RECONCILING HUMAN RIGHTS AND STATE SOVEREIGNTY, JUSTICE
AND THE LAW, IN HUMANITARIAN INTERVENTIONS
Alexander Volsky‡
ABSTRACT
The NATO campaign in Kosovo in 1999 has been frequently described as the paradigmatic example
of a humanitarian intervention. Nevertheless, the rationale offered for war, and the means employed therein, have been subjected to a plethora of criticisms, which are at the forefront of recent
debates on global governance. The doctrine and practice of humanitarian intervention presents a
dilemma in global governance: this dilemma is characterized by the tension between the primacy of
state sovereignty and the protection of fundamental human rights. This article argues that egregious violations of human rights cannot be shielded by appeals to the sacrosanctity of sovereignty;
however, at the same time, state sovereignty cannot be violated without legal recourse to the UN
Charter and its collective security mechanisms. This seeming paradox is explained, within the context of the NATO intervention in Kosovo, as the gap between legitimacy and legality, justice and
the law. Lastly, a suggestion is offered on how to bridge this gap: international law should be
amended to include criteria and provisions for the implementation of humanitarian intervention
premised on the principles of Just War Theory.
Keywords: humanitarian intervention; international law; Kosovo; NATO; state sovereignty; United Nations
The end of the Cold War inaugurated a period in the international system that was
marked by an increased prevalence of humanitarian interventions. The NATO campaign
in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian
interventions: it is revered as history’s first instance of a truly altruistic war. Nevertheless,
the rationale offered for the war making, and the means employed therein, have been
subjected to a plethora of criticisms, which are at the forefront of recent debates on global
governance. The doctrine and practice of humanitarian intervention presents a seemingly
insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of state sovereignty and the protection of fundamental human
rights. It will be argued that egregious violations of human rights cannot be shielded by
appeals to the sacrosanctity of sovereignty; however, at the same time, state sovereignty
cannot be violated without legal recourse to the UN Charter and its collective security
mechanisms. This seeming paradox will be explained, within the context of the NATO
intervention in Kosovo, as the gap between legitimacy and legality, justice and the law.
Lastly, a suggestion will be offered on how to bridge this gap: international law will be
amended to include criteria and provisions for the implementation of humanitarian intervention premised on the principles of Just War Theory.
The doctrine of humanitarian intervention will first be examined with an eye to international legal institutions, which refute it, and then to the actual norms and practices of
states, which apply it. In this light, the NATO intervention in Kosovo will be introduced
‡
40
M.Phil Candidate at University of Oxford, University College.
VOL. 3, NO. 1 – JUNE 2007
41
as a legitimate act that protected fundamental human rights, and it will then be described
as an illegal act that transgressed international law. A prescription or legal reform proposal will then be offered to eliminate the gap between legitimacy and legality, or in other
words, the gap between justice and the law. A caveat must be made concerning the fact
that the proposal to reform international law is constructed primarily from an examination
of one example: the NATO operation in Kosovo. The Kosovo case presents a paradigmatic
example of a humanitarian intervention. It is paradigmatic because it presented a situation in which intervention was morally necessary, but under the legal circumstances, impossible. To the extent that this conundrum characterises other instances of humanitarian
interventions, the suggested reforms equally apply.
The international institution or authority structure that is most relevant for a discussion on the doctrine of humanitarian intervention is the United Nations. All the principles
and purposes of the UN are embodied within its Charter, which asserts that collective security and peaceful deliberation are the most effective means with which to safeguard international peace and security. More specifically, Article 2(4) states:
All Members [of the UN] shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations.1
This article effectively prohibits the aggressive use of force as an instrument of any state’s
foreign policy. However, the Charter also enumerates two legal conditions in which force
may be authorised under international law. The first condition permits a state to use force
if sanctioned by the Security Council (Article 42), and the second condition permits a state
to use force in self-defence (Articles 51).2 What is particularly noteworthy for the purpose
of this discussion is the absence of a provision for humanitarian interventions – in fact, the
term is never mentioned throughout the document.3 Nevertheless, the UN has been complicit in recent humanitarian interventions, most notably in Somalia in 1992-93; however,
this intervention was authorised under Article 42 as a threat to international peace and security, and not as a humanitarian intervention per se. 4 Adam Roberts suggests that the
Charter “leaves some scope for humanitarian interventions,” 5 but this is largely through
indirect and subtle channels, which ought to be made more explicit. Therefore, since the
doctrine of humanitarian intervention has no overt legal grounding in the UN Charter, it
is necessary to examine the actual norms and practices of states in order to understand the
evolving nature of the doctrine within the context of global governance.
James Rosenau defines global governance as “intentional activities designed to regularise the arrangement which sustains world affairs.”6 Egregious humanitarian abuses do
not sustain world affairs, and it is within this context that humanitarian interventions are
perceived as a form of global governance because they attempt to rectify such aberrations
in the international order. Despite the illegality of humanitarian interventions according
to international law, many states have on several occasions applied the concept as a form
of global governance by intervening in the affairs of other sovereign states. Some of the
most prominent cases of interventions, with pure or mixed motives, include the Indian invasion of East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978-79, Tanza1
Charter of the United Nations, http://www.un.org/aboutun/charter/index.html (accessed 20
March 2007).
2
Ibid.
3
A. Roberts, “UN and Humanitarian Intervention,” Humanitarian Interventions and International Relations, ed. Jennifer Welsh (Oxford: Oxford University Press, 2004), p. 72.
4
K. Pease and D. Forsythe, “Human Rights, Humanitarian Intervention, and World Politics,” Human
Rights Quarterly 15, no. 2 (1993): p. 309.
5
Roberts, pp. 73-74.
6
J. Rosenau, “Governance, Order, and Change in World Politics,” Governance without Government: Order and Change in World Politics, ed. J. Rosenau and O. Czempiel (Cambridge: Cambridge University Press,
2000), p. 8.
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nia’s ousting of Idi Amin from Uganda in 1979, the UN’s involvement in Somalia in 199293, and of course, the NATO campaign in Kosovo in 1999.7 These interventions, along
with the recent focus on the Universal Declaration of Human Rights and the Genocide
Convention, have prompted some legal scholars to argue that humanitarian interventions
are so commonplace in world politics that they are in fact a type of customary international law.8 This argument does not withstand scrutiny, however, because the Nicaragua
judgment of the International Court of Justice (ICJ) states that current international law
may only be breached and challenged by state practices which are clearly predicated on an
alternative rule of law – a qualification which is absent in all the aforementioned interventions.9 In the final assessment, it is evident that the norms and practices of states have relied on a doctrine of humanitarian intervention, which has evolved and obtained a quasilegal status in international relations discourse; however, it remains excluded from current
international law as embodied in the UN Charter.
The NATO campaign in Kosovo marked a watershed in the history of humanitarian
interventions, and for some, in the history of war itself. In an address to the Canadian
Parliament, the President of the Czech Republic, Vaclav Havel, effectively portrayed this
sentiment with his resounding assertion that:
No person of sound judgment can deny one thing: this is probably the first war ever
fought that is not being fought in the name of interests, but in the name of certain
principles and values. If it is possible to say about a war that it is ethical, or that it is
fought for ethical reasons, it is true of this war.10
Havel continued to declare that the rights of human beings are above the rights of states,
and he invoked a “higher moral law” of human rights to guide the future international
order.11 For many observers who share Havel’s philosophy, the answer to the diplomatic
stalemate of March 1999 was not a difficult one: something simply had to be done! There
were clear signs that the Yugoslav army, accused of committing war crimes in the past,
had already engaged in the ethnic cleansing of Kosovars, and that preparations were under way to exacerbate the process.12 Russia and China were expected to use their vetoes in
any attempt by NATO to sanction the use of force against Yugoslavia, and Slobodan Milosevic had rejected the Rambouillet proposal13 on the basis that it violated Yugoslavia’s
sovereignty.14 Some form of intervention was required to stop the bloodshed, yet the only
politically feasible solution was a NATO air strike against the Yugoslav military and infrastructure.15 Few could disapprove of the legitimacy of NATO’s intention to protect the
lives of ethnic Kosovars; NATO’s modus operandi thereto, however, is a different question.
There has been a plethora of criticisms leveled against the NATO decision to intervene in Kosovo. In this light, it is possible to single out two particularly germane points in
Havel’s speech to the Canadian Parliament: the first is that he highlights the tension between human rights and state sovereignty, and the second is that he indirectly concedes
that the NATO air attacks were illegal by referencing a “higher moral law.” As aforemen7
M. Walzer, “The Argument about Humanitarian Intervention, ” Dissent vol. 49, no. 1 (2002): p. 31.
P. Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?” The European
Journal of International Law vol. 12, no. 3 (2001): p. 437.
9
Note: a “higher moral law” does not constitute an alternative rule of law. J. I. Charney, “Anticipatory Humanitarian Intervention in Kosovo,” The American Journal of International Law vol. 93, no. 4 (1999): p.
836.
10
V. Havel, address by Vaclav Havel, President of the Czech Republic, to the Senate and the House of
Commons of the Parliament of Canada, 29 April 1999.
11
Ibid.
12
M. Walzer, Arguing about War, (New Haven: Yale University Press, 2004), p. 99.
13
The Rambouillet proposal envisaged an autonomous but not an independent Kosovo, which was to
be policed by NATO forces.
14
L. Ziring, R. Riggs and J. Plano, “The United Nations and Collective Security,” The United Nations:
International Organizations and World Politics (Toronto: Nelson Thomson Learning, Inc., 2000), p. 168.
15
Ibid.
8
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tioned, there is no explicit basis in the UN Charter for humanitarian interventions, and by
failing to adopt a Security Council resolution authorising the use of force, NATO circumvented the well-established principles and procedures of the UN Charter and collective
security. Richard Falk described “[the NATO] bypassing of UN authority as a devastating
blow to the authority of the organization.”16 This illegal invasion of a sovereign state sundered the process of collective decision-making and thereby destabilised the international
order.
Furthermore, opponents of the air attacks have argued that plausible diplomatic solutions to the crisis were not exhausted, since Russia was not included in the NATO negotiations with Milosevic, and the Rambouillet proposal was offered on a nonnegotiable
basis.17 Opponents also note that instead of pacifying the Yugoslav army and bringing
Milosevic to the bargaining table, the NATO bombings actually intensified the Yugoslav
campaign of mass murder and forced appropriations, and increased the flow of Kosovar
refugees fleeing the air strikes. Robert Hayden’s comments encapsulate the most vehement criticism of NATO’s operation in Kosovo, which he describes as a “perversion of
humanitarianism”:
This [illegal] war, supposedly in defense of human rights, has led to war crimes being
committed by NATO and a civilian casualty rate that is at least three times greater
than the casualty rate of the “intolerable” violations of human rights that NATO was
ostensibly acting to correct.18
From the perspective of the opponents, since the cure was illegally administered, it was
worse than the disease.
How can these two antithetical interpretations, as characterised by Havel’s and Hayden’s comments, be understood and reconciled? It appears, on the one hand, that the
NATO intervention was “legitimate” because the evidence clearly demonstrated gross
humanitarian violations in Kosovo, and ultimately, the intervention improved the prospects for peace in the area. On the other hand, however, it was clearly “illegal” and in
violation of international law. As the Independent International Commission on Kosovo
concludes, there is a gap between “legitimacy and legality,” or in other words, between
justice and the law.19 The intervention was justifiable, but not in the manner undertaken.20
Therefore, through an understanding of the two paradoxical components of the thesis
(viz., violations of human rights cannot be shielded by claims of sovereignty; and sovereignty cannot be breached to protect human rights) as the gap between legitimacy and legality, one comes to the disquieting conclusion that the humanitarian intervention in
Kosovo was necessary, but under the legal circumstances, impossible.21 A formula that suggests a way beyond this conundrum, or how to bridge the gap between legitimacy and legality – and thereby render humanitarian interventions possible within the confines of
international law – will be presented. But first, it is necessary to examine a recent development in this field in the form of the UN’s “Responsibility to Protect” document.
In December 2001 a UN Commission drafted a report titled The Responsibility to Protect which developed “the idea that sovereign states have a responsibility to protect their
own citizens from avoidable catastrophe – from mass murder and rape, from starvation –
but that when they are unwilling or unable to do so, that responsibility must be borne by
16
R. Falk, “Kosovo, World Order, and the Future of International Law,” The American Journal of International Law vol. 93, no. 4 (1999): p. 850.
17
Ibid., p. 851.
18
R. Hayden, “Eastern Europe After Kosovo: Humanitarian Hypocrisy,” Eastern European Constitutional Review vol. 8, no. 3 (1999): p. 1.
19
R. Falk, “Legality to Legitimacy,” Harvard International Review vol. 26, no. 1 (2004): p. 42.
20
Falk (1999), p. 854.
21
Ibid., p. 852.
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the broader community of states.”22 The report promoted the notion of “sovereignty as
responsibility” and invoked inter alia the principles of Just War Theory to buttress it. Although the report contains many important insights into the ethical and legal issues surrounding humanitarian interventions, its principal shortcoming is the fact that it does not
go far enough: the report itself does not have the status of law, nor does it recommend
amending the UN Charter with a provision for humanitarian intervention. If this legal
amendment is not made, then the international discourse on humanitarian intervention
will always remain shrouded in mystery. Conversely, by enumerating clearly and distinctly the criteria under which a humanitarian intervention may be launched in accordance with the UN Charter, a large step will be taken toward demystifying the concept of
humanitarian intervention. In short, if the concept of humanitarian intervention obtains
the status of law under the UN Charter, then the fierce debate over the primacy of state
sovereignty and of protecting human rights will be mitigated.
In order for justice to reflect the law there must be congruence between legitimacy
and legality. How can this be achieved in the context of humanitarian interventions?
Adam Roberts explains that “the idea of general criteria by which to evaluate decisions on
the use of force has a long history, including the Just War tradition. It is certainly useful to
bear such criteria in mind and adapt them to the question of humanitarian intervention.”23
Since humanitarian interventions – or as labeled by some pundits, “humanitarian wars” –
are instances that involve a resort to force, an adaptation of the principles of Just War Theory (which is one of the oldest and richest corpuses on the laws of war) to suit the contemporary conditions of humanitarian interventions is merited. Just War Theory is a
moral doctrine that has an intellectual heritage in many notable theologians and philosophers. It has two main categories: ius ad bellum and ius in bello.24 The former provides
guidelines on when it is just to resort to war, and the latter discusses how war may be
justly fought.25 In fact, these two categories, ius ad bellum and ius in bello, are already
widely accepted as legitimate by the international community and they serve as the foundation for many sources of international law including inter alia treaties such as the UN
Charter and conventions such as the Geneva Convention. Likewise, the principles of Just
War Theory may serve as a foundation for a law guiding the resort to humanitarian interventions. The criteria for both categories of Just War Theory are enumerated in Table 1.
22
Responsibility to Protect, ICISS Report: International Commission on Intervention and State Sovereignty,
December 2001, http://www.iciss.ca/report2-en.asp (accessed 20 March 2007).
23
A. Roberts, “The So-Called ‘Right’ of Humanitarian Intervention,” Yearbook of International Humanitarian Law vol. 3, (T.M.C. Asser Press, The Hague, 2002), p. 34.
24
J. Elshtain, “Just War and Humanitarian Intervention,” Ideas: From the National Humanities Center
vol. 8, no. 2 (2001): p. 6.
25
M. Fixdal and D. Smith, “Humanitarian Intervention and Just War,” Mershon International Studies
Review vol. 42, no. 2 (1998): p. 286.
VOL. 3, NO. 1 – JUNE 2007
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Table 1: Just War Criteria by Category26
It is necessary to slightly adjust the original criteria in order to transfer them from
their theological birth into the current realities of humanitarian interventions. The four
core principles of ius ad bellum (last resort, right authority, just cause, and right intention)
and the two principles of ius in bello will be retained because they are entirely compatible
with considerations of when it is just to launch a humanitarian intervention, and what a
just humanitarian intervention would look like once it was launched.27 Two additional
principles – credible evidence and limited duration – are also included as a means of
adapting the original principles to contemporary concerns of not only justice, but also of
practicability, with regards to humanitarian interventions. Thus, the criteria for the implementation of humanitarian interventions are:
1. Credible Evidence: There must be credible and objective evidence that the highest
norms of human rights – the right to life and the right to be free from physical abuse
– are being violated in a state that is either unwilling or unable to remedy the abuses,
or in a state that is the perpetrator of the abuses.28 An international committee under
the direction of the Secretary General will ascertain the veracity of the evidence, and
present it to the Security Council. The evidence must point to widespread violations
that are either occurring or imminent.29
2. Last Resort: The use of force must be the last resort when all other diplomatic means
to rectify the humanitarian abuses have been exhausted.
26
The criteria in this table are drawn from the works of M. Fixdal and D. Smith (p. 286), and R. Miller,
Interpretations of Conflict, Ethics, and the Just War Traditions (Chicago: University of Chicago Press, 1991), pp.
13-15.
27
The remaining ius ad bellum principles are implicit in these four core principles.
28
The criteria are defined in the minimalist sense and are based exclusively on the right to life and
right to be free from physical abuse. These rights were selected for pragmatic reasons, because the world
could conceivably be in a perpetual state of war if the more vague concepts of freedom and equality were
included.
29
It is impossible to quantify an exact number that constitutes “widespread.” In fact, the very exercise
of establishing a quantity of the maximum human rights abuses necessary before intervention is merited is
inhumane and degrading to the very values that the intervention would seek to protect. “Imminent” is defined herein as “certain and within a short duration.” Both concepts are left deliberately vague, to be determined by an international committee under the direction of the Secretary General.
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3. Right Authority: The Security Council is the only entity with the authority to launch
humanitarian interventions.30
4. Just Cause: There must be widespread violations of the highest norms of human
rights and the intervening party must have a reasonable chance of rectifying the humanitarian abuses.
5. Right Intention: The primary objective of the intervening party must be ending the
humanitarian abuses; however, this need not be the only motive.31
6. Limited Duration: Once the primary objective is accomplished, viz., the humanitarian
abuses cease to exist, the intervening party must withdraw upon request from the local authorities.32
7. Discrimination: The principle of noncombatant immunity must be upheld.
8. Proportionality: The intervening party must use the minimal amount of coercive
power necessary to accomplish its objectives.
It is important to identify the failure of the criteria to address certain key questions.
First, the criteria do not specify the means to be used to rectify the humanitarian abuses.
A major criticism of the NATO operation in Kosovo was the decision not to use ground
troops, which could have prevented the genocide more effectively. The criteria have been
established with an eye to flexibility on this issue and permit the political process to determine the means employed. Second, the criteria do not place any responsibility on the
intervening party other than stymieing the humanitarian abuses. In other words, it is not
incumbent on the intervening party to topple a corrupt government, build democracy, police a cease-fire, etc.: as soon as some semblance of local law and order is established, the
intervening party is permitted to leave. Once again, the criteria enable the political process to determine when such “peace-building” measures are applicable, unless the local
authorities request a withdrawal. Lastly, there is no mention of a mechanism that can determine the amount of resources each member of the UN will contribute to a particular
intervention, thereby implying that contributions will be on a voluntary basis.
The criteria will be appended to Chapter VII of the UN Charter, and the ultimate decision for implementation will reside with the Security Council. It is important to note
that the core organizational structure of the Security Council, with its five veto-wielding
members, remains intact to reflect the unequal distribution of capabilities among states.
This permits Russia and China, for instance, to veto any ambitions by human rights
groups to intervene in Chechnya and Tibet, respectively, which could instigate another
world war. The UN was specifically designed to avert such a global conflagration, and
accordingly, the criteria for humanitarian intervention must also be sensitive to these
power realities by adapting to the current organizational structure, not by challenging it.
It has been argued that gross violations of human rights cannot be shielded by appeals to the sacrosanctity of sovereignty. Nevertheless, it has also been asserted that state
sovereignty cannot be breached without legal recourse to the UN Charter and its collective
security mechanisms: neither considerations of human rights nor state sovereignty is to be
permitted to trump the other. The NATO campaign in Kosovo in 1999 served as a case
study to explain this paradox as the gap between legitimacy and legality, justice, and the
30
This argument is in direct contradistinction with the argument propounded by M. Walzer; i.e., regional organizations, groups of states, and neighbouring states may instigate humanitarian interventions.
The entire enterprise of amending the UN Charter to account for humanitarian interventions rests on the
organization’s ability to effectively administer the law when deemed appropriate by the Security Council.
Any type of intervention by regional alliances or groups of states is by definition unilateral in terms of international law, and hence it remains illegal and undesirable. Lastly, such a provision for regional initiatives
would give states a blank cheque for intervening where they deem lucrative, and accordingly, the international order would be subject to politically motivated invasions masquerading as moral imperatives.
31
For the purposes of pragmatism, other motives – political, economic, strategic, etc. – are also justified, insofar as they coincide with, and are subordinate to, the humanitarian motive.
32
The term “local authorities” was once again left deliberately vague to permit the intervening party
to accomplish its primary objective and withdraw as soon as some semblance of local law and order is established.
VOL. 3, NO. 1 – JUNE 2007
47
law. This gap was ascertained to be unhealthy, gradually corroding the legitimacy and
authority of the UN and international law. Consequently, a proposal to bridge the gap
was offered in which Chapter VII of the UN Charter is to be appended with a provision
authorising humanitarian interventions on the premises of Just War Theory. This would
render dialogue on the tension between human rights and state sovereignty superfluous
since humanitarian interventions would be morally legitimate and constitutionally legal.
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