Disarmament Diplomacy

Just War and the Responsibility to Protect: Developments in UN Peacekeeping and Humanitarian Intervention

Hugh Beach

The Charter of the United Nations says that member nations are to refrain, in their international relations, from the "threat or use of force against the territorial integrity or political independence of any state".[1] It allows for only two exceptions. The first is self-defence, "if an armed attack occurs against a member, until the Security Council has taken measures to maintain international peace and security".[2] The other is when the Security Council has "determined the existence of any threat to the peace, breach of the peace or act of aggression" and considers measures other than the use of force have been or would be likely to be inadequate. The Council may then take "such action by air, sea or land forces as may be necessary to maintain or restore international peace and security".[3] Such action is generally identified as Chapter VII action and referred to in the relevant Security Council resolutions[4] with the phrase "all necessary means".

UN Peacekeeping

Odd as it may seem, UN Peacekeeping - much the most frequent use of armed force under the aegis of the United Nations - falls into neither of these categories. There is no explicit warrant for such action in the Charter and it has had to be improvised on the hoof. But since 1948 a clear body of precedent has built up around it. The key features are:

• the more or less voluntary consent of all parties to the presence and activities of the mission;
• the peacekeepers' impartiality in relation to the parties;
• the minimum use of force, only in the last resort and only in self defence. They have no enemies and are not there to win.[5]

To date, there have been 59 such operations, costing the lives of some 1,900 peacekeepers and around $30 billion. Of these, sixteen are current, involving nearly 65,000 military troops and civilian police drawn from 102 countries. Since the 'Blue Helmets' won the Nobel Peace Prize in 1988 they have helped to bring peace and democracy to Namibia, Cambodia, El Salvador, Mozambique and East Timor and continue to serve as a key stabilising factor in such diverse conflicts as the Golan Heights, Sierra Leone, Cyprus, Georgia, Western Sahara and Kosovo.[6] But in the mid-1990s peacekeeping on this model was discredited by two notorious disasters. In Rwanda, between April and June 1994, Hutu militias systematically slaughtered many hundreds of thousands of their Tutsi compatriots. In Srebrenica, during a few days in July 1995, Bosnian Serb forces massacred some 5000 Muslims in cold blood. In both cases the victims were supposedly under the protection of UN forces.

Reports commissioned by the UN Secretariat left in no doubt the faulty concept that lay at the root of these disasters. In the words of the report on Srebrenica published in December 1999: "[The UN] tried to create - or imagine - an environment in which the tenets of peacekeeping - agreement between the parties, deployment by consent and impartiality - could be upheld... An arms embargo with humanitarian aid and the deployment of a peacekeeping force ... were poor substitutes for more decisive and forceful action. ...The cardinal lesson ... is that a deliberate and systematic attempt to terrorise, expel or murder an entire people must be met decisively with all necessary means. ... In Bosnia ... the international community tried to reach a negotiated settlement with an unscrupulous regime. [But] it required the use of force to bring a halt to the planned and systematic killing and expulsion of civilians."[7]

In March 2000, the Secretary-General convened a Panel to carry out a review of the United Nations peace and security activities and to make recommendations. This panel, chaired by Lakhdar Brahimi, a former foreign minister of Algeria, reported in August 2000. Its principal recommendation was clear: "Once deployed, United Nations peacekeepers must be able to carry out their mandates professionally and successfully and be capable of defending themselves, other mission components and the mission's mandate, with robust rules of engagement, against those who renege on their commitments to a peace accord or otherwise seek to undermine it by violence".[8]

It is therefore no surprise to find that, in current operations in the Congo for example, some robust methods are indeed being employed, including the use of tanks, armoured personnel carriers, MI-25 attack helicopters, mortars and rocket-propelled grenade launchers along with 'cordon and search' operations.[9]

Humanitarian Intervention

Despite its contradictions, peacekeeping, as a concept of UN operations, is widely accepted and relatively uncontroversial. The same cannot be said of Chapter VII action where this involves the use of military force in a country without the consent of the government of that country (assuming that it has one), in order to prevent gross and continuing violations of the basic human rights of sections of the country's population.

In the past dozen years, at least ten interventions have been justified under the general rubric of 'Humanitarian Intervention'. In five of them there was some degree of consent and a Security Council mandate: Rwanda (French-led, 1994), Albania (Italian-led, 1997), East Timor (Australian-led, 1999), Sierra Leone (UNAMSIL, 1999, 2000) and Bunia, in the Democratic Republic of Congo (Operation Artemis, French-led, 2003). These barely count as interventions in the strict sense at all. The other five, all led by the US, were true interventions in the sense that there was no consent by the government of the country in which action was taken: Iraq (1991), Somalia (1992), Haiti (1994), Bosnia (1995) and Kosovo (1999). These deserve further discussion.

The question of armed intervention on behalf of the international community, in the internal affairs of a state against the wishes of the government of that state, in order to prevent widespread death or suffering amongst the population, is not a new one. Indeed, Imperial Rome grappled with the same problems in Dalmatia and Judaea two thousand years ago, as the international community does in those same regions today.

Article 2.7 of the UN Charter says bluntly that nothing contained in it shall authorise the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any state. But it half contradicts itself by saying that this principle shall not prejudice the application of enforcement measures under Chapter VII of the Charter. Chapter VII, as we have seen, relates not only to acts of aggression but also to threats to the peace and breaches of the peace, generally assumed to be international threats. Thus UN Security Council Resolution 688 of 5 April 1991 described Saddam Hussein's repression of the Kurds and Shias as a threat to international peace and security. It was on the strength of this resolution that France, followed by the US, Britain and a number of other countries, took action with ground and air forces to compel the Iraqi regime to desist. But the supposed threat to international security was largely a pretext.

On 3 December 1992 the Security Council, in Resolution 794, broke new ground by deciding to intervene in Somalia citing strictly humanitarian purposes. There was not even any pretence of consent by the government of Somalia because no such government existed. There was negligible spill-over to other countries in the form of refugees. The plight of the Somali people was the sole reason given for invoking Chapter VII of the Charter, authorising the use of "all necessary means" to establish a "secure environment for humanitarian relief". In practice this meant taking sides and acting with far from minimal force. Sadly the mission was unsuccessful. A ferocious and chaotic battle in Mogadishu on 3 October led to the death of eighteen American rangers. Public and congressional outrage, especially at the sight of a dead and mutilated soldier being dragged through the streets, led the US administration to reconsider its entire policy on peacekeeping and peace enforcement. President Clinton announced that US troops would pull out by 31 March 1994 regardless of the situation on the ground. A year later the entire UN force was withdrawn having achieved no useful purpose whatsoever.

In a further example, the Security Council authorised the despatch of a multinational force to Haiti in July 1994, following some thuggish activity in Port-au-Prince. The force was to be led by the United States and supported by a small number of Caribbean troops. It was authorised by UNSC Resolution 940, which cited Chapter VII of the Charter and referred to the use of "all necessary means" in order to "facilitate the departure from Haiti" of the oppressive regime. In the end the threat of a US-led invasion proved enough to secure regime change and no serious resistance was encountered.

The task of the UN forces in Bosnia was to secure the delivery of humanitarian goods and services and to protect civilians in declared "safe havens". The deployment of UNPROFOR was carried out, initially at least, with the consent of the "host" states (Croatia, Bosnia, Macedonia). But its mandate was subsequently extended to include, for example, deterrence of attacks on safe havens and the use of air power to that end, with the clear invocation of Chapter VII. The NATO air strikes from 30 August to 14 September 1995 was justified (if somewhat tenuously) under UNSC Resolutions 836 and 844 of June 1993. The strikes, which came after three years of the siege of Sarajevo, played a large part in securing Serb participation in peace talks that culminated in the Dayton Accord that brought the war in Bosnia to an end.

Through these actions, a de facto Right of Humanitarian Intervention began to emerge. During the decade of the 1990s, the view strengthened that where a state is inflicting upon its own people gross, flagrant and continuing infringements of their human rights and security, the international community had a right - some even argued an obligation - to try and restrain it.

The NATO action in Kosovo in 1999 brought the question to a head and provided the catalyst for doctrinal change. The previous autumn the Security Council, by Resolution 1198, had affirmed that the deterioration of the situation in Kosovo constituted a threat to peace and security in the region. It explicitly invoked Chapter VII of the Charter, and demanded that all parties, groups and individuals immediately halt hostilities and maintain a ceasefire in Kosovo. The parties concerned, most notably the Serbs, conspicuously failed to do so. But the Security Council at no point explicitly endorsed the use of "all necessary means" to secure compliance.

The resulting ambiguity was described in the report in 2000 of the Swedish-sponsored Kosovo Commission. "If the question of whether the intervention has been successful cannot be answered until Kosovo is securely at peace, the question of whether the intervention was legitimate has to be answered, especially since Kosovo may provide a precedent for further interventions elsewhere in the future. The Commission's answer has been that the intervention was legitimate, but not legal, given existing international law. It was legitimate because it was unavoidable: diplomatic options had been exhausted, and two sides were bent on a conflict which threatened to wreak humanitarian catastrophe and generate instability through the Balkan peninsula".[10]

This conclusion led the commission to the following recommendation: "Experience from the NATO intervention in Kosovo suggests the need to close the gap between legality and legitimacy. The Commission believes that the time is now ripe for the presentation of a principled framework for humanitarian intervention which could be used to guide future responses to imminent humanitarian catastrophes and which could be used to assess claims for humanitarian intervention. It is our hope that the UN General Assembly could adopt such a framework in some modified form as a Declaration and that the UN Charter be adapted to this Declaration".

The next step was taken by the Canadian government, which set up a Commission chaired by Gareth Evans, who had been foreign minister of Australia from 1988 to 1996, and Mohamed Sahnoun, a senior Algerian diplomat. In their Report, aptly entitled The Responsibility to Protect, the Commission emphasised that prevention is the single most important dimension of this responsibility and that a range of less intrusive and coercive measures should always be considered before the use of force.[11] They then went on to propose a set of "Principles for Military Intervention". In the words of Gareth Evans: "The ultimate intellectual origins (of these principles) lie in the whole tradition, and vast literature, of 'just war' theory'".[12] Even more remarkably these principles were taken up, albeit with some variation in the wording, by the High Level Panel (HLP) on Reform of the United Nations, set up by Secretary-General Kofi Annan in late 2003. Following the HLP report, published at the end of 2004, similar recommendations were then transmitted, in summary form, by the Secretary-General in his own report, entitled In Larger Freedom, with a view to obtaining support from Heads of State and Government when they meet at the Millennium Plus Five Summit in New York in September 2005.[13] In this report, the Secretary-General asks the Security Council to adopt a resolution reaffirming its right "to use military force, including preventively, to preserve international peace and security, including in cases of genocide, ethnic cleansing and other such crimes against humanity; and the need to consider - when contemplating whether to authorise or endorse the use of force - the seriousness of the threat, the proper purpose of the proposed military action, whether means short of the use of force might reasonably succeed in stopping the threat, whether the military option is proportional to the threat at hand and whether there is a reasonable chance of success". A better short summary of Just War principles would be hard to find. (In two short annexes to this article I have provided for the purposes of comparison a summary of the Just War principles with the relevant recommendations of the Secretary-General's High-Level Panel.)

Despite the increasing acceptance of the doctrine of humanitarian intervention based on the responsibility to protect, it is interesting that the British Attorney General, Lord Goldsmith, in his advice to the Prime Minister on the legality of invading Iraq dated 7 March 2003, discounted any reliance on such a doctrine. Commenting that the doctrine of humanitarian intervention remains controversial, he stated, "I know of no reason why it would be an appropriate basis for action in present circumstances." The Attorney-General's advice relied instead on the supposed "revival" of UNSCR 678.[14]

The success of the project to institutionalise a Responsibility to Protect can by no means be assured. It is easy to dismiss humanitarian intervention as a neo-colonialist concept, riddled with inconsistencies and driven by selfish motives on the part of the developed nations. Fragile states dislike it, seeing themselves as possible targets. Russia and China are suspicious of the emphasis laid on abuses of human rights, which they fear could be applied to their own records in Chechnya or Tibet. It is a good first step that the heads of State and government at the New York Summit declared themselves ready, on a case by case basis, to take collective military action against genocide.[15]

The two reform projects described in this article for peacekeeping with 'robust rules of engagement', and for a 'principled framework for humanitarian intervention' fit together well: the one at the tactical and the other at the strategic level. Together they are well designed to re-define the use of force in UN operations in ways that match the needs of the 21st century.

Conclusion

I should declare an interest here, having for nearly ten years been advocating both a more robust use of force in peacekeeping, and the application of Just War criteria to humanitarian intervention.[16] And even if all goes well on this score there will be other hurdles to overcome. For example putting into force the Responsibility to Protect at the United Nations will rely on reforming fundamental components of the UN architecture, including enhancing the efficiency and legitimacy of the Security Council. Problems in reaching agreement in the Security Council over how to respond to Darfur shows that the language of the Reponsibility to Protect is still open to subversion. Developing an interlocking system of UN and regional peacekeeping capacities must remain a long-term objective, particularly in Africa. Above all, political will must remain a crucial element of any effective response.

Notes

[1] Charter of the UN, Chapter I, Article 2.4. The Charter can be found at http://www.un.org/aboutun/charter/

[2] Charter of the UN, Chapter VII, Article 51. Iraq's invasion of Kuwait on 2nd August 1990 provided a classic instance. After the Kuwaitis had attempted, unsuccessfully, to defend themselves the Security Council, on the same day by Resolution 660, called upon Iraq to withdraw. When Iraq failed to do so the Council, by Resolution 678 of 29th November, authorised force against Iraq to eject it from Kuwait and to restore peace and security in the area. An American-led coalition accordingly took action to evict Iraq, beginning on 17th January 1991 and finishing when Iraq capitulated on 28th February 1991.

[3] Charter of the UN, Chapter VII, Articles 39, 42.

[4] For all SCR see; http://www.un.org/Docs/sc/unsc_resolutions.html

[5] Trevor Findlay, The Use of Force in UN Peace Operations. SIPRI/OUP, 2002, p. 4.

[6] Ramesh Thakur quoted in Year in review 2004: United Nations Peace Operations, UN Department of Public Information, January 2005, p.1.

[7] The Srebreniça Report. See http://www.un.org/srebrenica.pdf

[8] The Brahimi Report, author's underlined emphasis. See: http://www.un.org/peace/reports/peace_operations/

[9] Marc Lacey, 'UN Troops don't turn the other cheek in Congo', International Herald Tribune, 23 May 2005, pp 1,6.

[10] Kosovo Report, Independent International Commission on Kosovo, Richard Goldstone and Carl Tham (co-chairs), Oxford, 2000, author's emphasis.
See http://www.reliefweb.int/library/documents/thekosovoreport.htm

[11] Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Gareth Evans and Mohamed Sahnoun (co-chairs), 2001. pp. xii and xiii. See http://www.iciss-ciise.gc.ca

[12] Gareth Evans, 'When is it Right to Fight, Survival Volume 46 Number 3 Autumn 2004, p.75

[13] in larger freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-General. New York. April 2005. See http://www.un.org/largerfreedom/contents.htm p. 83

[14] Hansard, HL, vol.646, col. WA3 (17 March 2003), para.3.
See http://www.number-10.gov.uk/files/pdf/Iraq%Resolution%201441.pdf

[15] It is encouraging that a Commission set up by the US Congress, chaired by Newt Gingrich and George Mitchell, to make recommendations for the reform of the UN, have come up with very similar recommendations to those of the Secretary General on this point. The operative paragraph reads as follows: '3. If the above measures fail to lead to an expeditious change in behavior, the Security Council should consider authorizing military intervention.... The Security Council should ensure that the intervention possesses the authority and capability to achieve its objective of preventing or halting genocide, mass killing, and massive and sustained human rights violations in the face of opposition by the criminal regime or its proxies. In the event that the Security Council is derelict or untimely in its response states-individually or collectively-would retain the ability to act'. See http://www.usip.org/un/report/

[16] See: Hugh Beach: 'Second Thoughts on First Principles', and 'Causes, Aims and Means of Intervention' in Roger Williamson (ed.) Some Corner of a Foreign Field: Intervention and World Order, Macmillan Press, London, 1998, pp. 73-83 and 191-204. Also 'Secessions, Interventions and Just War Theory', in Pugwash Occasional Paper Volume 1, Number 1, February 2000, Pugwash Study Group on Intervention, Sovereignty and International Security, The Venice Workshop , December 1999. pp. 11-36. See: http://www.pugwash.org/reports/rc/beach.htm.

General Sir Hugh Beach is a member of the Board of the Acronym Institute for Disarmament Diplomacy. He served in the British army from 1941 to 1981, becoming Master General of the Ordnance (Army board member for procurement). From 1981 to 1986 he was Director of the Council for Arms Control, based in London. He is the co-author, with Nadine Gurr of "Flattering the Passions: or the Bomb and Britain's Bid for a World Role", I.B.Tauris. 1999.

Annex I: Just War Principles

Extracted from the Harvest of Justice is Sown in Peace, A Reflection of the National Conference of Catholic Bishops on the Tenth Anniversary of The Challenge of Peace. November 17, 1993. Available at (http://www.usccb.org/sdwp/harvest.htm)

First, whether lethal force may be used is governed by the following criteria:

Just Cause: force may be used only to correct a grave, public evil, i.e., aggression or massive violation of the basic rights of whole populations;

Legitimate Authority: only duly constituted public authorities may use deadly force or wage war;

Right Intention: force may be used only in a truly just cause and solely for that purpose;

Probability of Success: arms may not be used in a futile cause or in a case where disproportionate measures are required to achieve success;

Proportionality: the overall destruction expected from the use of force must be outweighed by the good to be achieved;

Last Resort: force may be used only after all peaceful alternatives have been seriously tried and exhausted.

These criteria (jus ad bellum), taken as a whole, must be satisfied in order to override the strong presumption against the use of force.

Annex II: Using Force: Rules and Guidelines

Extracted from "A More Secure World: Our shared responsibility", Report of the Secretary-General's High-Level Panel On Threats, Challenges and Change. United Nations, December 2004, http://www.un.org/secureworld/report2.pdf

54. The Security Council is fully empowered under Chapter VII of the Charter of the United Nations to address the full range of security threats with which States are concerned. The task is not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has. (c.f. Legitimate Authority)

55. The Panel endorses the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council, authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.

56. In considering whether to authorize or endorse the use of military force, the Security Council should always address - whatever other considerations it may take into account - at least the following five basic criteria of legitimacy:

(a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended? (c.f. Just Cause)

(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved? (c.f. Right Intention)

(c) Last resort. Has every non -military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed? (c.f. Last Resort)

(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question? (c.f. Proportionality)

(e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction? (c.f. Probability of Success)

The above guidelines for authorizing the use of force should be embodied in declaratory resolutions of the Security Council and General Assembly.

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