Re-Thinking World Order: Bringing Humanitarian Law Closer To Morality | Sunita Samal

Abstract

Keywords: United Nations, Security Council, Veto power, African Union, Self-Defence, use of force, morality, international law

Introduction

Article 2 (4) of the United Nations (UN) Charter of 1945 spells out that 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 by the principle of peaceful settlement of disputes. Nonetheless, resort to armed forces is authorised under two circumstances. First is in case of self-defence, individual or collective, authorised by article 51 of the UN Charter. Second is in the context of collective security measures adopted by the UNSC (Article 42 of the UN Charter). Despite the adoption of a definition of aggression in 1974 by the UN General Assembly, the Security Council continued to use the more neutral terminology of ‘threat to peace and international security’ in its management of international crisis such as Iraq’s invasion of Kuwait in August 1990.

Expanding Notion of Self-Defence

Since the end of the Cold War, it is obvious that the UN Security Council has used its powers under Chapter VII in ways it was unable to use before the disintegration of the Soviet Union. Chapter VII of the United Nations Charter sets out the UN Security Council’s power to maintain peace. It allows the Security Council to determine the existence of any threat to the peace, breach of peace, or act of aggression and to take military and non-military action to restore international peace and security. Nevertheless, the Security Council has been consistent in authorising force only in situations where it considers that an act of aggression has occurred. It was because use of veto by Great power, the Security Council has become dysfunctional and unable to take sides in a dispute by branding a state as the aggressor.

For an act to be considered aggression, three criteria must be met. First is the act must be perpetrated by a state. Second is that it must involve the use of armed force. Third is that it must reach a level of sufficient gravity as defined by the UNSC. This definition excludes ideological and economic aggressions, and acts might be perpetrated by non-state actors. But what was the role of non-state actor in 9/11 terrorist attack on the World Trade Center in America?

But just as important is the fact that ‘aggression’, entails not only state responsibility, but also individual criminal responsibility and as such, the Security Council has deemed it prudent typically to describe events as either a threat to or breach of peace. It becomes clear that the Security Council has large discretionary power as regards the interpretation of the term threat to the peace which is quite elastic concept [1].

Despite this during the forty-five years period of the cold war, the UN Security Council invoked chapter VII fewer than dozen times and considered that threat to peace transpired only when actual military force was being used. Yet, in the wake of the demise of the Soviet Union and the evolution of a ‘New World Order’, the UN Security Council sought to assert itself in ways it had not previously been able to.

The primary responsibility for the Security Council is the maintenance of international peace and security. This was made evident in its willingness to face ‘new challenges’ in the search for peace. The absence of war and military conflicts among states does not itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security [2]. The ability of UN Security Council to act was a manifestation of what appeared to be the emergence of a multi-lateral system predicated on the dominance of the United States. The lead role of the United States was made most evident in 1990 Declaration of the then US President Bush of ‘New World Order’. By comparison, the events of 11 Sept.2001 marked the emergence of a new international framework. It is manifested in the growing assertiveness of American universalism beyond the parameters of the accepted international law regarding the use of force.

Since the end of Cold War, United States progressively chose to act beyond the UN Charter where it lacked the cooperation of Security Council. Here, the United States’ use of force outside the parameters of the UN Charter to either a widening of the notion of self-defence or by developing a new exception to permissible use of force, claiming as ‘humanitarian intervention’. The expanded notion of use of force would be the creation of customary law which is based on state practice.

With the coming into force in December 2003, of the Protocol establishing an African Peace and Security Council, African States have introduced a new justification allowing for the invocation of the use of force and thus widening the parameters of what is to be considered as legal projection of military might on the continent.

Article 2 (4) of the Charter which establishes as a principle of the United Nations Organisation that

‘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 any other manner inconsistent with the purposes of the United Nations.’

The first exception to the use of force is Article 51 of the Charter which provides for an inherent right to self-defence, either individually or collectively. Article 51 reads

‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security.’

As Christine Grey notes in her ‘International Law and the Use of Force’, the right of self-defence arises only if an armed attack occurs. This right is an exception to the prohibition of the use of force in Art.2 (4) and therefore should be narrowly construed [3]. As Malcolm notes in his text International Law despite controversy and disagreement over the scope of the right of self-defense, there is an indisputable core and that is the competence of states to resort to force in order to repel an attack [4].

To further expose out the parameters of self-defence, consideration should be given to both what constitutes an ‘armed attack’ and what would be the legal response to such an act. In the Nicaragua case, which revolved around the issue of the use of force by the United States as against the Central American state during the 1980s, the ICJ stated plainly that ‘In case of individual self-defence, the exercise of this right is subjected to the state concerned having been the victim of armed attack. As Brownlie makes clear, it is very doubtful if the present form of intervention that is protecting nationals abroad has any basis in modern law [5].

As noted by ICJ in the Nicaragua case and affirmed later in its 1996 Advisory Opinion in the Nuclear Weapon case there is a specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law [6].

True to its word, the United Nations Security Council used its prerogative to invoke Article 39 of the Charter more expansively, thereby constituting new situations of threat to peace. The Council considered the Iraqi invasion of Kuwait and the early fighting that ultimately led to the dissolution of Yugoslavia as a threat to international peace and security. The Council was acting well within the traditional understanding of what constituted a threat or breach of peace, a situation in which military force was being utilised. However, on 5 April 1991 in the aftermath of the Kuwait/ Iraq War, the Security Council by way of Resolution 688 [7], determined that the refugee flow brought on by Iraqi repression of Kurds constituted a threat to the peace [8].

The UN Security Council would continue the make determinations regarding traditional threats to the peace, such as regards to armed conflict and the proliferation of various weapons and their use. Consider, for instance, the aftermath of nuclear tests in India and Pakistan in May 1998, when Security Council, that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security.

The Security Council went further, among the issues which have been declared to constitute a threat to peace by the Council have been humanitarian crisis, such as those in Somalia in 1992 and Rwanda in 1994. Beyond these new situations which were considered threat to peace, the UN Security Council has been most concerned, especially since Sept. 2001, with threats to international Peace that have been brought on by acts of terrorism.

Since the UN Security first invoked the notion of terrorism regarding Libya in 1992 over the downing of a civilian airliner over Lockerbie, Scotland, the clear practice has emerged within the UN Security Council as to ‘terrorism’, constituting a threat to international peace and security [9] .

If there still remained any doubt as the possibility of terrorism constituting a threat to the peace, it vanished in the aftermath of the events of 11 Sept.2001. Further, the centrality of issue of terrorism to the mandate of the UN Security Council has been made plain by its willingness to upgrade terrorism to one of the most serious threats to international peace and security in the twenty-first century [10]. The Regional Arrangements such as the African Union which fall under chapter VII, do not escape that control. Though much regionalist political pressure was exerted at San Francisco in 1945, Inis Claude notes that the final draft of the UN Charter reflects the premise that the United Nations should be supreme and accepted regionalism with conditionality.

With respect to the use of force, political pressure at the San Francisco Conference came from Latin American states which sought to have regional organisations exempt from subordination of the Security Council. Yet, this failed as the majority of delegations considered prior authorisation by the Security Council to be necessary [11].

Chapter VII thus provides in Article 52, the possibility of the existence of regional arrangements or agencies as long as they are consistent with the purposes and principles of the UN. Article 53 states that such regional organisations are to act subordinate to the UN Security Council and only when authorised by it.

The primacy of the Security Council over Chapter VII is manifested, for instance, in NATO, where NATO states pledge ‘to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations. It makes plain that the Treaty does not affect the primary responsibility of the Security Council for maintenance of international peace and security [12].

As the Inter-American Treaty is also meant to establish a collective Security system, the state parties undertake to assist in meeting any such attack in the exercise of their inherent right of individual or collective self-defence recognised by Art.51 of the Charter of the United Nations. However, such action will come under the control of UN Security Council as article 3 (6) reads ‘Measures of self-defence provided for in this article may be applied until the Security Council of the United Nations has taken the measures necessary to maintain international peace and security.

The framework of both these regimes of collective security demonstrates how regional organisations are clearly subordinate themselves to the dictates of the use of force must give way if the UN Security Council moves to exercise its primacy.

Pushing International Law Closer to Morality: Since the end of the Cold War, attempts have been made to justify large-scale interventions using force beyond the parameters of Article 2(4) and the United Nations system developed through Article 51 and Chapter VII of the UN Charter. In seeking to justify their actions, states have sought either to develop new justifications as exceptions to the use of force or expand the notion of self-defence to include their recourse to force. To consider whether these interventions are legal, one must consider both the acts themselves and the response to them by the international community as short of establishing a conventional norm—such developments must transpire through the emergence of customary law.

In Yugoslavia, where NATO sought to justify its bombing campaign as a ‘humanitarian intervention’, to protect civilians in Kosovo then the US-led invasion and occupation of Iraq where the justification of pre-emptive self-defence was used, in part, to validate actions. NATO ultimately resorted to force without the authorisation of the UN Security Council and thus in violation of established international law. The general tenure of legal scholars regarding the NATO intervention in Kosovo has been that the actions were illegal, but there exists no international legal norm that allows for the use of force on the pretext of humanitarian intervention, many writers were willing to concede that there exists a moral imperative to act [13]. A. Cassese thinks that from an ethical viewpoint, resorting to armed forces was justified (Cassese:1999). To ensure that the justification of ‘humanitarian intervention’ does not become a pretext for actors taken with other objectives in mind.

It was left to Louis Henkin, to give lucidity to this fundamental dynamic in international law regarding the emergence of the norm of ‘humanitarian intervention’ as an exception to the use of force. In Henkin view, unilateral intervention is and should remain unlawful. But the principles of law and the interpretation of the charter, that prohibits unilateral humanitarian intervention do not reflect a conclusion that the ‘sovereignty’ of the target state stands higher in the scale of values of contemporary international society than the human rights of its inhabitant to be protected from genocide and massive crimes against humanity.

The law that prohibits unilateral humanitarian intervention rather reflects the judgment of the community that the justification for humanitarian intervention is often ambiguous, involving uncertainties of fact and motive and difficult questions of degree and balancing of needs and costs. The law against unilateral intervention may reflect, above all, the moral-political conclusion that no individual state can be trusted with authority to judge and determine wisely [14].

Several authors have undertaken a thorough study of the issue of humanitarian interventions from a legal perspective. For the most part, they agree that during the Cold War era, no true case of ‘humanitarian intervention’ was established. So, while possible leading cases such as the 1978 Tanzanian intervention in Uganda to oust Idi Amin and the 1978 Vietnamese invasion of Kampuchea may appear to be legitimate cases of humanitarian interventions, neither state justified its action on that basis [15].

On 20 March 2003, US led a coalition of the willing in an invasion and subsequent occupation of Iraq. Its failure to gain a Security Council mandate for its action against Iraq means that the United States sought to justify its action beyond the parameters of the United Nations System. William Taft and Told Buchwald put forward the following as the legal basis for the doctrine of pre-emption used to justify the United States’ position regarding its invasion of Iraq. They argue that pre-emptive self-defence cannot be considered legal or illegal; Instead, it will depend on the circumstances of each invocation.

As Cassese for example, has noted states consider that pre-emptive strikes should be banned since they may easily lead to abuse, based on subjective and arbitrary appraisals by individual states. One must contextualise one’s analysis and thus include ‘the naked aggression by Iraq against its neighbours, its efforts to obtain weapons of mass destruction and its record of having used weapons.

Other Side of Threat to Peace

Since the end of the 1990s, the African continent has been marginalised in ways it had not been during the height of the Cold War. This remains true in the area of international peace and security, where African states have come to realise that they cannot depend on the member states of the UN Security Council to ensure stability on the continent. As a result, African leaders have decided to depart radically from the normative framework established by the UN in 1945. No longer do they accept that the limitations on the use of force established by Article 2 (4) hold or that recourse to the use of force other than in self-defence can only take place by the sanction of the UN Security Council. What is just as crucial was the manifest failure of the UN Security Council to prevent the 1994 Rwandan genocide. These factors led African states to conclude that they should take control over their destiny regarding regional peace and security and turn their backs on the normative framework of the United Nations. During the 1990s, a precedent was established whereby West African states undertook military interventions without the authorisation of the UN Security Council. As a result of these instances, it became clear that not only could African states not depend on the council to assist them in situations that might threaten the peace, but also that if they did not seek to become the primary actors in ensuring the peace, then nobody would.

It would appear that the UN Security Council has never complained about its power being usurped because two interventions were in support of popular causes and were carried out partly because the UN Security Council had not taken action or was unlikely to do so at the time. Article 16 of the African Union, which has the primary responsibility for promoting peace, security and stability on African continent. While it is true that the UN Security Council mandate of maintenance more than a promotion of peace and security, the AU means to act in both situations.

Since the African Union (AU) came into operation in 2003, Peace and Security has been the focal point of the regime established by the AU to deal with issues of peace and security. The AU has the right to intervene in a member state pursuant to a decision of ITS Assembly in respect of grave circumstances, namely war crimes, genocide, and crimes against humanity. Further, member states of the AU have the right to request intervention from the Union to restore peace and security.

The challenge of AU to the normative framework regarding the use of force, which is manifest in the United Nations system, derives from its unwillingness to subordinate its actions to those of the UN Security Council. While regional organisations such as NATO and the Organisation of American States have recognised this imperative, the AU, though paying homage to the primacy of the UN Security Council, does not place its Peace and Security Council under the obligation to defer to the United Nations in its actions, either generally or specifically. Regarding the challenges to the United Nations system, what is most important about the instruments of the AU is what is left unsaid. The Constitutive Act, as amended, is silent on the relationship between the United Nations and the AU. Beyond the need to register the Act with the Secretariat of UN, the sole mention of the United Nations is the Constitutive Act is concerning one of the Union’s objectives to encourage international cooperation taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights (Art. 3(e) Constitutive Act of AU of July 2000). Article 17 (1) Protocol relating to the Establishment provides that the Peace and Security

Council shall also cooperate and work closely with other relevant UN agencies in the promotion of peace, security, and stability in Africa. On 23 Dec. 2003, the African Union (AU) brought into operation its exception to the normative framework of the international system as the Protocol establishing its own Peace and Security Council came into force.

Conclusion

The question is whether the United States falls within the established parameters of the legal use of force or to modify the normative framework accepted by the community of states or not. In Iraq and Kosovo states justified their use of force on novel interpretations of international law beyond the confines of the United Nations system. Such attempts challenge the power of the Security Council. These ‘exceptional’ instances to get support of the international community means that the normative framework emerges not weaker but stronger, that these actions fall outside what is considered as ‘normal’ behaviour of states.

Not only do AU reject the primacy of the United Nations Security Council in the domain of peace and security, they have appropriated for themselves further possibilities for the use of force beyond the established order that allows for armed intervention to halt crime against humanity, genocide, war crimes or serious threats to the legitimate order. The discussion of moving beyond the UN system and allowing for intervention within the African Union reflected a sense of frustration with the slow pace of reform of the international order. It is evident that fundamentally, the AU has challenged the consensus which has existed since 1945 when the United Nations Organisation was formed. In another sense, it is a paradigm shift of international and regional organisations to emphasise the ‘responsibility to protect’ rather than the ‘right of humanitarian intervention’.

(Author: Sunita Samal is the author of multiple books including ‘Politics by Other Means: Domains of Body, Objectivity, and Audit Culture’ (2024) Asian Press Books, Kolkata, India)