded the mandate of UNPROFOR into Bosnia under Chapter V1L86 The language ofUNSC Res 836 was purposively unambiguous and called upon states under Chapter VII to take“all necessary measures, including the use of force, to facilitate. . the delivery. . of humanitarianassistance” 87Thus, the UN initially sought to adhere to traditional norms of peacekeeping by deployingUNPROFOR to monitor ceasefires and generally report on the crisis. Accordingly, Chapter VIIwas not invoked. It was only when peacekeepers were prevented from carrying out theirhumanitarian tasks that the UN Security Council, acted to increase their mandate and authorizedUNPROFOR to use “all necessary means” to deliver the aid. This phrase is not onlyconceptually ambiguous, it does not clarify in what circumstances the soldier on the ground can84Security Council Res 758 (June 8,1992);Security Council Resolution 757 para 17 (1992) had demandedconditions for unimpeded delivery of humanitarian supplies. UNPROFOR made negotiations to reopen Sarajevoairport for delivery of the supplies, but the agreement was regularly violated. For an account of the implementationof the agreement, see Further Report of the Secretary General, UN Document Sf24263 (1992)85Chapter VII does not seem to be implied in this case, as evidenced by the fact that Resolution 758 specificallynotes that there was an “agreement of all parties in Bosnia to the reopening of the Sarajevo airport for humanitarianpurposes, under the exclusive authority of the United Nations, and with the assistance of UNPROFOR,” thusshowing that the UN was attempting to solve the problem with cooperation as opposed to with force.86UNPROFOR’S mandate was increased “in order to enable it, in the safe areas referred to in resolution 824(1993), to deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of military orparamilitary units other than those of the Government of the Republic of Bosnia-Hercegovina and to occupy somekeypoints on the ground, in addition to participating in the delivery of humanitarian relief to the population.Security Council Res 836, June 4, 199387Ibid. It is thought that the language was suitably vague to secure the Russian vote.151use force beyond the parameters of self-defence. Several criticisms may therefore be made ofthe decision to deploy a peacekeeping force in the former Yugoslavia.(c’) Critical Appraisal of UNPROFORThe deployment of a peacekeeping force to Yugoslavia was quite clearly an inappropriateselection of instrumentality. Moreover, the status of the subsequent force was legally unsound.UNPROFOR is being asked to engage in activities, ancillary to the basic nature of peacekeeping.While this in itself is not necessarily fatal to its status as a peacekeeping force, it is neverthelessfutile to establish a UN operation with the objective of providing humanitarian aid, without aceasefire in place.UNPROFOR’s mandate is also unrealistic. The only truly peacekeeping function assigned toUNPROFOR was the request in Security Council Resolution 781 to monitor compliance withthe ban on military flights in the airspace of Bosnia-Herzegovina.88Every aspect of the crisis in the Former Yugoslavia has thus made it unsuitable for peacekeepingand appropriate for enforcement action. By allowing the violence to continue without seekingto ensure a ceasefire was in place hampered UNPROFOR’s ability to implement its peacekeepingmandate. The UN Secretary General’s special mediator insisted from the start that a ceasefirebe in place before deploying peacekeeping forces which allowed extremists on both sides todelay UN action by violating successive ceasefires. In addition, by requiring that the two sidesagree where peacekeeping forces would be deployed, the UN forced them to bargain on thecentral issue of borders even as combat continued. This assured that the conflict would drag onuntil the warring parties reached a military stalemate.88Security Council Res 781, October,9 1992152Application of the “two-tier” model as advocated in this discussion to the crisis would haveavoided the conceptual and practical difficulties encountered with UNPROFOR. If the SecurityCouncil, acting within its mandate to maintain international peace and security, had determinedthat the situation was unsuitable for peacekeeping on the basis that there was no peace to keep,Chapter VII enforcement measures could have instead been invoked to authorize an entirelydifferent enforcement army. The chances of diffusing the civil war would have been so muchgreater had such a force been deployed as a preventive measure along the borders of Bosnia andCroatia. 89The present calls for arming the peacekeepers in Bosnia, and thus converting them to peace-enforcers, are unrealistic and too late to achieve any military or political gains. A UN force ofthis nature can only be successful if it is deployed eariy in the crisis. This inevitably calls fora political judgement and the necessary will to carry out any Security Council resolution. Theinevitable conclusion from the Yugoslavian crisis is that the negotiations over the future ofseceding republics might have been more successful had the UN entered the crisis at an earlierdate with a full-scale peace-enforcement unit to use preemptive force to prevent outbreaks ofviolence. Sadly, the history books will record the UN action in Yugoslavia as a missedopportunity to implement a viable institutional mechanism for destabilizing humanitarian crises.Similar conclusions may be deduced from the experience in Somalia.891n mid-1991, the parties to the conflict had yet to mobilize troops, the republics were internally torn over whatthe future of the country would, or should be, the federal army was fragmentized and no-one seemed to be incharge; see Jill Smolowe, ‘Out of Control:In a Country Where All Sides are consumed by Ancient Animosities.Even the Army Seems Incapable of Halting the Drive for Secession” TiME, July,15 1991, at 26153(ii) Somalia - Deployment and Mandate of UNOSOMIn March, 1992, the UN finally seized jurisdiction in the civil war in Somalia when the twomain warring factions, Au Mahdi Mohamed and General Mohamed Farah Aideed, signed acease-fire agreement which provided for a UN monitoring mission.9°In response to this, theSecurity Council established the United Nations Operation in Somalia (UNOSOM).91Theoriginal conception of UNOSOM comprised only 500 security personnel and were deployed withthe consent of the principal factions, as there was no Somali government for the UN to negotiateconsent with.92By November, however, the position of the UN force became untenable and, consequently, theUN Secretary General recommended that the Security Council invoke Chapter VII measures inorder to secure the safe delivery of humanitarian aid to starving civilians.93The Security Council subsequently concluded that “... the magnitude of the human tragedy causedby the conflict in Somalia, further exacerbated by the obstacles being created to the distributionof humanitarian assistance, constitutes a threat to international peace and security” and dulyauthorized the use of “all necessary means to establish as soon as possible a secure environmentfor humanitarian relief operations.“94Thus, it was clear that the legal basis of the UN operationhad moved from a traditional peacekeeping action under Chapter “Six and a half” to enforcement90The Situation in Sonwlia:Report of the Secretary General, paras 6-8, UN Document S/23 829 (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) para 10.154action under Chapter VII of the Charter.The result of the new mandate under Chapter VII was the Unified Task Force (UNITAF) whichcomprised troops from over 20 nations under a US-unified command. The primary objective ofUNITAF was to establish a secure environment for urgent humanitarian assistance, with themilitary command to be transferred back to the UN once the mission was accomplished.95 Inaddition to easing the tremendous human suffering caused by famine and civil war, proponentshoped the mission would provide a model for handling future international crises. As one USRepresentative stated, “[T]he United Nations must restore order to Somalia... .Somalia representsthe type of problem the international community will face in this new world. I believe it isappropriate that these problems be solved collectively by the community of nations rather thanby an individual country.”96UNITAF later evolved into UNOSOM II which possessed similar enforcement powers underChapter VII although with a wider mandate of general security functions covering all ofSomalia.97Thus, like UNPROFOR in the former Yugoslavia, the UN Security Councilincreased the mandate of UNOSOM to enforcement action under Chapter VII when it became95UN Doe S/24976 (1992)96J0Lewis,’ A Short-Term Commitment is Not Enough,” The Washington Post, December 5. 1992 JamesJonah, UN Under-Secretary General for political affairs, The Guardian, July 12, 1993 (quoted as saying “If we failin Somalia the repercussions will be devastating because it will show the UN cannot sustain such an operation.”)97Further Report ofthe Secretary General Submitted in Pursuance ofparags 18 and l9ofResolution 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, monitor compliance with cease-fires, respond with force ifnecessary to violations of agreements, seize small arms, assist in repatriation activities and the removal oflandmines. It also empowers UNOSOM II to provide help to Somalis in rebuilding their political, social andeconomic life..and recreating a country based on democratic governance.” Security Council Resolution 814 March26, 1993155apparent that something other than a peacekeeping force was required. The UN force has,however, come under intense criticism for its “warlike” operation.(a) Critical Appraisal of UNOSOMThe UN Secretary General concluded that “the Security Council now has no alternative but todecide to adopt more forceful measures to secure the humanitarian operations in Somalia.”Although this was certainly true due to the sheer scale of civil violence the subsequentdeployment of thousands of US troops under US command (UNOSOM) was not the onlyalternative under the UN Charter.From a legal perspective, again the position is also unsatisfactory. 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 under Chapter VII of the UN Charter, the firstoccasion in which “peacekeeping” has been based on enforcement measures. However, the initialUN force (UNOSOM) that was sent into Somalia was not under a Chapter VII mandate.Consequently, in attempting to secure humanitarian relief and monitor a cease-fire, UNOSOMwas inadequate to deal with the violence of a highly volatile and dangerous environment.Moreover, the UN proved exceptionally slow in deploying peacekeepers to the areas of troublein Somalia and, as a result, lost vital time in providing humanitarian aid to millions of starvingSomalis.The situation not only demonstrates the ineffectiveness of sending in a peacekeeping force witha restricted mandate, but also highlights the need to establish at the outset the legal status of theforce and the mandate it is to be given. As the UN Secretary General himselfadmitted: “UNOSOM II will not be able to implement the . . . mandate unless it is endowed with156enforcement powers under Chapter VII of the Charter. “98Although the situation warranted more forceful measures to deal with the clan warfare thedecision to send US troops under the guise of a UN peacekeeping force was flawed. In keepingwith the central hypothesis of this paper a peacekeeping force should not have been authorizedunder Chapter VII of the UN Charter. The “two-tier” approach would have been moreappropriate in these circumstances enabling the Security Council to bypass the use ofpeacekeeping altogether once it had made the appropriate determination of jurisdiction99 and,instead, focus on the authorization of a peace-enforcement unit under Article 43 of Chapter VII.Thus, for the third time in the history of the UN, the task of military action has been delegatedto the US rather than the UN. Even in a case of humanitarian intervention, an absence ofspecific national or strategic interests and against low-level military opposition, the authorizationof the use of force by the UN has still to be carried out by a few powerful sovereign states.A Legal Basis for UN PeacekeepingThe juridical debate concerning the status of UN peacekeeping has been at the forefront of legaldiscourse and political analysis for many years.10° Thus, to indulge in a theoretical analysisof the constitutional basis for UN peacekeepers would appear to be a frivolous exercise.However, as it is central to the hypothesis of this discussion that UN peacekeeping be distinctFurther Report of the Secretary General Submitted in Pursuance ofParas. 18 and 19 ofRes. 794 (1992) at 13.Sce eg Part Two of this thesis for a discussion of the jurisdictional bases of UN intervention.100See eg, the ICJ’s advisory opinion in the Certain Expenses of the UN, 1962 ICJ, 151, 166 July 20th, wherethe court concluded “obiter” that “peacekeeping operations were undertaken to fulfil a prime purpose of the UnitedNations, that is, to promote and maintain a peaceful settlement of the situation,” peacekeeping operations werelawful and consistent with the goals of the UN Charter, p151157from that of peace-enforcement, the argument would be strengthened if a legal basis can befound on which to place the concept of peacekeeping. While the ad hoc nature of peacekeepingis one of its main characteristics, a certain degree of codification is nevertheless desirable whendealing with the complexities of humanitarian crises.It has been argued for instance, that peacekeeping falls within the broad ambit of Chapter VIconcerning the pacific settlement of disputes. In the case concerning the Certain Expenses of theUnited Nations, the representative of Norway submitted that “[W]ith regard to the ONUC action,it has been amply demonstrated that the authority to undertake these steps falls under the expressor implied authority conferred upon the Security Council under Chapter VI of the Charter.”°’Professor Tunkin in the same case, however, concluded that it is not possible to find theconstitutional basis for such operations in Chapter VI of the Charter)°2This submission restson the basic assumption that peacekeeping cannot fall within the ambit of peaceful measures inChapter VI because it envisages the use of force in self-defence. Accordingly, DagHammarskjold devised the theory that peacekeeping were authorized under “Chapter VI and ahalf”, since peacekeeping falls outside Chapter VI yet does not constitute an enforcement actionunder Chapter VII. This would appear to be a correct analysis and one that has generally beenaccepted; (that is until recent military operations in Somalia and the former Yugoslavia.) Legalscholars continue to theorize, however, on the application of Chapter VII measures topeacekeeping.There is, for example, a respected body of opinion that posits Article 41 of the Charter as the‘°‘ICJ Pleadings, Oral Arguments, Does, 1962 at 370. See also the Oral Statement by MCadiex, therepresentative of Canada, id, at 304-305.102bid at 401158constitutional basis for peacekeeping operations since they could be characterized as “measuresnot involving the use of armed force.“103Professor Schwarzenberger states “. . the emphasis isthen put on the primary function of such a body which can be fulfilled without any resort toarmed force. On this assumption, the fact that the force may use its weapons in self-defenceaffects its status as little as does a civilian’s exercise of his right of self-defence under municipallaw. “°An argument in the alternative and one that has attracted a large body of opinion 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 to comply with such provisional measuresas it deems necessary or desirable...” Ironically, this view was supported by Dag Hammarskj oldwho stated that the legal nature and constitutional basis of ONUC ‘may be considered asimplicitly taken under Article 40 and in that sense, as based on an implicit finding under Article39. “°The theory that Article 40 may provide the legal basis for peacekeeping, however, isnot only untenable, it is politically inadvisable. The establishment of a peacekeeping force under103 See Professor Schwarzenberger “Report on Problems of A UN Force 49 International Law AssociationConference (Hamburg: 1960) at 138; See also “Problems of a UN Force” 9 Current Legal Problems (1956) at 253by Schwarzenberger.1°4lbid at 137. There is, of course, the argument that peacekeeping operations do not purport to exclude the useof force as they in fact envisage force in self-defence and thus cannot fall within the ambit of Article 41 for thesame reasons as they are excluded from Chapter VI.‘°5See Oscar Schacter, “Legal Aspects of the UN Action in the Congo” American Journal of International Law1961 at 6; Riad, “The UN Action in the Congo and its Legal Basis” Egyptian Review of International Law 1961at 21; Louis B.Sohn, “The Authority Of the UN to Establish and Maintain a Permanent UN Force” AmericanJournal of International Law 1958 at 230; D.W.Bowett, “UN Forces:A Legal Study (1967) at 283.10615 UN SCOR, 884th mtg, at 4 (1960). This was the status of ONUC in the Congo according to OscarSchacter, “Legal Aspects of the UN Action in the Congo” American Journal of International Law 4-6 1961 andpossibly also of UNIPOM, the constitutional basis for which is not precisely specified; See Rosalyn Higgins, UNPeacekeeping Vol II at 429.159Article 40 is tantamount to a subsequent pronouncement of enforcement measures indicated inthe remaining legal provisions of Chapter Vu.’07 As has already been reiterated, Chapter VIIenforcement provisions should be avoided as a legal basis for UN peacekeeping’°8toavoid thepeacekeeping force becoming part of the hostilities. There is also the assertion that Article 29and Article 48 of the Charter constitute the legal basis for peacekeeping. However, theseprovisions are normatively ambiguous and merely call upon UN members to implement SecurityCouncilThe above considerations merely confirm that there is no 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 theories concerning the ‘implied”, “general” and107The Security Council could confine itself to making recommendations under Article 39; in such cases theprovisional measures, (Peacekeeping, for instance) would not be preliminary steps to enforcement action. However,although Article 40 of the Charter explicitly requires the Security Council to recommend provisional measuresbefore making any pronouncements under Article 39, an examination of Security Council practice leads the writerto the conclusion that this a circular argument. For instance, UNEF II was created by Resolution 340 (1973) twodays the Security Council had made recommendations for the settlement of the dispute. Similar pronouncementsare evident from an examination of Security Council resolutions in recent conflicts in Somalia and Bosnia. For acomprehensive legal analysis of the relationship between the provisions of Chapter VII with particular reference toArticle 40, see Hans Kelsen, “Sanctions in International Law under the Charter of the United Nations” Iowa LawReview, Vol 31, (1946)p499-543.1°8The Security Council would appear to be more concerned with action “ex post facto” ie; enforcement actionfr the crisis has erupted instead of adopting peacekeeping forces as a preemptive, provisional measure underArticle 40.09 See Professor Schwarzenberger, supra note 103 for a discussion of Article 48 (1). Professor Bowett criticizesthis approach and notes that Article 48(1) merely regulates the nature and the extent of the participation of memberstates in the implementation of a Security Council decision already taken and does not provide the constitutionalbasis See Bowett supra note 105 at 284. See also Sheikh “UN Peacekeeping Forces: Reappraisal of Relevant CharterProvisions” Revue belge de droit mt (1971) Professor Bowett has also criticized the construction of Professor Draperthat Article 29 provides the legal basis for peacekeeping for similar reasons; see Draper, ‘The Legal Limitationsupon the Employment of Weapons by the UN Force in the Congo International and Comparative Law Quarterly.1963 at 392 and Bowett id at 178.160“assumed” powers of the UN.”° These theories invariably rest on the pronouncements of theICJ in the Case of Reparation for Injuries Suffered in the Service of the United Nations “[U]nderinternational law, the organization must be deemed to have those powers which, though notexpressly provided in the Charter, are conferred upon it by necessary implication as beingessential to the performance of its duties.”11’While this may constitute a persuasive legal argument, in practice its utility is of littleconsequence unless there is the political inclination to authorize a peacekeeping force on theseterms. The legal ambiguities concerning current peacekeeping operations cannot however, bepermitted to continue for the simple reason that the credibility of the UN as an internationalpeace organization is at stake. This prognosis thus begs two important questions:(1) Should the UN Charter be reviewed and revised?(2) Alternatively, should UN peacekeeping be codified?Review of the UN Charter has always been a controversial issue. To involve the UN in a formalrevision of its Charter at this period in international relations would only open a Pandora’s boxof complex issues and embroil the organization in an ideological dilemma.”2 Much can bedone to clarify the legal basis of peacekeeping without resorting to formal amendments of theUN Charter. The idea is to get the Charter functioning as envisaged by the drafters; not to tinkerwith procedural and legalistic amendments.110See eg John Halderman, “Legal Basis for United Nations Armed Forces,” AJIL 1962, at 972-973; Sohn AJIL(1958) at 230‘°ICJ Reports, 1949 at 182 - this theory formed the basis for the oral submissions of a number of governmentseg Denmark and Canada, see Pleadings, Oral Arguments, Docs 1962 at 162 and 203112 See US Congress Senate Committee on Foreign Relations, 83d Congress, Senate doe, no 164, Review ofthe UN Charter.161Conclusions on the role of peacekeepingThe UN’s initiatives in the practical field of international peacekeeping cannot be regardedlightly. Peacekeeping, despite its deficiencies and “ad hoc” approach, is a concept that shouldnot be abandoned. However, it is clear that certain techniques of UN peacekeeping must beimproved, the legal status, for one, must be put on a firm footing. A detailed analysis ofpeacekeeping and the necessary changes is, however, beyond the parameters of this paper.”3Suffice to say, the international community has recognised this need and various studies areunderway.”4Any attempt to codify existing principles of UN peacekeeping and practice shouldat the outset define the concept of peacekeeping as distinct from coercive enforcement actionunder Chapter VII of the UN Charter. However, the argument against codification ofpeacekeeping principles is that it would narrow the circumstances in which such a force couldbe deployed and could not possibly cover all exigencies.115 The standard argument againstcodification of any legal norm for that matter, is that it lends to a narrow definition of theconcept.Paradoxically, this is the argument submitted to support the proposals for codification, the“There is a dearth of literature on the subject of peacekeeping. See eg General H. T. Alexander “UNPeacekeeping Forces in Civil War situations at p187 of E. Luard, The International Regulation of Civil Wars. (1972)For the view of a military expert on some practical difficulties facing UN troops in an internal conflict; see Major-General Indar Rikhye, “The Control of UN Peacekeeping at UN Headquarters in E. Luard pl95 for an evaluationof the command structure of UN forces. Many of his comments concerning peacekeeping operations would alsoapply to a pennanent UN army under Article 43. Major-General Rikhye also points out the inherent dangers ofmistaking a UN force for a solution of the basic problem and urges that a UN peacekeeping force should beconsidered in the overall framework of the UN Charter.“4See eg the Secretary General’s Report titled An Agenda for Peace: “Preventive Diplornacy,Peacernaking andPeacekeeping.” June 17,1992 31 ILM.953 (1992)“ See R.C.R Siekmann The Codification of General Principles for UN Peacekeeping Operations,” NetherlandsInternational Law Review, 1988 XXXV, 328-332162assertion being that current peacekeeping operations have no legal basis and are lacking instrategy. Moreover, there would continue to be an interplay between the legal norms in anyinternational convention and the ad hoc decisions as to their application. Security Councilmembers would still have the ultimate say in what circumstances a UN peacekeeping forceshould be deployed. This continual interplay of legal norms and policy would therefore counteract any concerns of inflexibility.There is evidence of a growing commitment not only to the ideals of UN peacekeeping but alsoto the recognition that it must be placed on a firm legal basis. The change in attitude of theSoviets is particularly encouraging. In its aide-memoire “Towards comprehensive securitythrough the enhancement of the role of the United Nations” the Soviet Union indicated its desireto see the positive experience and practice of United Nations peacekeeping consolidated and puton a more solid legal and financial basis.”6There have also been recent moves to discuss a draft Convention on the Protection of UnitedNations Peacekeepers, prompted by the dramatic increase in deliberate attacks on peacekeepersand associated civilian personnel.”7The discussion thus far has sought to demonstrate that peacekeeping should not be authorisedunder Chapter VII of the UN Charter. Accordingly, there should be strict adherence to thevoluntary nature of UN peacekeeping which relies essentially on the consent of the host state.There must also be a structured approach to peacekeeping based upon well-defined principles‘16UN Doc A/43/629. The change in Soviet policy towards the UN was initiated by Mikail Gorbachev’s articleon ‘perestrojka” See Pravda, 17 September 1984 UN Doc A/42/574; see also S/19143, Annex)“7See External Affairs Legal Bureau of Canada, 1993 Document. The draft convention was due for discussionm the 6th Committee of the General Assembly, 1993.163and objectives agreed in advance as opposed to an “ad hoc” approach based upon the exigenciesof the situation and to a large extent the prevailing political will at the time. Most important ofall, UN peacekeepers should not be deployed into a situation which requires the use of force.The tragedy of Bosnia has illustrated that UN peacekeeping is not able to deal effectively and,when necessary, forcefully, with violent and single-minded factions in a civil war. Moreover,the experiences of both Bosnia and Somalia illustrate the difficulties a UN peacekeeping forcecan run into when it transcends the legal limitations necessarily imposed on it by the norms ofimpartiality and the non-use of force. Essentially, a UN peacekeeping operation is only effectivewhen it acts as a buffer force with the full consent and cooperation of the parties to theconflict.118 When a situation involves internal faction and unidentifiable armed parties asopposed to discernable national troops, the UN encounters difficulties.If it is to be assumed (or, indeed, expected) that the United Nations will continue to move in thedirection of more forceful and proactive action in response to civil wars involving an intolerablelevel of human suffering, it must develop a credible and effective enforcement mechanism.118UN forces have also recently become involved in some situations which have not required the use of force.For example, the UN has played an instrumental role in the process of decolonization and has recently helped topolitically reconstruct and stabilize newly independent states. The UNTAG operation, for example, in Namibia, wasnot a peacekeeping force but an election supervisory operation. It successfully supervised free and fair electionsresulting in the independence of Namibia on 21 March, 1990. For a discussion of the issues involved see DavidStoelting, “The challenge of UN - monitored elections in independent nations” Stanford Journal of InternationalLaw, p371 - 424, Spring 1992, v28 ; Richard Johnstone, “The Namibia dispute:the transitional government ofnational unity and the problem of enforcing Resolution 435. v15 Melbourne University Law Review p339 - 59,December 1985. Similar approaches were 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 deployed to Cambodia in 1991,which at the time of writing is withdrawing, having achieved its mandate. “UN Approves Troops for Rwanda” TheNew York Times “1992 (reporting on the decision by the UN Security Council to deploy a small peacekeeping forcewith a clearly defined mandate and deadline to prepare for new elections and disarm irregular forces)164A UN Army Under Chapter VIIThe key necessity for the UN is to be able to act earlier and more decisively in potentiallyexplosive humanitarian disasters. A panel of discussants convened by the Carnegie Endowmentfor International Peace recently concluded that “... the United Nations must take steps to preparebetter for military enforcement actions.. .If collective security is to be taken seriously, the UNmust be prepared, in the end, to use force.”119Creating a UN enforcement unit is therefore an appropriate response to the predicament ofcurrent peacekeeping actions. It is, however, a controversial proposal that demands not only afundamental change in the ways characteristic of UN operations, but also in the way thatmember states perceive the world organization.In his 1992 Report titled An Agenda for Peace, the UN Secretary General Dr Boutros BoutrosGhali recommended the deployment of “peace-enforcement units from member states, whichwould be available on call and would consist of troops that have volunteered for such service,”the idea being to enhance and extend traditional activities of UN forces into new areas. Thisconcept thus retains many features of traditional UN peacekeeping but would go further, to theextent that the operation would be deployed without the express consent of the parties involved.UN troops, would accordingly, be authorized to use force to bring an end to civil violence.120It is this feature that distinguishes the concept of peacekeeping from that of peace-enforcement.Carnegie Endowment National Commission on America and the New World, Changing Our ways:Americaand the New World (Washington D. C: Carnegie Endowment for International Peace) 1992, p67120 This proposal is not entirely a new idea. In 1948 the then UN Secretary General Trygve Lie proposed thecreation of a “small guard force, as distinct from a striking force” recruited by the UN Secretary General and placedat the disposal of the Security Council. Lie argued that “even a small United Nations force would command respect,for it would have all the authority of the UN behind it”. Lie, In the Cause of Peace, (1954); Cordier & Foote,Public Papers of the Secretaries - General of the United Nations Vol 1 Trygve Lie 1946 - 1953; see also RuthRussell, supra note 11 at 1-45.165The UN Secretary General recommended the deployment of “peace-enforcement units frommember states, which would be available on call and would consist of troops that volunteeredfor such service” ,121 the idea being to enhance and extend traditional activities of UN forcesinto new areas.Dr Boutros Ghali argues that providing the UN with military forces would provide an effectivemeans of deterring aggression and containing humanitarian crises. He explains that ‘the readyavailability of armed forces on call could serve, in itself, as a means of deterring breaches ofthe peace, since a potential aggressor would know that the Council had at its disposal a meansof response.”122 On the other hand, the Secretary General concedes that a UN army formedunder the legal authority of Article 43 might not be able to deter aggression of a major nationand could only be deployed to meet “the military force of a lesser order.” Peace enforcementunits would therefore engage in active military combat where traditional peacekeeping operationswere regarded as being an inappropriate instrument to prevent the resumption of hostilities. TheSecurity Council would “consider the utilization of peace-enforcement units in clearly definedcircumstances and with their terms of reference specified in advance.”23Though controversial, support for a UN military has grown rapidly since the proposal of the UNSecretary General in his Agenda for Peace. The new era of cooperation in the Security Councilhas prompted a number of prominent observers, in addition to the Secretary General, to call forthe creation of a UN military force under the authority of Article 43 to stamp out aggression and121 supra note 114 at p966 - 967.22 IbidIbid.166human suffering around the world. Of particular interest among academic circles is a plan putforward by Professor Alan Henrikson of the Fletcher School of Law and Diplomacy. Henriksonproposes the creation of a three tier UN military that would be comprised of a Standing ReservePeace Force, a Rapid Response Peace Force and a Permanent Peacekeeping Force, although heemphasizes that these would be “supplementary to the United Nation’s pacific-settlement, ormediation activities and to its increasingly important economic and social work” in keeping withthe Secretary General’s Agenda for Peace.’24 Henrikson believes that the internationalcommunity can no longer rely on “ad hoc” coalitions led by the United States to maintaininternational peace and security. American politicians are often overheard bemoaning US foreignpolicy, the general consensus being that “one Iraq is enough.” Henrikson advocates the creationof a rapid-response force which would be ready for call on short notice and could be deployedto disputed international borders in order to prevent possible conflict.Richard Gardner, a Professor of Columbia University and former US ambassador to Italy, alsoendorses the creation of a UN rapid deployment force comprised of some 100,000 troops frommember states.’25 Gardner’s proposals for a UN force rest on the legal authority establishedin Article 43. Such a force, he envisages, would be used by the Security Council to prevent bothinterstate aggression and internal strife.’26‘‘ Alan K. Henrikson, “How can the Vision of a New World Order be Realized? “Fletcher Forum of WorldAffairs, Winter 1992 at 63; Other international lawyers that have lent support to the proposal for UN peaceenforcement units include David Scheffer, Senior Associate at the Carnegie Endowment for International Peace, Useof force after the Cold War: Panama, Iraq and the New World Order, in Right V. Might (Louis Henkin et al, eds1991) Scheffer argues that ‘international peace cannot depend on the US of Secretary State flying 100,000 milesover many long months to build the necessary coalition. “Id at 155-56.‘ Richard.N Gardner, “Collective Security and the New World Order” Leaders, Jan- March 1992 at 24‘ Ibid at 12167Politicians, newspapers and academic writers have all lent support to the idea of creating a UNarmy. The New York Times has argued in several recent editorials for the creation of UNmilitary forces.’27 New York Times columnist Flora Lewis has urged the UN to ‘acquire apermanent force in readiness, loyal to its flag and to no state,” comprised of Gurkhas from theIndian Army, 128 whereas political scientist Joseph S Nye Jr proposes the creation of a UN“rapid-deployment force” of 60,000 soldiers, with a core of 5,000 troops who would trainregularly together.’29In a New York Times article, US Senator David Boren suggested that 40 to 50 UN membernations contribute to a rapid deployment force of 100,000 volunteers. He argued that such aforce would “help discourage regional conflicts, violations of basic justice, the proliferation ofweapons and international terrorism.’30 In a similar vein, Senator Joseph Biden introducedSenate Joint Resolution 325, the “Collective Security Resolution Participation Resolution”, thaturged “the US president to take all appropriate steps to negotiate, under Article 43 of the UnitedNations Charter” a special agreement or agreements” with equitable terms under whichdesignated forces from various countries, including the US, “would be available to the Security127 “Who can stop civil wars ?“ The New York Times, December 29, 1991; “The New World Army,” The NewYork Tunes March 6th 1992; “The New Blue Army,” The New York Times, September 20, 1992 (Stating that “witha force capable of responding quickly, the United Nations could save lives, check massive tides of refugess anddiscourage warlords. In the world, as on a city street, the mere presence of a cop on the beat matters.” A USAeditorial argued that “If the world doesn’t learn to resolve ethnic rivalries loosed by the Cold War’s end, hundredsof Yugoslavias could crater the future,” See Editorial, “Beef Up the UN’s Peace Role”, USA Today, September28,1992.28 Flora Lewis “Gurkhas can solve the UN’s problem” The New York Times, February 8, 1992‘28lbid‘3° David Boren, “The World Needs An Army on Call,” The New York Times, August 26,1992168Council. .for the purpose of maintaining international peace and security.”31Senator Paul Simon also proposes that “volunteers from “our” (US) armed forces. . be madeavailable at the discretion of the president to help get food into Somalia, or provide air coverfor food and medicine going into Bosnia - or whatever situation is serious enough to warrantUnited Nations Security Council action.”32President Bill Clinton, during his electoral campaign, pledged his support for the creation of aUN military force. A Clinton administration would “stand up for our interests, but we will shareburdens, where possible, through multilateral efforts to secure the peace, such as NATO and anew voluntary UN Rapid Deployment Force. In Bosnia, Somalia, Cambodia and other war-tornareas of the world, multilateral action holds promise as never before and the UN deserves fulland appropriate contributions from all the major powers. “Proposals for the creation of a UN army are not however confined to academic circles and haveled to contentious debate in Security Council meetings. At the UN Security Council Summit inJanuary 1992, several member states specifically endorsed the creation of a UN force.’34‘31Ibjd‘32Paul Simon, “What roles for the US and the UN in Bosnia and Somalia ?‘ Press Release, August 23, 1992‘ Bill Clinton, “Remarks of Governor Bill Clinton,’ LA World Affairs Council, August 13, 1992. Althoughformer President Bush was less enthusiastic about the proposal for a UN army, he did pledge stronger US supportfor peacekeeping operations and offered to make available to the UN, US military facilities and expertise. SeeJames Bone “America offers to train Army of UN Peacekeepers” The Times (London) August 1992 In his last UNaddress in office, former President Bush lent his support to the Secretary General’s Agenda for Peace proposals,which he seemed to endorse in principle. The former President did not, however, commit the US to earmarkingtroops to serve in a UN army. However, in January, 1993 the recently appointed US Representative under theClinton adminstration to the UN, Madeline Aibright, called for the creation of a UN force and cited Article 43 ofthe UN Charter, The New York Times January 29, 1993.‘ Sweden created a special rapid intervention unit some time ago specifically for this purpose; For details,see Swedish Stand-By Force in the Service of the United Nations (Stockholm: Ministry of Foreign Affairs, 1982)See United Nations Security Council Summit Meeting January 31,1992, 47th session, 3046th mtg UN Doe. S/23500;[hereinafter UNSC Summit] See eg the comments of the Austrian Chancellor Franz Vranitzky who stated that there169France in particular displayed an especially keen interest in implementing the provisions of theCharter although specific mention was not made to Article 43. ‘- Nevertheless, PresidentMitterand offered to “make available to the Secretary General a 1,000 man contingent forpeacekeeping operations, at any time on 48-hours notice” and also recommended the use of theMSC as envisaged by the UN Charter.’ President Yelstin endorsed the idea of a “UN rapid -response force11 although he construed the idea in different terms from the French proposal.’37Britain and America, however, notably failed to lend support for the creation of UN militaryforce under Article 43. Prime Minister John Major was quoted as saying “The UN does not needmilitary forces in order to accomplish its traditional role of playing the “honest broker” inmust be authority to dispatch such a force before a conflict ignites, without necessarily obtaining the consent of allthe parties to the potential conflict. Paul Lewis, “UN set to debate Peacemaking Role, The New York Times,September 6, 1992. “Leaders want to enhance UN’s Role” The New 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 18.136 Ibid. The French President did not specify whether the troops for this UN force would remain with theirrespective national military establishments until mobilized by the United Nations, or instead form a standing U Narmy. He was also unclear as to whether the authority to dispatch such a force would lie with the Security Councilor the UN Secretary General.‘37President Yelstin spoke of the need of such a force to be ‘expeditiously activated in areas of crisis. to ensurepeace and stability”...He expressed Russia’s commitment to “playing a practical role in United Nations peacekeepingoperations and contribute to their logistical support”. UNSC Summit supra note 135 at 47. A recent statement onRussia’s new military doctrine reaffirms Russia’s willingness to commit troops to UN peacekeeping operations;Reported on CBC news, November 14th, 1993. See also “The Idea of a Potent UN 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 possibility of reviving Article 43. See article in Pravda,17 September 1987. Several small states also endorsed proposals to establish a permanent UN army or Rapiddeployment force. Hungary, for instance stated that “due consideration should be given to the idea of the UnitedNations instituting a force readily and constantly available that could be mobilized on very short notice and deployedwithout delay...” UNSC Summit supra note 135 at 119. Austria called for a “reassessment of Article 43 by the UN’Id at 63- 64 while the comments of Belgium, Zimbabwe and Cape Verde Islands seemed to implicitly endorse thecreation of a 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 of sovereignty. See “Protection and Security of Small States: Reportof the Secretary- General, U.N GAOR, 46th Session, at 50 UN Document Af46/339 (1991) which reported theviews of several states on the issue of protecting small states by permanent UN military forces.170international disputes.’38Canada, traditionally an ardent supporter of UN peacekeeping missions, has very recentlyindicated its willingness to participate in a stronger UN rapid-deployment force. In an innovativereport, chaired by an eminent panel of Canadian citizens, recommendations were put forwardto improve UN peacekeeping operations for deployment in well-defined areas and to create analtogether new approach for more forceful interventions.‘39The report is indicative of thegrowing concerns over the use of peacekeepers in intrastate crises and it is anticipated that thenew Canadian government will adopt many of the proposals leading the way for other countriesto follow suit.A senior UN official and former UN Under- Secretary General, Sir Brian Urquhart, who hasconsiderable experience in peacekeeping matters, has lent his support to the chorus of expertswho strongly promote the use of Article 43 to give the UN sufficient forces to put an end torandom violence and intervene in civil wars such as in the former Yugoslavia and Somalia aswell as other countries where “sovereignty is also dissolving into anarchy.”14° Urquhartenvisions “armed police actions” which would be deployed by the Security Council into criseswhere the cycle of violence could not be broken except by firm international intervention.Interestingly, Urquhart’s legal premise for his proposal is based on a broader interpretation ofArticle 43 than originally intended by the phrase “international peace and security” and thusOakely and Bone, “Leaders Hail New World Order,” The Times (London) February 1, 1992 at 1.Canada 21, Canada and Common Security in the Twenty-First Century; See “Foreign Policy for ModernCanadians” The Ottawa Citizen, 21 March 1994; “A Promising Blueprint for Canadian Security” The Globe andMail Friday March 18 1994; “Panel Points 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 appear to endorse military intervention specifically into civil wars, hitherto excluded fromUN competence. This proposal therefore goes further than traditional legal scholarship and,indeed, the Secretary General’s recommendation in Agenda for Peace. Dr Boutros Boutros Ghaliproposes a more formal and somewhat modest definition of peace-enforcement as ‘action tobring hostile parties to agreement, essentially through such peaceful means as those foreseen inChapter VI of the UN Charter”.’4’Furthermore, he proposes that “peace-enforcement unitsbe authorized under Article 40 of the Charter by the Security Council but commanded by theUN Secretary General.‘42The legal basis of his proposal is, therefore, somewhat dubious;Article 40 authorizes the use of provisional measures as a prerequisite to Article 42 actions yetthe creation of peace-enforcement units necessarily involves the use of force which can only beauthorized properly under Article 42. Accordingly, the Secretary General argues for a narrowerproposal than Article 43 envisages. Whatever the terminology used, “UN Rapid-Deployment”force, or “Peace-enforcement units,” the proposal for a UN force raises more questions thananswers. There is an almost overwhelming variety of problems that this proposal raises rangingfrom the practical to the political.Legal Difficulties as regards the creation of a UN armyFrom a legal perspective, perhaps the greatest difficulty is defining the circumstances in which141 supra note 114 at 960‘42Article 40 of the UN Charter allows the Security Council to “call upon the parties concerned to comply withsuch provisional measures as it deems necessary or desirable..” This was the legal basis of ONUC in the Congocrisis according to Dag Hammarskjold who stated that the constitutional basis of ONUC “may be considered asimplicitly taken under Article 40 and in that sense, as based on an implicit finding under Article 39. UNSCOR,884th mtg, at 4 (1960); See Oscar Schacter, “Legal Aspects of the UN Action in the Congo AmericanJournal of International Law, 4-6 1961172UN forces should intervene and in what role. This is a particulary pressing problem if thedistinction between internal conflicts and crises of international concern continues to fade as fastas it has in recent times. There are at least a dozen violent crises in the world requiring UNassistance. A UN enforcement-unit or even a larger multinational force as envisaged by Sir BrianUrquhart could not possibly be deployed to all areas. The question remains as to how the UNwould determine which humanitarian crises should receive help. Would the UN Security Councilfor example, ever consider deploying a UN enforcement-unit to the former Soviet republics ofGeorgia, Azerbaijan and Nagorno - Karabakh in the face of a Russian veto?There is also the danger that the UN force might simply become a reinforcement to the weakerside, not only discouraging it from facing its aggressor but also jeopardising a lasting politicalsolution. The Bosnian-Muslims in the former Yugoslavia is a good, if sad, case in point. Publicopinion has largely rallied to the side of the Muslims as the victims of Serbian aggression yet,in a quagmire, the weaker side does not necessarily always have right on its side.143Indeed, the conceptual problems involved with this proposal have raised concerns as to whetherthe UN should, in fact, attempt to codify the types of situation in which a UN army should bedeployed, similar to the UN General Assembly’s codification of the definition of aggression.’44An essential problem with any codification, however, that has emerged in the current debate isthe desirable degree of specificity: the emuneration of appropriate circumstances in which theUN should conduct a humanitarian intervention might exclude unforseen situations requiring‘43Although the media has portrayed the Muslims as the subject of “ethnic cleansing”, the United Nations hasevidence of war crimes being committed on all three sides in the conflict, See eg UN Chronicle, March 1993 p4-12.Junep4-12.L44 UN General Assembly Resolution 3314 (XXIX) see also The Draft Code of Crimes Against the Peace andSecurity ofMankind, Article 12, 83 American Journal of International Law 153. (1989)173assistance which do not fall strictly within any agreed categories. Definitions of humanitarianintervention cannot be exhaustive, nor can they be extensive without becoming too restrictive,yet flexibility requires general provisions which are then open to abuse)45There is also the suggestion that a UN army would not be “constitutional” under the UNCharter. The argument follows that such a force would in effect be beyond the control ofmember states, thereby posing a threat to the sovereignty of individual member states.While the weight of traditional legal scholarship holds that agreements under Article 43 of theCharter are sufficient authority for a UN force, recent academic proposals discussed abovewould appear to go further.’46 Sir Brian Urquhart, for example, advocates the creation of aforce on a wider legal premise than Article 43 originally envisaged. On the other hand, JohnHalderman writing in 1962 concluded that the constitutional justification for UN armed forceslay in the plain language of Article 1(1): “to take effective collective measures for the preventionand removal of threats to the peace.” Halderman believed that the words “to take” required that145See generally Part Two146 Many legal theorists would go so far as to assert that the signing of Article 43 agreements is inherent in UNmembership, a condition for which is acceptance of the obligations contained in the Charter and ability andwillingness to carry out those obligations” See eg Russett and Sutterlin “The UN in a New World Order, ForeignAffairs 1991 at 78. During the early years of the United Nations, and even recently, it was thought that suchagreements were a condition precedent to collective measures undertaken by the Security Council.This would appearto have been the view of governments at the San Francisco Conference. Article 106 seems to support thisinterpretation. It reads: “Pending the coming into force of such speciaL agreements referred to in Article 43 as inthe opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42....’ SeeRuth Russell, A History of the United Nations 1052 (1958). Moreover, for example, Article 25 of the UN Charterrequires member states to “accept and carry out the decisions of the Security Council” and Article 48 asks memberstates to “carry out the decisions of the Security Council for the maintenance of international peace and security.Tn 1948 UN Secretary General Lie also stated that action under Article 42 required the agreements under Article43. See 3 UN GAOR Part 2, UN Doc.A/656 (1948). Hans Kelsen on the other hand, says that “the members ofthe United Nations are certainly not under any obligation to conclude with the Security Council the agreementsreferred to in Articles 43 and 45, See eg The Law of Nations (1950) 756 whereas contemporary legal scholarshipargues that “the negotiation of Article 43 agreements is not merely an option available to UN members, it is a legalobligation of membership in the world organization’, Gardner, supra note 126 at 16.174action be taken by the United Nations and not by its member states acting independently.147Traditional legal scholars such as Louis Sohn and Oscar Schachter hold the view that a UN armyis entirely constitutional under Article 43 of the UN Charter.148Opponents of such a proposal maintain that the creation of a standing UN army or “peaceenforcement units” as proposed by the Secretary General in Agenda for Peace is a threat to theindividual sovereignty of member states different from even what the framers of Article 43 hadenvisaged.’49Th obvious objection to such a force is indeed, the “spectre of supranationality”it creates.’5° John Gerlach for example, believes that small, weaker countries would betargeted for UN intervention as peace-enforcement missions against a powerful state wouldinvolve too many risks.15’ Besides a complete reexamination of the concept of sovereignty, an147 John Halderman “Legal Basis for United Nations Armed Forces” Vol 56 American Journal of InternationalLaw (1962) 971‘ Louis B.Sohn, “The Authority of the United Nations to establish and Maintain a Permanent United NationsForce” American Journal of International Law Vol 52 1958 at 229; and Oscar Schachter, “Authorized Uses of Forceby the United Nations and Regional Organizations” in Law and Force, supra note 3149 Article 43 requires member states to make arrangements for the provision of forces so that the SecretaryGeneral can gather a force for each new crisis. It does not therefore envisage a permanent UN army. In 1944, theDumbarton Oaks conference debated the idea of establishing a standing army but ultimately rejected it, the fearbeing that the UN would become a “superstate or world government.” The US representative noted during onedebate that “The United Nations is not a world government. It is based on the principle of sovereign equality of allof its members, therefore it could not have a permanent standing armed force of its own in the same sense thatindividual nations possess such forces.” UN SCOR, 2d Sess, 43d mtg (1947).150 Some commentators have referred to this as collective internationalism. Richard Gardner of ColumbiaUniversity describes collective internationalism as “the construction of a peaceful world order through multilateralcooperation and effective international organization. Richard Gardner “The Comeback of Liberal Internationalism,”The Washington Quarterly, Summer 1990 p23. The development of an enforcement mechanism under Article 43is thus, central to the collective internationalism goal which envisions a world in which regional and globalorganizations would be responsible for solving an array of international difficulties; See also Joseph. S. Nye Jr “WhatNew World Order?” Foreign Affairs, Spring 1991 p96. Flora Lewis has also contributed to the debate and calls thestrategy “a way to resolve the dilemma between dangerous global unilatensm and sulky, equal dangerous.isolationism. It is neither utopian nor meanly narrow realpolitik.’ Flora Lewis, The G-7 1/2 Directorate, ForeignPolicy, Winter 1991-92 p40John Gerlach, Orbis, “A UN Army for a New World Order?” Spring 1993 at 235;175exercise of this kind would demand considerable consensus among Security Council members.This in itself, however, causes conceptual difficulties particularly if a UN force was to bedeployed into the territory of one of the permanent states.152There is however, the strong alternative argument that in order to prevent genocide or ethnicaggression, the United Nations must have the military capability to intervene in civil wars in adifferent role to that of peacekeeping. As one commentator has remarked “the Security Councilwill need more enforcement power than any member can wield against it.”153 Then there isthe argument that the mere existence of such a force would act as a powerful deterrent in anypotentially explosive crisis.Circumstances in which a UN force could be deployedHow would the United Nations decide which humanitarian crises are worthy of intervention?Does the plight of the Kurds supersede that of the Tibetans? There is a strong argument to bemade that the UN would become a world policeman for fighting in intractable situations. Itfollows that “[V]irtually every region of the planet contains areas in which turmoil is alreadyoccurring or threatens to break out. To seek to right every injustice would be quixotic; even toaddress a relatively small percentage would require an enormous expenditure of blood and152 Sir Anthony Parsons remains sceptical of a greater UN role in enforcement 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 in addition to normal establishments. He also does notbelieve that governments would put combat forces under the command of the Secretary General or the Military StaffCommittee if their task was to fight a campaign rather than acting in the historic peacekeeping non-threateningrole. See Sir Anthony Parsons “The UN in the Post Cold War Era Foreign Affairs Summer 1992‘ Robert C.Johansen, Lessons for Collective Security,” World Policy Journal, Summer 1991 p569-70, (notingthe military logic to the idea that the United Nations should have more power than any single country if it intendsto prevent an aggressive nation from disrupting the peace)176trsure.”154Although this is an obvious problem in the subjective nature of such decisions, a credible UNenforcement mechanism is preferable to the current “ad hoc” approach of Bosnia and Somalia.The authorization of such a force would still require a political judgement from the SecurityCouncil members acting on the exigencies of the situation, yet it is arguable that with the forcesalready assembled the Security Council would be able to act earlier to prevent the spread ofhostilities. A UN force of this nature could have been used in Bosnia, for example, to deterattacks on relief workers by the warring factions and break the Serbian blockade to allowhumanitarian aid to get through to Sarajevo.’55 Special military units could, for example, servehumanitarian purposes by assisting with the demobilization of armed factions. However, a UNforce in Bosnia today would achieve limited humanitarian objectives as the practice of “ethniccleansing” has already destroyed much of the existing country. If the UN had acted in 1991when the city of Dubrovnik was under seige and deployed a UN force, perhaps the spread ofhostilities could have been prevented into Bosnia. Accordingly, one of the key advantages of thisapproach is its preventive deployment to defuse a situation as opposed to an ameliorativeresponse, which has been characteristic of the UN in recent years.ConclusionsThe crisis in the former Yugoslavia tragically illustrates the need to develop prompt and effectivemeasures for future interventions. As the number of humanitarian crises proliferates, such as,for example the latest crisis in Rwanda which demands immediate attention from the UN. it is‘54John Gerlach supra note 151 at 231‘See Ken Adelman “Breathing New Life into the UN” The Washington Times, July 1st, 1992.177imperative that the UN devise new means to deal with humanitarian disasters.There are numerous proponents who believe the hegemonic leadership of the US is a viablemechanism for humanitarian intervention.’56This thesis has, however, sought to demonstratethat multilateralism is the preferred option in the post Cold War climate. In keeping, therefore,with the hypothesis presented, the overriding conclusion is that collective security measuresshould be developed under the aegis of the UN. The prevailing climate of consensus andcooperation of recent years has greatly enhanced the possibility of international peacemaking inhumanitarian crises becoming a reality. The revolutionary and mostly positive changes of thelast two years are a cause for hope, particularly in 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 43 requires. In 1948 Trygve Lie, the then UN Secretary General,remarked that his proposal for a UN force “. . . would have required a degree of attention andimagination on the part of men in charge of the foreign policies of the principal member statesthat they seemed to be unable to give. . to projects for 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 UN has employed other techniques such aspeacekeeping, which in some circumstances has proved highly successful.There is however, increasing evidence that the international community has recognised theSee generally Charles Krauthammer, “The Unipolar Moment”, Foreign Affairs (America and the World)1990/91 Vol 70, No.1 1991:23-33Trygve Lie, In the Cause ofPeace, (1954); p99; Cordier and Foote, Public Papers ofthe Secretaries-Genera?of the United Nations Vol 1 Trygve Lie 1946-1953178futility of sending in a peacekeeping force to civil conflicts.8It is somewhat paradoxical,therefore, that there is also growing reluctance from Security Council members to becomeinvolved in future humanitarian crises of such complexity where there is no discernable enemyand no peace to keep.159The US, for instance, recently indicated that it would not becomedirectly involved in civil conflicts unless it is satisfied that there is a genuine threat tointernational peace and security, a major humanitarian disaster, or a gross violation of humanrights. 160Although there are strong minded opinions from leading international legal scholars and politicalleaders concerning the feasibility of the proposals for a UN peace-enforcement army, theinternational community need only look at the bitter humanitarian conflicts currently raging invarious parts of the world to realize that demand for a stronger world organization with themilitary strength to enforce its decisions on the ground will only increase rather than diminish.Theorists may theorise, but UN soldiers pinned under Serbian mortar-fire have to know whetherthey are keeping the peace or enforcing it.158 A less forceful approach has been adopted by the UN over Haiti for example; See Steven Holmes “UN forceto Rely on Haitians to Keep Order” The New York Times September 30th 1993 (emphasizing the non-combatant roleof the UN peacekeeping force in Haiti in response to criticisms of the Somalian operation); Howard French “USWithdraws Troops Ship From Haiti” The New York Times October 12 1993 (citing UN officials bemoaning lack ofinternational initiatives in Haiti) see also James Bone “Somalia Debacle Curbs UN ambitions on World Stage” TheTimes (London) October 12 1993 11 (reporting that peace-enforcement has proved impossible for UN peacekeepers)“A Wise Stand Down in Somalia” New York Times Editorial October 20th 1993 (“the hard lesson of Somalia is thatUN peacekeepers cannot be arbiters of civil wars”)‘59See Paul Lewis “Clinton Gives Long List of Terms for Sending Troops to Bosnia” The New York TimesSeptember 28, 19931°See Paul Lewis, “US Plans Peacekeeping Guidelines” The New York Times Thursday November 18 1993:Eric Schmitt, “US completes Drafting Limits on Troops Peacekeeping Role” The New York Timer, January 28th,1994 (the guidelines are a sharp departure from Clinton’s election campaign in which he called for the creation ofa “UN Rapid Deployment force”)179CONCLUSIONDevelopments in the international community are talcing place so fast that today’s perspectiveon the situation may change tomorrow. This inevitably makes some of the observations in thispaper somewhat tentative. As this final conclusion is being written, the latest series of eventsin Sarajevo and Rwanda are sorely testing some of the theses of this paper, with no obvioussolution in sight.Nevertheless, it is clear that the international community is slowly inching towards articulationof a law of humanitarian intervention where concern for human rights will displace anachronisticnorms of domestic jurisdiction. Enhancing the role of the United Nations in humanitarian crisesclearly demands a complete reappraisal of traditional notions of absolute sovereignty and noninterference in internal affairs. There is strong evidence to suggest that certain doctrinal conceptssuch the inviolability of state sovereignty, are no longer applicable in contemporary internationalrelations in the area of human rights. Whether the nation-state system will ever in fact bereplaced by a new concept of sovereignty is unlikely in the immediate future. This thesis has,however, sought to demonstrate that the norm of sovereignty has evolved to encompass humanrights. A rare opportunity exists in international relations to harness the wave of concern forhumanity and place it at the forefront of international decision-making in the coming newcentury. The United Nations must fully develop this jurisprudence so that a coherent andconsistent human rights doctrine emerges.It is also clear that traditional UN peacekeeping operations are unable to meet the demands ofthe post-Cold War world. If the UN is to regain its credibility and legitimacy in the eyes of the180international community it must devise new ways of conducting humanitarian military operations,quite different from its earlier practice of relying on peacekeeping forces. A UN army, underthe command and control of the UN as opposed to the big powers is therefore, an appropriateresponse to the present crisis facing peacekeepers in central Bosnia. The prevailing climate ofconsensus and cooperation of recent years would appear to have greatly enhanced the possibilityof international peacemaking by a credible UN force becoming a reality. Much of the presentconfusion however, surrounding UN operations stems from the misuse of the term“peacekeeping”. The international community should proceed cautiously when referring topeacekeeping, particularly as the line between peacekeeping and peacemaking has become moredifficult to delineate in recent times.It is possible to conduct an effective humanitarian intervention under the UN provided certainobjective criteria are followed. My final conclusion would therefore be that ideologicai notionsof humanitarian intervention are reconcilable with the operational capacity of UN forces on theground as long as the UN has clear objectives and the member states are willing to cooperatewith the world organization. While it may be utopian to adhere to the notion that states willalways cooperate with UN policy, it is nonetheless, imperative that the UN formulate someideological signposts for future humanitarian operations. In the absence of the explicit activitiesenunciated in Agenda for Peace, current UN policy will continue to drift aimlessly from crisisto crisis. The big powers may prefer this “ad hoc” approach but action after the fact does notdo much to promote human rights. 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