A Triumph for Decency at the U.N.
It was billed as the biggest gathering of heads of state and government ever, as most of the presidents, prime ministers and assorted potentates of the U.N.'s 191 members headed to New York for the 60th Anniversary Summit of the United Nations from Sept. 14-16.
Almost unnoticed in the coverage of the Summit was the most significant change in international law since the U.N. Charter itself -- the "Responsibility to Protect" declaration. Its survival is in some way a personal triumph for U.N. Secretary General Kofi Annan, certainly compared with the mostly anodyne mush that was left after "the spoilers," as he called them, had watered down many of the original bold concepts he presented in his reform package.
The "Responsibility to Protect" declaration, hammered out by 191 delegations late last Tuesday and formally approved Friday, overturns the hitherto "inviolable" principle of absolute national sovereignty in the case of massive human rights violations and genocide. The declaration incorporates into international law the doctrine of humanitarian intervention -- the idea that the world community has the right to intervene, including with military action, to prevent governments from committing massive crimes against their own citizens.
It comes too late to help the untold thousands who have already died in Darfur. But it is a millennial change, an answer to the question posed by Annan at the 2000 millennium summit: "If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica -- to gross and systematic violations of human rights that affect every precept of our common humanity?"
The view taken by North Korea was that, "The new concept of 'humanitarian intervention' was a grave challenge to the supreme principle of respect for sovereignty in international relations. Humanitarian intervention would distort relations so that the strong wielded their power against the weak."
Few others were quite so explicit, even if the North Koreans were almost vindicated by the retrospective -- and spurious -- invocation of the principle by Tony Blair and George W. Bush to justify the invasion of Iraq. But this week in New York, China, Russia, Sudan, and even North Korea, signed on for the general principal.
The continuing tragedies in Darfur, Sierra Leone and Liberia had united much of Africa behind the concept. The President of the General Assembly, Jean Ping, who had fought a rearguard action against the assaults on the original document, drew the line against naysayers and implied a loss of African support on other issues if they tried to dilute the document further.
In its modern form, the doctrine of humanitarian intervention was invoked to cover American, British and French action to support the Kurds in the wake of the first Gulf War. When I asked U.N. lawyers at the time what the precedent was, they shuffled their feet nervously and eventually admitted that the clearest precedent was Adolf Hitler's invocation of it to justify intervention in Czechoslovakia, because of alleged maltreatment of the Sudeten Germans. Clearly this was not the one case to conjure with.
The lawyers assured me that the other examples that came to mind -- the Tanzanian invasion and removal of Idi Amin, or the Vietnamese route of the Khmer Rouge -- were in fact justified as acts of self-defense against border incursions.
Even after the Kurdish example, in the Balkan wars, one of the reasons that Germany rushed to recognize the former Yugoslav republic's independence was to make the conflict international, since the concept of humanitarian intervention in internal affairs was not generally accepted. International forces were invited in by officially recognized members of the United Nations.
Rwanda tested the question even further; the genocidal regime actually sat on the Security Council 1994 -- the very time it was conducting massacres. The intervention in Haiti later that year pulled it further. It was difficult to construe Haitian refugees landing on the beaches of Florida, a swing state, as a threat to international peace and security, whatever their effects on Bill Clinton's political prospects. But it also helped that the legally elected government of Haiti, in the form of President Aristide, wanted the intervention.
By the time of Kosovo in 1999, in the wake of Srebrenica, the concept of humanitarian intervention was getting serious legs, although the Clinton administration did not want to test it in the United Nations, in the face of assumed resistance from Russia, both to the general principle, and to the specific target, Slobodan Milosevic.
In the wake of his own reports on the failings of the United Nations in Srebrenica and Rwanda, Kofi Annan asked that question at the Millennium Summit in 2000. His answer was essentially provided by a Canadian-convened international committee, whose report, "The Responsibility to Protect," he largely incorporated into his U.N. reform package.
The devil, as always, is in the details. The report compilers were well aware of the justifiable apprehensions of many countries that a principle of humanitarian intervention could provide an "invade my neighbor for free" card unless it were heavily hedged around. They presciently set out "Precautionary Principles" to prevent expedient invocation of humanitarianism to justify military aggression:
A. Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.
B. Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.
D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.The report also invoked "the Right Authority," and said that "Security Council authorization should in all cases be sought prior to any military intervention action being carried out." It added that if that fails, then the issue should be taken to an emergency meeting of the U.N. General Assembly. It is clear that Bush's attack on Iraq did not meet any of these criteria.
The U.N. 60th Anniversary Summit has left these details of the "Responsibility to Protect," to be hammered out in the General Assembly, where "the spoilers" will doubtless have a field day. But they would find it difficult to beat these, since whether they have intended to or not, they have now accepted the general principle.
What will this mean for Darfur? Very little immediately, but if the city of Khartoum in Sudan continues to condone and facilitate mass murders there, next time the issue comes before the Security Council, the Sudanese regime's friends will not be able to invoke legal arguments to cover them. After all, they have signed onto the Declaration.
And for the next Rwanda, Cambodia, Kosovo or Darfur -- there is a clear warning to the perpetrators that their obligations as states under the Universal Declaration of Human Rights now outweigh their privileges of sovereignty.
Whether the prospect heartens or worries you, it is certainly what Annan and the 60th Anniversary will be remembered for.