Yearly Archives: 1994

It is not difficult to share in the expressions of outrage at our impotence in the face of certain humanitarian emergencies and our failure to address some of the most appalling violations of human rights. And while British Foreign Secretary Douglas Hurd can speak of trying to find a middle path between “the saloon bar and Gladstone,” [1] a `damn the consequences’ attitude, fuelled by anger and indignation, continues to find expression in many quarters. Here, a Professor of the Yale Law School, speaking in 1986, confronts international law on the issue of starving children in Biafra:

“I don’t know much about the relevant law. My colleagues here, who do, say that it’s no insurmountable hindrance, but I don’t care much about international law, Biafra or Nigeria. Babies are dying in Biafra….We still have food for export. Let’s get it to them any way we can, dropping it from the skies, unloading it from armed ships, blasting it with cannons if that will work. I can’t believe there is much political cost in feeding babies, but if there is let’s pay it; if we are going to be hated, that’s the loveliest of grounds. Forget all the blather about international law, sovereignty and self-determination, all that abstract garbage: babies are starving to death.” [2]

More succinctly, there is George Bush, on the eve of the Gulf War: “…If it’s right, it’s gotta be done.” [3] It may be a kindness to consider this the moral imperative colloquially rendered, particularly in view of the earlier invasion of Panama – `Operation Just Cause’. Moreover, the Gulf War was not a humanitarian intervention, nor was there any significant obstacle in the way of its legal sanction by the United Nations. Nevertheless, Bush’s utterance can be taken as shorthand for what for many is the unsatisfactory tension between the prohibitive Article 2(4) [4] of the UN Charter and large-scale human suffering or gross abuses of human rights where the state is incapable, negligent or is itself the perpetrator. In common with popular sentiment, the theoretical debate which addresses the quandary of how to balance the claims of justice against the claims of international order is suffused with an aggrieved sense of urgency which naturally arises from our consideration of subjects so morally charged.

`Humanitarian intervention’ has taken on something of the character of a clarion call in some quarters, but the legal and practical difficulties which lie in wait just beyond our impulses should give us pause. There is no question as to whetheracts such as genocide and forced migration are the moral, legal, political and practical concern of the international community – they must be if the term `international community’ is to have any meaning at all – but the urgency to act should alert us to the importance of taking care with the means we employ and the structures which we set in place. Of course, whatever the depth of popular feeling or the supposed strength of the `CNN factor’, the deployment of military forces abroad is always founded on a hard-headed calculation of risk, and there is nothing to preclude humanitarian objectives on an agenda framed by more determinedly self-interested motivation. The point here is that the practical constraints on state action which were a feature of the Cold War are no longer operative, and a combination of other factors, by no means all media-driven, have created a climate of opportunity which has persisted in spite of – or perhaps because – the `old world order’ has re-asserted itself. The risks are less obvious. `Humanitarian intervention’, whether manifested as a rallying cry, political justification, military mission or in other forms, is wonderfully satisfying in prospect; the reality is more problematic.

The first section will consider the proposition that a right of states to intervene in humanitarian emergencies now exists, can be deduced or can be codified. The argument is contingent, of course, on the assumption that international law is not, as some would have it, a disposable abstraction. After an argument favouring law enforcement under a United Nations purview, the paper outlines a number of practical issues pertinent to any discussion of humanitarian intervention – principally by way of `conceptual unpacking’.

Although it may appear that legal and practical issues are an odd pairing, the concern here is that a largely instrumental approach to the question of humanitarian intervention is likely to be a poor servant of justice, particularly if international order and the Rule of Law are undermined, or if through ill-considered and precipitate action a bad situation is made even worse. Good intentions (a scarce enough commodity in international relations) are insufficient.