RN Presentation: At the Yale law school’s annual Robert L. Bernstein International Human Rights Symposium, consecrated to Human Rights in the Streets and held in New Haven on March 27-28, 2014, RN Board Member Edward Mortimer addressed the panel on ‘Intervention’.
In this contribution to our site, which will also appear in a shortened version in Beirut’s leading daily an-Nahar, Edward Mortimer provided the following text based on the address. Our readers will appreciate the clarity and precision of the answers in a uniquely complex debate.
Several questions were put to the panel on intervention, and I shall attempt to answer all of them. But I will devote most of my time to the first question, which is:
1. Is there a role for human rights interventions once politics takes to the streets?
To answer this, we need to be clear what we mean by “intervention”.
a) In some of the literature, the word is used to cover any form of involvement by outsiders in the domestic affairs of a sovereign state, even if that involvement takes a purely peaceful or nonviolent form and/or has the consent of the government of the state in question. In this sense, it could include, for instance, missions sent by the UN, or by donor governments, to help a state improve its capacity for upholding human rights by training the security forces and the judiciary; or a mission sent by an international organization to investigate human rights violations or grievances, which the government agrees to allow into the country; or a “human rights component”, deployed for similar purposes, within a UN peacekeeping or peacebuilding mission.
b) In other cases “intervention” is understood to mean the use of military force by an external actor within the territory of a sovereign state, without the consent of that state’s government; indeed, usually directed against that government, but with the declared purpose of assisting or protecting other parties within that state.
Two examples given:
I. Libya, referring evidently to the campaign of aerial bombardment undertaken by NATO in that country in 2011. This clearly was an “intervention” in the second, narrower sense of an armed attack, to which the then government of Libya – the regime of Colonel Gaddafi – had certainly not consented, and which in fact clearly targeted that regime, although the wording of the UN Security Council resolution which authorized the intervention did not make that explicit (it spoke only of protecting “civilians and civilian populated areas under threat of attack”), and this has led to much subsequent controversy, indeed recrimination, among states which supported the resolution or allowed it to pass.
II. “United Nations peacekeepers have traditionally intervened at the end of conflicts, not at their beginning”. In this case, it is presumably the first, broad definition that is being used. Such “interventions” may well occur in contexts where “politics has taken to the streets”; and the fact that they are accepted by the government, as well as by other parties, can generally be taken as an indication that there is indeed a role for them. But these are not armed attacks. UN peacekeepers are normally deployed as the result of an agreement to which the government is party, and they play an important role in winding down a conflict and making its recurrence less likely. The fourth question put to us asks whether their role should be “rethought”. Is this really a question of timing? If so, yes, it would often be better if they could be deployed at an earlier stage – ideally in time to prevent the conflict from turning violent in the first place. A good example of this was UNPREDEP, the UN preventive deployment force in the former Yugoslav republic of Macedonia, in the 1990s. Ostensibly deployed to prevent hostilities between Macedonia and Serbia, this force in fact helped to stabilize the internal situation in Macedonia and to prevent an outbreak of hostilities between its Slav and Albanian inhabitants. Unhappily it has proved difficult to replicate this success elsewhere, because it is very rare for governments to admit that there is a danger of civil war on their territory, and to invite an impartial external force (such as a UN peacekeeping force) to come and help prevent it, until after the conflict has actually broken out.
But probably the question meant here is not primarily about timing. It’s about the kind of role UN forces should be expected to play. We could perhaps rephrase it thus: should the UN be prepared to intervene forcefully to prevent or halt deadly conflicts in which human rights are being violated on a massive scale, rather than waiting to deploy troops until a ceasefire can be negotiated? And this of course takes us back to the second, narrower meaning of intervention, as a forceful interference in the internal affairs of a sovereign state. In other words it’s the age-old question of “humanitarian” intervention, which has been discussed by philosophers and international lawyers for many centuries: is it appropriate, and if so when, to intervene in the internal affairs of a community for the sake of protecting some of its members?
Historically, most of this discussion has focused mainly on the question of right: do outsiders have the right to intervene, given that by doing so they infringe the sovereignty of an independent state and thereby damage one of the essential building blocks of world peace? But some authorities – notably Bernard Kouchner in the late 1980s – have suggested that in certain circumstances there is not only a right but a duty to intervene or interfere (devoir d’ingérence). Indeed this is one interpretation of the Convention on Genocide, which puts all its signatories under an obligation to “prevent and punish” genocide – though more conservative lawyers have interpreted this as only requiring states to act within their own jurisdiction.
A turning-point in the argument, at least on the level of theory, was reached with the publication of the report of the International Commission on Intervention and State Sovereignty in December 2001. This famously advanced the doctrine of “responsibility to protect”, now popularly known as R2P, which was eventually enshrined, in a carefully limited form, in the Outcome Document of the 2005 World Summit, adopted unanimously by all member states of the United Nations.
According to that document, every State has the Responsibility to Protect its populations from mass atrocity crimes in four overlapping categories: Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity. The wider international community, for its part, has the responsibility to encourage and assist individual States in meeting that responsibility, but also, crucially, to “take appropriate collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter”, in cases where a state is manifestly failing to protect its own populations, “should peaceful means be inadequate”.
The UN has thus circumscribed R2P with four important limitations:
i. it arises only in extreme cases – when populations are subjected to, or threatened with, large-scale and appalling crimes.
ii. Peaceful means must be inadequate – which presumably means they must have been tried and failed.
iii. The action must be collective: this rules out unilateral action by a single state.
iv. It must be taken through the Security Council, which rules out any action in cases where a permanent member is willing to use its veto. [This limitation is widely blamed for the international community’s failure to intervene in the current conflict in Syria.]
These limitations overlap, but don’t exactly coincide, with the six criteria in the original R2P report – viz:
i. Just cause – military intervention can only be justified in extreme cases, involving loss of life or ethnic cleansing on a large scale.
ii. Right intention – even if intervening states have other motives as well, their primary purpose must be to halt or avert human suffering. (And the report adds that this is “better assured with multilateral operations, clearly supported by regional opinion and the victims concerned”.)
iii. Last resort – every non-military option must have been explored first, with reasonable grounds for believing lesser measures would not have been successful. (Q: was this the case in Libya?)
iv. Proportional means – the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.
v. Reasonable prospects – there must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences not likely to be worse than the consequences of inaction.
vi. Right authority – like the 2005 Outcome Document, the report favours Security Council authorization, but its authors – working in the immediate aftermath of Nato’s intervention in Yugoslavia in 1999, which lacked such authorization – did not agree as to whether this should be an absolute requirement. They tried to work round this by asserting that “The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has.” In particular, they suggested that “The Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support.” [I was present at a retreat for Security Council members in May 2002, at which the co-chairs of the Commission presented their report and tried to argue this point. The Russian delegate replied indignantly – and in the light of more recent events somewhat ironically – declaring that the veto had nothing to do with “vital state interests” but was given to the permanent members as part of their special responsibility for international peace and security.]
So, for the UN, the route is blocked so long as one of the P5 is prepared to veto.[*] Should that be considered the last word? In practice, most effective interventions have been unilateral – in East Pakistan, Cambodia, Uganda in the 1970s – or not authorised by the Security Council – Kosovo 1999. If there is a duty or responsibility to save populations from these appalling crimes, can states with the power to do so be absolved of that responsibility simply by one other state’s veto? Probably not, but in those circumstances one should pay even closer attention to the R2P report’s criteria: the case must be extreme, and – above all – one needs to be confident that there is a reasonable chance of success and that the consequence will not be to make matters even worse. Experience is not encouraging in this respect – too often those hailed initially as saviours have quickly found themselves a hated foreign occupier, caught in a “quagmire” of guerrilla war – and I believe this, much more than the deadlock in the Security Council, is the main reason why military intervention has not been tried in Syria. No doubt we need to be more imaginative about the forms that “intervention” can take.
2. Does intervention inevitably mean taking sides?
I would say yes. A situation grave enough to justify military intervention is one where the state has either failed, or is in the hands of a regime which is able and willing to commit mass atrocities against some of its populations. Any constructive intervention is therefore bound to aim at the reconstruction of the state and/or a change of regime. That is why, in my view, the intervention in Libya was bound to attack Colonel Gaddafi’s regime and to work in alliance with those who were rebelling against him. There was no other way that it could have hoped to provide civilians in Libya with lasting and effective protection. It is a pity that this was not spelt out more clearly in the authorizing Security Council resolution – though of course it is also quite likely that a more explicit resolution would not have passed. It is also arguable that the intervening powers could, and should, have made greater efforts to restrain the rebels from committing atrocities of their own.
3. Does this mean that the new paradigm forces international human rights advocates to give up what some have viewed as the hypocrisy of their neutrality?
This question is predicated on the premise that “picking sides or calling for regime change” has hitherto been anathema to international human rights advocates. I am not sure this is true. What is true – and will, I hope, remain so – is that human rights advocates must speak up for the rights of all human beings, and not seek to excuse or justify violations committed by any party. But this surely does not prevent them from identifying some parties as being responsible for violations, or for more general and larger-scale violations than other parties; and I don’t think it need always inhibit them from calling for regime change, when it is clear that a given regime is structurally committed to mass violations of the human rights of parts of the population, and very unlikely to “mend its ways”. In such cases, calling for its replacement by a more humane regime seems a logical extension of human rights advocacy, and it may indeed be hypocritical to shy away from that. But advocates should always make clear that their own commitment is to “measures not men”, and that they will not hesitate to criticize the replacement regime, or indeed those struggling to overthrow the existing one, whenever they in their turn resort to violations.
4. Is there room in the context of these unstable uprisings for something like human rights monitors? Could they make up for the absence of movement leadership?
Human rights monitors can indeed play a useful role, but here we are reverting to the broader meaning of “intervention”, since such monitors can only be deployed with the consent of the authorities holding power in a given territory. It would be highly desirable to persuade the parties to civil conflicts, including civil resistance movements and the governments or regimes they are resisting, to accept the presence of international human rights monitors and agree to take action to halt any violations or abuses that these monitors report. Such agreement at an early stage in a conflict might help to prevent the escalation of violence and to canalize the conflict into nonviolent forms. Unfortunately, regimes confronted with mass protest movements will usually not accept it. Even so, unilateral acceptance by protest or rebel movements may still be useful. Whether it can make up for an absence of leadership is, however, much more doubtful, since accepting and implementing such an agreement itself requires an exercise of leadership: only leaders with a considerable degree of authority over their followers could ensure that they accepted the presence of monitors and complied with their decisions.
[*] The only possible alternative would be for it to be taken by the General Assembly, under the “uniting for peace” procedure laid out in GA Resolution 377, which was used in 1956 to bypass British and French objections during the Suez crisis, and led to the setting up of the first UN Emergency Force in Sinai – in fact a peacekeeping force rather than an “intervention” in the sense discussed here. This happened at a time when the United States could count on majority support in the General Assembly, and therefore did not anticipate any use of the procedure to circumvent its own veto in the Security Council. Its validity was never accepted by the Soviet Union or Russia, and its use in present circumstances, where the US relies on its veto to block action against Israel, seems, to say the least, very unlikely.
