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America and the law

Print edition : Sep 14, 2002 T+T-

"What difference does it make to the dead, the orphans and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy? I assert in all humility, but with all the strength at my command, that liberty and democracy become unholy when their hands are dyed red with innocent blood."

GANDHI'S moving words are quoted at the head of a chapter on "unilateral intervention to promote democracy" in Simon Chesterman's outstanding work on international law on humanitarian intervention. For a while after the United Nations was established, many people believed that the law would curb at least the more blatant uses of force by the great powers. During the Cold War the United States kept up a steady, if insincere, refrain on international law and morality. It has, in the last decade, and especially since George W. Bush became President, given ample notice to the world that neither law nor morality matters much in its calculations. What the loudly proclaimed resolve to invade Iraq in order to oust President Saddam Hussein from power - despite opposition from the entire Arab world, allies like France and Germany, and two others of the Permanent Five of the U.N. Security Council, Russia and China - reveals is a resolve to establish Pax Americana.

Iraq is not alone. The Guardian reported (August 23) from Johannesburg that the "United States government has said it wants to see President Robert Mugabe removed from power and that it is working with the Zimbabwean opposition to bring about a change of administration."

Hasan Suroor reports (The Hindu, August 19) that "with pressure mounting on the British Prime Minister, Tony Blair, to desist from joining any U.S. military intervention in Iraq, Downing Street is reported to have sought legal opinion on whether a fresh U.N. authorisation is necessary before attacking Baghdad."

The British Foreign Office Policy Document No. 148, published in 1986, expressed the opinion that "the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention for three main reasons: first, the U.N. Charter and the corpus of modern international law do not seem specifically to incorporate such a right; secondly, state practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on more assessments, none at all, and, finally, on prudential grounds, that the scope of abusing such a right argues strongly against its creation... In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law" (D.J. Harris, Cases and Materials on International Law, 1991; page 872).

For sheer cogency of reasoning and precision of expression this deserves to rank as a locus classicus on the subject. Recently attempts have been made to explain it away. "State practice" can be cited as evidence of the law, but abuses by great powers do not constitute "state practice". The U.N. Charter is a solemn international treaty; a supreme binding document. Article 2 (4) explicitly declares: "All Members 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."

The only two exceptions are "the inherent right" to self-defence, embodied in Article 51, and enforcement measures taken pursuant to a "decision" by the U.N. Security Council under Article 39. Here the Council itself has perpetrated an abuse. It gives one of its permanent members a "power of attorney", as it were, to undertake military action without subjecting itself to the continued oversight of the Council and to the curbs provided in Chapter VII of the Charter on action against aggression.

Two judgments of the International Court of Justice at The Hague lay down the law in unambiguous terms. It ruled in the Corfu Channel case (1949): "This Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses, and such as cannot, whatever the present defects of international organisation, find a place in international law. Intervention is still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful states and might easily lead to perverting the administration of international justice itself." The judgment was unanimous for the British Judge Sir Arnold McNair ruled against his own country and in favour of Albania on this point.

In the Nicaragua case (1986) the court ruled decisively against the U.S. claims to a right of intervention. It ruled, first, that no "such general right of intervention in support of an opposition within another state exists in contemporary international law". Secondly, "Under international law in force today - whether customary international law or that of the United Nations system - states do not have a right of 'collective' armed response to acts which do not constitute an 'armed attack'."

The rule against non-intervention "would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another state. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of state, were also to be allowed at the request of the opposition."

Finally, "the court cannot contemplate the creation of a new rule opening up a right of intervention by one state against another on the ground that the latter has opted for some particular ideology or political system."

The court added that while a state might "form its own appraisal of the situation as to respect for human rights" in another state, "the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken in this case, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of" armed bands in another state on the grounds of violations of human rights.

The much-vaunted right to self-defence was defined in these precise terms: "While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot... produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that state, could only have justified proportionate counter-measures on the part of the state which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third state, namely the United States, and particularly could not justify intervention involving the use of force."

INTERNATIONAL law does exist, as Prof. Ian Brownlie's compilation - now in its fifth edition this year since its first publication in 1967 - establishes. Apart from the U.N. Charter there is the "Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations", which was adopted by the General Assembly in 1970 without dissent. It is now regarded as a piece of "international legislation". It amplifies the Charter's provisions; especially on the state's "duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any state".

Christine Gray's book deals within international law on the use of force, including the claim to humanitarian intervention. Simon Chesterman's work is a specialised and exhaustive treatise on humanitarian intervention. Both give short shrift to the claim while posing specific issues that have arisen lately. For instance, Gray asks: "How far should the Charter be interpreted to allow the use of force to restore or further democracy, to restore order in a state without an effective government, to further the right to self-determination outside the decolonisation context, to respond to terrorist attacks on nationals abroad? How far should the U.N. Security Council exercise centralised control over these and other uses of force?"

Gray's book focusses on American practice. "The rare instances when states seem to have made a deliberate decision not to give a legal explanation stand out. The absence of any real attempt at a legal justification by the U.S., the U.K. and France for the protection of the Kurds in 1991 and by Turkey for its incursion into Iraq in pursuit of Kurds is unusual and seems to indicate considerable doubt as to the legality of these actions. Even when politicians do occasionally say that they will no longer observe international law restrictions on the use of force, as was sometimes the case during the Reagan era when the administration suggested that it was not necessary to comply with international law in response to an enemy, an evil empire that did not itself observe the law, the U.S. continued to offer legal argument in the Security Council."

THE trend towards unilateralism and use of brute force became stronger than ever before in the Reagan era. Gray writes: "Until recently unilateral humanitarian intervention was not put forward as a legal doctrine by states. The Indian action in Bangladesh (1971) which helped the people to secure independence from Pakistan and to end repression, the Tanzanian action in Uganda (1979) which led to the overthrow of Idi Amin, and the Vietnamese invasion of Cambodia (1978) which led to the overthrow of Pol Pot were not in fact justified by India, Tanzania, and Vietnam on the basis of humanitarian action; rather, the states using force focussed mainly on self-defence. The first two episodes avoided condemnation by the Security Council or the General Assembly, but the last, although it was at least as persuasive a case for humanitarian intervention, divided states partly on Cold War lines (and partly because of the regional rivalry between Vietnam and China) and was repeatedly condemned by the General Assembly. Many states, including France and the U.K., said that violations of human rights could not justify the use of force. During the Cold War it was writers rather than states that argued in favour of the doctrine of humanitarian intervention as a justification for the use of force by states."

Gray's refutation of those writers is as thorough as her criticism of recent Western behaviour is. "Despite the absence of express authority from the Security Council, the U.S., the U.K., and France nevertheless forcibly intervened to protect the Kurds and Shiites in Iraq. They proclaimed safe havens and forced Iraqi troops to leave these areas. They did not offer any explicit legal justification for their action, they did not put forward in the Security Council the doctrine of humanitarian intervention as the justification for their action."

In 1992, Britain began moving away from the views so categorically expressed by its Foreign Office in 1986. "The Foreign and Commonwealth Office said that international law develops to meet new situations; we believe that international intervention without the invitation of the country concerned can be justified in cases of extreme humanitarian need. This is why we were prepared to commit British forces to Operation Haven, mounted by the coalition in response to the refugee crisis involving the Iraqi Kurds."

Chesterman's work explodes the new doctrine. "Humanitarian intervention brings into question not merely the substance but the moral foundations of international law; the question of whether there is or is not such a 'right' is of secondary importance to the implications that these arguments have for world order and international morality." Crucially, the book argues that such unilateral enforcement is not a substitute for but the opposite of collective action. "Though often presented as the only alternative to inaction, incorporating a 'right' of intervention would lead to more such interventions being undertaken in bad faith, it would be incoherent as a principle, and it would be inimical to the emergence of an international rule of law."

Chesterman analyses the doctrine in its historical and political context. On January 18, 1823, British Foreign Secretary George Canning said: "We disclaim for ourselves and deny for other powers the right of requiring any changes in the internal institutions of independent states, with the menace of hostile attack in the case of refusal."

During the drafting of the U.N.'s Charter, the American delegate defended Article 2 (4), as modified to make the prohibition against use of force stronger still. "The Delegation of the United States made it clear that the intention of the authors of the original text was to state in the broadest terms an absolute all-inclusive prohibition, the phrase 'or in any other manner' was designed to insure that there should be no loopholes."

However, in 1983, at the time of the U.S. intervention in Grenada, the U.S. Permanent Representative to the U.N., Jeane Kirkpatrick, argued that this language provided "ample justification for the use of force in pursuit of other values also inscribed in the Charter - freedom, democracy, peace".

PUBLICISTS who advocate intervention tend to be more ardent than politicians in power. Chesterman analyses their writings to expose their errors and concludes: "None of the arguments that humanitarian intervention is compatible with Article 2 (4) is persuasive, and the scope for modification of its provisions through custom is narrow. State practice discloses at most three 'best cases' of humanitarian intervention, but even these lack the necessary opinio juris that might transform the exception into the rule."

The U.S. interventions in Grenada (1983) and Panama (1989) emboldened it to much worse. As the Cold War came to an end, the Security Council became a pliant tool. "The general trend of Security Council-delegated actions in the 1990s, then was towards intervention only when such action coincided with the preparedness of a regional power to act - NATO in Europe, France and ECOWAS in Western Africa, the United States in the Americas. Evidence of such a trend has been shown in the form of authorisations, but this was accompanied by a more troubling shift in the practice of the Security Council away from debating international peace and security issues in open session, to granting its formal imprimatur to pre-arranged deals. Such practices depended on a level of political comity that ultimately floundered when national interests clashed over the appropriate response to the situation in Kosovo in 1998-9.... it became relatively common for the Security Council to authorise an enforcement action without formal debate, or with minimal statements that indicated that the true work was taking place outside the Council... The trend towards delegation has been compared to privatisation of the Security Council's responsibility to maintain international peace and security."

A dangerous doctrine is being invoked brazenly for the projection of power. Chesterman's warning is timely: "State practice since the Second World War has seen interventions for all and sundry reasons; the question is whether, in the case of allegedly humanitarian interventions, it is better for this to be principled or unprincipled. This book argues for the latter position; it is more dangerous to hand states a 'right' 'even of such a limited nature' - than simply to assert the cardinal principle of the prohibition of the use of force and let states seek a political justification for a particular action if they find themselves in breach of that norm... the provision of additional justifications for intervention appears likely to increase the number of inerventions undertaken in bad faith." This was written before the U.S. mounted its campaign for war against Iraq.

Just WAR or Just PEACE? Humanitarian Intervention and International Law

International Law and the Use of ForceBasic Documents in International Law