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Wednesday, 25 July 2001 |
The Milosevic affair - how far can the world intervene?
by Dr. Ruwantissa Abeyratne, Montreal
On 28 June 2001, The Serbian government, defying an order of its federal constitutional court, surrendered former President Slobodan Milosevic to the International Tribunal for Crimes on Yugoslavia, with a guarantee to the world community that Milosevic will stand trial in a world court on charges of war crimes. The President of the Tribunal, Claude Jonda, called the act of surrender "a new irreversible step in relation to the international community's resolve to fight against impunity".
Milosevic, who ruled Serbia for 13 years, was toppled from power in the year 2000. In 1991, when Croatia and Slovenia declared their independence from Yugoslavia, Milosevic despatched tanks to Slovenian borders, causing a short lived war which ended in Slovenia's secession. Encouraged by this event, Serbs in Croatia took up arms, but Milosevic sent a Serb led Yugoslav army to Croatia, causing a conflict which left at least 10,000 people dead and hundreds of villages and towns pillaged and devastated, before a United Nations-led peace keeping effort led to a ceasefire in 1992.
Three months later, Bosnia-Herzegovena too declared its independence, and this time, Milosevic's military intervention cost 200,000 lives, before the United States stepped in to broker a peace agreement reached at Dayton, Ohio in 1995. Milosevic's surrender by the authorities, despite a local court's ruling prohibiting his extradition, is arguably predicated upon the desire on the part of the Yugoslav government not to antagonize the international community at a time when Yugoslavia needs external support for its own revival and reconstruction. This goes to show that, in the modern world of diplomacy and international relations, there is a certain quid pro quo in operation, where States cannot shroud themselves behind an antiquated concept of "sovereignty" and be guaranteed impunity from international judgement for crimes committed domestically.
The intervention of the international community, primarily through the United Nations, in grave domestic situations, is deeply rooted in two fundamental premises: that fellow human beings in difficulty should be assisted irrespective of where they live; and criminals should be brought to justice irrespective of purported immunity invoked on the ground of sovereignty. These in turn give rise to two inevitable occurrences - the flow of aid to the persons affected; and punishment of offenders who cause misery to those affected. Basis for Intervention
The Charter of the United Nations, which was signed on 26 June 1945 and came into force on 24 October 1945, lists the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, as one of the purposes of the United Nations. The problems that the United Nations is mandated by its Charter to solve should therefore be necessarily of an international nature.
Article 2(7) of the Charter expands the scope of this philosophy further when it provides that the United Nations is not authorized to intervene in matters which are essentially within the domestic jurisdiction of any State, without prejudice to the right of the United Nations to intervene in matters which are within the domestic jurisdiction of any State, and apply enforcement measures where there is an occurrence of acts of aggression, a threat to the peace or breach thereof.
Therefore stricto sensu, the United Nations cannot intervene in instances where natural disasters such as famine, drought or earthquakes render the citizens of a State homeless, destitute and dying of starvation unless invited by the States concerned. The principle however cannot be too strictly interpreted, as natural disasters may usually lead to breaches of the peace. In such instances the United Nations Security Council may take such actions by air, sea or land as may be necessary to maintain or restore international peace and security.
For such instances, Article 43 of the Charter provides that All members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces assistance and facilities, including rights of passage necessary for the purpose of maintaining international peace and security. Here again, action can only be taken for the maintenance of international peace, effectively precluding any direct intervention in a domestic issue.
The Resolutions adopted by the United Nations Security Council some years ago relating to Somalia and Bosnia and Herzegovina clearly demonstrate the parameters of the scope of United Nations' intervention under its Charter. In the case of Somalia, the United Nations Security Council recognized the unique character of the situation in the country, where conflict and violence demanded that all concerned take all necessary measures to facilitate the measures of the United Nations, its specialised agencies and humanitarian organizations to provide humanitarian assistance to the affected population in Somalia. In the case of Bosnia and Herzigovina the Security Council recognized in its Resolution that the situation in the two States constituted a threat to international peace and security. In both Resolutions, the Security Council had to function within its mandate of intervention only in instances of conflict and breaches of the peace. Since it is clear that the intervention of the United Nations Security Council in a matter lying within the domestic jurisdiction of a State can only be justified in instances where there is a threat to international peace and security, a breach of the peace within a State or an act of aggression, a question which arises when a relief assistance is given as a part of a humanitarian project is whether such assistance could form a legitimate ground for unilateral action by States. The question would essentially be grounded in a legal analysis of the principles of humanitarian law and State sovereignty.
On the one hand, everyone has the right to life, liberty and security of person and the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care. On the other, there is overall recognition of the fact that every State has complete and exclusive sovereignty over the airspace above its territory. The United Nations General Assembly at its 46th Session in December 1991 adopted Resolution 46/182 which explicitly provides in the Annex to the Resolution that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations and that in this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country. These conflicting principles, although not bestowing legal authority on the United Nations to intervene in a State with assistance, at least give some degree of justification to the United Nations' efforts to mediate with States concerned in the promotion of relief operations and to seek the support of other States, with the concurrence of affected States.
Since under general law, no one can intervene unilaterally in a State to provide relief to that State, the question is whether there are any special circumstances that the law may construe as an exception to the rule. The answer would seem to lie in what legal commentators call "humanitarian intervention" which is considered to be a basic moral response of one human being to another, to save the latter's life. One definition identifies: Humanitarian intervention is the proportionate transboundary help, including forcible help, provided by governments to individuals in another State who are being denied basic human rights and who themselves would be rationally willing to revolt against their oppressive government.
The general principle of intervention for the provision of relief on moral grounds has been subject to a great degree of intellectual polarization. One view is that if humans are dying, one has got to help at all costs. The other is that the mere act of treating humanitarian intervention as an extant legal doctrine would erode the applicable provision of the United Nations Charter on recourse to force.
The latter view, which discourages humanitarian intervention, is substantiated by the following arguments:
1. The good samaritan must fight for the right to perform his act of humanitarian intervention and may end up causing more injury than he averts;
2. The authorization for forceful and unilateral humanitarian assistance may be abused; and,
3. Unilateral recourse to force even for genuinely humanitarian purposes may heighten expectations of violence within the international system and concomitantly erode the psychological constraints on the use of force for other purposes.
The essence of intervention is compulsion. Compulsion could either take place through the use of force, armed or otherwise. The legal question, with regard to the inviolability of the sovereignty of a State is not whether the intervention concerned was an armed or unarmed one, but whether it was effected unilaterally under compulsion or threat by the intervening State. Starke is inclined to stretch the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances: ..."Sovereignty" has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalised States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action.
Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider "law of nature".
Oppenheim holds a similar view that the "traditional" law of humanity is incorporated into contemporary international law. He views this attitude as: Recognition of the supremacy of the law of humanity over the law of the sovereign State when enacted or applied in violation of human rights in a manner that may justly be held to shock the conscience of mankind.
Some authorities in international law also believe that intervention should, if absolutely necessary, be effected when there is cogent evidence of a breakdown in the minimum guarantees of humanity. Accordingly, it may be argued that any act of intervention aimed at saving the lives of human beings which are in danger, would be legally and morally justifiable. Fernando Teson argues that since the ultimate justification for the existence of States is the protection and enforcement of the natural rights of the citizens, a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy, but also its international legitimacy as well. He goes on to say:
I suggest that from an ethical standpoint, the rights of States under international law are properly derived from individual rights. I therefore reject the notion that States have any autonomous moral standing - that they hold international rights that are independent from the rights of individuals who populate the State.
Schwarzenberger analyses the concept somewhat clinically and concludes that in the absence of an international jus cogens (peremptory norms of general international law) which corresponds to municipal jus cogens of advanced communities, where the latter prevents the worst excesses of inequality of power, the supremacy of the rule of force would prevail.
There is also a contrasting view that humanitarian intervention is generally resorted to by States only in instances of serious abuses of human rights by one State upon its people or others. Dr Michael Akehurst argues that if a State intervenes forcibly on the territory of another in order to protect the local population from serious human violations, such an armed intervention could inevitably constitute a temporary violation de facto of the territorial integrity of the latter State, and to an extent of its political independence, if carried out against its wishes. Dr. Akehurst goes on to assert: Any humanitarian intervention, however limited, constitutes a temporary violation of the target State's political independence and territorial integrity if it is carried out against the State's wishes.
The doctrine of humanitarian intervention is thought of by some commentators as an invention of strategy to circumvent the strong jus cogens nature of the principle of sovereignty and inviolability of States which Dr. Akehurst refers to. Ian Brownlle, Professor of Public International Law in Oxford University, is of the view that States have generally invoked the doctrine to give support to their commercial and strategic considerations.
Generally, courts have insisted that the principle of State sovereignty is jus cogens and is inviolable under any circumstances. In the Corfu Channel Case, where British warships had, as a response to having been fired at on 15 May 1946, and being damaged by Albanian mines later in the year, swept for mines in November of the same year in Albanian waters without the consent of the government of Albania, the International Court of Justice (ICJ), although holding Albania responsible for the explosions and the ensuing damage to the British warships, held the United Kingdom responsible for having violated Albanian sovereignty by attempting to carry out activities of mine sweeping in Albanian waters without the consent of the government of Albania. In the Barcelona Traction Case, which was decided by the International Court of Justice in 1970, the Belgian government instituted action against the government of Spain on behalf of shareholders of Belgian nationality of the Barcelona Traction and Light Company - a Canadian company running its business in Spain and affected by executive action of the Spanish government. The ICJ held: Belgium would be entitled to bring an international claim if it could show that one of its rights had been infringed and acts complained of involved the breach of an international obligation arising out of a treaty or a general rule of law.
The court denied that injury to the economic interests of a State through prejudice to the investments of its nationals constituted a violation of that right. It is therefore logical to follow the principle that courts in this context would insist on the breach of an obligation by one State to another - such as the breach of the principles of State sovereignty - to be the only criterion to award judgement in favour of an aggrieved State.
The sense of international responsibility that the United Nations has ascribed to itself is a necessary corollary to the modern exigencies of international government. The role of international law in international human conduct has been continuously perceived to be primary and above the authority of States. In its Report to the General Assembly, the International Law Commission in 1949 recommended a draft provision which required:
Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law. This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally - within their territories - and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law.
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