Indian Defence Review

 The international law realm has for some time struggled with two distinct and contrary legal principles: state sovereignty, and humanitarian justice. It had been almost a truism of international law for centuries that non-intervention of state sovereignty superseded humanitarian intervention before it. That view, however, has waned since the creation of the United Nations Charter in 1945. A furious legal debate has grown regarding the place of humanitarian intervention in relation to state sovereignty; great scholars today argue whether there is an implied humanitarian intervention norm within the context of the principles of the UN Charter. Actions, however, speak louder than words- and no more so than in the realm of international law.

International law is based almost entirely on the values and norms of state action, and must change to reflect the applied norms of the international community. In light of the growing trend of states employing humanitarian intervention, and in light of the growing acceptance by the UN (the forum of the international community), this paper argues there is today an established norm for the legal use of force by regional organizations for humanitarian purposes without UN Security Council approval. Regional organizations have performed this action in the past, and will likely be called to do so even more in the future.

The Kosovo War established the legality of regional organization intervention; a similar action against the Indonesian government by a regional organization would have been legal under international law as well. Through this trend in international law, we indeed have entered a brave new world of humanitarian protection from sovereign government humanitarian aggression.

Humanitarian Intervention as a principle

Humanitarian Intervention is generally defined as the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights. It developed out of the tradition of Just War and protection of nationals, and has arguably grown into a full-fledged principle under international law. Until as recently as the early 1990s there was great consensus that under international law a state could treat its own nationals according to its discretion.

Sovereignty, that all- powerful legal principle bracing Article 2 of the UN Charter, prohibited virtually any use of force outside of Article 51 defence from outside coercive aggression. Indeed, surveyed modern international legal experts and found that: In the lengthy discussions over the years in the United Nations bodies the variety of opinions canvassed has not revealed even a substantial minority in favour of the legality of humanitarian intervention. Opponents of intervention legality state forcefully that the Article 2 prohibition applies not to the purpose of force, but the act of force itself. Additionally, it was the unabashed intent of the Charter framers to assure that there would be no exception to the prohibition on the use of force other than for self-defence.

However, there has been intense debate throughout the international legal community about how far this prohibition on Article 2 non-defensive use of force extends. Some scholars have argued that because the force of humanitarian intervention is not directed at the territorial integrity or political independence of the state, it does not fall under the aggressive use of force prohibition of Article 2. Events during the past decade reveal a widening against threats to human rights and international peace. Regional organizations are also most familiar with the regional source of the threats, as well as methods of force and diplomacy to prevent them. Regional organizations also stand the best chance of ending or preventing human rights atrocities before they reach the threshold needed to spur international action.

Finally, regional organizations naturally incorporate their spheres of influence, and use of Article 53 naturally plays to their ability to settle disputes and ensure peace in their regions. Disillusionment with reliance on the UN is likely to produce, at least temporarily, a reduced role for the United Nations, and a greater reliance on regional actors, dominant states, and instances of an outright refusal to act. Thus, there was before Kosovo strong legal and policy justifications for some legality of regional humanitarian intervention without UN authorization. The results of the Kosovo War have removed any doubt.

Responsibility to Protect

In its efforts to help prevent conflict worldwide, There has been drawn the doctrine of the Responsibility to Protect (R2P), the principle that sovereign states, and the international community as a whole, have a responsibility to protect civilians from mass atrocity crimes. The responsibility of states and where they fail the international community, to protect civilians, leads to mass atrocity crimes. Overwhelmingly, prevention: through measures aimed in particular at building state capacity, remedying grievances, and ensuring the rule of law. But if prevention fails, R2P requires whatever measures – economic, political, diplomatic, legal, security or in the last resort military – become necessary to stop mass atrocity crimes occurring.

For individual states, R2P means the responsibility to protect their own citizens, and to help other states build their capacity to do so. For international organisations, including the UN, R2P means the responsibility to warn, to generate effective prevention strategies, and when necessary to mobilise effective reaction. For civil society groups and individuals, R2P means the responsibility to force the attention of policy-makers on what needs to be done, by whom and when.

Throughout the 1990s controversy raged — particularly over Rwanda, Bosnia and Kosovo — between supporters of a “right of humanitarian intervention” and those who argued that state sovereignty, as recognised in the UN Charter, precluded any intervention in internal matters. The R2P concept was aimed at bridging that gap. It originated with the report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, in 2001, and became a central theme in the recommendations of the UN High-Level Panel, A More Secure World, in 2004 and of the UN Secretary-General, In Larger Freedom, in 2005. The world’s heads of state and government unanimously accepted the concept of R2P at the UN World Summit in September 2005. The Security Council has also accepted the general principle.

Responsibility vs. Sovereignty

The United Nations, formed in the aftermath of World War II to promote peace and stability, recognizes the importance of sovereignty, especially for newly independent nations or those seeking independence from colonizers. The UN Charter says: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The principle does not rule out the application of enforcement measures in case of a threat to peace, a breach of peace, or acts of aggression on the part of the state. The Genocide Convention of 1948 also overrode the non-intervention.

In 2000, the Canadian government and several other actors announced the establishment of the International Commission on Intervention and State Sovereignty (ICISS) to address the challenge of the international community’s responsibility to act in the face of the gravest of human rights violations while respecting the sovereignty of states. It sought to bridge these two concepts with the 2001 Responsibility to Protect (R2P). A year later, the co-chairs of the commission, stated “If the international community is to respond to this challenge, the whole debate must be turned on its head. The issue must be reframed not as an argument about the ‘right to intervene’ but about the ‘responsibility to protect.'” The commission included environmental or natural disasters as possible events after which the international community could intervene if the state failed in its responsibility to protect its population. But in 2005, when the responsibility to protect doctrine was incorporated into a UN outcome document, environmental disasters had been dropped as a reason for intervention. The document did say it was every state’s responsibility to protect its citizens from “genocide, war crimes, ethnic cleansing, and crimes against humanity.” If a state fails to do so, the document says, it then becomes the responsibility of the international community to protect that state’s population in accordance with Chapter VII of the UN Charter.

Chapter VII includes use of military force by the international community if peaceful measures prove inadequate. The UN outcome document was unanimously adopted by all member states but is not legally binding. The doctrine was hailed by international affairs specialists as a new dawn for peace and security. In a 2007 the doctrine’s adoption begins to resolve the historic tension between human rights and states’ rights in favour of the individual principle to lay down the commitment of the world community to prevent and punish. Yet inaction in response to the Rwanda genocide in 1994 and failure to halt the 1995 Srebrenica massacre in Bosnia highlight the complexities of international responses to crimes against humanity.

Failure to Address Humanitarian Intervention

Following Myanmar’s cyclone in May 2008, some experts say the spirit of the R2P doctrine, if not its letter, was tested. The country’s regime was incapable of providing relief to millions of affected citizens and it refused to let in international aid and aid workers for several days. The French Foreign Minister suggested the United Nations invoke the R2P doctrine as the basis for a resolution to allow the delivery of international aid even without the junta’s permission.

The current issue of Myanmar is a natural disaster” and the situation should not be politicized. Experts warned that Southeast Asian nations and India might also take exception to intervention in Myanmar. In identifying one possible case for the application of military force, the 2001 R2P report had included “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” But one of the original R2P commissioners says politically, “we cannot ignore the significance of the exclusion of natural and environmental disasters between 2001 and 2005.” To attempt to reintroduce it today, he writes, “Would strengthen suspicion of western motivations and reinforce cynicism of western tactics.” National sovereignty as sacred has gained ground after the U.S. invasion of Iraq and despite recent efforts to enshrine the doctrine of a ‘responsibility to protect’ in international law, the concept of humanitarian intervention has lost momentum.”

Proponents of the doctrine say another way to raise pressure for action in Myanmar is to focus on rebuilding the country. Those who helped write the 2001 report emphasized that R2P embraced not just the “responsibility to react” but the “responsibility to prevent” and the “responsibility to rebuild” as well. The 2005 UN document also emphasized prevention. It noted: “We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations . . . and to assisting those which are under stress before crises and conflicts break out.”

International Humanitarian Law

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. It is accepted that it applies to nuclear weapons to the same extent that it applies to conventional weapons.

Two specific principles of IHL are of particular relevance:

• The prohibition on the use of indiscriminate weapons;
• The prohibition on the use of weapons which cause unnecessary Suffering or superfluous injury.

The first principle is part of the general rule that a party to an armed conflict must always seek to distinguish between the civilian population and combatants. A weapon which is incapable of drawing such a distinction is unlawful under IHL. The harmful effects of the radiation from nuclear explosions are well-documented, as is the impossibility to control them. In particular, radiation can be carried into the stratosphere and be deposited over a much greater, and unpredictable, area than that affected by the initial explosion.

The second principle is part of the general rule that a party is only entitled to use that force which is required to achieve a legitimate military objective. A weapon which is bound to uselessly aggravate the suffering of combatants is unlawful under IHL. The particularly painful, and often protracted, consequences of exposure to the high levels of radiation generated in nuclear explosion are, again, well-documented. Given these principles and the uncontrollable and destructive power of nuclear weapons, it is difficult to envisage any circumstances in which nuclear weapons of the type currently held by the United Kingdom could be used in a way that is compatible with IHL Cyber technology, remote-controlled weapon systems and robotic weapon systems are some of the new weapon technologies. New technologies can lead to better protection for civilians and civilian infrastructure, for instance by making it possible to take greater precaution or to use greater precision in attack. But they also bear risks. Ultimately, their compliance with international humanitarian law will depend mostly on the concrete use that is made of them, for which the parties to conflicts and individuals deploying them are responsible.

There is little doubt that these new technologies, like new technologies before them, are changing the landscape of war and just as air warfare had to comply with the existing framework of international humanitarian law when it was introduced in the 20th century, so too must the new technologies of the 21st century comply with fundamental rules governing the means and methods of warfare.

Remedies for violations

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal. Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war, but only after facing a “competent tribunal”. At that point they become an unlawful combatant but they must still be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial. Spies and terrorists may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. However, nations that have signed the UN Convention against Torture have committed themselves not to use torture on anyone for any reason.

Citizens and soldiers of nations which have not signed the Fourth Geneva Convention are also not protected by it, whether they are spies or terrorists. Also, citizens and soldiers of nations which have not signed and do not abide by the Third and Fourth Geneva Conventions are not protected by them. The High Contracting Parties shall furthermore be bound by the Convention in relation to a Power which is not a contracting party, if the latter accepts and applies the provisions thereof. If someone is (or is suspected to be) a citizen or soldier of a nation which has signed or abides by the Fourth Geneva Convention , or is or is suspected to be a “prisoner of war” (POW) per the definitions of such “protected persons” in the Third Geneva Convention the following applies: A POW who breaks specific provisions of the laws of war may be penalized, but not penalized worse than the tribunal would penalize its own soldiers for the same offense (and usually a disciplinary, not judicial, punishment if its own soldiers normally wouldn’t be brought to trial for a particular offense) and POW’s may not be penalized based on rank or gender, nor with corporal punishment, collective punishments for individual acts, lack of daylight, or torture/cruelty .

After a conflict has ended, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through process of law. Also, nations which signed the Geneva Conventions are required to search for, then try and punish, anyone who has committed or ordered certain “grave breaches” of the laws of war. History has shown that the laws of war are traditionally more strictly applied to those defeated, as the victorious faction is placed in the role of policing themselves. While it can be argued that the victors may be less strict on their own forces, it can also be argued that the signing of the treaties involved in the laws of war implies a good-faith promise to adhere to them equally.

As with many facets of war, the aftermath and subsequent legal proceedings depend heavily on circumstance, and are different for each conflict. There is an emerging trend in the US to hold private corporations civilly liable for aiding and abetting in war crimes, by knowingly providing substantial assistance in the commission of the crimes. Under international law, the main element is knowledge, not intent that the crimes be carried out. This opens the door not only to hold private security contractors liable, but also other kinds of corporations which employ violent mercenary or terrorist groups as private security forces. Although conflict zones often lack functioning legal systems, and government may even have passed laws immunizing private mercenaries from criminal liability, aiding and abetting a war crime can still be the basis for civil liability in a foreign court with jurisdiction over the defendant corporation.

Other than this a lot of scholars also argue whether threat or use of force of economic nature or nuclear nature is also a violation of Article 2(4) of the UN Charter.