Stephen Vasciannie LAST WEEK, the United Nations Security Council passed a resolution intended to address the crisis in the Darfur region of the Sudan. The Resolution gives the authorities in the Sudan 30 days to disarm one of the main factions involved in the crisis -- the Janjaweed -- and to allow food aid and other emergency supplies to reach those most in need.
Various political leaders, including American Secretary of State Colin Powell, have expressed grave concern as to the magnitude and intensity of the crisis in Darfur. It is reported that at least 30,000 people have been killed, and over one million others have been forced to flee their homes. The Janjaweed have been implicated in the destruction of hundreds of villages, rape, pillage, torture and other acts of mayhem. The crisis, in short, cries out for resolution -- a fact which has prompted the Security Council Resolution, as well as African negotiating efforts.
Significantly, however, neither the Security Council Resolution nor other efforts at bringing peace to Darfur identify the consequences that will follow if the Janjaweed are not contained. The Resolution states that unspecified measures will be taken, but it goes no further. In the meantime, the Government of Sudan understandably takes the view that the unspecified measures will include military intervention, and has sponsored demonstrations against any foreign interference involving the use of force.
HUMANITARIAN INTERVENTION
Once again, therefore, the crisis in Darfur has prompted the question as to whether, and in what circumstances, foreign troops may participate in military intervention to preserve lives. In the period immediately preceding September 11, this was one of the most controversial issues in international law and politics.
In light of the Afghan and Iraqi military operations, issues concerning humanitarian intervention may have lost some of their prominence. But, as the crisis in Darfur demonstrates, the question has not lost its significance. Also, as is evident in some discussions on Iraq, even in instances where humanitarianism is not the only motive for intervention, humanitarian concerns are mentioned among the justificatory arguments presented by the protagonists.
So, should we support humanitarian intervention -- intervention to save the lives of persons suffering under an oppressive government or otherwise exposed to human rights abuses? In 1999, at the United Nations General Assembly, Secretary General Kofi Annan argued strongly for the right of humanitarian intervention in cases where there are "gross and systematic violations of human rights that affect every precept of common humanity."
The Secretary-General took this view largely with reference to the major fin de siècle humanitarian crises in Somalia, Bosnia and Kosovo where controversial action was taken in each case. The Secretary-General also had in mind the failure of the international community to intervene in Rwanda, where a significant portion of the population was exterminated on ethnic grounds.
PROTECTION
The Secretary-General's perspective in favour of intervention in some cases has also been supported by the influential Report of the International Commission on Intervention and State Sovereignty, entitled The Responsibility to Protect. This report, sponsored by the Canadian Government, was published in December 2001. It addresses comprehensively the main reservations that States and individuals have about humanitarian intervention, and argues that States do indeed have a responsibility to protect foreign nationals against grave human rights abuses.
If we accept that there should be a right of humanitarian intervention in some cases, this does not in itself identify when the right may be invoked. The international community needs to identify the threshold at which intervention becomes permissible. Shortly following World War II, Sir Hersch Lauterpacht suggested that the threshold for humanitarian intervention should be at the point where the human rights abuses in question would "shock the conscience of mankind."
The Lauterpacht criterion is, however, inherently subjective, and since Lauterpacht, others have sought to offer more specific considerations. So, for example, the Responsibility to Protect suggests that humanitarian intervention should be triggered where there is "serious and irreparable harm occurring to human beings, or imminently likely to occur." The Report then specifies that the harm should involve actual or apprehended large scale loss of life or large scale "ethnic cleansing."
INTERNATIONAL LAW
Again, if we accept that there should be a right of humanitarian intervention, the question arises whether this right is supported by International Law. The United Nations Charter, which is the starting point for identifying rules of law on the use of force, provides no clear support for humanitarian intervention.
The Charter does indicate general support for human rights (mainly in Articles 55 and 56), and Article 24 provides that the Security Council has primary responsibility for the maintenance of international peace and security. But these provisions do not state that where human rights abuses occur military intervention may be undertaken. Neither do they expressly allow the Security Council to take action with respect to human rights issues that are essentially against the internal peace and security of one country -- such as the Sudan in the case of Darfur.
Finally, if we accept that there should be a right of humanitarian intervention, there is also the difficulty as to which States will carry out the intervention. Arguably, there may be agreement in principle that State sovereignty should no longer be used as a shield against intervention when lives are at stake. But this agreement may break down if the intervening force is from, say, a traditional adversary, or from a country that is perceived as having mixed motives.
Humanitarian intervention, therefore, continues to throw up difficult questions. When we hear about the brutalities in Darfur, stimulated it seems by deliberate State action and inaction, we want the international community to intervene. And yet, we know that each intervention could start us down the slippery slope to the point where military intervention becomes a way of organising the world, to the detriment of the poor and the powerless.
Stephen Vasciannie is Professor of International Law, Head of the Department of Government, UWI, and a consultant in the Attorney General's chambers.
