THE EXCEPTIONS TO THE UNITED NATIONS PRINCIPLE OF NON-INTERVENTION WITH ITS CASE STUDIES
The definition of Non – Interventionism is that it is a principle determined by the absence of interference by a state or states in the external affairs of another state without its permission. It is the principle of United Nations which established in the ambition of liberalizing the gross violation of one state’s sovereignty, integrity and the human rights that interfered forcibly by other state(s). Humanitarian Intervention (HI) is the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied. Collective Security (CS) is a multilateral institution set up by states to establish and preserve peace throughout the international system. It is a universal agreement to regulate the use of force which applies to all states under its domain and aims at establishing preponderance against an eventual aggression.
This foregoing discussion would be starting off by reviewing a briefing history of the term Collective Security and Humanitarian intervention. The discussion would also be explaining on the system of collective security as treaty in Chapter VII of the UN Charter, as well as the widely recognized and accepted practice implemented by the UN Security Council since the end of the Cold War(1). Then, a brief focus would be given to the controversial doctrine of humanitarian intervention which intends to recognise as lawful armed interventions in foreign countries that are conducted without UN Security Council authorization and done in order to put an end to the perpetration of extreme cruelties(2). The case study of ‘the mechanism of collective security’ and ‘the humanitarian intervention’ would be provided in accordance with the concept. Finally, the conclusion would be made to summed up everything about the exceptions of UN charter of non – interference in the discussion.
In the early 19th century many countries around the world experienced with so many problems and it was very difficult to manage and resolve the situation. However, in the history of colonisation there were some certain conflicts concerning on the Collective Security and Humanitarian Intervention between and among the nations. Collective security (CS) is the term that was established in the 1930’s- is not a new concept. It finds its beginnings in earlier schemes for the prevention of war. The agreement was made to and confirmed by the Peace Conference in April 1919 and started to operate on January 10th, 1920. The humanitarian intervention begins in the 19th century. The widespread conversation of the 1990s portrayed humanitarian intervention as being born from a new wave of multilateralism. The opportunities for U.S. intervention were certainly expended as soon as the cold war was ended. However, in the nineteen century humanitarian intervention was used by the states. These two exceptions were entirely based on the United Nations principle of non – intervention to reduce the violation of the states’ sovereignty and the states’ human’s rights by other states.
1. The Mechanism of Collective Security
In the political perspective ‘the collective security’ could be defined as a system in which, when peace and security of a State are undermined or about to be affected, and this breach has or leads to a risk of repercussions at the regional or international level, so other Members of the UN Organization unite and join forces against the peace -breaker in order to maintain or restore peace and security. Chapter VII of the UN Charter is the very heart of the system of collective security. It starts with Article 39 which provides: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in order to maintain or restore international peace and security.
This provision, which is sometimes defined as the “single most important provision of the Charter,” may be considered as the cornerstone of the system of collective security in the sense that it contains a summary of the powers which are given to the Security Council and which are necessary for the implementation of the mechanism of collective security: to determine the existence of a specific situation first, and then to decide what measures to take – i.e. non-military (Art. 41) or military (Art. 42) enforcement measures – in order to maintain or restore international peace and security.
Article 41 of the UN Charter deals with the implementation of non-military enforcement measures. It states that the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
This list of measures is not exhaustive. Over time, the Security Council’s practice has evolved and now also includes the establishment of international criminal tribunals, like the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, as well as the establishment of missions in charge of the civilian administration of a territory. It should be stressed that the coercive nature of such missions is almost absent. The mission performs some of the regalia functions of the host State (e.g. performing basic administrative, legislative and executive functions, and maintaining civil law and order), while the host State is simply required not to obstruct the fulfilment of the mission.
With regard to the implementation of military enforcement measures, the founding members of the UN Charter designed a very centralized mechanism of collective security, with national troops under the command and control of the Security Council. Article 42 of the UN Charter provides: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.
In order for the Security Council to be able to ‘take such action,’ Article 43 requires that Members of the United Nations “undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities.” However, this original mechanism has never been implemented as such. Indeed, due to political and ideological divergences between Members of the Organization, the special agreements mentioned under Article 43 have never been concluded, and without these agreements and multinational contingents under its command and control the Security Council has not been able to take military action – stricto sensu –whenever necessary. Therefore, especially since the end of the Cold War, the Security Council decided to develop a new practice, in conformity with the spirit of the Chapter VII, a practice which consists of authorizing UN Member States or regional arrangements to use force in order to maintain or restore international peace and security. In other words, the Security Council has decided to transfer or delegate to Member States some of its discretionary enforcement powers. This process of delegation has introduced an element of decentralization in the system of collective security in the sense that States can now decide on a voluntary basis whether, to which degree and for how long, they will take the necessary measures called for by the Security Council.
The Security Council’s practice authorizing States to use force under Chapter VII has led to the creation of two different types of military operations: the peace operations (blue helmets) and the multinational operation. The analysis of actual State practice with regard to the adoption of resolutions authorizing States to take enforcement measures shows that ASEAN Member States seem to approve the application of enforcement measures under Chapter VII. In 1992, for example, “in view of the deteriorating situation in Bosnia-Herzegovina involving very serious violations of human rights and international law, abetted by acts of interference and armed intervention by a foreign country, threatening international peace and security,” Malaysia requested the Security Council to “take appropriate collective action including measures provided under Article 42.” Before the Security Council, Indonesia and Malaysia in particular have supported on several occasions the deployment of peacekeeping and multinational forces in zones of conflicts in order to notably establish ceasefires, prevent further escalations of hostilities, avoid humanitarian catastrophes, consolidate peace and reconciliation, or facilitate repatriation of refugees and displaced persons.
Case Study ;( The First Gulf War)
The First Gulf War occurred in the period of six months, from August 2, 1990 until February 28, 1991.It was between Iraq and the thirty four countries led by the UN and the United States. The conflict was about Kuwait. The intervention of these thirty four countries led by UN and US were all to restore peace and national security between these two states.
After the Iraq –Iran war, Iraq saw itself bankrupt and with an economy that was spiralling down. Its vulnerability was made worse once Kuwait increased its oil production by forty per cent causing oil prices to fall simultaneously damping Iraq’s oil economy dramatically. Hence, the Iraq government reasoned that the invasion of Kuwait was a response to the economic warfare that had begun. By late July of 1990, Saddam Hussein, the President of Iraq, had built up his troops and dispenses them across the Iraq –Kuwait border. With peace talks failing, Iraq invaded Kuwait on August 2, 1990. Within hours of the invasion, UN passed Resolution 661 placing economic sanction on Iraq. On 23 August 1990 Saddam Hussein appeared on state television with Western hostages to whom he had refused exit visas.
With the coalition on the offences, Iraq forces found it very difficult to continue to hold ground in Kuwait and the Iraqis borders. Iraq’s ground and air campaign was not enough to keep up with the coalition’s air and ground offences. A few months later, and after many attacks on its infrastructure, Iran finally retreated from Kuwait. A peace conference was held in Iraqi territory occupied by the coalition. If it was not UN and its allies, the dominant power can take over the weaker power. But, the UN despite dropped its principle of non-interference and brought peace and international security into these two nations.
2. Humanitarian Intervention
Humanitarian intervention is defined as legitimate use of force by states against another state for the purpose of alleviating human suffering in the latter or it is an armed intervention by a state or group of states without SC authorization to put an end to grave human rights violation. So-called humanitarian intervention, especially intervention with the use of military force, appears to be the product or part of a deliberate scheme to overstress individual human rights at the expense of national sovereignty and political independence. I admit that there are bona fide actors who are truly concerned with the humanitarian interests of individuals of other countries, and have no other motives to interfere in their domestic affairs, yet, the debate over the permissibility of unilateral humanitarian intervention, on the hole, are essentially a matter of interests, power and dominance. “Humanitarian intervention” is a high-sounding and convenient tool for maintaining, and yet concealing, their dominance and their supremacy.
The doctrine of humanitarian intervention offers a seemingly principled excuse for departing from the non-intervention principle. However, this doctrine carries little legal or moral weight when carefully examined. The doctrine has never become an established principle of international law, even as a generally recognized exception to the established principle of non-intervention.
Despite the doctrinal controversies, the humanitarian intervention is not a rule of international law. Olivier Corten, who conducted the analysis of legal texts and actual State practice, concluded that “the ‘right of humanitarian intervention’ has no basis in any of the relevant legal texts, whether the UN Charter or other treaties or non-treaty instruments.” He also noted that a review of practice confirms that in almost all precedents States acting militarily for humanitarian reasons or to rescue their nationals do so by relying legally on a classical justification such as self-defence or the consent of the States in whose territory the military operation was conducted and not on any independent rule conferring a right to intervention. In other words, the so called ‘right of humanitarian intervention’ is not accepted in positive international law; it is neither an exception to the principle prohibiting the use of force nor an exception to the principle of non-intervention.
A brief analysis of some of the legal texts shows that ASEAN Member States, as well as many other members of the international community, reject the right of humanitarian intervention. For example, in their Ministerial Declaration issued at the Twenty-third Annual Meeting held in New York on September 24, 1999, the Ministers for Foreign Affairs of the Group of 77 declared that “they rejected the so-called right of humanitarian intervention, which had no basis in the UN Charter or in international law.” In 2012, Marcelo Kohen stated that their position had not changed since 1999. Later on, in the 2005 World Summit Outcome adopted by the UN General Assembly, the international community stressed that in case States fail to protect their population against atrocities, other countries are allowed to take other than peaceful measures. These measures – and this is what must be stressed – cannot be taken unilaterally but only with the authorization of the UN Security Council. Paragraph 139 of the 2005 World Summit Outcome reads as follows : we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
Case Study; (Rohingya)
The Rohingya is an ethnic group, the majority of whom are Muslim, who have lived for centuries in the majority Buddhist Myanmar. They are not considered one of the country’s 135 official ethnic groups and have been denied citizenship in Myanmar since 1982, which has effectively rendered them stateless. According to a 2015 report by the International Human Rights Clinic at Yale Law School, the Rohingya were not included in the Union Citizenship Act of Myanmar. It is one of the poorest states in the country, with ghetto-like camps and a lack of basic services and opportunities. Due to ongoing violence and persecution, hundreds of thousands of Rohingya have fled to neighbouring countries either by land or boat over the course of many decades.
In 1982, a new citizenship law was passed, and as a result of this law, Rohingyas rights to study, work, travel, marry, practice their religious and access health services have been and continued to be restricted. In November 2016, a UN official accused the government of caring out ethnic cleansing of the Rohingya. It was not the first time such an accusation has been made. And also the UN Secretary General Antonio Guterres warned of the risk of ethnic cleansing, calling on Aung San Suu Kyi, (Myanmar’s President) and the countries security forces to end the violence. Hence, UN is stepping in to stop this violence despite of its principle of non-interference. Basically to help and restored the rights of the fellow human beings (Rohingyas) whose rights have been violated.
Finally, mechanism of collective security is the system in which, when peace and security of a State are undermined or about to be affected then the other Members of the UN Organization unite and join forces against the peace -breaker in order to maintain or restore peace and security. The main motive of the exception of collective security of the UN principle of non – intervention is to bring peace and security into a state so that the outside countries may not be interfered. The UN charter of non – interference is the very doctrine or principle that is settling the domain states and countries. If it is opposite to the principle of non – interference then the problem of violation against sovereignty and integrity of a state would be even worse. Humanitarian intervention is a violation against the rights of people by force. The divine territory of a state and the sovereignty of a state are meant to be governed by the citizens or people in that particular state, but not the outside forces take dominion over other states. The doctrine of humanitarian intervention offers a seemingly principled excuse for departing from the non-intervention principle that means that despite the doctrinal controversies, the humanitarian intervention is not a rule of international law, but it is a principle that the UN charter of non – interference have considered in regards to the abuses of human rights of the state or country.