The right to intervene on humanitarian grounds: limits and conditions. The right to intervene and international law in the humanitarian field. Towards a new concept of national sovereignty
Public hearing on the right of humanitarian intervention Committee of Foreign affairs and security of the European Parliament, Brussels, 25 January 1994. Address by Mr Yves Sandoz, Director for Principles, Law and Relations with the Movement, International Committee of the Red Cross.
Mr Chairman, members of the Committee, Ladies and Gentlemen,
This very timely hearing is prompted by concern to ensure that all the victims of armed conflict should be able to receive protection and assistance.
This legitimate concern, this ambition, reflects the imperative need to guarantee respect for the most fundamental human rights. Put more simply, European culture, like all dominant cultures throughout the world, imposes on us a duty to show solidarity.
This duty is so firmly imprinted in our values that pictures of starving children or tortured prisoners will instantly produce - especially among young people - a surge of revulsion and compassion that is often difficult to channel constructively.
Obviously, war is the worst enemy of human rights, and our priority must remain to strive for a peaceful world. As we have not yet succeeded in eliminating war, however, we have attempted to mitigate its effects so as to create an oasis of humanity in the midst of armed conflict. That is the goal of international humanitarian law.
I am not here to deliver a lecture on humanitarian law. I nevertheless feel it necessary to briefly restate what humanitarian law says about the matter at hand today.
The provisions of humanitarian law governing international assistance are based on three principles.
First, a party to conflict does not have the right to starve its adversary's population. It must, like all States, allow free passage for international relief consignments intended for that population when such assistance proves necessary.
Secondly, parties to a conflict have an obligation to supply all civilians under their control - including their own population - with food, medicines and other items essential to their survival.
Finally, should the warring parties be unable to supply a needy population with basic essentials, they must accept an international operation to deliver such assistance to territories under their control, including their own.
In short, humanitarian law as contained in the 1949 Geneva Conventions and their Additional Protocols of 1977, which have been accepted by the vast majority of States, recognizes the right of victims to receive assistance, in non-international as well as international conflicts.
There are, to be sure, limits to this right, relating to the nature of the agency offering to bring assistance and checks on the consignments.
Indeed, the obligation to allow free passage to relief consignments being sent to the civilian population of a party to a conflict, including the adverse party, may be made conditional upon checks to ensure that the contents are distributed exclusively to those for whom they are intended.
Moreover, the parties to the conflict are bound to give a formal reply to any request to conduct an international relief operation, which must be humanitarian and impartial in nature, on their territory. This requirement does not, however, give them the right arbitrarily to refuse essential relief, as that would violate the principle outlined above.
One might wish to scale down or even do away with these restrictions, but no progress will be made in this respect without any attempt to understand why governments demanded them in the first place.
Everyone will appreciate the danger of humanitarian concern being used as a pretext for the arrival of individuals with other aims in view. But the governments of poor States further weakened by war may well also legitimately fear a disorderly arrival en masse of humanitarian organizations which are frequently ignorant of the practical and logistic constraints inherent in the situation and have little understanding of the political, social and cultural context.
Humanitarian organizations therefore have a duty to share their experiences and to adhere to certain working principles designed to minimize the destabilizing effect that their work can have, not only on the governments involved but also on the social fabric of the communities they are trying to help.
I should like to say in passing that drawing up a code of conduct for organizations providing emergency assistance is a useful way of compelling them to think through their work more carefully and of strengthening the indispensable relationship of trust that must be built up between such organizations and the people living in the areas where they work.
Regarding the provisions of international humanitarian law and the limitations of those provisions, I must confess I hardly think it possible that any substantial changes will come about, although there is a need for a thorough examination of the requirement for inspections, and of practical means of meeting that requirement.
Resolutions of a general nature were adopted by the United Nations General Assembly on this matter following the debate on what has become known as the right, or duty, to intervene on humanitarian grounds. I am thinking in particular of resolutions 43/131 of 8 December 1988 and 45/100 of 14 December 1990. A close look at these resolutions reveals that what they do, in fact, is to present in a new package both the old requirement - that is, to protect and assist those in need - and the old restriction, namely that of national sovereignty. Believe me when I say that I am n ot engaging in a polemic here and I am certainly not suggesting that the discussions held on this matter were of no value. On the contrary. But the effect of those discussions - and a very positive one it was - was not to formulate new rules; instead, they stirred the conscience of both the public and governments by reminding them that the relevant rules already exist but are often forgotten or disregarded.
I can well imagine that you might feel disappointment at this juncture in my talk. If we support existing law, does that mean that we accept the status quo and accommodate ourselves to the situations confronting us today, which everyone will agree are unacceptable?
Far be it from me to defend the indefensible!
But I think it is important clearly to identify where the problem lies if we really want to change this unacceptable situation.
The problem today does not stem from a lack of rules - let me emphasize that once more - but from the violation of those rules. And it is in the context of grave and large-scale violations of international humanitarian law - or of human rights in situations other than those of armed conflict - that we must place the question of intervention on humanitarian grounds.
Let me say at once that although armed intervention for humanitarian purposes may be necessary at times, it is not the right answer and will never be more than the lesser of two evils in extreme circumstances. Indeed, it is the result of a twofold failure, which we should first try to analyse.
First, there is the failure to settle a dispute by peaceful means, which is the primary task of the United Nations. Any war is a reflection of this failure.
Secondly, there is the failure of international humanitarian law, whose goal is to ensure that humanitar ian rules are applied in wartime by consensus, without the use of force.
I shall briefly return in my conclusions to the various courses of action that may be envisaged to forestall that twofold failure.
However, we cannot disregard the current situation and the recently resumed discussions on the question of armed intervention for humanitarian purposes, especially in the light of the resolutions adopted by the Security Council and the operations that ensued, for example in the Kurdish areas of Iraq, in Somalia, in the former Yugoslavia and in many other parts of the world.
There is no time for me here to analyse those resolutions and operations, so I shall just outline the six conclusions I myself have reached on the matter:
1. The use of force by foreign States in response to grave and large-scale violations of international humanitarian law or of human rights in situations of armed conflict should come within the scope of Chapter VII (Action with respect to threats to the peace, breaches of the peace, and acts of aggression) and Chapter VIII (Regional agreements) of the United Nations Charter, in keeping with the widely accepted view that such violations constitute a threat to international peace. To return to the concept of intervention on humanitarian grounds as it existed before the creation of the United Nations system, in other words the right of each State to take unilateral action, would obviously involve a great risk of abuse and constitute an obvious threat to the stability of international relations.
2. Although it would be impossible to classify all situations in which violations of international humanitarian law might justify armed intervention, a distinction can be drawn between deliberate violations and violations by omission on the part of a country's authorities. There are instances where governments or other authorities blatantly flout the humanitarian rules, either by what they do or by the way they express themselves, and other cases where it is clear that they are no longer in control of the situation. These factors will obviously have a bearing on the type of intervention called for.
3. When humanitarian activities are deadlocked in spite of the numerous means of implementation provided for in international humanitarian law, the problem extends beyond the scope of the law and can no longer be considered from the sole angle of humanitarian action. If the Security Council opts for armed intervention, as provided for in Chapter VII of the United Nations Charter, it cannot lose sight of the fact that its primary goal is to restore peace. Its decision must be part of a coherent and comprehensive plan of action. Ideally of course, seeking to gain a global view of the problem should not prevent the Council from taking a rapid decision in an emergency and launching an operation on a limited scale.
4. Once the Security Council or regional bodies have decided to take action, all requisite means should be deployed or kept in reserve to make sure that the operation succeeds, whatever the circumstances.
What, for instance, are the alternatives if the operation is obstructed or if those conducting it come under attack? If those eventualities are not seriously taken into account at the outset, if those launching the operation are not absolutely determined to ensure its success and to use all necessary means to that end, the credibility of the decision-makers and the security of those involved in implementing the operation will be seriously jeopardized.
5. In the event of armed intervention, even if it is carrie d out for humanitarian purposes, humanitarian organizations must be allowed to remain independent if they are to maintain the trust of all the parties to the conflict. This should not prevent them from taking account of the new parameters created by the armed intervention so as to redefine their roles in keeping with their respective mandates and characteristics, which obviously vary widely, especially in the case of intergovernmental and non-governmental agencies. But it is essential for an organization such as the International Committee of the Red Cross to retain its independence if it is to play the role of neutral intermediary entrusted to it by the Geneva Conventions. We must not forget that armed intervention, even for humanitarian reasons, may lead to the taking of prisoners. In Somalia, for instance, the ICRC's visits to prisoners held by the United Nations forces and by Somali factions and the part the institution took in handing them over to their respective powers of origin clearly demonstrate the vital importance of that role and of the ICRC's independence.
6. I do not think it either possible or desirable to define or codify intervention on humanitarian grounds. The need I mentioned earlier to gain a comprehensive view of each situation and of the great variety of such situations would make it difficult to define in advance what type of action should be envisaged in each case - humanitarian corridors, protected areas, opening of airports, etc.
Allow me, Mr Chairman, to make a few concluding remarks.
I have emphasized the fact that armed intervention, even if carried out for humanitarian purposes, is the result of a twofold failure and that it has many negative implications. At present such interventions cannot be ruled out, but they should be envisaged only as a last resort and not as a satisfactory method of dealing with humanitarian problems.
Before resorting to armed intervention, everything should be done to avoid the double failure which necessarily precedes such a decision.
It is therefore essential to strengthen existing means of conflict prevention, be it through development aid, the promotion of human rights or an in-depth analysis aimed at clarifying the attitude of the international community to the question of minorities.
Greater efforts should also be made to strengthen international humanitarian law. The indignation at barbarities perpetrated by soldiers would be more credible if the countries voicing such indignation included comprehensive teaching of the humanitarian rules in their military training, which is rarely the case. Impassioned and quite justified speeches against those who obstruct humanitarian aid would be better accepted if the governments making them gave their wholehearted support to humanitarian operations where these can be deployed.
Allow me to stress, Mr Chairman, that the ICRC has no intention of giving up; nor have the many other humanitarian organizations, whether intergovernmental or non-governmental, which are engaged in providing emergency aid. The determination to help despite all odds is stronger than the discouragement felt by young delegates who witness dreadful deeds, whose motives are misunderstood and who all too often pay for their commitment with their health or their very lives.
ICRC delegates, helped by local and foreign Red Cross or Red Crescent Societies, have needed and still need a great deal of courage and imagination to provide more than a million meals a day in Somalia and to distribute aid to some 600,000 people in the former Yugoslavia, not to mention the thousands of detainees they visit and the hundreds of thousands of Red Cross messages they distribute.
I am not giving these figures in a spirit of self-congratulation, believe me, but as an illustration. I certainly have no intention of ignoring the remarkable work done by other organizations.
The ICRC, like most of these other organizations, probably, is not here to tell you that it wants to be replaced or to be absorbed into a system based on armed intervention.
Even if armed intervention on humanitarian grounds turns out to be unavoidable in some extreme situations, we trust that the community of States will not consider such intervention or the situations that provoke it as inevitable. Devising a system of armed intervention for humanitarian purposes would be tantamount to an abdication on the part of the international community in the face of its true challenges: preventing conflicts and promoting the fundamental values upheld by international humanitarian law.
The ICRC is also involved in such preventive action in a number of ways and on a modest scale. But a more sustained, although less spectacular commitment has to come from the international community. That is the essence of the message I wished to give you today.
Thank you for your attention.