This article was written by Patrick Truffer for the Freie Universität Berlin. Images were added and the text was slightly revised, partially updated and divided into two sections for publication on offiziere.ch. In addition to a brief introduction, the first part provides the historical background of the UN initiative Responsibility to Protect (R2P) and reviews the humanitarian intervention in Kosovo as a case study. The second part will talk about a potential humanitarian intervention in Syria as a test case and will draw a final conclusion.
The humanitarian intervention carried out in Kosovo in 1999 without the consent of the United Nations Security Council (UNSC) led to a debate amongst international law experts: what weighs more – the sovereignty of a country or the human rights of the citizens? Considering the civil war-like conditions in Syria, this question is more relevant than ever. Since the peaceful demonstrations in March 2011 and their violent repression by Syrian security forces, around 70,000 people were killed in Syria by the beginning of March 2013. Over 1,1 million fled to the neighboring countries and 2 million were internally displaced (UN Office for the Coordination of Humanitarian Affairs, “Humanitarian Bulletin: Syria“, Issue 21, March 05-18, 2013). With failure and withdrawal of the United Nations Supervision Mission in Syria (UNSMIS) military observers on 19 August 2012, a non-violent solution to the Syrian conflict became highly unlikely and the conflict could continue for the next few years at least without foreign intervention (Ed Husain and Bernard Gwertman, “No Easy Answers in Syria“, Council on Foreign Relations, 14.11.2012; Brian Fishman and Jonathan Masters, “Expert Roundup: What Should U.S. Policy Be in Syria?“, Council on Foreign Relations, 12.12.2012). This is increasing the pressure internationally to intervene by military means on the basis of the R2P (cf.: Muriel Asseburg and Heiko Wimmen, “The Violent Power Struggle in Syria“, SWP Comments, no. 9, March 2012). However, a humanitarian intervention without consent of the UNSC would violate international law. Draft resolutions of USA, France, Great Britain, Germany, Portugal and Morocco failed because of the veto of Russia and China. Having said that, a “Coalition of the willing” could be seen as morally legitimised and the violence in Syria could be ended by military means without authorisation as in case of the Kosovo conflict. In this context “moral legitimacy” is the acceptance of a decision or an act which is not assessed on the basis of legal norms but rather on basis of moral norms. Moral norms include acts which are generally expected in certain situations (see also Bruno Simma, “NATO, the UN and the use of force: legal aspects“, European Journal of International Law 10, no. 1 (1999): 6).
[W]hen a state commits cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, the matter ceases to be of sole concern to that state and even intervention in the interest of humanity might be legally permissible. — Lassa Francis Lawrence Oppenheim (post mortem), R. Y. Jennings, and Arthur Desmond Watts, Oppenheim’s international law, 9th ed., 2 vols., vol. 1, London: Longman, 1992, 442.
The similarities between the humanitarian intervention in Kosovo and a possible military intervention in Syria are evident: Despite the absence of an authorisation by the UNSC, a part of the international community wants to prevent serious human rights violations (genocide, ethnic cleansing, war crimes and/or crime against humanity) by military means. Hence, the Kosovo conflict can be considered as a reference case in a “Comparative Study” for answering the question: Would the international community view a humanitarian intervention in Syria as morally legitimate without a resolution of the UNSC in this regard?
The intervention in Kosovo has been discussed in great detail in international legal literature and been considered as a violation of international law but morally legitimate in most of the cases (Cf.: Independent International Commission on Kosovo, “The Kosovo report: conflict, international response, lessons learned“, Oxford; New York: Oxford University Press, 2000, 4; Louis Henkin, “Kosovo and the Law of ‘Humanitarian Intervention’“, The American Journal of International Law 93, no. 4, October 1999). A discussion over the moral legitimacy of a humanitarian intervention in Syria without consent of the UNSC can hardly be seen in scientific literature. The aim of this study is to render a modest contribution to the initiation of this discussion and is based on the UN-Initiative R2P, which has been elaborated in the theoretical part. In the first section, whether the intervention in Kosovo meets the criteria of R2P is reviewed, since only in such a case would the Kosovo conflict be suitable as a reference case. In the second section, whether the criteria of R2P also apply to the Syrian conflict is reviewed. With fulfilled conditions and external factors (for example, the proportionate, short-term and targeted use of military means, concernment of the people in the intervening states, optimal final outcome and so on) similar to the Kosovo conflict, an intervention in Syria would also be largely considered as morally legitimate.
[...] the Secretary-General has opened an ‘escape clause’: ‘[T]here are times when use of force may be legitimate in the pursuit of peace.’ It is not a legal justification Kofi Annan points to here, but an extra-legal principle deeply rooted in the moral conscience of mankind which – mainly because of the danger of abuse – could not [...] acquire the status of a legal norm.” — Peter Hilpold, “Humanitarian Intervention: Is there a need for a legal reappraisal?“, European Journal of International Law 12, no. 3 (2001): 462f.
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Hystorical background of R2P
After the effects of two world wars, the UN-Charter was adopted to prevent international conflicts so that compliance with human rights, implementation of international treaties and a high standard of living could be ensured. Difference of opinion between different countries shall be resolved without threatening international peace, security and justice. In case of a threat to peace, its violation or an act of aggression, only the UNSC has the ability to impose economic and communication blockades to cut off diplomatic relations and to authorise military intervention (measures in accordance with section VII of the UN-Charta). Based on the Westphalian understanding of sovereignty, such measures are considered to be a reaction to international conflicts. Internal affairs such as human rights violations do not belong to the tasks of the UNSC a priori. Together with the mutual deadlock between the veto powers during the Cold War, measures were adopted in accordance with section VII of the UN-Charter only in some exceptional cases in internal affairs (cf.: Hilpold, “Humanitarian Intervention: Is there a need for a legal reappraisal?“, 443. The UN-resolutions 82-85 and the military intervention in Korea following it are an exception since the Soviet Union did not take part in the vote in the UNSC due to its “Empty chair policy”. Resolutions 232 (Southern Rhodesia), 418 and 591 (South Africa) were based on section VII of UN-Charta, but did not legitimatise any military intervention. Richard B. Lillich, “The Role of the UN Security Council in protecting Human Rights in Crisis Situation: UN Humanitarian Intervention in the Post-Cold War World“, Tulane Journal of International and Comparative Law 3, no. Spring (1995): 4f).
With end of the Cold War, the international state system changed: the mutual deadlock in the UNSC came to an end (Richard B. Lillich, “The Role of the UN Security Council in protecting Human Rights in Crisis Situation: UN Humanitarian Intervention in the Post-Cold War World“, 17), hidden domestic political conflicts emerged in the weak states supported by the superpowers and with globalisation, countries are increasingly obliged with regard to accountability over internal matters (cf.: Leonid E. Grinin, “State Sovereignty in the Age of Globalization: Will it Survive?“, in Globalistics and Globalization Studies, ed. Leonid E. Grinin, Ilya V. Ilyien, and Andrey V. Korotayev, Volgograd: Uchitel Publishing House, 2012). With resolution 794, the UNSC addressed the situation characterised by civil war and famine in Somalia in 1992. It determined that world peace could also be threatened by domestic factors and that the measures in section VII of the UN-Charter are reasonable in such a case. In 1994, the UNSC authorised a military intervention in Haiti with resolution 940. This led to the downfall of the terror regime of the military junta under General Raoul Cédra on humanitarian grounds and the democratically elected government under Jean-Bertrand Aristide was restored. The UNSC started to pay more attention to international conflicts where they led to extraordinary humanitarian crises (cf.: Hilpold, “Humanitarian Intervention: Is there a need for a legal reappraisal?“, 447).
In the Kosovo conflict, a humanitarian intervention was carried out for the first time without authorisation of the UNSC. This was largely viewed as a violation of international law but morally legitimate due to serious human rights violations. This view is supported by the draft resolution of Russia which is backed by the Republic of Belarus and India and which was meant to condemn the military intervention of NATO but was rejected with 3 (Russia China, Namibia) against 12 votes at the UNSC (United Nations, “Security Council rejects demand for cessation of use of force against Federal Republic Of Yugoslavia (SC/6659)“, 26.03.1999). The dilemma between the Westphalian understanding of sovereignty and protection from serious human rights violations led to an intensive debate intervention amongst international law experts after the intervention in Kosovo. This gave rise to the UN-Initiative R2P, which was supported in the UN World Summit 2005 by a vast majority of the member states. According to R2P, not only rights but also obligations are related to the sovereignty of a state: “[A State has] the enduring responsibility [...] to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement” (United Nations, “resolution 1674, reference was made to R2P for the first time in April 2006. From this, the basis for sending UN troops to Darfur was created with resolution 1706. In the resolution, it was also stated that the troops would only be sent with agreement of Sudan. Since Sudan did not provide this agreement, the UN peace troops were not sent to Darfur. In resolution 1970 in February 2011, the UNSC reminded the Libyan government about its responsibility to protect and the imposed sanctions. With the increasingly worsening situation, the UNSC paved the way for a no-fly zone over Libya in March 2011 with resolution 1973 and called “to take all necessary measures [...] to protect civilians and civilian populated areas”. The possibility of occupying Libyan territory was ruled out however.
R2P holds the state responsible for protecting its population from serious human rights violations and facilitates the application of measures in accordance with section VII of the UN-Charter. A fundamental problem remains unsolved however: such measures must be authorised by the UNSC which cannot act in case of a veto. Hence, it is possible that, as before, serious human rights violations may not be preventable. In such a case, a non-authorised humanitarian intervention based on R2P may be viewed as morally legitimate. Therefore, the following hypothesis shall be reviewed:
If the humanitarian intervention in Kosovo, which was accepted as morally legitimate, corresponds to the UN-Initiative R2P, other humanitarian interventions under R2P with the same external factors would also be accepted as morally legitimate despite the absence of authorisation of the UNSC.
For reviewing the hypothesis, a possible humanitarian intervention in Syria was compared with the humanitarian intervention in Kosovo. In Syria’s case, it is assumed that an intervention was not authorised through Russia and China’s veto. In the case of interventions of Kosovo and Syria, the following three factors must be fulfilled on the basis of R2P:
- The humanitarian intervention is a direct reaction to genocide and/or ethnic cleansing and/or war crimes and/or crimes against humanity.
- Non-violent options for preventing serious human rights violations were considered and proved ineffective.
- The humanitarian intervention is led by a regional organisation.
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Reference case: The humanitarian intervention in KosovoFactor 1: Assessment of the human rights violations
With increasing deployment of Serbian troops, war crimes started to occur in Kosovo and 230,000 people were displaced with 60,000 fleeing abroad and 170,000 internally displaced (Chairman-in-Office of the Organization for Security and Cooperation in Europe, “Addendum to the Report of the Secretary-General prepared pursuant to Resolution 1160 (1998) of the Security Council: Information on the situation in Kosovo and measures taken by the Organization for Security and Cooperation in Europe, submitted pursuant to paragraphs 13 and 16 of Security Council resolution 1160 (1998)“, S/1998/834/Add.1, (Warsaw, 20.08.1998), 2). In the assessment of the human rights violations in Kosovo as presented to the international community, the context of that time must be considered. The massacre of Srebrenica caused by the Serbian troops in 1995 during the Bosnian war and the serious human rights violations in the Kosovo conflict after February 1998 indicated the imminent ethnic cleansing or genocide in Kosovo. Individual NATO states had intelligence information that the Serbian troops were preparing for genocide of the Kosovo-Albanian population and had already laid down an operational plan Potkova (“Horseshoe“) for it. The massacre of Račak on 15 January 1999, in which 40-45 Kosovo-Albanians died, reinforced this view and was one of those crucial incidents which led to humanitarian intervention by NATO. The humanitarian intervention in Kosovo was hence a reaction to serious human rights violations and a credible indication of the imminent ethnic cleansing or genocide.
What we see of what is happening and what we hear from those who have managed to escape and from reports by the UN High Commission for Refugees and the International Red Cross are enough to convince us that we are confronting a regime which is intent on genocide. — The British Defence Secretary Mr George Robertson cited by Jon Smith and Bob Roberts, “Britain steps up strike power: Mission to halt ‘genocidal violence’“, Birmingham Post, 30.03.1999.
Factor 2: Utilising non-violent measures
In resolution 1160, the UNSC condemned “the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation Army [...]“. On the basis of section VII of UN-Charter, the UNSC imposed an arms embargo on both the conflict parties and demanded a political solution from the Yugoslavian government and a condemnation of all terrorist acts from the Kosovo-Albanian leadership. Through failure to enforce the arms embargo and increasing deployment of Serbian troops, the humanitarian situation in Kosovo further worsened. In resolution 1199, the UNSC declared the situation as a “threat to peace and security in the region”. It repeated the demands from the previous resolution besides demanding a ceasefire between all the conflict parties based on section VII of UN-Charter and all possible measures to avert a humanitarian catastrophe. In the event of further violation of resolution 1160, the UNSC threatened “to consider further action and additional measures to maintain or restore peace and stability in the region”, without defining these actions and measures precisely.
Based on resolution 1199, NATO issued an “Activation Warning” on 24 September 1998 and threatened the Yugoslavian government with air strikes. This threat led to temporary softening of the Yugoslavian government’s tone, withdrawal of the Serbian troops from Kosovo but an expansion of the area under the influence of KLA in Kosovo. In December 1998, Serbian troops were again deployed in Kosovo which heightened the tension (Independent International Commission on Kosovo, “The Kosovo report: conflict, international response, lessons learned“, 3, 151). As consensus between both the extreme positions of the conflict parties, substantial autonomy was supposed to be given to Kosovo within Serbia with the “Rambouillet Agreement“. When the Yugoslavian government did not sign the “Rambouillet Agreement”, NATO initiated the operation “Allied Force“, which led to bombardment of Yugoslavia. With failure of the “Rambouillet Agreement”, all realistic non-violent options for settlement of the conflict were exhausted (Independent International Commission on Kosovo, “The Kosovo report: conflict, international response, lessons learned“, 151).
Factor 3: Intervention led by regional organisation
The humanitarian intervention was carried out by a regional organisation (NATO), which had close contact with UN treaty bodies and strived to act in terms of the UN even if not authorised by the UNSC (Bruno Simma, “NATO, the UN and the use of force: legal aspects“, 12).
Not only did war crimes take place in Kosovo but with the information available at that time, the experiences from the Bosnian war and the massacre of Račak, one could also view ethnic cleansing or genocide as imminent. The Yugoslavian government showed no will for enforcing the UN resolutions and only the threat of military force by NATO led to short-term success. The “Rambouillet Agreement” was the last realistic option for non-violent settlement of the conflict. Yugoslavian government’s refusal to sign this agreement made an alternative realistic non-violent solution impossible. Not only was the humanitarian intervention carried out by a regional organisation, but NATO also strived to act in terms of the UN despite having no authorisation of the UNSC.
Hence, all the three defined factors in the scope of R2P were fulfilled in the Kosovo conflict, leading to acceptance of the moral legitimacy of the intervention by a majority (United Nations, “Security Council rejects demand for cessation of use of force against Federal Republic Of Yugoslavia (SC/6659)“, 26.03.1999).
The lesson which can be drawn from [the humanitarian intervention in Kosovo] is that unfortunately there do occur ‘hard cases’ in which terrible dilemmas must be faced and imperative political and moral considerations may appear to leave no choice but to act outside the law. — Bruno Simma, “NATO, the UN and the use of force: legal aspects“, European Journal of International Law 10, no. 1 (1999): 22.
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The second part will talk about a potential humanitarian intervention in Syria as a test case and will draw a final conclusion.