A Transcript of the Paper by Lyal S. Sunga, Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, delivered at the 12th Rhodes Forum in September 2014
I want to say that I’ve long praised professor Koechler’s inciting conviction that genuine intercultural dialogue is essential for each culture to define better its own identity, understand and respect other cultures and promote international cooperation and world peace. I salute the Forum’s far-sighted diplomatic leadership for promoting dialogue among civilizations, an ever urgent goal in ever more turbulent world.
It is also a pleasure to be back in Greece as always. I will focus on humanitarian intervention, how it has been abused or used and its connection to the responsibility to protect and regime change. Suppose state “A” perpetrates or is clearly just about to perpetrate serious human rights violations such as genocide or crimes against humanity, against its own citizens – does international law allow another state, state “B” to intervene militarily in a territory of a state “A” to protect the nationals of state “A” from being wiped out by its own government. We are not talking about intervening state “B” protecting its own nationals, but rather the nationals of another state, which is state “A”, from its own government. Humanitarian intervention refers to military action by one state against another state purely on humanitarian grounds, not to protect its own nationals or its own interests. For intervention to qualify as humanitarian intervention, therefore must be devoid of a self-interest according to the doctrine, otherwise it is intervention for other reasons. Humanitarian intervention properly so-called again refers to military action taken outside UN Security Council or regional collective security arrangements. Its origins actually predate the United Nations Charter. Humanitarian intervention should not be confused with UN peacekeeping missions or humanitarian non-military assistance such as food drops or vaccination campaigns. Humanitarian intervention whether exercise individually or perhaps jointly with certain other states represent unilateral use of military force in the territory of another state without that state’s consent on purely selfless humanitarian grounds. Whether or not humanitarian intervention is lawful is a very important issue, because where UN collective security arrangements are blocked and fails to stop the violence whole communities can be severely traumatized if not eliminated entirely. Maybe humanitarian intervention can save lives.
Twenty years ago I saw what can happen to people when UN collective security fails and violence is unchecked. In October 1994 just a few weeks after the Rwandan civil war ended, the UN deployed need to Rwanda to investigate the genocide and associated violations and support the UN Security Council’s Commission of experts which was formed by the Secretary-General Boutros Boutros-Ghali on 1 July 1994. I journeyed through Rwanda, I rode in helicopter to investigate massacre sites with a Spanish forensic team, interview witnesses, collect information, prepare the Commission’s reports on facts and responsibilities including recommendations on what should be done. It was a shocking experience to say the least. In only a hundred days between 6 April 1994 and the end of June 1994 elements of the Rwandan army together with extremist Hutu militia slaughtered between half and one million mainly Tutsi and moderate Hutu civilians throughout Rwanda. The numbers are very raw because it is difficult to ascertain with great precision how many people were killed. I was quite horrified to see not only the extreme violence, an enormous number of victims, but that the victims were nor armed, defenseless civilians, men, women, pregnant women, children and babies. I didn’t take these pictures because I didn’t have a camera at that time, but my colleagues did. This is the scenes that we saw, it is pure carnage, bodies upon bodies. It was a brutal slaughter of civilians rather than combat deaths. Everywhere we went we didn’t see combat deaths, there were not soldiers or militia forces, it was a slaughter of civilians. The violations clearly constituted genocide as defined in 1948 UN Genocide Convention: crimes against humanity, violations of article 3 come to the forge in Geneva Conventions in 1949.
We collected information and received information from the usual suspects. Government, UN agencies, bodies and programs, other intergovernmental bodies, both sides of the armed conflict, the International Committee of the Red Cross, non-governmental organizations, private individuals including witnesses, we went personally and interviewed people, forensic investigations, massacre site exhumations, examination of bodies, documentary evidence. The evidence was very clear, that extremist Hutu militia tried and partly succeeded to exterminate the Tutsi minority in a methodical, lets say according to the reports, to the Security Council in a concerted planned systematic and methodical way. The motivations were ethnic hatred, very very clear. From all the information we received form a huge array of sources, we also found that the insurgent Tutsi-dominated Rwandan patriotic front carried out violations and massacres. These were far fewer, much smaller number of victims, far less systematic, also the Rwandan government armed forces and Hutu militia. The international community’s failure to stop the genocide was entirely shameful. If you look back in history and remember Tokyo trials following World War II that were quite flawed. The ICTY and ICTR are far from perfect. I myself have criticized quite a lot these ad hoc tribunals and some of the criticisms have been already stated, are valid. I would disagree, but they are not perfect by any means. But the Nuremberg and Tokyo trials gathered and produced detailed documentation, which at least make it harder for revisionists to claim the Holocaust never happened or claim Jews were not victims of genocide or to equalize responsibilities between Axis and Allied powers. The Allied powers committed violations, very serious ones: what about the bombing of Hiroshima and Nagasaki, what about the combing of Dresden? These are big violations, these are very one-sided tribunals. But that doesn’t mean that their responsibilities were equal in all respects, that there was an aggressor or whether one side was more to blame than the other. Makes it more difficult to distort facts spread falsehoods and twisted well-treated conspiracy theories that have no basis. Conspiracy theories are very hard to read, but because you have to prove in negative, there are conspiracies that take more than one person, you have a conspiracy, but the conspiracies are often so ridiculous that they do not make any sense, they do not correspond with the evidence you find in the field from as many sources as possible.
Similarly in Rwanda ID cards from the bodies of victims, witness testimony, documented meticulous planning by Hutu of Tutsi massacres which were warned about actually as early as August 1993 by Bakrain Jah, a special rapporteur on executions to the Commission on Human Rights, which is now the Human Rights Council, was ignored by the international community at the time. There were signs of all the planning going on before the genocide. Mountains of other evidence make it more difficult for today’s Hutu extremists or their friends to deny or minimize responsibility for the 1994 Rwandan genocide. I’m talking about the 1994 genocide, I’m not talking about the slaughters and maybe that have occurred of Hutus by Tutsis that have happened before or afterwards. For example in DRC we do not have a tribunal. There are reasons and one can debate about that. The government of Rwanda has lots of blood on its hands, because it was involved in conflict and for other reasons. But the civil war itself, it’s very clear from the evidence we reviewed.
If another state had intervened militarily in Rwanda territory to prevent the genocide in 1994 without the government’s consent for no reasons rather than humanitarian purposes, well this would have broken the international law even after UN collective security had failed and no other option seemed available. Mahatma Gandhi, who you know Mahatma meaning a great soul, might have advocated satyagraha… suffering in a face of tyranny. As the answer in Rwanda, just as the council to Jews in Nazi Germany to employ passive resistance only. But as philosopher Martin Buber pointed out in his Open Letter to Gandhi, Jewish passive resistance in Germany had no positive effect, whatsoever of the Nazis. Not sure. In the face of the kind of tyranny that we had in Nazi Germany or in Rwanda for that matter passive resistance would be very effective.
If purely peaceful measures have little chance of turning the government from massacring its own citizens and collective security remains blocked, military intervention of humanitarian grounds sounds perfectly legitimate, especially if it offers a way to prevent the kind of genocidal carnage, the aftermath of which I witnessed in Rwanda. Could we even go further and argue that states should not just be permitted to use humanitarian intervention, they should have a legal obligation to intervene rather than just to stand by and do nothing while helpless civilians are massacred. We have to be very careful because war inevitably involves death and destruction, regardless of how righteous sounding maybe the justification for it or how dire the threat may be. The real proof of any doctrine is not in its intentions but in its practice, because the road to hell is paved with good intentions. Before considering humanitarian intervention in practice let’s check first what the UN Charter says: Article 2.4 says all members must refrain in the international relations from the threat or use of any force etc.; Article 51 preserves the inherent rights of individual or collective self-defense if an armed attack occurs. A plain reading of the UN Charter allows for the use of force only with regard to self-defense or by the UN Security Council insofar as necessary to maintain international peace and security if an armed attack occurs not on grounds that it might occur, only until such time as the Security Council takes measures to maintain international peace and security. Few states claim the customary right to preempt an imminent attack, but this is another issue. The UN Charter clearly prohibits the use of force by any state against any other, ruling out any form of unilateral humanitarian intervention, since the humanitarian intervention is military action by one state against another not for reasons of self-defense, but for humanitarian purposes. According to Article 39: Security Council’s obligation to maintain or restore international peace and security. We have Articles 41 and 42 which authorize all sorts of wide-ranging measures including military force to that end. I won’t go into some other more detailed arguments which one can read from things that others have written.
The real problem is it’s not in the UN Charter so much, but in the use of Security Council permanent member veto, which blocks effective Council action to stop the government from committing genocide. Since Chapter 7 enforcement action requires 9 of votes out of 15 Council members. For most of the history of the United Nations the United States has vetoed Security Council actions with regard to prevent Israel from committing serious violations in the occupied territories. Soviet Union vetoed all sorts of Security Council resolutions, so have other permanent members, to protect their narrow self-interests. More recently we have vetoes from the People’s Republic of China and the Russian Federation with regard to Syria in October 2011, February and July 2012 calling for the Syrian government and all other parties to cease all armed violence. In May two blocks of a resolution to refer the situation to the ICC, meanwhile the death toll in Syria has gone from a few 100 in March 2011 up to over, approaching 200 thousand as of the end of August. Where did humanitarian intervention come from? It’s an old doctrine. I’ll just quickly mention Cicero, Saint Augustine, Aquinas and Grotius, it has been developed over time, it was claimed in regard to by France, Great Britain and Russia to justify joint military action against the Ottoman Porte, in many occasions including the Crimean War, Bulgarian uprising, the 1915 treatment of Christian Armenians. The problem is that intervening states clearly had strategic political, economic motives posting serious doubt on their claims of humanitarianism. Even Hitler found humanitarian justifications could be useful. In highly inflammatory speeches and radio broadcasts Hitler claimed that German ethnic minorities in foreign lands need a protection from a prosecution of their own government. So he snatched first the Sudetenland, then all of Czechoslovakia. Can you imagine if every government decided it could use military action in other countries to protect people living there, who happened to share its own majority culture, ethnicity, religion or language? What would that do to sovereign independence and territorial integrity of the subject state, to international peace and security and the international rule of law?
More recent candidates just to mention quickly, one of the more plausible candidates for genuine humanitarian intervention was the intervention of India in Bangladesh in 1971 during the Bangladesh liberation war, because India made a very quick intervention only after collective security was blocked, a lot of atrocities had already been committed, they withdrew troops very quickly. But even in that case, which is a strong case for humanitarian intervention, India had a definite strategic interest in weakening its rival Pakistan. Moreover India even switched its rational justification for military intervention in East Pakistan from humanitarian intervention to self-defense. So it’s hard then to argue on India’s behalf that the real reason was not self-defense, it was humanitarian intervention.
I will just mention two other cases, which are Tanzania and without going into the details, where again Tanzania had very clear strategic motives as well as humanitarian motives for going and deposing the regime, and Vietnam’s intervention, which brought the regime of Khmer Rouge to an end. Still there you find all sorts of other interests. And the invasion of Iraq, the motives there were weapons of mass destruction and remove of Al-Qaeda, which clearly was not present in Iraq at that time, and also the violations of Saddam Hussein’s regime over time, which were real atrocities, but the first two motives were very flimsy at the time.
Libya is also a very problematic case, because it has given a way to more violations after regime change, the country is extremely unstable and you have highly unstabilized situation.
If you are going to recognize the humanitarian intervention as part of international law which is what its proponents have been putting forward, then we have to apply it equally to all states. But would we really want North Korea, the United States, United Kingdom, Russia, France, Libya, Sudan… to say “Wait a second, we are going to intervene in your territory, because we think we’re the ones that make the decision and it is unilateral appreciation of the facts”. Obviously there is a problem with that or is it meant only for the richer and more powerful states, in which case it really has no place in international law, if it is not supposed to be for everyone equally. My last statement would be just to say that let’s hope it does not take a third world war to marshal the political will to reform the United Nations structure and to reform the veto power and to rediscover the political resolve that country seem to have lost since the Second World War to save succeeding generations from the scourge of war.
Thank you very much.