comments on 'human rights and intervention: a case for caution' by caroline thomas

Comments on 'Human Rights and Intervention: A Case for Caution' by Caroline ThomasAuthor(s): Kevin BoyleSource: Irish Studies in International Affairs, Vol. 5 (1994), pp. 29-33Published by: Royal Irish AcademyStable URL: http://www.jstor.org/stable/30001818 .

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Comments on 'Human Rights and Intervention: A Case for Caution' by Caroline Thomas*

Kevin Boyle

Human Rights Centre, University of Essex

If Caroline Thomas's thesis is that caution is required when considering the endorsement of a forcible policy of interference in states to protect human rights, I would have no quarrel with it. As she notes with Somalia in mind, 'the inter- ventionist road can be a treacherous path for those who intervene, for those in whose name the intervention takes place, and indeed for other civilians'. She is right to remind us that the principle of non-interference in a country's internal affairs, enshrined in Article 2(7) of the United Nations Charter, is, in an unequal world, an important defence for the smaller and weaker countries.

But the implications of the paper might be taken to go further, to suggest the present and even ultimate futility of international efforts to construct an enforceable international law of human rights that must result in the erosion of state sovereignty. I think that such a position is overly pessimistic. There are other views on the possibilities of defending in principle an international morality and a rule-based international order than Raymond Plant's scepticism.'

The paper conflates the range of measures that can be utilised by the international community, giving emphasis only to the extreme case of direct military intervention. But other forms of intervention, ranging from discussion at the international level of a state's human rights record to sanctions directed at human rights violators, are well-established and legitimate dimensions of international involvement in the defence of human rights.

It may be useful to place the specific concerns of her paper with situations where force is used or contemplated in the broader context of the internationalisation of human rights. But it may be helpful also to distinguish two broad situations where

1. See, for example, Jack Donnelly, Universal human rights in theory and practice (Cornell University Press, 1989).

*Paper presented at the Fifteenth Annual Conference of the Irish National Committee for the Study of International Affairs, 26 November 1993.

Irish Studies in International Affairs, Vol. 5 (1994)

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the international community may be called to consider so-called humanitarian intervention. There are, first, situations of internal conflict or civil war, where government has collapsed and atrocities are widespread. The United Nations for the most part has not become involved in such conflicts. The world has stood aside in virtually every case and allowed the outcome to emerge through force of arms. There have been, however, regional examples of intervention, such as the intervention by Syria authorised by the Arab League in Lebanon, and the West African states' intervention in Liberia. At the United Nations level exceptions have included Somalia, although there the UN humanitarian role was requested by the parties to the conflict. Another example has been the current conflict in the former Yugoslavia. But the initial involvement authorised by the Security Council was again with the consent of the state of Yugoslavia.

There have in fact been no examples to date of forcible involvement by the international community against the will of the parties in an internal civil war. And the cases of Somalia and Bosnia provide ample illustration of why coercive involvement by the international community in such conflict is not the way forward. A better policy for the future, however, than the option of standing aside would be real commitment to what is being called preventive diplomacy and conflict prevention. It is this idea which is the central thrust of Secretary-General Boutros Boutros- Ghali's paper cited by Caroline Thomas, An agenda for peace.

A second situation is where a state is oppressing the population or a section of the population and is guilty of gross and systematic violations of human rights. While there is much discussion of the so-called duty to intervene to protect victims of state repression, again the practice is as cautious as Caroline Thomas would wish it to be. The most important case to date has been the imposition of a mandatory arms embargo on South Africa in Resolution 418 (1977).The Security Council invoked Chapter VII of the UN Charter, determining that the situation was a threat to international peace and security. It was clearly influenced by the death of Steve Biko and the rising tide of repression and torture in South Africa at that time. But no question of direct armed intervention was contemplated.

The closest example of what could be considered military intervention to defend human rights without the consent of a state is supplied by the enclaves established for Kurds in northern Iraq in the aftermath of the Gulf War. But even that case, reliant as it was on Resolution 688 of the Security Council, had transnational dimensions, which could have justified action on grounds of a threat to international peace and security, a basis for overriding the rule of non-interference in domestic affairs which has always been provided for in the text of Article 2(7) of the Charter.

In short, a doctrine of armed intervention on grounds of humanitarian need against the will of a state is far from established in international law or practice. But the important question is whether we should, with due caution and regard for the principles that Dr Thomas articulates, seek the emergence of such a policy. In a world grown small as a result of the new communications technology, we are aware of human rights outrages, in remote and not so remote countries, which would have been hidden in the past. Public opinion, as exemplified by the Bosnia conflict, is and will continue to be an important positive pressure to act, including through military means. The enormous difficulties both in principle and in practice should not prevent the discussion and the development of a theory of intervention on humanitarian grounds, both in cases of governmental collapse and where dictatorship

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inflicts gross violation of human rights on the population or on a minority. The increased direct involvement of the United Nations in human rights work

within states experiencing manifest violations of human rights of the civilian population is a clear trend. There are a number of examples of human rights monitors and observers attached to field operations such as in Cambodia (UNTAC), Haiti (MICIVIH, the International Civilian Mission in Haiti conducted in conjunction, with the Organisation of American States), and in El Salvador (ONUSAL). Add to that election-observing in South Africa, civilian police observers in Rwanda and Mozambique, and the outlines of a human rights component to peacekeeping operations can be demonstrated to be an increasingly normal feature of the UN role.

OTHER FORMS OF INTERVENTION

Dr Thomas in her paper captures very well the current fluid and confusing phase of international relations in the aftermath of the Cold War. But on the subject of intervention it is important to appreciate that the processes of change in the balance between state sovereignty and human rights had been underway for a considerable period despite the Cold War.

The Charter of the United Nations from the outset set up a tension between the principle of non-interference, Article 2(7), based on respect for sovereignty, and Articles 55 and 56, which impose on all member states a duty tojointly and severally promote human rights and fundamental freedoms. The non-interference principle as initially interpreted precluded even discussion of human rights practices in any state and resulted in a refusal of United Nations organs in the early years to give any response to the complaints from victims which poured into the organisation. As the paper indicates, that tension has been resolved in favour of human rights to the extent that it can now be said that the discussion of a state's human rights practices and all forms of action short of forcible intervention are no longer properly disputed by a state as interference in its internal affairs.

The wall of respect for sovereignty was first broken down by international public opinion over apartheid and by the pressures generated by de-colonisation. The end of the Cold War has accelerated the process. This erosion of sovereignty is dramatically recorded in a statement in the Moscow Document of the CSCE Human Dimension Conference (1991), repeated in the Helsinki Follow-Up meeting of the CSCE in July 1992

... we emphasise that the commitments undertaken in the field of the Human Dimension of the CSCE are matters of direct and legitimate concern to all participating states and do not exclusively belong to the internal affairs of the State concerned [Helsinki Summit Declaration 1992, para. 8].

The same position was repeated in the document of the Vienna World Conference on Human Rights in June 1993, which declared that 'the promotion and protection of all human rights is a legitimate concern of the international community'. The Vienna Conference also affirmed the universality of human rights as well as their indivisibility.

A major contribution to the new balance between sovereignty and international concern for human rights has been made by the growth over the last half-century of a body of international law on the promotion and the protection of human rights. The

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starting-point in the Universal Declaration of Human Rights 1948 is well known. That statement of principles and goals was first transformed into the two 1966 International Covenants on civil, political, economic, social and cultural rights, and thereafter into an enormous range of agreements which states have both participated in drafting and agreed to be bound by. The work of the United Nations ECOSOC bodies, the Human Rights Commission and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities both in encouraging agreement over human rights standards and in establishing systems of international complaint over violations has been paralleled at the regional level in the achievement of the Council of Europe, the Organisation of African Unity and the Organisation of American States. There is as yet no regional human rights machinery for the Middle East or Asia, although the possibilities are continuously debated.

Of course it can be shown that the machinery of enforcement established under international treaties on human rights is limited and often without real effect. But that should not be a cause for pessimism. The transformation achieved by the will of states in hesitant and often contested steps in creating a system of international accountability over how governments treat those under their jurisdiction is a real gain in the battle to subject power to law in international relations. The task is to build on what has been achieved, in the knowledge that an increasingly conscious global public opinion wants to see established a universally agreed and respected human rights order.

In presenting a sceptical perspective on the possibilities of creating such a universal human rights code, Caroline Thomas identifies geopolitical obstacles. States condone the violations of their allies and focus on the record of their enemies. Her ideas on working towards a more democratic United Nations must certainly be one pursued by the international community to counter the effects of such policies. But another is to work towards the acceptance by states of international human rights policies which are non-selective, objective and impartial. A major contribution towards that goal could be the subjection of foreign policy made by states to greater internal democratic accountability.

Much of the rhetoric from some Asian and Middle Eastern states about 'cultural relativism' and human rights, and the accusation that concern for human rights is a stalking-horse for the imposition of Western values, is at its core-where it is not a cover for repressive policies at home-a genuine defensive reaction by states to double standards in Western policies. No one can doubt, for example, that the human rights violations in the Occupied Territories over so many years and the apparent immunity of Israel from international condemnation or action for those practices poisoned the cause of democracy and human rights in Arab countries and fanned the anger which has brought such serious crises to countries such as Egypt and Algeria.

The economic gulf between the developed and the developing world is also iden- tified as a constraint by Caroline Thomas on the emergence of an effective universal human rights regime. She notes that an advance at the Vienna World Conference on Human Rights was the acceptance by the United States and other Western states of the indivisibility of rights-economic and social as well as civil and political rights. The Vienna conference also asserted a direct relationship between human rights, development and democracy which, if pursued, establishes an agenda for tackling the gross inequalities which underlie so many situations of tension and

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conflict in the world. Caroline Thomas is certainly right to specify long-term action on trade and debt as a necessary foundation for any legitimate policy of emergency intervention.

The paper reminds us forcibly of the reality of a world divided between North and South. But this is not a new phenomenon. It was long obscured by the ideological competition between East and West. The agenda for the post-Cold War world is to pursue global policies in which commitment to human rights and democracy provide the foundation for the sustainable economic development so desperately needed by the majority of states and their peoples.

RULE-BASED INTERVENTION

But on the immediate issue of intervention to defend human rights, one specific need is to introduce ajudicial process in the determination of when the international community should consider direct involvement, including questions such as the imposition of conditions on trade and aid or the imposition of sanctions. It ought to be possible to provide such a process through the International Court of Justice and through the Advisory Opinion jurisdiction already provided for in the Charter. While the United Nations is likely to remain cautious over intervention, the involvement of the Court could make some contribution to ensuring consistency and objectivity in the application of universal human rights standards, the absence of which to date in the policies of dominant countries is the main source of scepticism in this paper.

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comments on 'human rights and intervention: a case for caution' by caroline thomas

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