November 2000

Since the end of the Cold War, the occurrences of ethnic conflict have become increasingly noticed. It may be the case that ethnic conflicts were downplayed during the Cold War or that they were simply not occurring. Regardless, ethnic conflict has been placed on the international agenda for concern because of its potential to cause human rights violations. One such conflict arose in the Federal Republic of Yugoslavia's province of Kosovo. A minority of Serbians within the province were controlling and oppressing the majority of Albanians with alleged torture and threat. Word of the human rights violations in Kosovo spread and the United Nations (UN) took diplomatic action to attempt to alleviate the situation. The North Atlantic Treaty Organization (NATO) aided the UN in its diplomatic efforts initially, but eventually mounted an air campaign against the Serbians when it felt diplomacy was not having any effect.

A heated debate arose from NATO's intervention in Kosovo over the right for humanitarian intervention. State sovereignty has historically limited the rights of states to interfere in the domestic affairs of another state and many argue it denies the right for humanitarian intervention. NATO's actions are in fact a precedent showing that the current mechanisms for protecting human rights, namely the UN, are not fulfilling their role and also that a new order needs to be established to legitimize humanitarian intervention. Humanitarian intervention must develop in international law, just as the definition of state sovereignty has changed as a result of the need for intervention based on human rights. To prove these points, human rights will be analyzed to first discover what is meant by the term and how it applies to actions of states. Next state sovereignty must also be defined based on its historical notion. This is necessary to show the contrast between its traditional role and the flaws current international relations have displayed in it. Human rights and state sovereignty will culminate with an in-depth look at humanitarian intervention and how it fits into the current international system. It should become clear that the historical notion of state sovereignty cannot co-exist with humanitarian intervention and that change is necessary to allow the two to coincide.

Before addressing the issue of humanitarian intervention it is essential to discover what is meant by human rights and what constitutes a violation of human rights. With the downfall of Adolf Hitler after World War II, the international community began to realize that a state can commit crimes within its own borders that are in fact crimes against humanity. Incidents such as the persecution of Jews in Eastern Europe placed a new focus on the international agenda. Human rights were seen by most states as fundamental norms that should be protected without exception, or ius cogens. In response to the new international momentum for human rights, various conventions were adopted based on Western constitutionalism.

The Geneva Conventions were a series of treaties signed between 1864 and 1949 outlining guidelines for the humane treatment of individuals during and after wars. One major convention, the 1948 Genocide Convention, was developed by the United Nations to define genocide as committing a crime against a group whereby conditions are imposed to physically destroy its members or threaten the future growth of the group. A year later, the Universal Declaration of Human Rights was signed providing equal rights of life, liberty, and security of the person to all humans and protecting them against various acts such as genocide, apartheid, and torture. Although the Geneva Conventions are not signed by all states, they are now considered customary rules of international law based on a large acceptance of their validity by a majority of states. In addition to the Geneva Conventions, Article 55 of the United Nations Charter also addresses human rights by declaring them fundamental and to be applied to all humans no matter their race, sex, language, or religion.

Based on the Geneva Conventions, a human rights emergency can be defined as "a case where the life, health, or mind of a person is under imminent threat from the actions of a government or non-governmental group." Moreover, this may occur when a person receives death threats, threats of torture, or threats of severe bodily harm by groups holding a significant portion of power in their area. The Geneva Conventions formulate a strictly legal definition of human rights, however in reality human rights are not cut and dry. The conventions attempted to provide a universal definition and application to human rights, but in reality, human rights are defined by each state individually. For example, Western industrialized states may have an opposing view of human rights to that of states in the South Pacific, which in turn may oppose human rights views of third-world states. Religion, race, language, sex, and government will all play a role in a state's definition of human rights. The difficulty arises of enforcing rights within states that have differing views of what the rights are.

Most of the human rights conventions do little to outline mechanisms for solving human rights disputes. Article 13 of the UN Charter allows the General Assembly to perform various studies and provide recommendations on human rights. Commissions set up under Article 13, however, yielded very little effect and did not make use of the power given to them. After much debate, the United Nations drafted two treaties in 1966 to transform the Universal Declaration of Human Rights into a binding rule of law: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In theory, they had the power to be effective, but in actual fact, they remained as ineffective as previous commissions. Human rights violations could be brought before the Human Rights Committee, which was formed as a result of the Covenant on Civil and Political Rights. The committee, however, could only hear disputes between two states and only once local remedies had been exhausted and both parties accepted the procedures of the committee.

The respected committees and mechanisms put in place at the international level left individuals with no voice to fight human rights violations. The laws had placed the power in the hands of states and the international community. In effect, this only left the international community to protect human rights because states committing violations will not reprimand themselves. Article 56 of the UN Charter calls for all members to take action separately or as a group to achieve the purposes set out in Article 55. In essence, the UN placed in its power and the power of its members, the authority to protect human rights.

To probe deeper into the understanding of human rights, the conflict in Kosovo can be looked at as an example. Kosovo consists of approximately 90 per cent Albanians and 10 per cent Serbians. For almost 10 years the Albanians were under control of a Serbian nationalist movement which threatened the use of death and human suffering as a means of retaining its power. Thousands of Albanians started fleeing their homes to neighboring Albania, Bosnia, and Herzegovina. NATO reports that in 1998, "open conflict between Serbian military and police forces and Kosovar Albanian forces resulted in the deaths of over 1,500 Kosovar Albanians and forced 400,000 people from their homes." Members of the United Nations agreed in large that fundamental human rights were being violated in the area and became concerned of the instability that may arise from the fleeing Albanians. A general risk was rising that the conflict may spill into the neighboring regions.

The United Nations Security Council acknowledged the insecurity in the region by issuing Resolutions 1160 and 1199 which called for a cease in the violence occurring in Kosovo and a rapid political solution to the conflict between Serbians and Albanians. Furthermore, the United Nations set up various diplomatic courses of action in the area to help alleviate the problem; Partnership for Peace, a NATO aerial surveillance mission, and a ground force monitor called the Kosovo Verification Mission, led by the Organization for Security and Cooperation in Europe, were attempting to lessen the conflict. Resolutions by the Security Council did not call for any action by armed forces. However, NATO felt that diplomacy would not end the conflict, so they began an air campaign to force the Federal Republic of Yugoslavia to sign an agreement which would stop the conflict and end a "humanitarian catastrophe."

In contrast, the Federal Republic of Yugoslavia failed to mention any human rights violations on their part. They instead made a human rights claim against actions of terrorism on the part of Albanian terrorists against the Serbians. The terrorists were believed to be a part of an Albanian national-separatist movement in Kosovo and Metohija. The government declared that "...the terrorists killed civilians, women, children and elder people. The murders were committed in cruel and ruthless ways...in order to scare the population...." In addition, Yugoslavia condemned NATO's air campaign, stating it was without any legal international basis and had caused economic, humanitarian, health, and environmental catastrophe. Furthermore they accused NATO of committing acts of genocide which they defined to be "the deliberate subjecting of a group to such living conditions as should lead to its total or partial physical extermination." Based on their statements, it is apparent that Yugoslavia's definition of genocide and acts against humanity are equivalent to the United Nations' view and succinct with the Geneva Conventions. It is not so clear, however, why Yugoslavia does not see that they have committed the very same acts they condemn. Hypocrisy knows no limits.

The Kosovo example brings to light the simple interpretation that states may view their own actions as legal, but may view the same actions by others as illegitimate. It also shows that despite this fact, the definition of human rights is universal in regard to the Kosovo conflict. Yugoslavia admits that fundamental human rights do exist, but they fail to agree they have violated them. To counter Yugoslavia's claim that the human rights of Serbians were violated, one can argue it was an act of retaliation on the part of the Albanians. It is instinctive for humans when confronted with no other option to act aggressively to overcome oppression. Atrocious acts were being committed against the Albanians leaving them with no place to turn. In this case, Yugoslavia was not protecting the rights of its citizens, it was vastly exploiting them. The rights of Albanians that were protected by international law were being grossly violated and Albanians saw little choice, but to retaliate. Two wrongs do not make a right though. It was now the international community's turn to step in and enforce the rights international law claims are fundamental to all.

The concept of state sovereignty has existed for over a hundred years, specifying that each state is free to follow its own course of action and act independently without the threat of intervention from another state. This is typically known as the role of non-intervention or non-interference. States are obliged to not interfere in the domestic affairs of another state. Article 2(7) of the UN Charter replicates this notion: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter." This raises the point that if states are sovereign within their own territory, then how are human rights protected? Sovereignty in its purest form would only allow a state's government to protect human rights. Following from this, the problem arises of states committing the human rights violation against their own people. In Kosovo, Yugoslavia was committing the human rights violations and were doing nothing about it. Sovereignty in a pure form may therefore contradict the very nature of human rights protection. Sovereignty, however, is not as pure as it may seem.

Sovereignty as defined is not an ultimate power for states. Alain Pellet, former Chairman of the International Law Commission of the United Nations, points out that sovereignty is not a defense for human rights violations. A state's jurisdiction is fixed by the limits of international law. Using this line of argument, it can be seen that sovereignty must adhere to the fundamental human rights that are outlined by the UN Charter and various conventions. Kofi Annan, Secretary-General of the United Nations, believes there is a new role for states as a result of the movement for the protection of human rights. He points out that, "states are now widely understood to be the servant of their peoples, and not vice versa," and furthermore, "individual sovereignty...I mean human rights and fundamental freedoms...has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny." People should not be at the control of their state, for it is the state which is supposed to represent its people. In reality, this is not the case for all states. The consciousness that Annan discusses does not seem to be present in states such as Yugoslavia.

A question of intervention now arises as a result of sovereignty and human rights. How does state sovereignty coincide with the protection of human rights? Historically, the UN Charter outlines international law's opinion on this issue. The use of force violating state sovereignty is strictly banned by the Charter, unless it is an action of self-defense against an armed attack. At the point when diplomatic measures have been fully exhausted in the case of non-self-defense, the use of force may be authorized by the Security Council. The Charter clearly outlines this provision in Article 53: "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." Chapter VII of the Charter also states, "air, sea, or land forces [as authorized by the Security Council]...may be necessary to maintain or restore international peace and security." The point at which sovereignty can be breached is clearly defined by international law and to what effect this can be. Although the law may be clear, there are an indefinite amount of interpretations of it. It is important to note that non-adherence to these laws would leave the most powerful state in control of the international community, if they are not already. International law has placed the protection of human rights in the hands of the international community and more specifically the Security Council of the UN. It is by their authority that diplomatic action or the use of force does or does not take place against a state.

The role taken on by NATO in the Kosovo conflict is controversial on the international level, even within NATO itself. Allegations that NATO breached state sovereignty and furthermore violated international laws of war were made. Both the UN and NATO had been pursuing diplomatic operations in the area to alleviate the conflict, but little result was found. NATO took it into their own hands to use force against the Serbians in an attempt to solve the problem. Many argue that this only heightened the issue and conflict. Without Security Council approval for the use of force in Kosovo, NATO violated state sovereignty as outlined in the UN Charter and in addition, violated Article 53 of the Charter. The legitimacy that NATO needed would have had to come from the Security Council, which according to international law, is the authority for protecting human rights.

By narrowly addressing the concept of state sovereignty, NATO was clearly in the wrong. NATO, however, defended their attack based on Article 5 of NATO's Charter which allows NATO to act in the self-defense of any of its member countries. Unfortunately for NATO's rationale, neither Yugoslavia nor the province of Kosovo are members of NATO, and furthermore it can be argued that no members of NATO were in immediate threat. NATO which was designed to act as a self-defense organization attempted to take on the role of a collective security organization. The use of force they claim did adhere to international law in its proportionality to the action in which it sought to alleviate. No matter this claim though, NATO's choice to use force was illegitimate according to present international law. If NATO did not step in though, then would the UN eventually have? This question cannot be answered after the fact, but it raises an interesting point about a changing international perception. Perhaps the NATO air campaign was only a precedent to establish a new order and revised international laws. To fully understand this, the issue of humanitarian intervention must be explored.

Human rights exist in international law to protect the weak from the strong. Ethnic groups or minorities may face oppression by a leader or government such as the the case of Albanians in Kosovo. Kofi Annan, Secretary-General of the United Nations states, "the core challenge to the UN and the international community as a whole in the new century is to forge unity behind the principle that massive and systematic violations of human rights- wherever they may take place - must not be allowed to stand." Intervention, as implied by Annan, is the responsibility of the international community. The international community's humanitarian intervention role is a very controversial one that not all states support because of its alleged infringement on sovereignty. Even if receiving Security Council authorization, it is clear that in theory human rights should be protected universally. Annan believes that human rights violations, no matter where they exist, should not be tolerated.

It is difficult to create a universally accepted definition of humanitarian intervention, namely because not all states agree that such a thing exists. In fact, there is no support for a right of humanitarian intervention within the UN Charter. Article 56 of the Charter does state that all members will pledge themselves within the cooperation of the organization to protect Article 55. Intervention is not explicitly mentioned however and is principally a notion originating from western industrialized states. Jack Goldsmith, a specialist of international law at the Chicago Law School, believes many people think it is a custom and practice to allow humanitarian intervention to be an exception to the rule of state sovereignty. Currently humanitarian intervention is not a custom however. Yugoslavia did not feel it was proper for NATO to intervene in their domestic affairs, nor did they believe it was a custom or practice that existed in general international acceptance. It may be the case, however, that humanitarian intervention is on course to becoming a custom or more strongly, a general principle of international law. There is reason to believe that it will evolve into ius cogens: a general principle of international law which is accepted by the international community of states as a whole. Joe Volk, Executive Secretary of the Friends Committee on National Legislation in Washington, D.C., points out that the past has seen a series of non-interventions in Tibet, East Timor, and Sudan, yet there were also many intervention precedents led by the Security Council such as Liberia, Somalia, Bosnia, Haiti, and Rwanda. If there is a continued increase in the number of intervention cases, NATO's air campaign in Kosovo may be another precedent moving humanitarian intervention to the status of ius cogens.

In order to protect human rights, as guaranteed by the Universal Declaration of Human Rights and the Geneva Conventions, intervention must be allowed in certain cases. If a right does exist, Noam Chomsky addresses that it is important to realize the premise on which the intervener is intervening. It must be based on good faith and the intervener's record in adherence to international law. Furthermore, intervention must be based on legitimate and universal principles. There is a desire to prevent a single hegemonic power from dominating internationally so the use of force must be applied only in a way to alleviate this contention. Chomsky claims there are three main choices for the international community when faced with a humanitarian crisis: escalate the catastrophe, do nothing, or attempt to lessen the catastrophe. Doing nothing has been a common step taken by states and the United Nations, either because there is a lack of consensus amongst states or for perhaps the notion that it is easier to ignore than to act. Humanitarian intervention is a choice to lessen the catastrophe at hand. Unfortunately, as Chomsky discusses, this choice can turn into an escalation of the catastrophe as he believes is the case for Kosovo. NATO's air campaign, as many argue, only heightened the confrontation between the Serbians and Albanians. If this is the case, then new mechanisms or measures need to be put in place to allow such missions to actually lessen the conflict without furthering it.

It has been discussed that the international community at large is responsible for protecting human rights and more specifically it is the role of the UN. As a corollary then it should be the UN that is the ultimate force in humanitarian intervention. The UN General Assembly is currently the most democratic organization at the international level and thus it seems logical to give it the right to pursue such a mandate. The General Assembly, however, is not the controlling force of the UN. It is instead controlled by five permanent members of the Security Council. Five members who each maintain a veto power over its decisions and the same five members who share differing values and differing views of human rights. This is the Security Council that chooses to authorize force and ultimately dispel human rights violations and allow intervention on such grounds. It is impractical for a council of five permanent powers to deal with issues as fundamental as human rights. It is hard to comprehend how such a group would be able to agree on an issue where an opinion depends mostly on the religion, language, race, and form of government within a state. It is now time for new customs to rise at the international level to deal with the flaws in the current mechanisms to protect human rights.

The idea of humanitarian intervention is such that a state's sovereignty, as protected by Article 2 (7) of the UN Charter, can be violated to uphold the Universal Declaration of Human Rights which guarantees individuals' rights against the oppression of states. Immediately this statement is seen to contradict itself. An international law is being violated to uphold another international law: the former is violated to uphold the latter. Interesting enough, the latter could be violated to uphold the former. It is easily seen that international law is flawed per se and the only resolution would be to apply changes to it. International law consists of treaties and customs. The easiest road to altering international law, in the case of humanitarian intervention, is by introducing it as a custom generally accepted by all, or perhaps even further, to prove it is ius cogens. Treaties would be a difficult course of action because most states which contain minorities would have little or nothing to do with a law that legitimized humanitarian intervention.

The actions taken by NATO can be seen as the beginning of a precedent for a new custom in international law. This custom may in fact grow to be considered ius cogens, like human rights. If this is the case, then state sovereignty has effectively changed since its origin. There would be a legitimate recognition that states are not sovereign in the area of human rights. As shown by NATO, the international community would have sovereignty in this area. This is seen by NATO's role change from a self-defense organization to one providing collective security and enforcing values outlined in international law. They took the defense of principles fundamental to humans. In the case of Kosovo, the UN failed to act in a manner that would stop the human rights violations so NATO took the initiative. There are times when the Security Council is unable or unwilling to act. Essentially the Security Council is then standing in the way of legitimate intervention. Two solutions may alleviate this contention: introduce an amendment to the UN Charter that would bypass the absolute veto power of the permanent members of the Security Council; or allow states or groups of states to react to situations without authorization from the UN and more specifically the Security Council.

The first solution would involve an amendment to the UN Charter that would allow states to bypass a Security Council vote. In the face of democracy, a General Assembly vote may be the most democratic process to establish a position on each incident where humanitarian intervention may be a solution to a human rights violation. The General Assembly as whole would not have to garner the support of the Security Council and could act without its authority. The decision of a majority of states in the General Assembly via a democratic process seems far more legitimate than a group decision from the five most powerful states. At a speech giving justification for Britain's action in Kosovo, British Prime Minister, Tony Blair emphasized such a desire for new rules and international cooperation. He believed that a new order would be based on the necessity for reform of the United Nations as the central pillar for international stability.

The second solution relies on the fact that states have a right to react to situations whether the UN as a whole decides to or not. States would be able to intervene on a humanitarian basis, yet this can not be taken as an absolute right. Just like state sovereignty, there needs to be a legitimate means and process. The US based their action in Kosovo on the collective self-defense of Article 5 of the NATO Charter, as well as Article 51 of the UN Charter. Article 5 of the NATO Charter emphasizes collective defense for NATO members, while Article 51 of the UN Charter specifies collective defense for UN members. This would appear to be legitimate means, however, Article 51 is only applicable with the consent and authority of the Security Council and Article 5 was intended only for NATO members. To make the case for the second solution, the NATO Charter could in effect be amended to include instances like Kosovo and non-member states. A new international law would be needed to legitimize the use of force on a humanitarian basis though. This can either come from an amendment to the UN Charter, or as mentioned before, a custom could develop from NATO's action which would inherently deem future actions such as NATO's role in Kosovo to be legitimate. This custom could form a general principle of international law, but it would be a necessity for it to define a threshold or limit to which states could intervene independently or as a group.

The problem with the second solution is ultimately that most sates will not adhere to a custom without limitations. Limitations and bounds would need to be put into place so that once again, the most powerful states are not in control, as in the UN with the Security Council. The first solution may appear democratic in its nature by giving control to the General Assembly, but it too may remain bottlenecked like the Security Council. Furthermore, its democratic nature, after more study, may appear to be highly undemocratic without representation according to populations for example. A final solution may require an incorporation of both proposed solutions. Organizations and states may gain the authority to intervene to prevent humanitarian catastrophes, but only at the discretion of laws passed by the General Assembly. The General Assembly can set the limits and bounds that are necessary for general instances based on case studies such as Kosovo, Somalia, Rwanda, or Bosnia. States would then ultimately have the authority to protect human right at their will within these bounds. It would then be rational to assume that a custom developed strictly from the NATO campaign in Kosovo would not be just. The custom would have to further adhere to guidelines set in place by the General Assembly of the UN. This may help solve the humanitarian intervention dilemma, however, it appears issues of non-consistency may always arise.

Human rights have been shown to be strictly defined according to international law and fundamental to all. With the need to protect human rights comes the desire to protect them within another state's historical domestic boundaries. These instances call for humanitarian intervention by an outside source such as another state or international organization. Typically the UN has been responsible for this role, although NATO's recent air campaign in Kosovo has brought many issues into light. The use of force is controlled by the Security Council of the UN and thus it must authorize missions of humanitarian intervention. The Security Council is highly undemocratic, however, leading to a conclusion that a new custom must be developed, one in which there is a new authority for protecting human rights. State sovereignty as it was traditionally viewed maintained that states were not to act in the domestic issues of another state. Human rights are recognized in international law and now it is time to recognize efforts to uphold them. To allow this, the perceived understanding of state sovereignty needs to be altered to incorporate the notion of allowing intervention into a sovereign state on a humanitarian basis. With a new understanding of state sovereignty, organizations such as NATO can take action to prevent humanitarian catastrophes. Organizations cannot, however, act arbitrarily in the matter. Bounds need to be put in place to alleviate such problems. The international system has evolved and it is now international law's turn.

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