"Humanitarian Intervention" and International Humanitarian Law
Keynote address by Jacques Forster, Vice President of the International Committee of the Red Cross, presented at the Ninth Annual Seminar on International Humanitarian Law for Diplomats accredited to the United Nations, Geneva, 8-9 March 2000.
Mr. Chairman, Ladies and Gentlemen,
It is an honour and a privilege for me to address the ninth annual seminar on international humanitarian law for diplomats accredited to the United Nations Office and other international organisations in Geneva.
I want to thank you for giving me this opportunity to address a topic which in the last few years has become a favourite theme of intergovernmental debate, international conferences, research papers, journal articles and news items: I am referring to the concept of " humanitarian intervention " .
Much of today's international response to a conflict situation, including the one that involves the use of armed force, tends to be labelled " humanitarian " . From various sources - international fora, statesmen, mass media - we hear the expression " humanitarian intervention " and sometimes even more paradoxical and startling phrases, such as " military humanitarism " , " humanitarian war " and even " humanitarian bombardment " . This discourse is revealing.
I cite these words (statements) not only to illustrate the strong feelings aroused by this issue, but also to express concern about the use of the word " humanitarian " . As an organisation whose mandate stems from international humanitarian law, the ICRC is indeed worried by this far too broad and indiscriminate use. Moreover, the ICRC considers expressions such as " humanitarian intervention” to be unhelpful and even dangerous since they lead us to erroneous conclusions which blur perceptions of the distinct charact er of international humanitarian law and humanitarian action.
Basically, this development raises three issues. First, such expressions implicitly suggest that international humanitarian law can be invoked to justify armed intervention. Second, they suggest a possibility of exemption from full compliance with international humanitarian law simply because the aim of armed intervention is to solve a humanitarian crisis. Third, such expressions imply that humanitarian action can be imposed by force and successfully implemented by actor’s pursuing political and military objectives.
These suggestions are in contradiction with the fundamental principles and the very nature of humanitarian law and humanitarian action. The concern of the ICRC is however not purely formalistic. In the highly politicised settings of armed conflicts, the irresponsible and widespread use of the term " humanitarian " does have an adverse impact on the action of organisations, such as the ICRC, providing protection and assistance for the victims of armed conflict in the field.
In concrete terms, I propose to examine three questions which stem from these suggestions. First: can international humanitarian law justify armed intervention? Second: is there any armed intervention to which international humanitarian law does not apply? And third: are humanitarian action and armed intervention compatible?
1. Can international humanitarian law justify armed intervention?
In the current international order, the right of States to use force should come within the scope of the United Nations Charter, namely its Chapter VII ( " Action with respect to threats to the peace, breaches of the peace, and acts of aggression " ) and Chapter VIII ( " Regional agreements " ).
Today, important actors - governments, international organisations - support the view that grave and large-scale violations of international humanitarian law or of human rights in situations of armed conflict can represent a threat to international peace and security and may, therefore, trigger coercive action on the part of the United Nations or regional organisations.
The principal instruments of international humanitarian law - the Geneva Conventions of 1949 and Additional Protocol I of 1977 - create the obligation of States Parties not only to respect those treaties but also to ensure respect for them [1 ] . This provision is generally considered to be the expression of a collective responsibility to make sure that international humanitarian law is complied with in all circumstances. How this obligation is to be implemented is not however clearly defined.
The question raised in connection with armed intervention is the following: does the obligation to ensure respect for international humanitarian law allow the use of force solely on the basis of that provision? This question can without hesitation be answered in the negative. Article 89 of Additional Protocol I of 1977 removes any doubt on this matter by specifying (I quote): " In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter " .
In other words, even though serious violations of international humanitarian law may trigger coercive action on the part of the United Nations, in particular because they represent a threat to international security, international humanitarian law cannot be used as a basis for taking action outside the framework of the United Nations Charter. Therefore legal justification for armed intervention lies beyond the frontiers of humanitarian law and should be sought elsewhere, notably in Chapters VII and VIII of the Charter.
In short, the law of the right to wage war (which is also known as jus ad bellum and embedded in the United Nations Charter) and the law of the way of waging war (also known as jus in bello or international humanitarian law) should always be kept clearly distinct. I believe it was essential to clarify this first point concerning the irrelevance of international humanitarian law as a basis to justify armed intervention.
2. Is there any armed intervention to which international humanitarian law does not apply?
The Geneva Conventions and their Additional Protocols expressly provide that (first) their rules apply to all cases of armed conflict and (second) these rules must be respected by all the parties to the conflict in all circumstances.
There is no doubt that armed intervention constitutes a situation of armed conflict in terms of international humanitarian law, as would any situation in which armed forces enter the territory of a State or use force against it.
In time of armed conflict, international humanitarian law must be respected by all the parties to the conflict, which means by those who may have violated general international law as much as by those acting within its framework. In other words, humanitarian law disregards whether the cause being defended by each of the parties to the conflict is just and whether the use of armed force is lawful.
Therefore the old concept of " just war " cannot be invoked today to exempt intervention forces from the scope of application of international humanitarian law under the pretext of legitimacy of the cause that they are def ending. The legitimacy of armed intervention has no effect on the obligations resulting from humanitarian law. This is true of any kind of armed intervention, be it those authorised by the Security Council or those undertaken without a United Nations mandate [2 ] .
It seems only natural that those who claim to intervene in the name of the international community with the aim of upholding respect for international humanitarian law must themselves be bound by it.
Indeed, if one agrees to the basic contention that the effectiveness of international humanitarian law relies principally on its capacity to be applied by all parties to the conflict. A refusal or even hesitation on the part of intervention forces to respect international humanitarian law may well lead to new violations of this law. Such a situation would first, certainly weaken the moral and operational status of troops implementing the intervention in the field. It would also thoroughly discredit the very cause invoked to justify armed intervention, which would ultimately undermine efforts of the international community to keep or restore peace.
Oddly enough, for a number of technical reasons which we are not going to delve into here, the issue of whether international humanitarian law should apply to United Nations forces had until recently been shrouded in a certain ambiguity.
This was already damaging in the past when peacekeeping operations were merely designed to guarantee cease-fires and the emphasis was laid on the non-use of force except in self-defence. Developments in the last ten years have made this ambiguity more troublesome. Today, United Nations troops not only increasingly resort to their right to use force in self-defence while conducting peacekeeping operations, but they also implement peace-enforcement actions and therefore become actively engaged as combatants in situations of armed conflict. In such contexts, the need to respect “all international humanitarian law and nothing but international humanitarian law” must be integrated from the outset in the overall strategy of peace enforcement. History has shown, unfortunately, that this is not merely a formalistic concern and that no troops – not even United Nations forces - are immune from committing violations of international humanitarian law.
In this respect, the ICRC believes that the decision by the United Nations Secretary-General to promulgate a bulletin on observance by United Nations forces of international humanitarian law [3 ] is an auspicious signal and an important political gesture. It is symbolic that the Bulletin entered into force on 12 August 1999, the day of the fiftieth anniversary of the Geneva Conventions.
The substantial merit of this document is that it summarises some of the fundamental rules of international humanitarian law and explicitly extends their application to United Nations personnel engaged “in enforcement actions, or in peacekeeping operations when the use of force is permitted ip self-defence” [4 ] . The ICRC has no doubt that the promulgation and entry into force of the Bulletin constitutes a positive development of international humanitarian law, as long as it is followed up by the appropriate training of troops.
It should be emphasised, however, that the Bulletin applies only to United Nations forces conducting operations under the command and control of the United Nations. It does not apply to operations authorised by the Security Council which are placed under the command of a State or regional organisation, or to operations undertaken by a regional organisation without a United Nations mandate. In such cases, individual States or groups of States concerned must nevertheless comply with the customary and treaty-based rules of international humanitarian law by which they are bound. Whatever the legitimacy of armed intervention, its sub mission to the lex comunis of armed conflict must be upheld.
3. Are humanitarian action and armed intervention compatible?
After this reflection on the applicability of international humanitarian law to situations of armed intervention, I would like to address the topical question of the compatibility between armed intervention and humanitarian action.
We must always bear in mind that there are clear limits to what humanitarian action can achieve and clear dangers in having military action excessively focused on humanitarianism.
Humanitarian action is designed to address consequences, but not causes of conflicts. In other words, it is not designed to resolve conflicts. Its sole objective is to protect human dignity and to save people's lives.
In the ICRC’s understanding, humanitarian action cannot be a substitute for political action that addresses the roots of conflicts and tries to resolve them. These two spheres must remain clearly distinct from each other. Furthermore, in the ICRC's viewpoint, humanitarian action is inherently non-coercive and cannot be imposed by force. Experience shows that whenever humanitarianism becomes embroiled in political or military action, it sooner contributes to sustaining conflicts rather than putting an end to them.
It is increasingly accepted that humanitarian action can be successfully implemented only in situations where humanitarian actors can operate according to their own rules. Such an environment is often called a " humanitarian space " .
In situations of armed conflict, humanitarian agencies must always preserve their independence of decision and action if they are to maintain the trust of all the parties and actors in the field. This is essential in particular for an organisation such as the ICRC if it is to play it s role of a specifically neutral and independent intermediary between the parties to the conflict. This task was expressly entrusted to the ICRC by the community of States.
We must not forget that any armed intervention has its humanitarian consequences, like, for example, the taking of prisoners. Such a case clearly demonstrate the importance of preserving the independence of humanitarian agencies. Thanks to its independence respected by all the parties to the conflict, the ICRC was thus able to visit and render humanitarian services to members of United Nations peacekeeping forces held in captivity in Somalia and in Bosnia.
In the event of armed intervention, the scope and the very existence of a humanitarian space is crucially affected by the way military actors operate. Some recent peacekeeping operations - UNPROFOR is obviously the case that comes to mind - revealed a tendency of having armed contingents directly involved in humanitarian activities. From the ICRC's point of view, this tendency can be counterproductive for the reason of confusion of roles that may affect the perceptions of the parties to the conflict and, ultimately, humanitarian action itself. In fact when military actors - whose primary mission is to bring about peace - are doing something else that another – and better qualified - actors are already doing, a sort of crowding effect occurs in the theatre of operation, which may reduce the effectiveness of humanitarian action. On many occasions such over-saturation has caused more disorder that good: whenever similar activities are undertaken simultaneously by armed contingents and humanitarian agencies, the latter become inevitably associated with political or military objectives pursued by the former, which obviously go far beyond humanitarian concerns. In such a case, the independence of humanitarian action inevitably becomes suspect.
In short, by entrusting military actors with two mutually inco mpatible tasks, the international community may achieve none, while a natural division of labour between military and humanitarian actors can certainly lead to better results.
This does not mean that military action may not in some very specific circumstances contribute to maintaining the humanitarian space - the framework within which humanitarian action can be successfully implemented. In certain situations, for example, military intervention may prove indispensable in securing respect for international humanitarian law and thus creating the necessary security environment for the conduct of humanitarian activities. I am thinking, in particular, of the creation of safe corridors for the delivery of humanitarian assistance. Military missions may also play a crucial role in sharing situation analysis with humanitarian agencies, especially on questions related to security. That being said, enabling humanitarian action should not be the sole objective of armed intervention.
Only on the basis of a clear understanding of and respect for each other's mandates and constraints, can a real complementarity between military and humanitarian actors be achieved. Together, their efforts can lead towards the ultimate goal of peace-building.
Military interventions by the international community in response to grave and large-scale violations of international humanitarian law or of human rights have now become a reality.
This new challenge leads me to make the following concluding remarks.
1) The use of force by the international community should come within the scope of the United Nations Charter. International humanitarian law cannot be invoked to justify armed intervention because it has nothing to do with the right of States to use force. Its role is strictly limited to setting limits to armed force irrespective of the legitimacy of its use.
2) In the event of armed intervention, despite the fact that its legal justification lies beyond the frontiers of international humanitarian law, this body of law must be respected by all the parties to the conflict in all circumstances. The legitimacy of armed intervention has no effect on the obligations of the parties under international humanitarian law and therefore cannot be invoked to exempt intervention forces from these obligations. In this context, the ICRC welcomes the promulgation and entry into force of the Secretary-General's bulletin on observance by United Nations forces of international humanitarian law by which the United Nations has made a solemn commitment to abide by the highest standards of this law.
3) Humanitarian action is designed not to resolve conflicts but to protect human dignity and save lives. To maintain its neutral and impartial character and, consequently, the trust of all the parties to the conflict, it must be clearly dissociated from political and military measures the international community may take in search for conflict resolution. Only by strictly respecting the specificity of each other’s mandates can military and humanitarian actors work “separately together” in a way that leads to the shared goal of peace.
To add to these points, I finally wish to briefly touch upon an issue which, I feel, merits special attention and which I would call the imperative of preventive action.
It is a truism that the best alternative to intervention is prevention. It is also necessary to recognise that any armed intervention or humanitarian relief operation is itself a result of the failure of prevention. I strongly believe that the international community needs to invest more in preventive measures. Indeed, such measures can potentially save thousands of lives and prevent widespread destruction. What is more, they cost far less than any mil itary intervention or humanitarian relief operation.
As the UN Secretary-General Kofi Annan stated in the introduction to his 1999 annual report on the work of the United Nations, " Today, no one disputes that prevention is better, and cheaper, than reacting to crises after the fact. Yet our political and organisational cultures and practices remain oriented far more towards reaction than prevention " [5 ] . As remedies, he recommended, in particular, greater use of the early warning mechanisms of United Nations humanitarian agencies and more frequent deployment of mediators and peacekeeping troops to prevent crises from escalating into war.[6 ]
The challenge of preventive action goes far beyond the capacity of the ICRC. A sustained commitment has to come in the first place from your respective governments and from the international community as a whole.
As for the ICRC, its role in the field of prevention mainly consists in spreading knowledge of international humanitarian law and promoting respect for its fundamental principles. This is also the primary objective of our seminar.
It is my sincere wish that through concerted and collective efforts based on a clear understanding of our respective mandates and roles, we will become more successful in preventing violence and conflict.
I trust that some of the thoughts that I have shared with you will prove useful in the context of this seminar. I thank you for giving me the opportunity to express them here today and wish you every success in your important deliberations.
1. Article 1 common to the four Geneva Conventions and Article 1 of Additional Protocol I
2. The question of the legitimacy of armed intervention does not concern the ICRC more than any other question of jus ad bellum. The ICRC is extremely reticent about addressing such questions, as any pronouncement with regard to the parties' responsibility for the outbreak of conflict would obviously be detrimental to the ICRC's action in aid of the victims of armed conflict.
3. Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law, 6 August 1999, ST/SGB/1999/13.
4. Id, at 1.1
5. UN release, http://www.unfoundation.org/unwire/archives/show_article.cfm?article=4441
6. Goodman, Reuters/Planet Ark, http://www.unfoundation.org/unwire/archives/show_article.cfm?article=4441
Ref. LG 2000-097-ENG