GLOBAL DIALOGUE Volume 7 ● Number 1–2 ● Winter/Spring 2005—Humanitarian Intervention

From Intervention to Prevention: The Emerging Duty to Protect

PENELOPE SIMONS

Penelope Simons is lecturer in law at Oxford Brookes University, UK.

ntil recently, the idea of prevention has not played a role in the long-standing international legal polemic surrounding the doctrine of humanitarian intervention. Rather, the debate has traditionally centred on the use military force, and in particular on whether there exists a right among states to intervene militarily to prevent or stop grave and widespread violations of fundamental rights.

There are a number of possible reasons why global discussion has continued to focus on military intervention. However, the use of force as the central means by the international community to prevent human rights disasters has proved to be both an insufficient and ineffective strategy, not least because of the inadequacies of international legal mechanisms to facilitate such action.

Many situations that have escalated into humanitarian crises might have been prevented with early international commitment to addressing their direct and indirect causes. This has been acknowledged with respect to the genocide in Rwanda and the ethnic cleansing in Kosovo. It is no less true of the current crisis in Sudan’s western Darfur region that has resulted in the forcible displacement of over 1.5 million people and the deaths of over 70,000 others through fighting, starvation or sickness.

Recent developments, however, appear to suggest that the focus of global attention on the issue of the protection of vulnerable populations may be shifting. The extensive debates on the legality of NATO’s “humanitarian” war in Kosovo, the report of the International Commission on Intervention and State Sovereignty, and the recently released report of the United Nations High-Level Panel on collective security all appear to support a broader view of the concept of, and the norms relating to, humanitarian intervention. According to these latter reports, prevention is central to any strategy to address effectively humanitarian emergencies arising from civil conflict.

Yet despite this new emphasis on prevention there are still no well-articulated guidelines for state action to address the direct and indirect causes of conflict, although such guidelines have been developed regarding the use of force aimed at preventing or stopping humanitarian catastrophes.

This paper will examine the global focus on the use of force as the key means to prevent or stop human rights atrocities. It will trace the beginnings of a shift in international discourse from the idea of a legal right to that of a moral obligation to use force, and further to the notion of an emerging moral obligation to prevent such crises. It will argue, using two examples of economic activity that may contribute directly or indirectly to conflict, that in order to entrench the norm of prevention clear, targeted guidelines for state action to address the causes of conflict must be developed.

The Intervention Debate

There are a number of possible reasons why the debate on humanitarian intervention has traditionally focused on the question of whether or not states have a right to intervene militarily in a target state to protect vulnerable populations and why the issue of prevention has not been given similar attention.

First, the idea of a right to use military force in such circumstances has a long history, dating back at least to the early modern era. International legal theorists, such as Gentili and Grotius, considered intervention to protect foreign populations from unjust and cruel treatment to be a just cause for recourse to war.

Second, it is arguably easier to garner public support and political will to react to large-scale and egregious violations of human rights which have gained widespread media attention, than it is to galvanise the necessary support and political will to allocate resources to addressing the potential causes of such violations.

Third, and perhaps most importantly, military intervention to prevent or stop a humanitarian crisis has been and remains a highly controversial issue. Prior to the establishment of the United Nations and the development of international human rights law, there was no legal framework legitimising the scrutiny of a sovereign state’s treatment of its own population. Nor did there exist a right in customary international law to intervene in another state to protect vulnerable populations. Such intervention would have been seen as a violation of state sovereignty.

Moreover, the current normative framework for world order, established by the UN Charter, hinges on a prohibition of war as a means of settling disputes or pursuing national interests. There is no clear recognition in the charter of a right to use force to prevent or stop atrocities. While the charter recognises the importance of the promotion and protection of human rights, the legal enforcement mechanisms it established were originally designed to provide a collective means of responding to military aggression rather than to violations of fundamental human rights.

The Use of Force

Military intervention in another state is prohibited in international law under Article 2.4 of the UN Charter, which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This general prohibition on the use of force has been confirmed in a number of cases by the International Court of Justice and is considered to be a peremptory norm of international law. States are required to settle their disputes by peaceful means, and when these fail, to bring the issue to the UN Security Council for resolution.

There are two main exceptions to this general prohibition. Article 51 of the UN Charter protects the “inherent” right of states to resort to the use of force in self-defence or for the purposes of collective self-defence. Apart from the right of self-defence, the UN Security Council retains the monopoly on the legal use of military force. Article 42 of the charter gives the Security Council the right to authorise the use of force “to maintain or restore international peace and security”.

Traditionally, what constituted a threat to international peace and security had been narrowly defined, and the Security Council’s right to use force under Article 42 was not seen to include a right to intervene in a state to prevent or stop egregious and widespread violations of human rights. However, since the end of the Cold War, Security Council practice has progressively expanded the definition of “international peace and security” to allow the council to respond to grave humanitarian crises even where such situations have been purely domestic in nature. Thus, although some continue to challenge the jurisdiction of the Security Council in this regard, it is now generally recognised—at least among Western legal scholars—that the Security Council has a legal right (although no clear duty under international law) to authorise the use of force for the purpose of preventing or stopping widespread violations of internationally recognised human rights.

What remains highly contentious is the assertion that states, acting unilaterally—that is, without the authorisation of the Security Council—have a right to take military action to prevent or stop widespread violations of human rights when the Security Council is paralysed by a lack of political will among its members or by the use of the veto (or even the threat of such use) by one of the Permanent Five.

The question of the legality of unilateral military action was most recently, and quite extensively, debated by scholars, politicians and other members of civil society following NATO’s unauthorised “humanitarian” war in Kosovo in 1999. While some argued that the intervention was legal, it was generally accepted among legal scholars and politicians that NATO’s war in Kosovo was an illegal use of force. In addition, most scholars did not support the view that the intervention itself laid the ground for an emerging legal right to intervene. Rather, the war was seen as a one-off violation of international law. NATO member states also maintained that the unauthorised use of force in this case was a singular incident and should not be seen as modifying the UN Charter regime on the use of force.¹

From Right to Duty?

The Kosovo debates helped to clarify the current law on the legality of the unauthorised use of force to prevent or stop extensive egregious violations of human rights. Yet what is arguably more significant about these deliberations was their reflection of a widespread belief that the military intervention, although formally illegal, was morally justifiable in the face of the large-scale, flagrant abuses of human rights being perpetrated in Kosovo. NATO and some of its member states justified the bombing campaign as a moral duty. This was made clear by Javier Solana, then secretary-general of NATO, who stated when the bombing began that

This military action is intended to support the political aims of the international community ... We must halt the violence and bring an end to the humanitarian catastrophe now unfolding in Kosovo ... We have a moral duty to do so. The responsibility is on our shoulders and we will fulfil it.²

Many legal academics, too, suggested that in these types of situations there was a moral obligation to act. Military intervention to prevent or stop violations of human rights, it was argued, could therefore be legitimate—even though technically illegal—if conducted according to internationally recognised legal principles on the use of force and the protection of civilians during conflict.³

There was some consensus among scholars and non-governmental organisations commenting on the Kosovo intervention that NATO’s use of force did not meet these criteria. NATO had not exhausted all peaceful means to resolve the issue before launching its war. Its methods and means of warfare (such as high-altitude bombing, targeting of civilian infrastructure, mistaken assaults on civilian convoys, and use of cluster bombs and depleted uranium ordinance) were deemed by many to have violated the principles of proportionality and necessity, as well as key principles of international humanitarian law.

In addition, moral justifications for the use of force in Kosovo were undermined by NATO’s selective sense of obligation. Ethnic cleansing and other gross violations of fundamental human rights were occurring contemporaneously in countries such as Sudan, Afghanistan, and Ethiopia. Yet NATO did not propose to intervene to protect those beleaguered populations.

Although arguments of moral duty in relation to NATO’s intervention were not ultimately sustainable, this idea of the legitimacy of military intervention based on a moral obligation to act and right conduct is an important conceptual development in the intervention debate. It suggests a move away from the idea of a discretionary right to act to some sort of duty to respond.

The Responsibility to Protect

The idea of a moral obligation to act in the face of a humanitarian crisis has been further developed in the report of the International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect. Following the Kosovo War, ICISS was established by the Canadian government as an independent body with a mandate to promote debate and global consensus on the questions surrounding state sovereignty and intervention to protect vulnerable populations. In its report of December 2001, ICISS identifies an emerging duty—but not yet a rule of customary international law—on the part of states to protect vulnerable populations from “avoidable catastrophe”.

The notion of a responsibility to protect derives from ICISS’s reconception of sovereignty as responsibility. Under this new concept of sovereignty, states have a primary responsibility to protect their own population from harm. When they are unable or unwilling to fulfil this obligation, a secondary responsibility of the international community is engaged to protect the population in question. According to ICISS’s report, the aim of this shift in perspective—from a right to intervene to a responsibility to protect—is to place the focus on the populations in urgent need of protection, rather than on the potential interveners.

This idea of an emerging duty to protect is a marked departure from traditional interpretations of international human rights law in which sovereign boundaries are seen to delimit a state’s legal obligation. States are required to promote and ensure protection of human rights only within their territorial jurisdiction, and do not have extraterritorial obligations to protect vulnerable populations abroad.

The responsibility to protect is a tripartite obligation. When a state fails in its duty to protect its own people, other states have a collective responsibility to prevent the development of a humanitarian crisis; to react with coercive measures, including military force as a last resort, when such prevention fails; and to rebuild the target state after military intervention.

What is significant for the purposes of our argument is the new emphasis on prevention. The report finds that that the obligation to prevent is “the single most important dimension of the responsibility to protect” and that “prevention options should always be exhausted before intervention is contemplated”.⁴

The ICISS report states that the responsibility to prevent includes “a commitment to helping local efforts to address both the root causes of problems and their more immediate triggers”.⁵ The report recognises that tackling the root causes of conflict is a complex task and that efforts must be multidimensional in character. Suggested prevention measures include committing funds to, and establishing, early-warning systems.

From a moral perspective, the obligation to prevent makes sense. The discussion of the legitimacy of NATO’s Kosovo intervention suggested that there was a pervasive sense of moral obligation on the part of states to respond with force to the ethnic cleansing that was being perpetrated by the Belgrade government. If states can legitimately be concerned and have a legal right to take action under UN auspices, and a moral right to take such action with or without the sanction of the Security Council, it can be argued that states also have a moral obligation to take steps to prevent conflicts in other countries from becoming crises.

This emphasis on prevention is reiterated in A More Secure World, the report of the UN High-Level Panel on Threats, Challenges and Change.⁶ The High-Level Panel was created in August 2003 by UN Secretary-General Kofi Annan to look at the United Nations’ collective security framework in the context of contemporary threats to international peace and security, and to suggest measures allowing for an effective collective international response to such threats. Its report is more broadly focused than that of ICISS, but deals with the issue of conflict and its potential to escalate into a humanitarian crisis.

A More Secure World takes a broad view of collective security beyond the idea of military action to prevent the outbreak of war, focusing on a variety of contemporary threats to international peace and security. These include economic and social threats, interstate conflict, internal conflict and large-scale human rights abuses, weapons of mass destruction, terrorism and transnational organised crime. The report underlines the necessity of a comprehensive framework for “preventive action which addresses all these threats in all the ways they resonate most in different parts of the world”.⁷

Prevention is touted as an “indispensable foundation” for a credible collective security system, given that the failure of the international community “to invest time and resources early in order to prevent the outbreak and escalation of conflicts” is a key cause of their developing into major humanitarian crises.⁸ In addition, A More Secure World adopts the concept of sovereignty as responsibility elaborated by ICISS, noting that those states with the capacity to do so should have a responsibility to support the efforts of other states to meet their primary responsibility to their populations.

Both reports identify the link between poverty and the outbreak of conflict and suggest countermeasures. The ICISS report states that efforts to address the causes of conflict may include “tackling economic deprivation” and “strengthening regulatory instruments and institutions”.⁹ It further notes that direct economic prevention efforts could include the promise of improved terms of trade as well as more coercive measures such as the withdrawal of investment.

The report of the High-Level Panel suggests a number of strategies to deal with poverty. States are urged to commit resources and take action with respect to meeting the UN Millennium Development Goals of reducing poverty and hunger and improving social and economic development in the world’s poorest nations by 2015; to tackle the inequalities of the global trading system which are undermining efforts to alleviate poverty; and to provide debt relief for certain countries. To confront the problem of global trade and its effect on the world’s poor, the panel calls on member states of the World Trade Organisation (WTO) to conclude the current round of negotiations (which are intended to address development issues) by 2006.

Anchoring the Prevention Norm

While these two important reports do broaden the focus of the global debate on humanitarian intervention and emphasise the imperative of prevention, neither adequately elaborates action on the causes of conflict. The prevention measures suggested, and in particular those related to economic factors, are vaguely worded and do not sufficiently specify conduct by states to address either poverty as a root cause of conflict or other more immediate causes.

By contrast, both reports elaborate fairly clear guidelines for state action regarding the use of force aimed at preventing or stopping grave and widespread violations of human rights. ICISS devotes a significant portion of The Responsibility to Protect to defining criteria for action, including threshold triggers that would legitimate a decision to use force to address a humanitarian crisis. So-called precautionary criteria are also detailed: the primary intention of the intervention must be to remedy the humanitarian situation; all preventative measures must be exhausted before the resort to force; the use of force must be proportional and the minimum necessary to achieve the humanitarian goal; and the intervention must have a reasonable chance of success. These criteria are more or less reiterated in the High-Level Panel’s report.

While it is clearly important to continue to clarify the question of the legality and legitimacy of the use of force to prevent or stop grave human rights abuses, if the concept of a “responsibility to protect” with prevention at its centre is to establish itself as a norm—and possibly as a rule of customary international law—perspicuous guidelines for meeting this obligation to prevent must be developed, specifying the necessary conduct of states.

I now examine two examples of economic activity that have the potential to contribute to conflict, either directly or indirectly, and to the exacerbation of conflict into a human rights crisis. Each short case study concludes with specific measures for state action.

Corporations in Conflict Zones

Recent studies have found a link between civil conflict and resource extraction. The ability to extract certain resources can increase the economic viability of conflict.¹⁰ The ongoing humanitarian crisis in Sudan is a poignant example.

The current situation in Darfur is not the only humanitarian crisis recently to ignite in Sudan. Since the early 1990s, the Upper Western Nile area of south Sudan has been one of the main theatres of combat in the long-running civil war between the government in Khartoum and the rebels in the south. With the discovery of oil in south Sudan, the conflict began to focus on control over this resource. Exploration and development of oil resources was facilitated by international corporate investment in Sudan, and has had both direct and indirect impacts on the ongoing civil conflict.

In the first place, the extraction of oil clearly exacerbated the conflict and led to a severe deterioration of the human rights situation. Government military forces and government-sponsored militia protecting the oil exploration and development areas from rebel attack committed egregious violations of human rights. In order to secure the areas, these troops forcibly displaced local civilian populations by using helicopter gunships, Antonov bombers, and tactics similar to those in Darfur—namely, the deployment of ground forces to terrorise these populations through murder, rape, the abduction of women and children, and the burning of villages. Credible reports found that the oil consortium infrastructure was being used for offensive bombing raids. Hundreds of thousands of people were displaced, and thousands of others were killed in fighting or died from sickness and starvation.

Second, royalties and revenues from the extraction of oil have allowed the Sudanese government to build and buy armaments, and have thus increased its capacity to wage war against its own people on a number of different fronts.

The High-Level Panel report notes the need for more legal mechanisms to deal with the issues relating to natural-resource extraction and conflict. One particular concern is that there are currently no effective means of regulating international economic investment in conflict zones to ensure that the activities of transnational corporations (TNCs) do not contribute to violations of international human rights. Host-state regulation of TNC activity is unlikely where governments are unable or unwilling to take such action, or are themselves the perpetrators of abuses. International law does not clearly impose direct legal obligations on TNCs with respect to human rights. Nor does it appear to oblige the “home” states of these business entities to ensure that the latter observe international human rights standards or to prevent TNCs from engaging economically in a war zone where the business activity is likely to contribute to the conflict and to egregious violations of human rights.

The ICISS report cites “withdrawal of investment” as one example of direct economic prevention measures that could be taken. However, given the current regulatory void regarding the extraterritorial conduct of TNCs, the withdrawal of investment in such cases would require both the political will of the TNC home state and the consent of the business entity in question. In the case of Sudan, following a number of independent reports establishing the relationship between oil extraction and conflict, the Canadian government maintained in early 2000 that it was unable legally to impose sanctions that would inhibit the activity in Sudan of its corporate national, Talisman Energy Inc., or to require the company to withdraw. Talisman remained in Sudan until 2003, during which time the human rights situation continued to deteriorate.

In order adequately to address the human rights implications of corporate activity in conflict zones, TNC home states will need to develop effective regulatory regimes with monitoring and compliance mechanisms. It is arguable that the responsibility to prevent implies a duty on the part of home states to regulate corporate activity abroad to ensure that corporations are not participating either directly or indirectly in human rights abuses that could lead to, or are part of, a large-scale humanitarian crisis.

The responsibility to prevent also implies an obligation on states to address the TNC issue at international level. A working group of the UN Sub-Commission on the Promotion and Protection of Human Rights has developed a comprehensive code of conduct for TNCs: the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights”. At a minimum, states should take steps to build both political and private-sector consensus around these guidelines in order to ratchet up the global standard of conduct expected of TNCs and lay the foundation for international regulation of these entities.

The Agricultural Trade Regime

The reports of both ICISS and the High-Level Panel mention poverty as a root cause of conflict and refer to the need to address the inequalities of the global trade regime. A More Secure World specifically discusses, albeit briefly, the problem of agricultural trade, which has had a detrimental effect on the populations of many developing countries, a large proportion of which earn their livelihood in agriculture. The High-Level Panel urges WTO members to complete the current round of trade negotiations, the Doha development round, by 2006. This recommendation is insufficient. The problems surrounding the agricultural trade regime and its effect on developing-country populations are highly complex. Very clear guidelines for state action will have to be elaborated to ensure that the current round of WTO negotiations truly addresses the needs of developing countries and issues of poverty and food insecurity.

The WTO’s Agreement on Agriculture (AoA) aims to liberalise trade in agriculture by improving market access and reducing domestic support of, and export subsidies for, agricultural production. However, the terms negotiated under AoA have allowed many developed countries to continue their trade-distorting subsidy programmes and to impose higher tariffs on agricultural imports important to developing-country economies. Developed-country subsidy payments actually rose significantly in the four years following the entry into force in 1995 of the Uruguay Round trade agreements.

AoA was a bad bargain for a large number of developing countries. Many had already liberalised their markets under structural adjustment programmes, eliminated export subsidies, and abolished marketing boards that guaranteed minimum prices to farmers. Many also did not subsidise agricultural production and are now prohibited from introducing new subsidies. Few have access to the safeguard mechanism established by AoA to allow temporary protection against surges of cheaper foreign imports or a fall in global commodity prices.

Moreover, AoA does not deal with the structure of agricultural markets, control of which is concentrated in the hands of a small number of companies and which has contributed to the depression of global commodity prices. Nor does it regulate the sale of commodities by corporations in the global market at below the cost of production (also known as dumping).

The dumping of subsidised goods on the global market undermines agricultural producers, particularly small-scale farmers in developing countries whose comparative advantage both in domestic and foreign markets is removed. Low tariff barriers resulting from liberalisation under structural adjustment programmes or AoA have meant in many cases that cheap imports compete with domestic produce and prevent such farmers from being able to meet their production costs, let alone make a marginal profit. For those countries that rely on agricultural exports to generate foreign exchange, highly subsidised commodities released onto the global market may significantly undercut their earnings and thus the earnings of their agricultural producers. Depending on the commodity in question, this situation may be compounded by market-access barriers in developed states. Within a short period of time, these market conditions can lead to a loss of livelihood, a cycle of poverty, and thus food insecurity, as dispossessed farmers and unemployed farm labourers are unable to make a living wage.

The responsibility to prevent implies an obligation to address, in an effective way, unfair trade rules that undermine efforts to tackle poverty as one of the indirect causes of conflict. For the Doha round to be effective in confronting developing-country concerns about agricultural trade, states must make specific reforms that will help developing countries to reduce poverty and increase their food security. Not only must developed countries commit themselves to eliminating domestic and export subsidies and reducing import tariffs, they must also give developing countries more policy flexibility to protect their domestic markets and thus the livelihood of much of their populations. Particular reforms should include the renegotiation of tariff bindings for developing countries that have already reduced tariffs under structural adjustment programmes; a safeguard mechanism to protect against import surges of dumped commodities; exemptions for certain subsidies intended to create long-term food security; and expanded special and differential treatment for developing countries to support low-income and resource-poor farmers and improve food security. Backing for these reforms should not be conditioned on further market-access concessions by developing countries. Moreover, it is imperative that states address within the context of agricultural trade negotiations the regulation of market power and corporate dumping practices.

Words and Deeds

The current global discourse on humanitarian intervention appears to have broadened in scope and no longer focuses exclusively on questions of a legal right to take military action to prevent or stop grave and widespread violations of human rights. Developments including the deliberations on the legality of NATO’s war in Kosovo, the ICISS report, and the report on collective security of the UN High-Level Panel, suggest a shift in focus of the global debate to include the imperative of prevention.

However, closing the gap between “rhetorical support for prevention and tangible commitment”¹¹ will require more than good intentions. For the “responsibility to protect”, and thus to prevent, to develop into a clear normative obligation—and perhaps even a rule of customary international law—the content of this obligation must be developed and clarified. This paper has discussed two areas of economic activity that can contribute to conflict and humanitarian crises. It has made suggestions for specific action by states, which if taken, might partially fulfil the obligation to prevent. There are many factors that need to be addressed if effective attempts are to be made to prevent conflict and its potential escalation into a humanitarian crisis. Both the ICISS and the UN High-Level Panel reports underline the need for comprehensive and multidimensional efforts in this regard. Further analysis of the identifiable direct and indirect causes of conflict and the development of clear guidelines for state action to address those causes would be a substantial step in the right direction.

Endnotes

1. See Penelope Simons, “Humanitarian Intervention: A Review of Literature”, Ploughshares Working Paper 01-2, Project Ploughshares, Waterloo, Ontario, 2001.

2. NATO, “Press Statement by Dr. Javier Solana, Secretary General of NATO”, NATO Press Release (1999)040, 23 March 1999.

3. See, for example, Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of International Law 10, no. 1 (1999), p. 6; and various contributions to “Editorial Comments: NATO’s Kosovo Intervention”, American Journal of International Law 93, no. 4 (1999), pp. 824–62.

4. ICISS, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), p. xi.

5. Ibid., p. 19, para. 3.4.

6. High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (United Nations, 2004).

7. Ibid., p. 23.

8. Ibid., p. 19, para. 39.

9. ICISS, Responsibility to Protect, p. 23, para. 3.22.

10. See Philippe Le Billon, “The Political Ecology of War: Natural Resources and Armed Conflicts”, Political Geography 20, no. 5 (2001), p. 561.

11. ICISS, Responsibility to Protect, p. 19, para. 3.1.