HUMANITARIAN INTERVENTION TODAY

by V. S. MANI

V. S. MANI

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CONTENTS
Chapter I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1. The relevance of the study . . . . . . . . . . . . . . . . . . . . . . 1.2. The scope and objective of the study . . . . . . . . . . . . . . . . 1.3. The study plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4. Defining humanitarian intervention and modern international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5. The contemporary international community : a perspective . . . . Chapter II. Humanitarian intervention : a historical perspective 2.1. Doctrines and practices . . . . . . . . . . . . . . . . . . . 2.1.1. Ancient Indian traditions . . . . . . . . . . . . . . . . . . 2.1.1.1. Concept of dharma . . . . . . . . . . . . . . . . . . . . 2.1.1.2. Dharmayuddha (the righteous war) . . . . . . . . . . . 2.1.1.3. Means and methods of warfare . . . . . . . . . . . . . 2.1.1.4. Treatment of non-combatants and prisoners of war . . . 2.1.1.5. Treatment of civilians and civilian objects . . . . . . . 2.1.2. Buddhism . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3. Jainism . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.4. Ancient Chinese traditions . . . . . . . . . . . . . . . . . 2.1.4.1. Confucianism . . . . . . . . . . . . . . . . . . . . . . . 2.1.4.1.1. Limited justifications for war. . . . . . . . . . . . . . 2.1.4.2. Sun Tzu . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.5. Islamic traditions . . . . . . . . . . . . . . . . . . . . . . 2.1.5.1. Elements of just war . . . . . . . . . . . . . . . . . . . 2.1.5.1.1. Just cause . . . . . . . . . . . . . . . . . . . . . . . . 2.1.5.1.2. Right intention . . . . . . . . . . . . . . . . . . . . . 2.1.5.1.3. Legitimate authority . . . . . . . . . . . . . . . . . . 2.1.5.1.4. The rule of proportionality . . . . . . . . . . . . . . . 2.1.5.1.5. The rule of discrimination . . . . . . . . . . . . . . . 2.1.5.1.6. Probability of success. . . . . . . . . . . . . . . . . . 2.1.5.1.7. Last resort . . . . . . . . . . . . . . . . . . . . . . . 2.1.6. Christian traditions . . . . . . . . . . . . . . . . . . . . . 2.1.6.1. Christian pacifism. . . . . . . . . . . . . . . . . . . . . 2.1.6.2. Just war theories . . . . . . . . . . . . . . . . . . . . . 2.1.6.2.1. Historical contexts . . . . . . . . . . . . . . . . . . . 2.1.6.2.2. The doctrine. . . . . . . . . . . . . . . . . . . . . . . 2.1.6.2.2.1. Cicero [106-43 BC] . . . . . . . . . . . . . . . . . . 2.1.6.2.2.2. St. Augustine of the Hippo (353-430 AD) . . . . . . 2.1.6.2.2.3. St. Thomas Aquinas (1224-1274) . . . . . . . . . . 2.1.6.2.2.4. Just war theories of fifteenth to seventeenth centuries 2.1.6.2.2.5. Grotiuss De Jure Belli ac Pacis (1625) . . . . . . . 2.1.7. Kantian philosophy and just war . . . . . . . . . . . . . 2.1.7.1. International state of nature . . . . . . . . . . . . . . . 2.1.7.1.1. The right to go to war . . . . . . . . . . . . . . . . . 2.1.7.1.2. The right during war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 23 25 27 28 29 34

. 34 . 35 . 36 . 37 . 40 . 42 . 43 . 43 . 47 . 49 . 49 . 49 . 51 . 51 . 53 . 54 . 57 . 58 . 59 . 60 . 62 . 62 . 63 . 63 . 66 . 68 . 74 . 76 . 77 . 80 . 86 . 94 . 97 . 99 . 99 . 100

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V. S. Mani
100 101 101 102 103 108 110 112 112 118 121 124 124 124 125 126 126 128 129 132

2.1.7.1.3. The right after war . . . . . . . . . . . . . . . . . . . . . . . 2.1.7.1.4. The right to peace . . . . . . . . . . . . . . . . . . . . . . . 2.1.7.1.5. The right against unjust enemy ? . . . . . . . . . . . . . . . 2.1.7.2. Duty to strive for perpetual peace . . . . . . . . . . . . . . . . 2.1.7.2.1. Perpetual peace : preliminary articles . . . . . . . . . . . . . 2.1.7.2.2. Perpetual peace : definitive articles . . . . . . . . . . . . . . 2.1.7.2.3. Kant and Bentham : a comparison . . . . . . . . . . . . . . . 2.2. Changing responses of traditional international law . . . . . . . . 2.2.1. Balance of power doctrine . . . . . . . . . . . . . . . . . . . . . 2.2.2. Intervention as a policy issue, outside the pale of law . . . . . . 2.2.3. Legal right to intervene . . . . . . . . . . . . . . . . . . . . . . 2.2.3.1. Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.2. Oppression . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.3. Uncivilized wars . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.4. Injustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.5. Slave trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.6. Humanitarian asylum . . . . . . . . . . . . . . . . . . . . . . . 2.2.3.7. Foreign commerce . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4. Legal prohibition of intervention . . . . . . . . . . . . . . . . . 2.2.5. Implications of traditional doctrines for traditional international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter III. Response of the contemporary international law . . . . . . . 134 3.1. The United Nations as an actor in international relations . . . . . 3.1.1. International institution : a doctrinal perspective . . . . . . . . . 3.1.1.1. Organizing in the vortex of plurality of competing forces . . . 3.1.1.2. International institution as an autonomous actor . . . . . . . 3.1.2. Emergence of the United Nations . . . . . . . . . . . . . . . . . 3.1.3. The United Nations : a mix of idealism and realism . . . . . . 3.1.4. The normative order of the United Nations Charter . . . . . . . 3.1.4.1. A historical perspective . . . . . . . . . . . . . . . . . . . . . 3.1.4.2. Evolution of international human rights law . . . . . . . . . . 3.1.4.3. Legal order governing use of force . . . . . . . . . . . . . . . 3.1.4.3.1. Sovereign equality . . . . . . . . . . . . . . . . . . . . . . . 3.1.4.3.2. Non-use of force . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4.3.3. Non-intervention . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4.3.4. Good faith . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4.4. Institutional mechanism at the United Nations . . . . . . . . . 3.1.4.4.1. International personality of the United Nations . . . . . . . . 3.1.4.4.2. The General Assembly . . . . . . . . . . . . . . . . . . . . . 3.1.4.4.3. The Security Council . . . . . . . . . . . . . . . . . . . . . 3.2. Peremptory norms of international law and obligations erga omnes 3.3. Rights and duties of States . . . . . . . . . . . . . . . . . . . . . . 3.4. New humanitarian doctrines : towards a new higher law of human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1. Western discourse on contemporary international law . . . . . . 3.4.2. A new higher law of human rights : towards an obligation to intervene ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2.1. Henry G. Schermers . . . . . . . . . . . . . . . . . . . . . . . 3.4.2.2. Fernando R. Tesn . . . . . . . . . . . . . . . . . . . . . . . . 134 134 134 137 142 143 148 148 154 157 159 161 169 177 178 179 181 182 188 189 207 207 213 213 218

Humanitarian Intervention Today

Chapter IV. Unilateralism of humanitarian intervention . . . . . . . . . 4.1. Issues of burden of proof of legality of unilateral resort to humanitarian intervention . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1. General burden of proof of legality of a unilateral act . . . . . . 4.1.2. Burden of proof of validity of unilateralism and jus cogens . . . 4.2. Legality and objectives of intervention . . . . . . . . . . . . . . . 4.3. Invasion of Afghanistan 2001 . . . . . . . . . . . . . . . . . . . . 4.3.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2. 9/11 and aftermath . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3. Economic and other sanctions and US demands on Taliban . . . 4.3.4. US military response . . . . . . . . . . . . . . . . . . . . . . . . 4.3.5. The role of the United Nations in forging transnational arrangements for Afghanistan . . . . . . . . . . . . . . . . . . . . . . . 4.3.6. International law issues through the Afghan war . . . . . . . . . 4.3.6.1. Existing framework on control of international terrorism . . . 4.3.6.1.1. General international law . . . . . . . . . . . . . . . . . . . 4.3.6.1.2. Treaty framework . . . . . . . . . . . . . . . . . . . . . . . 4.3.6.2. Legality of unilateral force . . . . . . . . . . . . . . . . . . . . 4.3.6.3. Bringing the terrorists and their collaborators to justice . . . . . 4.4. Invasion of Iraq 2003 . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1. Issues of legality of unilateral use of force against Iraq . . . . . 4.1.1.1. Right to collective self-defence . . . . . . . . . . . . . . . . . 4.1.1.2. Individual self-defence . . . . . . . . . . . . . . . . . . . . . . 4.1.1.3. Enforcement of international obligations arising from Security Council decisions . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1.4. Obligation to prevent and punish international terrorism . . . . 4.1.1.5. Humanitarian intervention . . . . . . . . . . . . . . . . . . . Chapter V. Humanitarian action by the United Nations . . . . . . . . . 5.1. Institutional mechanism for use of force under the UN Charter . . 5.1.1. The Security Council (and whatever little left of the General Assembly) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1.1. Charter framework . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1.2. Some UN practice : an interpretation . . . . . . . . . . . . . . 5.1.2. Problems of Security Council-sponsored UN peace actions . . . 5.1.3. Towards a concept of UN humanitarian action ? . . . . . . . . 5.1.4. The so-called responsibility to protect . . . . . . . . . . . . . 5.1.5. UN humanitarian action and issues of illegality and illegitimacy Select bibliography

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231 231 231 234 236 238 238 238 241 242 243 245 245 245 246 248 250 254 255 255 256 259 261 262 264 264 264 264 269 275 288 292 299

Chapter VI. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313

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BIOGRAPHICAL NOTE
Venkateswara Subramanian Mani, born in India, 6 March 1942. M.A., LL.B., Ph.D. Jawaharlal Nehru University, Procedure before International Tribunals. Director, Gujarat National Law University (since April 2004) ; Professor of International Space Law, Jawaharlal Nehru University (JNU) (May 1990-March 2004) ; Professor-in-Charge, Jawaharlal Nehru Chair in International Environmental Law, JNU (1999-2004) ; Director, Human Rights Teaching and Research, SIS, JNU (1993-2004) ; Chairperson, Centre for Studies in Diplomacy, International Law and Economics, JNU (1993-1996) ; Member, Academic Council and University Court, JNU (1993-1996) ; Member, Board of Studies, SIS, JNU (1990-2004). Visiting Fellow, Max Planck Institute for Comparative and Public International Law, Heidelberg, Germany (JulyDecember 2003) ; Visiting Professor, International Centre for Comparative Law and Politics, University of Tokyo (June-July 2000) and West Bengal National University of Juridical Sciences, Kolkata, India (June-July 2002). Member, Association of Indian Universities Panels on International Humanitarian Law Curricula at graduate levels, University Grants Commission (UGC) of Indias Human Rights and Duties Curriculum Development Committee (Justice V. S. Malimath Committee) (1999-2001) ; Member, UGC Standing Committee on Human Rights and Duties Education. Executive President (2003-2006), Secretary-General (1997-2000), Indian Society of International Law, New Delhi. Agent and Legal Counsel for the Republic of Nauru before the International Court of Justice in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (1989-1993) (handled the organization and conduct of the case since 1986) ; Legal Counsel and Expert Consultant for India in the case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India) (19992000) ; associated in preparation of Indias written pleadings in the case concerning Jurisdiction of ICAO Council (India v. Pakistan) before ICJ and Naurus written pleadings in Legality of the Threat or Use of Nuclear Weapons. Chief Secretary, Secretary to the Cabinet and Public Service Commissioner, Republic of Nauru (1985-1990) ; simultaneously acted as Secretary for External Affairs (1986-1989), Secretary for Civil Aviation and Telecommunications (1987-1989) ; acted as Secretary for Justice, Republic of Nauru (1982-1983) ; Republic Counsel, Republic of Nauru (1981-1983). Fellow of Indian Council of Arbitration ; Life Member, Indian Society of International Law and Indian Law Institute (New Delhi), International Institute of Space Law, Socit de lgislation compar (Paris), India International Centre (New Delhi) ; Founder Trustee, Institute for the World Congress of Human Rights (New Delhi), International Board of Advisors, Weeramantry International Centre for Peace, Education and Research (Colombo) (since 2000). Editor, India Journal of International Law (since 2003) ; Member of Editorial Board, International Review of the Red Cross and Singapore Yearbook of International and Comparative Law.

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PRINCIPAL PUBLICATIONS
I. Books India on the Threshold of the 21st Century : Shape of Things to Come, New Delhi, co-ed. with S. Bhatt, 1998. Human Rights in India : An Overview, New Delhi, Occasional Paper No. 4, Institute for the World Congress of Human Rights, 1997. Recent Trends in Space Law and Policy, New Delhi, co-ed. with S. Bhatt and V. B. Reddy, 1996. Air Law and Policy in India, New Delhi, co-ed. with S. Bhatt and V. B. Reddy, 1994. Basic Principles of Modern International Law : A Study of the United Nations Debates on the Principles of International Law concerning Friendly Relations and Co-operation among States, New Delhi, 1993. The Non-Aligned and the United Nations, New Delhi, co-ed. with M. S. Rajan, and C. S. R. Murthy, 1987. International Adjudication : Procedural Aspects, Martinus Nijhoff, The Hague, New Delhi, 1980. II. Articles and Shorter Articles 1. Published in Journals/Yearbooks International Humanitarian Law : Challenges in the Twenty-First Century, ISIL Year Book of International Humanitarian and Refugee Law, New Delhi, Vol. 4, 2004, pp. 1-10. Future Strategies in the War against Terrorism and Proliferation of Weapons of Mass Destruction : An Indian Perception, Indian Journal of International Law, Vol. 44, 2004, pp. 221-259. Six Decades of the United Nations An Indian Perception, Indian Journal of International Law, Vol. 44, 2004, pp. 1-73. Extradition and International Law : Indias Recent Experiences, CBI Bulletin, New Delhi, Vol. XI, No. 1, January 2003, pp. 25-27. International Terrorism : A Quest for International Legal Controls, International Studies, New Delhi, Vol. 40, 2003, pp. 41-67. The Second Bush War and International Law, The Little Magazine, Delhi, Vol. IV, 2003, Issue 1, pp. 10-15. The Fifth Afghan War and International Law, Economic and Political Weekly, Mumbai, Vol. 37, No. 4, 26 January 2002, pp. 294-298. Obligation to Enact a Law on Genocide, Human Rights Today, New Delhi, Vol. IV, No. 2, April-June 2002, pp. 10-11. An Indian Perspective on the Evolution of International Law on the Threshold of the Third Millennium, Asian Yearbook of International Law, Vol. 9, 2001, pp. 31-77. Environmental Law in South Asia : An Overview, Banares Law Journal, Varanasi, India, Vol. 30, 2001, pp. 15-38. Development of Effective Mechanism(s) for Settlement of Disputes arising in Relation to Space Communication, Singapore Journal of International and Comparative Law, Vol. 5, July 2001. International Humanitarian Law : An Indo-Asian Perspective, International Review of the Red Cross, Geneva, Vol. 83, No. 841, March 2001, pp. 59-76. The Atlantique Case between Pakistan and India before the ICJ, Journal of the Indian Law Institute, New Delhi, Vol. 42, 2000, pp. 56-73.

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V. S. Mani

Humanitarian Intervention Revisited, ICCLP Review, International Center for Comparative Law & Politics, University of Tokyo, Vol. 3, No. 2, September 2000, pp. 5-14. Kargil Conflict : International Law Perceptive, Himalayan and Central Asian Studies, New Delhi, Vol.3, Nos. 3-4, July-December 1999, pp. 76-86. The Right to Consular Assistance as a Basic Human Right of Aliens A Review of the ICJ Order Dated 3 March 1999, Indian Journal of International Law, New Delhi, Vol. 39, 1999, pp. 32-46. Editorial Comment, Kargil Conflict and International Law, Indian Journal of International Law, Vol. 39, 1999, pp. 333-342. The International Court and the Humanitarian Law of Armed Conflict, Indian Journal of International Law, Vol. 39, 1999, pp. 32-46. Human Rights and the United Nations : A Survey, Journal of the Indian Law Institute, Vol. 40, 1998, pp. 38-66. Unilateral Imposition of Sanctions through Extra-Territorial Application of Domestic Laws : A Tale of Two US Statutes, Indian Journal of International Law, Vol. 38, 1998, pp. 1-27. Symposium on Indias Nuclear Tests 1998 : Policy and Legal Implications, Indian Journal of International Law, Vol. 38, 1998, pp. 218-226. Tehran Seminar on Extra-Territorial Application of National Legislation : Sanctions Imposed against Third Parties A Report, Indian Journal of International Law, Vol. 38, 1998, pp. 59-64. Human Rights and Terrorism : An International Law Perception, Himalayan and Central Asian Studies, Vol. 2, No. 1, January-March 1998, pp. 3-31. Competence of the Projected International Criminal Court in Regard to Violation of International Humanitarian Law A Critique of the 1994 ILC Draft Statute, Bulletin on IHL & Refugee Law, New Delhi, pp. 13-54. Effectuation of International Law in the Municipal Legal Order : The Law and Practice in India, Asian Yearbook of International Law, Vol. 5, 1997, pp. 145-174. The Nuclear Weapons and the World Court, Indian Journal of International Law, Vol. 37, 1997, pp. 167-184. Bilateral Co-operation in Containing Terrorism : Extradition Arrangements, International Studies, New Delhi, Vol. 32, 1995, pp. 129-150 (a version of No. 26). On International Law, Seminar, New Delhi on Rules and Laws, A Symposium on Certain Personal and Social Strategies for our Time, No. 434, October 1995, pp. 35-37. The Role of Law and Legal Considerations in the Functioning of the United Nations, Indian Journal of International Law, Vol. 35, 1995, pp. 91-118. Humanitarian Intervention and International Law, Indian Journal of International Law, Vol. 33, 1993, pp. 1-26. Extradition and Terrorism The Indo-British Extradition Treaty, 1992, Indian Journal of International Law, Vol. 33, 1993, pp. 72-83. Aviation Security, International Terrorism and the Law, Indian Journal of International Law, Vol. 32, 1992, pp. 1-59. Libya, Pan-Am Crash of 1988 and the UN, Third Concept (New Delhi), Vol. 6, 1992, pp. 18-02. Towards Codification of the Legal Regime of Islands, Indian Yearbook of International Affairs, Madras, Vol. 19, 1986, pp. 3-105. Research and Information System for the Non-Aligned and Other Developing Countries, Non-Aligned World, New Delhi, Vol. 2, 1984, pp. 623-625. Ocean Dumping of Radioactive Wastes : Law and Politics, Indian Journal of International Law, Vol. 24, 1984, pp. 224-244. Regional Approaches to the Implementation of Human Rights, Indian Journal of International Law, Vol. 21, 1981, pp. 96-119. The 1970 Declaration on Friendly Relations : A Case Study in Law Creation by the UN General Assembly, International Studies, Vol. 18, 1981, pp. 287-321.

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Indias Maritime Zones and International Law : A Preliminary Inquiry, Journal of the Indian Law Institute, Vol. 21, 1979, pp. 336-381. International Terrorism Is a Definition Possible ?, Indian Journal of International Law, Vol. 18, 1978, pp. 207-211. Study of International Institutions Changing Perspectives and Approaches, Aligarh Law Journal, Aligarh, Uttar Pradesh, India, Vol. 6, 1978, pp. 69-81. The Concept of Economic Coercion, India Quarterly, New Delhi, 1977, pp. 334-343. Basic Conditions of Seabed Operations : An Inquiry into the Third Law of the Sea Conference, International Studies, Vol. 15, 1976, pp. 321-341. Resources of the Sea-Bed beyond National Jurisdiction : Who Shall Exploit and How ?, Indian Journal of International Law, Vol. 14, 1974, pp. 245-260. Malacca Straits and International Law (with S. Balupuri), Indian Journal of International Law, Vol. 13, 1973, pp. 262-272. Interim Measures of Protection : ICJ Practice, Indian Journal of International Law, Vol. 13, 1973, pp. 262-272. The 1971 War on the Indian Sub-Continent and International Law, Indian Journal of International Law, Vol. 12, 1972, pp. 83-99. Right of Self-Defence of Peoples Exercising Their Right of Self-Determination and Article 2, Paragraph 4 of the UN Charter, Cuttack Law Times, Cuttack, Orissa, India, Vol. 38, 1972, pp. 21 ff. Insanity in Criminal Law : The McNaughten Rules Today, Cuttack Law Times, Vol. 38, 1972, pp. 12 ff. The Barcelona Traction Case (Second Phase) 1970 through the International Court : A Case Comment, Indian Journal of International Law, Vol. 11, 1971, pp. 112 ff. The Beruberi Cases from the Perspective of International Law : A Critique, Indian Journal of International Law, Vol. 11, 1971, pp. 655-661. A Review of the Functioning of the International Court of Justice, Indian Journal of International Law, Vol. 11, 1971, pp. 27-38. The Advisory Opinion in Namibia Case : A Critique, Indian Journal of International Law, Vol. 11, 1971, pp. 467-480. The Law Commission and the Indian Penal Code : A Note, Supreme Court Decisions, Cuttack, Orissa, India, 1971. Negotiable Instruments Act, 1881 and Private International Law A Restatement as to Choice of Law, Supreme Court Decisions, 1971, pp. 17 ff. Social Sanction and Law Enforcement : Some Theoretical Problems, Supreme Court Decisions, 1970, pp. 49 ff. Laws Delays and Computer Technology, Supreme Court Decisions, 1970, pp. 11 ff. Section 105 of the [Indian] Evidence Act [1872] and the Nature of Burden of Proof of Accused : The Jayasena Case, Supreme Court Decisions, 1970, pp. 19 ff. Interim Measures of Protection : Article 41 of the ICJ Statute and Article 94 of the UN Charter, Indian Journal of International Law, Vol. 10, 1970, pp. 359-372. Contempt of Court and Democratic Criticism : The Khadilkar Contempt Case, Supreme Court Decisions, 1970, pp. 49 ff. Audi Alteram Partem : Journey of a Principle from the Realms of Private Procedural Law to the Realms of International Procedural Law, Indian Journal of International Law, Vol. 9, 1969, pp. 381-411. Constitutional Amendments and Fundamental Rights, Supreme Court Decisions, 1968, pp. 27 ff. General Attitude of the Asian-African Nations towards Certain Aspects of International Law of Treatment of Aliens with Special Reference to Indian Law and Practice, Supreme Court Decisions, 1968, pp. 27 ff. General Concept of Sovereignty under International Law, Supreme Court Decisions, 1967, pp. 9 ff.

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Some Thoughts on Sovereignty in International Organisation and the Modern World, Supreme Court Decisions, Vol. 1967, pp. 17 ff. Doctrine of Non Liquet and International Law A Note, Supreme Court Decisions, 1966, pp. 59 ff. The Enigma of Parliamentary Privileges, Supreme Court Decisions, 1966, pp. 3-5. 2. Chapters in edited works The Legal Systems in the Pacific : An Overview, in N. N. Vohra, ed., India and Australasia : History, Culture and Society, Institute of Asian Studies, Kolkata, Shipra Publications, Delhi, 2004, pp. 236-240. The Second Bush War and the Aftermath : Some Issues of International Law, in Mahavir Singh, ed., Asian Annual 2003, India International Centre, Shipra, Delhi, 2003, pp. 17-34. Environmental Law in South Asia : An Overview, Smitu Kpthari, Imtiaz Ahmed and Helmut Reifeld, eds., The Value of Nature : Ecological Political Politics in India, Konrad Adenauer Stiftung, Rainbow, Delhi, 2003, pp. 191220. The Promise, the Content, and the Performance : Human Rights Provisions in the Indian Constitution, K. P. Saksena, ed., Human Rights and the Constitution : Vision and the Reality, Gyan Publishing House, New Delhi, 2003, pp. 35-78. The Role of Law and Legal Considerations in the Functioning of the United Nations, in Nigel D. White, ed., Collective Security Law, Aldershot, UK, 2003, pp. 65-94, being a reprint of IJIL, Vol. 35 (1995), pp. 91-188. India, Europe and Combating Terrorism, in R. K. Jain, ed., India and the European Union in the 21st Century, Radiant Publishers, New Delhi, 2002, pp. 119-138. Bamiyan Buddhas and International Law, in K. Warikoo, ed., Bamiyan : Challenge to World Heritage, New Delhi, 2002, pp. 196-205. Possible International Regulatory Frameworks, including Legal Conflict Resolution in Expanding Space Commercialisation, Summary of the Commentary Paper at the 7th Session of the UN Technical Forum on Space Law, at the UNISPACE III, Vienna, July 1999, published in UN Office for Outer Space Affairs, Proceedings of the Workshop on Space Law in the Twenty-first Century, United Nations, New York, 1999, pp. 192-193. International Litigation and Peaceful Settlement of Disputes : A Case Study of Certain Phosphate Lands in Nauru, in UN Office of the Legal Affairs, Collection of Essays by Legal Advisers of States, Legal Advisers of International Organisations and Practitioners in the Field of International Law, United Nations, New York, 1999, pp. 415-434. India and International Law on the Threshold of the Third Millennium, in S. Bhatt and V. S. Mani, eds., India on the Threshold of the 21st Century : Shape of Things to Come, New Delhi, 1999, pp. 375-399. Human Rights in India : A Survey, in K. P. Saksena, ed, Human Rights : Fifty Years of Indias Independence, New Delhi, 1999, pp. 169-194. Humanitarian Intervention in International Law, in Sushil Kumar, ed., New Globalism and the State, New Delhi, 1999, pp. 235-248. The Friendly Relations Declaration and the International Court of Justice, in A. Anghie and G. Sturgess, eds., Legal Visions of the Twenty-first Century : Essays in Honour of Judge Christopher Weeramantry, Dordrecht, 1998, pp. 527-542. Unilateral Sanctions and Extra-Territoriality of Domestic Laws : A Perspective of Public International Law, in Asian African Legal Consultative Committee, Report of the Seminar on Extra-Territorial Application of National Legislation : Sanctions Imposed against Third Parties, Held in Tehran, Islamic Republic of Iran in January 1998, New Delhi, 1998, pp. 65-82.

Humanitarian Intervention Today

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Indias Role in the Development of International Law over the Past Half Century : Some Reflections, in Surjit Mansingh, ed., Nehrus Foreign Policy : Fifty Years On, New Delhi, India International Centre, 1998, pp. 69-96. The European Unions Approach to Human Rights : Implications for Indias Trade, in H. S. Chopra, ed., India and the European Union into the 21st Century, New Delhi, Indian Council of World Affairs, 1997, pp. 10-22. United Nations, Human Rights and International Terrorism, in Lalima Varma, ed., United Nations in the Changing World, New Delhi, 1997, pp. 10-22. International Court and the Third World, in Asian African Legal Consultative Committee, ed., Essays on International Law : Fortieth Anniversary Volume, New Delhi, 1997, pp. 115-132. Human Rights in International Relations, in Lalit Mansingh, Dilip Lahiri, J. N. Dixit, Bhabani Sen Gupta, Sujatha Singh and Ashok Sajjanhar, eds., Indias Foreign Policy : Agenda for the 21st Century, New Delhi, 1997, Vol. 1, pp. 311-330. Norm Setting Activities of UNESCO and Indias Contribution, in Indian National Commission for Co-operation with UNESCO, N. K. Krishnan and C. S. R. Murthy, eds., India and UNESCO : Five Decades of Co-operation, New Delhi, 1997, pp. 35-46. Resolving the Cyprus Conflict : A Framework for Self-Determination, in R. C. Sharma and Stavros A. Epaminondas, eds., Cyprus : In Search of Peace and Justice, New Delhi, 1997, pp. 195-197. Recent Trends in International Space Law and Policy : Issues and Perspectives, in V. S. Mani, S. Bhatt, and V. B. Reddy, eds., Recent Trends in International Space Law and Policy, New Delhi, 1997, pp. 17-24. Aerospace Vehicles and the Law, ibid., pp. 355-362. Transfer of Space Technology, MTCR, National Security and Space Oligopoly : A Study of the Recent Indo-Russian Experience, ibid., pp. 549-578. The Role of Law and Legal Considerations in the Functioning of the United Nations, in M. S. Rajan, ed., United Nations at Fifty and Beyond, New Delhi, Indian Society of International Law, 1995, pp. 167-208. History and Development of Air Law in India : A Survey (with V. B. Reddy), in S. Bhatt, V. S. Mani and V. B. Reddy, eds., Air Law and Policy in India, New Delhi, 1994, pp. 11-34. Upper Limits of Sovereignty in Air Space New Challenges of Technology, ibid., pp. 341-352. Aviation Security, International Terrorism and the Indian Response, ibid., pp. 365-386. Law, Science and Environment : Overview [of A Symposium] (with Rahmatullah Khan), in R. P. Anand, Rahmatullah Khan and S. Bhatt, eds., Law, Science and Environment, New Delhi, 1987, pp. v-xxv. Legal Controls of River Pollution in India : A Preliminary Inquiry, ibid., pp. 42-53. The United Nations, Law of the Sea and the Developing Countries, in M. S. Rajan, V. S. Mani and C. S. R. Murthy, eds., The Non-Aligned and the United Nations, New Delhi, 1987, pp. 56-79. Ocean Dumping of Radio-active Wastes Law and Politics, in R. C. Sharma, ed., The Oceans : Realities and Prospects, New Delhi, 1985, pp. 211-232. Human Rights in Developing Countries A Perspective, in S. K. Agrawala, T. S. Rama Rao and J. N. Saxena, eds., New Horizons of International and Developing Countries, Bombay, Indian Branch of International Law Association, 1983, pp. 31-37. National Jurisdiction : Islands and Archipelagoes, in R. P. Anand, ed., The Law of the Sea : Caracas and Beyond, New Delhi, 1978, pp. 82 ff.

22

ACKNOWLEDGMENTS
First of all, I thank most sincerely the Hague Academy of International Law and the distinguished members of its Curatorium for inviting me to the Summer Course 2005. It is an honour to be at the Academy. I thank my alma mater, Jawaharlal Nehru University, New Delhi, where I spent more than three decades and a half most profitably, with such lively exchanges with my former colleagues my teachers, my students. Indeed, these exchanges shaped much of my thoughts and understanding of international law. My salute to that great school of international law, perhaps the only one Third World school of international law in the world. I thank the Indian Society of International Law in whose cradle I learned my first lessons in the teaching of international law. It fed me with incessant literature on international law in general and humanitarian intervention in particular. I thank C. Jayaraj, its current Secretary-General, and its staff, some of whom I have known ever since I came into contact with the Society in 1967. I thank the Max Planck Institute for Public International Law and Comparative Law, Heidelberg, its Directors Rudiger Wolfrum and Armin von Bogdandi, former directors, research fellows and such co-operative staff of its library, for facilitating my research on this subject while a Visiting Fellow in 2003. What an invigorating experience it was ! I thank the International Centre for Law and Politics of Tokyo University and Onuma Yasuaki for taking me in as a Visiting Professor during the summer of 2001. That is where my research into this subject began. To the staff of the Gujarat National Law University, my thanks, most for steeling my resolve to complete this project, for throwing up several challenges one after another. Do keep challenging my resolve, and I shall bounce back with redoubled resolve to produce the result that I earnestly cherish to achieve. Last but always first in my life, my wife, Vathsala, has been a constant inspiration for me for all my ventures. A ready in-house critic, she has been the embodiment of sacrifice for me and my children : she sacrificed her entire career for us, despite her brilliant academic achievements. How can I thank her enough for all the deprivations that I caused to her, more particularly after I took up this project alongside the Directorship of the new Gujarat National Law University ? Can I ever make it up to her ? I dedicate this work to her name.

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CHAPTER I

INTRODUCTION This Introduction seeks to indicate broadly the contemporary relevance of the project, its canvas of scope and object, the study plan, and definitions of the terms humanitarian intervention and modern international law. It also endeavours to adumbrate on some perspective points on the contemporary international community as it evolved since the Second World War. 1.1. The Relevance of the Study Since 1990, a post-cold war power structure has been unfolding, heralding a new world order in the process of taking shape from out of the vortex of the changing international politics. The international community has been confronted by new challenges of genocide, ethnic cleansing, terror attacks, and the flexing of muscles by the sole surviving superpower. Some of these have been nurtured in the fertile ground of the old, largely unattended, ones poverty, issues of human health, threats to the environment, and failure of States to ensure good government often resulting from earlier big power interventions (e.g., Congo, Liberia). While history does not exactly repeat itself in terms of identity and undercurrents of events and dramatis personae, the New World Order ushered in by the last decade of the Second Millennium has unfolded certain disturbing trends in resort to coercion in international relations, quite reminiscent of the days of the Concert of Europe of the nineteenth century. The days of gunboat diplomacy of the likes of Commodore Perry of circa 1853 seem to have been reinvented to become fashionable, nay even morally held justifiable, and therefore handy for the powers-that-be seeking to reorder the nations of the world into a mould of their liking. The genuine concern of the international community for the protection and promotion of human rights the world over has provided these powers with a new faade of legitimacy for the use of coercion against smaller or weaker nations, whether through or outside the instrumentality of the United Nations. The currently unfolding of, predominantly Western,

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doctrine of human rights seeks to justify use of coercion as an individual or collective-unilateral response to violations of human rights within a State, be it in Bosnia-Herzegovina, Kosovo or Haiti. From this vantage point of current history, therefore, a review of the concept of humanitarian intervention from a developing country perspective of modern international law will be highly in order, particularly when humanitarian intervention, as advocated in the current, twenty-first century Western doctrine, has become a cap that fits every head, for everyone wears it a moralist faade for unabashed and vigorous pursuit of national objectives. This new policy of humanitarian intervention now seems to encompass not only the old, strictly humanitarian justifications of protection of human lives and prevention of gross violations of human rights in another country, but also every other, such as the war on terrorism and the hunt for a suspected cache of weapons of mass destruction. By its very internal dynamics, it seeks to establish its own ground rules. Would it or has it upset the apple cart of international consensus behind the jural character of the basic principles of modern international law many of which find expression in the 1970 Friendly Relations Declaration 1 ? This indeed is a matter of immense concern for the small countries of today that international consensus so strenuously evolved through a decade-long, tortuous, yet conscious law-making diplomacy in the 1960s by the post-Second World War international community that comprised then not only the old States but also the newly independent States of Asia-Pacific, Africa and Latin America 2, and indeed the socialist bloc. It is therefore of great importance to examine the evolution of some of the basic concepts and doctrinal bases for this newly found attraction for humanitarian intervention, and the extent to which it relates itself to modern international law.
1. Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN General Assembly resolution 2625 (XXV) of 24 October 1970, the Silver Jubilee Day of the Organization. For a detailed study of these principles, see V. S. Mani, Basic Principles of Modern International Law : A Study of the United Nations Debates on the Principles of International Law concerning Friendly Relations and Co-operation among States, New Delhi, 1993. 2. Although many of the Latin American States are not so new, they were for long kept perforce on the margin of the traditional Eurocentric international system, yet they made their presence felt to the great discomfiture of some of the old States.

Humanitarian Intervention Today 1.2. The Scope and Objective of the Study

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As a necessary backdrop to the study, it is important to recognize the characteristic features of the contemporary international community. While the co-existence of State sovereignties is the foundation of international law, the perennial problem of implementation of international law reinforces the on-going tension between the operational aspects of sovereignty of a State and the normative framework which international law proffers to the international community for eventual attainment of community objectives. This problem assumes diverse dimensions. It also explains the peculiarities of international law in contradistinction to a system of law catering to a community with a highly integrated value system, such as the municipal or domestic legal system within a State, where the formal law-making, the law-implementation, and disputes settlement functions are performed by different organs of government, not left to the subjects of the law as such. The group theories and human rights have not dissipated or disintegrated the domestic legal system ; if anything they have strengthened the integral functioning of these three formal, institutionalized arms of government. The principal advantage of such institutionalization is that it facilitates these institutions (even while catering for certain dominant group interests) acquiring a substantial level of absence of bias, if not total impartiality, in imparting justice to the governed. The peculiarity of the international system is that while the process of formal institutionalization of these functions of government is still nebulous, States, the principal actors in the international system, are expected to perform these functions themselves. In this sense, the international system is a largely decentralized system where, at the operational level, States which are the primary subjects of international law are also called upon to perform the legislative, executive and judicial functions. Ideally, there is nothing wrong with such a situation, provided States behave as they are expected to behave in accordance with the normative order prescribed by them unto themselves. The inny, however, is that States, agglomerates of humans and driven by individual humans, cannot be so expected. Ideally, again, if all men were angels, there would be no need for law or regulations ! The fusion of functions of law-making, execution and application to disputes settlement with the function of law-compliance is thus a reality in the international system. Indeed, in the practice of States in

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their relations with one another the normative distinctions among these functions are difficult to maintain, as more often than not individual State interests eclipse these distinctions and inhibit their performance. Yet the existence of an international community with certain community objectives such as minimization, if not elimination, of violence, and maximization of social and economic welfare, through certain evolving, generally accepted, basic precepts of international behaviour such as the principles of non-use of force, nonintervention, peaceful settlement of disputes, sovereignty, good faith fulfilment of international obligations, self-determination and human rights, and international co-operation 3, is equally a reality. That there are gaps between this normative order and State conduct does not readily diminish either the social or the jural value of the normative order ; the existence of gaps between the norm and the conduct of the subject is not peculiar to the international system, but pervades every system of law. The jural character of a legal norm does not depend on the absence of these gaps, although the sociology of law must address the question and seek explanations and remedies from the community and community institutions for the problem of noncompliance. As already indicated, the present study seeks to examine the rationale, real or fancied, of the new claim to use of armed force for humanitarian purposes such as to halt or prevent gross violations of human rights in a State that has failed to respond to the situation and set it right. Is there a new higher law of international human rights to justify such resort to force ? If so, who should respond to human rights emergencies such as heinous offences against humanity ? States in their individual capacity, or the United Nations representing the international community as a whole, or both jointly and severally ? To what extent does the sovereignty of a target State stand as an impediment to international action, in an international community characterized by decentralization of power and authority ? The role of the international organization in enforcement of
3. See the Declaration on Friendly Relations, footnote 1, supra. For an earlier, in-depth study of the Western doctrine on non-intervention from a Third World perspective, see Bhupinder Singh Chimni, Towards a Third World Approach to Non-Intervention : Through the Labyrinth of Western Doctrine, Indian Journal of International Law, Vol. 20, 1980, pp. 243-264. For a post-Yugoslavia treatment of the subject by an Indian scholar, see Yogesh Kumar Tyagi, Humanitarian Intervention Revisited, Michigan Journal of International Law, Vol. 16 (1995), pp. 883-910.

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human rights deserves separate consideration, particularly in view of the increasing involvement of the United Nations in civil strife (Somalia, Yugoslavia, Rwanda). The United Nations SecretaryGeneral, Kofi A. Annan, has dwelt on the issue in some of his recent reports. The Introduction to the 1999 Annual Report of the Secretary-General on the Work of the Organization 4, addresses itself to the unprecedented humanitarian challenges. The Secretary-Generals main complaint is that The humanitarian challenge is heightened by the fact that the international community does not respond in a consistent way to humanitarian emergencies. 5 While emphasizing the role of preventive measures in diffusing potential conflict situations, the Secretary-General recognizes that even the best of prevention strategies cannot completely eliminate the chances of war. Hence his view: It follows that, for the foreseeable future, the international community must remain prepared to engage politically and if necessary militarily to contain, manage and ultimately resolve conflicts that have got out of hand. This will require a better functioning collective security system than exists at the moment. It will require, above all, a greater willingness to intervene to prevent gross violations of human rights. 6 The Secretary-General poses the issue as one of respect for State sovereignty versus prevention of crimes against humanity. This is a serious issue calling for deep reflection. The principle of humanity versus the principle of sovereignty ? And does the United Nations have power to intervene on behalf of the international community ? 1.3. The Study Plan It is proposed to present the study in five chapters, besides this Introduction. Chapter II examines the concept of humanitarian intervention, mainly through the various doctrines and practices relating to war in general and situations of permissibility of war in particular. In the process, it deals with ancient civilizations something that Western writings rarely venture to do , diverse religious concepts, a fairly extensive examination of the Christian just war doctrines,
4. Preventing War and Disaster : A Growing Global Challenge, United Nations, 1999. 5. Ibid., para 8, at p. 3. 6. Ibid., para 56, at p.17 ; emphasis added.

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and a special highlight on Kants philosophy for the reason that much of the credit of inspiring, if not authoring, the modern concept of just war doctrine has been attributed to Kant. This chapter also seeks to identify the diversity of responses of traditional international law and relations on the jural nature of intervention. Chapter III is on the response of contemporary international law. It takes into account the presence of an international institution representing the international community and its sui generis nature, the normative order of the United Nations as the international institution par excellence and its relationship to modern international law, the impact of the emergence of jus cogens on rights and duties of States, and an examination of the new doctrines positing human rights against the concept of State sovereignty and justifying the revival of just war doctrines. Chapter IV examines the juridical aspects of the new claims of humanitarian intervention by States in justification of unilateral resort to force by them. Chapter V focuses on the legal aspects of the role of the United Nations in mounting institutional humanitarian action. Chapter VI embodies the conclusions of the study. 1.4. Defining Humanitarian Intervention and Modern International Law Humanitarian intervention has come to be used and abused in diverse situations for diverse purposes. Two aspects of the term must be highlighted, namely, intervention and humanitarian. Intervention for our purposes means forcible (i.e., by use of armed force) interference in the internal affairs of a State, often interfering with the governance of the State, without the consent of the target State. That intervention must be humanitarian, i.e. the objective of the use of force must be humanitarian ; it must prevent gross violations of human rights or cause immediate cessation of and retraction from such violations, and all this must be objectively determinable. A humanitarian intervention must exclusively have the humanitarian objective ; otherwise, it will be something else, but not humanitarian. Evidently, as it is generally claimed to be an exceptional measure, it must avoid excesses ; it must focus on its mission, and it must comply with the requirements of proportionality and other relevant principles and rules of international law, including those applicable to armed conflict.

Humanitarian Intervention Today

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The term modern international law is used quite advisedly. Implicit in it are a range of considerations and values generally acceptable to the international community of the post-Second World War, and some of them so dear to the developing countries, the preponderant majority of members of the contemporary international community. These are juxtaposed to those of the traditional international community and its international legal system. It is difficult to lay down a chronological divider between the traditional international law and the modern, as there is considerable overlap between them. The modern international law represents a continuum for some of the traditional principles ; it redefines and reorients some others, and, based as it is on the United Nations Charter, it represents a rejection of still some others as being incompatible with the Charter, and the creation of some new principles in whose germination and nurturing the Charter and the Organization have played a significant part. In respect of many of these principles the United Nations has an umbilical connection. Indeed, the United Nations is central to the concerns of the developing countries its centrality is inversely proportionate to their individual smallness or weakness. The test of validity and legitimacy of a legal system lies in its capacity to cater for equity and justice for the smallest and the weakest, not in automatically legitimizing the acts of the strongest. 1.5. The Contemporary International Community : A Perception Defining modern international law necessarily requires both a historical and a contemporaneous context. From this point of view, one needs to take into account the characteristic features of the postSecond World War world. While many strands of developments through the later half of the nineteenth century and the first half of the twentieth century have contributed to the emergence of the modern international law, it is generally recognized that many of its principles have found expression in the Charter of the United Nations and in the continuing law-making activities of the Organization conditioned by the vicissitudes of the ever-changing international relations of the post-Second World War world. In fact both the United Nations Charter and the modern international law is mutually reinforcing, and each is an intrinsic part of the other. The post-war international society has been characterized by a number of features. First, in the words of Radha Binod Pal, a great

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Indian judge, the geography of international law has changed, with the large-scale emergence into independence of countries of Asia, Africa and Latin America. Although they are known as new States, many of them are in fact ancient societies, representing ancient civilizations which existed at a time when what has come to be recognized as the European civilization had not even germinated. They have brought on to the world stage their ancient values of human welfare, indeed a diversity of core social and cultural values. Secondly, these countries brought into the focus of attention of the international community their urgent need for development, having shared a common experience of devastating colonial exploitation. This was an area that had stayed outside the realm of the traditional international law (being a matter of domestic jurisdiction of the colonial powers), but was central to the immediate concern of the newly independent countries. The new international law, therefore, had to forge a principle of international co-operation on the basis of Articles 55 and 56 of the Charter and also evolve its operational rules. Thirdly, the Second World War also taught the world that human rights must be recognized as part of the new international law and the new world organization must have a role in its promotion, even as the sovereign States remain primarily responsible to their citizens 7 for the implementation of the basic human rights norms, according to their genius, and given the resources available to them. Fourthly, since the world had already divided into two power blocs, human rights also became a handy instrument of foreign policy as between these two blocs. Thus the West characterized the Soviet bloc countries as totalitarian, as the civil and political rights as understood in the West stood violated or denied primacy of place in these countries. On the other hand, the Soviet bloc gave primacy at least doctrinally to economic and social rights as well as group rights such as self-determination, over the civil and political rights. This divergence in the dogma of human rights became a justification for covert interference in other countries mainly aimed at preventing them from joining the rival power bloc. Primarily in order to halt the communist expansion westward in Europe, the European human rights regime was established in 1950, which eventually, and happily, proved to be a model regime for the entire
7. By now democracy too started becoming fashionable and accepted widely even if in varied forms conforming to the genius of each national society.

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world. But the Cold War greatly contributed to the politics of human rights in international relations that ill served the cause of human rights. Fifthly, slowly but steadily, gross violations of human rights, such as those obtained in South Africa and Namibia, could not remain strictly as matters of domestic jurisdiction. They came to be regarded by the United Nations as threats to international peace and security and justified international coercive action in the form of international sanctions (even if short of use of armed force). Indeed, the consensus required for this action evolved rather painstakingly, given the entrenched economic interests of some of the permanent members of the Security Council in these situations. It is interesting to note the manner in which even the economic organizations like the IMF and IBRD have, over the years, changed their policies to take into account human rights situations in the potential beneficiary countries as part of their conditionalities for according access to their resources and facilities 8. Sixthly, since the 1970s there has been, a growing trend towards liberalization and globalization in international and national economic relations. This has slowly but surely led to the further dilution of the political and economic boundaries between countries. Liberalization and globalization have had a direct bearing on the pursuit human welfare by national societies. The serious debate over the contribution of liberalization and globalization to the enhancement/achievement of human welfare, the core value of human rights, continues to storm the centres of international and national decisionmaking. Finally, the disappearance of the Soviet Union from the world stage has had a revolutionary effect on the post-Cold War international relations since 1990. It has left the whole field to one single superpower to dominate the world affairs, and fashion a new world order of shape and values preferred by it. This superpower could now manipulate the principal organs of the international organization and get international actions initiated in arenas of its preference,
8. In 1967 there was a raging controversy between the World Bank and the United Nations on the issue of compliance by the former of the UN General Assembly resolutions seeking to dissuade it from granting loans to the then racist South Africa and the Portugal. The Bank refused to abide by the UN resolutions since its lending policies then were exclusively based on economic considerations, and under the UN-Bank special agreement the UN resolutions adopted without consultation of the Bank were not binding on the latter.

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under the faade of organizational legitimacy actions for which it could not have used the organizational facilities at the height of the Cold War while the other superpower was alive. This situation has left the smaller powers at the mercy of this new world order. Even as the post-war international society was evolving, the diversity of social and political systems and the emergence of a large number of new States keen to play an active part in international relations led to new international norm-setting under the auspices of the United Nations General Assembly. While the human rights norms themselves came to be evolved through a number of instruments like the Universal Declaration of Human Rights of 1948 and the International Covenants of 1966, the basic principles of modern international law evolved on the basis of the principles of the United Nations Charter. By far the most important formulation of these principles is the Friendly Relations Declaration of 1970, which embodies consensual formulations of prohibition of force, non-intervention, peaceful settlement of international disputes, sovereign equality, good faith, self-determination and international co-operation. The International Court of Justice has had an occasion in the Nicaragua case to examine and recognize the evidentiary value of this declaration as reflecting the contemporary opinio juris at least in respect of the principles of prohibition of force, non-intervention and sovereign equality 9. The nomenclature of principles such as those of non-intervention and sovereign equality may sound traditional, but it is submitted that their contents and orientations have undergone a metamorphosis in the context of the post-war world and are quite modern and vastly different from their traditional namesakes, particularly from the perspectives of the developing countries. The basis of sovereignty, according to these countries (as it is according to Immanuel Kant), is self-determination. In exercise of the rights under the principle of self-determination, every State is fully entitled to determine its
9. In this case the Court observed : This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain general Assembly resolutions, and particularly resolution 2625 (XXV) . . . The effect of consent to the text of such resolutions cannot be understood as merely that of a reiteration or elucidation of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. ICJ Reports 1986, p. 14, at pp. 99-100.

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social, political, and economic system, subject only to the international obligations that it undertakes. Non-intervention is concomitant of sovereign equality, and ensures a policy of peaceful coexistence in the relations between States. Each national society has a right to chart out the course to be pursued by its national polity, and other national societies have no business to interfere with the exercise of that right. No longer does the modern international law protect and preserve the divine right of the ruler, if the rule does not meet the tests of legitimacy and accountability. Yet the form of government and the standard of governance in terms of achievement of human welfare, given its resources, must be determined by the national society itself in exercise of its right of self-determination. Non-intervention, thus, has a positive function to perform in a national society in the modern context to promote its right to self-determination, and right to development, without interference from outside 10. As the International Court ruled in the Nicaragua case, A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices which must remain free ones. 11
10. The Friendly Relations Declaration 1970 formulates the principle of nonintervention as follows : No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it the advantages of any kind. Also, no State shall organize, assist, foment, finance, invite or tolerate, subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State or interfere in civil strife in another State. . . . Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security. For a detailed study of the travaux preparatoires of this and other principles formulated in the declaration, see V. S. Mani, footnote 1, supra. 11. ICJ Reports 1986, p. 14 at p. 108.

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CHAPTER II

HUMANITARIAN INTERVENTION IN AN HISTORICAL PERSPECTIVE There are two reasons why an endeavour must be made to enquire into the historical roots of the concept of humanitarian intervention in terms of the doctrines and practices of States that are now recited to lend firm support to its continuing validity. One, historical enquiry would reveal their nature, origins and contexts from the vantage point of which we need to understand the concept today. Two, it would also help us to determine the biases of its modern day protagonists. In this study, an attempt is made to understand the principal doctrines, cultural moorings and practices of States in historical contexts in respect of the concept of humanitarian intervention, and broadly identify the changing responses of the traditional international law and relations, particularly through the eighteenth and the nineteenth centuries. 2.1. Doctrines and Practices The historical legal and political literature on humanitarian intervention, as in most other respects, has been rather eclectic. However, in terms of the history of human civilization, the portrayal of ancient history and a large part of the medieval history are seriously inhibited, if not coloured, principally by the intellectual predispositions and subjective judgments of historians, including international law historians. Small wonder, therefore, that most Western international legal historians seldom looked at Africa or Asia in their study of evolution of international law. Indeed, much of the ancient philosophical thinking and practices prevalent in these parts of the world did not interest them, either because they found them to be culturally so different and therefore difficult to appreciate, or because of their general frog-in-the-well mind-set 12. At any rate, the
12. Koopamandookam, the frog that dwells in a well, is a typical Sanskrit idiom, adapted into most Indian languages. A frog confined all its life to the well thinks that the well is the only world, the reality, that exists, that that is the world it presides over, and that there is nothing beyond it.

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impact of the process of European colonization of Africa and Asia has been at once devastating and debilitating. Many of the ancient customary institutions that had held sway and held the various segments of these ancient communities together had fallen apart as the colonial juggernaut rumbled on supplanting them altogether, and often replacing them with copies or hybrid variants of institutions from the metropolitan countries or indeed logical outgrowths required for sustenance of colonialism. The doctrinal canvas spread out here encompasses the ancient Indian traditions, Buddhism, Jainism, Islamic traditions, Chinese traditions, Christian traditions, and Kantian philosophy and just war doctrines. The special focus on Kant is deliberate, because Kant remains much maligned in the modern context of humanitarian intervention doctrines. 2.1.1. Ancient Indian traditions Ancient Indian traditions refer to the traditions that arose even as the concept of a modern State took shape in ancient India, about 300 BC. Formation of States as an historical process relates to the core process of common identification and integration of a commonly shareable community value system and the corresponding process of evolution of institutional mechanisms particularly political to enable a community to pursue these core values on behalf of the community. Evidently, a community of people must have undergone a period of transition from the nomadic tribal set-up to a territorybased statehood, when it discovered agriculture along a river basin in the Indo-Gangetic plane. Till then, it must have exercised the incidents of sovereignty through social institutions including that of a tribal chief. (It is interesting to note that the Sanskrit word raajan literally means he who rules, it includes the king, but it encompasses anyone who governs including a tribal chief.) It was during this process of political stabilization around 1000 BC that the first of the Hindu Scriptures, the Rig Veda, came to be written, as the Sanskrit language came to be crystallized : it must have indeed existed in the oral tradition of the community a long time earlier typical of all tribal communities. By ancient Indian traditions we refer to concepts emanating from the scriptural and post-scriptural contributions. The concepts noted here are those of Dharma, Dharmayuddha, means and

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methods of warfare, treatment of non-combatants and prisoners, and treatment of civilians and civilian objects. 2.1.1.1. Concept of dharma While it is not difficult to find in Hindu Scriptures prohibitions of violence in interpersonal relations, their regulation and penal sanctions were left to the ruler, the raajan, who would take action in accordance with what he perceived to be raajadharma (the kings duty) in a given context. The concept of dharma underscores human life on earth. It is not generally realized that the term Hindu or Hinduism is not found in the Scriptures ; instead the religion is described as Sanaatanadharma (the eternal web of duties). The nature and content of dharma, however, varies from subject to subject. To ordinary people, it is maanava dharma (a mans duty in relation to his fellow beings). A network of mutuality of duties governs their interpersonal relations. Depending on the context, this turns out to be kutumbadharma (duty in relation to ones family), sanaatanadharma (duty in relation to God), raajadharma (the duty of the king), prajaadharma (duty of the subjects), devadharma (duty of God in relation to His creations), and so on. The raajan (king) had the duty to protect his people (praja) and hence he was described as the prajaapati (the master/protector of his people). If he was required to take up arms to protect his people, their homes and hearths, to do so was his bounden duty the call of his office. If he could not protect his people, he had no reason or legitimate claim to the throne. However, this right to protection of the people must have also limited the kings right to go to war : he could only wage a war on an enemy who posed a clear and present danger to his people. Those were the days when the sovereignty of a people on the Indo-Gangetic plane was probably not territorially based and the king was probably a tribal chief, devoid of later decorative and ceremonial image that the term later came to depict. It acquired a territorial base, only after agriculture was discovered and became the main foundation of the political economy of the times, for agriculture transformed the essentially nomadic existence of the grazing communities into one bound to a territorial base. This development in the historical evolution of the Indian society added one more essential element of sovereignty, namely territory. The concept of desha or raashtra (i.e., country) evolved. So did deshadharma (duty

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in relation to a desha), which on the part of the ruler meant the same as raajadharma (i.e., good governance and protection of the subjects), and on the part of the governed meant loyalty to the institution of king (prajaadharma) and patriotism (deshaabhimanam) including the duty to protect ones motherland (the country the soil that gave birth to a subject was the Mother Goddess). 2.1.1.2. Dharmayuddha (the righteous war) From now on, the king had just not the right, but a duty, to go to war, if necessary, in order to protect his kingdom and its people. Such a war, morally forced upon the king, was a righteous war. Thus the ancient Hindu scriptures and epics conceived of war in two categories : dharma yuddha (righteous war) and adharma yuddha (unrighteous war) 13. A war that was waged in contravention of the rules of warfare or that aimed to satisfy greed was not a just war. In Raamaayana, Raama, the hero, fought a righteous war, because he did so to save his queen from the clutches of the demon-king, Raavana, who had abducted her as he entertained amorous intentions on her. The war that Raavana waged was unrighteous ab initio for the obvious reason he coveted the lawfully wedded wife of another. In Mahaabhaarata, however, the element of moral righteousness did not clearly belong to one side alone. The sons of Paandu were wronged and cheated of their kingdom by their cousins, the Kauravas, who even refused to concede to them one village, let alone half the kingdom, despite the divine intervention of Krishna in their behalf. On the other hand, Kauravas too had a legitimate claim over the kingdom, because their father, Drutaraashtra, was elder to Paandu, yet deprived of the right to rule on ground of his blindness. The war that ensued was a dharmayuddha for both sides. In his famous Geeta (the divine poem, the gospel) Krishna advised Arjuna, the great Paandava warrior-hero, not to be overwhelmed by emotions on the need to fight with his own cousins and other venerable elders arraigned on the opposite side, but to fight his dharmayuddha and leave the result to divine judgment. He had to do what he ought to do under the law of dharma, without any emotional attachment to
13. K. R. R. Sastry, Hinduism and International Law, Recueil des cours, Vol. 117, 1966, pp. 507-615, at pp. 568, 570. See also Surya P. Subedi, The Concept in Hinduism of Just War, Journal of Conflict & Security Law, Vol. 8, 2003, pp. 339-361.

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the end result. He would be rewarded of such result as divinely determined as appropriate. He had a duty to do what ought to be done, and no right or duty to expect a result that he would desire most or that he thought he deserved. But the war had to be waged for a righteous cause, regardless of whether the enemy was ones family relation, said Krishna. The limits of a dharmayuddha were not clear at times. Sukra, a great propounder of policies for guidance of kings, could advocate a treacherous war (kutayuddha) for the purpose of self-preservation. The foe has to be killed in wars, whether wars are carried on by principles of morality or not, he warned his princely disciples 14. Chacko discovers that both Sukra and Kamandaka (of the eighth century AD) discussed interventions in inter-State relations. The former held that such kings as were devoid of morality and power should be punished 15. Sukra suggested that the kin should surround and coerce a ruler . . . who is an addict to sensuous pleasures, or one who plunders other peoples goods, and whose officials are corrupt 16. Yet, ancient sages stressed that war should only be the last resort, on failure to achieve the end through peaceful means. Chacko observes that the early writers on war were primarily against war from a moral and economic point of view, but turning to it as a last resort was not discredited 17. Further down in history, in the fourth century BC, it was time for great empires to arise. The first great empire perhaps the only empire that encompassed nearly the whole of the subcontinent was the Maurya Empire. It was arguably the handiwork of one man, Kautilya or Chaanakya 18. In his seminal work, Arthsaastra (the
14. C. J. Chacko, Indias Contribution to the Field of International Law Concepts, Recueil des cours, Vol. 93, 1958, pp. 117-219, at p. 132. Chacko refers to Sukraneeti, Book IV, canto 725. 15. Sukraneeti, Book IV, cantos 845-860, cited in Chacko, op. cit., p. 132. Kamandakas work is known as Kamandakaneeti. 16. Ibid., cantos 498-500. 17. Chacko, footnote 14, supra, p. 135. 18. This erudite man from the priestly class practising austere life, decided to avenge his humiliation at the hands of the Nandas, the ruling dynasty in the eastern part of India, identified from among street children a candidate for the first most powerful Indian emperor, elaborately planned and caused the establishment of the Maurya Empire by his cunning and deft statecraft. His thoughts on statecraft are found in his Arthasaastra (the science of prosperity of a State), and Chaanakyaneeti. Wrongly, and mostly inadequately, described as the Indian Machiavelli, Kautilya was in fact a personality before whose titanic stature and great achievements and accomplishments Machiavelli pales into insignificance. Kautilyas theory of State went far beyond the prosecution of foreign policy. It

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science of wealth/prosperity), Kautilya, the redoubtable king-maker and empire-builder, supports the justice of intervention on humanitarian grounds 19. He advises his Prince to attack another if the latter was oppressing his subjects, notes Chacko 20. According to Krishna Rao, another commentator on Kautilya, the Artha Saastra essentially is a study of monarchy in relation to the expansion of dominion of the monarch ; and even the importance of the economic institutions of the Raashtra is measured in terms of their contribution to war. The ideal of Kautilyas monarchy is universal sovereignty through conquest. In Krishna Raos view, The Artha Saastra itself appears as a guide to the would-be conqueror ; and nine out of fifteen Addhikaranas (Parts) of the work directly or indirectly deal with the Chaturaanta Raajan [i.e. the conqueror of the four ends quarters of the world] and the suzerainty which had to be established over the whole world bound by the four quarters. This conception of universal sovereignty was a familiar category in Hindu politics and Kautilya indicates in his Arthasaastra the means of its realisation and consolidation as preparatory to universal righteousness. . . . The Utsaaha [zealous efforts] of the Swaami [the sovereign] is to attain superiority, preeminence and overlordship, and to acquire an all-embracing authority over all kings by achieving all forms and degrees of sovereignty over space and time and thus establish his over-lordship of the earth up to the seas [from the Himalayas to the southern seas]. 21 The objective is to achieve a universal moral order. The State thus represents the universal dharma. But Kautilyas model king, according to Krishna Rao, was a righteous king. He followed the Raaja Dharma (the duty of the king).
dealt with the functions of government, welfare state, details of public administration, rules of inter-individual behaviour, law and punishment, national and international trade and commerce, and so on. 19. Arthsaastra, Book VII, 18, Samasaastri, footnote 31, infra, p. 344 20. Chacko, footnote 14, supra, p. 135. 21. M. V. Krishna Rao, Studies in Kautilya, Kautilya Mandali Publication, Mysore, 1953, pp. 112-114.

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V. S. Mani Which enemy is to be marched against ? A powerful enemy of wicked character or a powerless enemy of righteous character ? The strong enemy of wicked character should be marched against, but when the enemy of virtuous character is attacked, his subjects will help him or die with him. 22

There are references in Arthasaastra to weak States being protected by a strong State against another strong State. Kautilya condemns a fight with a righteous king because thereby he [the invader] incurs the displeasure of his own State (i.e. people). 23 But The army, Kosa [the public treasury] and the resources of the vijigishu [the conqueror] were to be employed only against the wicked and not against the virtuous princes. 24 Chacko formally categorizes the causes of war accepted in ancient India : (1) the desire to securing imperial power and status through aggression, or through the permitted modes of the Ashwamedha or Vajapeya Yagas . . ., (2) self-preservation, (3) maintenance of the balance of power, and (4) prevention of oppression by a monarch of his people. Religion was of course excluded from the list 25, unlike the just war doctrine in Medieval Europe. 2.1.1.3. Means and methods of warfare In the early pre-Vedic period, when the Indian society was organized in tribal communities, war between communities was normal, with no holds barred 26. Yet in many parts of India, the process of war was known to be in five stages : seizure of the enemys cattle, moblization for invasion, bombardment of the enemy fortress, actual fighting, and victory/defeat. The seizure of cattle was an advance warning of an attack, and it gave civilians and non-combatants time to seek shelter, before actual fighting broke out 27.
22. Ibid., p. 104. 23. Ibid., pp. 115-116. 24. Ibid., p. 118. 25. Chacko, footnote 14, supra, pp. 137-138. The ashwamedha or vajapeya sacrifices involve inviting all princes to the sacrificial rites, and asking them symbolically to accept the vassaldom of the emperor (the chakravartin, the paramount emperor, in the Kautilyan scheme of things.) 26. K. R. R. Sastri, footnote 13, pp. 567 ff. 27. Ibid.

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Detailed laws and customs of war began to emerge as the society became more politically, territorially and socially organized during the Vedic period. The Vedas, the Saastras, the epics of Raamaayana and Mahaabharata, and the Upanishads evidence a large body of laws and customs of war as developed and practised in India. Except for some of Kautilyas prescriptions, most other early publicists recorded a general agreement on banning illegitimate methods of warfare. A war for a righteous cause must be righteously conducted, they asserted 28. Many ancient texts such as the Raamaayana, the Mahaabhaarata, the Agni Puraana, and the Manusmriti embody a number of ethical precepts that emerged in ancient India 29. One of the principles on which the ancient Indian laws of war were based was the equality of status of the combatants. Combat must be between two warriors similarly placed. A warrior protected by armour should not fight with another without similar protection. A cavalry soldier should only fight with another cavalry soldier, not with a chariot-driven warrior. He whose weapon was broken, whose bowstring was cut or who lost his chariot should not be struck. The principle of proportionality seems to have existed in respect of use of weapons during the war. Nagendra Singh cites from the Mahaabhaarata an instance in which Arjuna refrained from using the Paasupataastra a hyper-destructive weapon granted to him by Lord Siva, the God of Destruction because the hostilities at that point of time were restricted to conventional weapons. Such use of unconventional weapons was considered not even moral, let alone in conformity with religion or the recognised laws of warfare 30. While deception to mislead the enemy was permitted, fighting with concealed weapons was considered to be treachery and was condemned 31. According to the Mahaabhaarata, it was permissible to fight only during the day, not between the sunset and the dawn.
28. See Jawaharlal Nehru, The Discovery of India, 5th reprint, Signet Press, Calcutta, 1948, p. 108. 29. See generally, K. R. R. Sastri, footnote 13, supra, Nehru, footnote 28, supra, Nagendra Singh, India and International Law, New Delhi, 1969, Chacko, footnote 14, supra. 30. Nagendra Singh, footnote 29, supra, p. 6. 31. Only Kautilya openly disagreed with this rule. See R. Samasastry, trans., Kautilyas Arthasastra, 5th ed., Mysore, India, 1956, Books X to XIV. See a typical statement : He who is possessed of a strong army, who has succeeded in his intrigues, and who has applied remedies against dangers, may undertake an open fight, if he has secured a position favourable to himself ; otherwise a treacherous fight. Sasamasastry, op. cit., p. 394.

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The principle of prohibition of use of weapons causing unnecessary suffering was recognized in ancient India. Poisoned and barbed arrows were forbidden. The main aim of use of weapons was to weaken the enemy and place its warriors hors de combat, and not to massacre the enemy. In Raamaayana, during the war between Raama, the divine hero, and Raavana (the demon king who had abducted and kept prisoner Raamas consort), Raama forbade his brother Lakshmana from using a weapon of war that would have destroyed the entire enemy race, including those who did not bear arms, because such destruction en masse was forbidden by the ancient laws of war even Raavana was fighting an unjust war with an unrighteous objective and was classed as a devildemon himself and hence could be considered outside the then world of civilisation 32. 2.1.1.4. Treatment of non-combatants and prisoners of war There were detailed rules relating to the treatment of persons who were not directly involved in the war or who were captured as prisoners of war. Enemy non-combatants, such as charioteers, mahouts, war musicians and priests, should not be fought with. A panic-stricken foe or an enemy on the run should not be followed in hot pursuit. Guards at the gates should not be killed. A weak or a wounded man should not be killed. He who surrendered or was defeated should not be killed, but should be captured as a prisoner of war and treated with dignity. A wounded prisoner should either be sent home or should have his wounds medically treated. The Indian lore contains an instance related to Alexanders invasion of India in the summer of 326 BC. Alexander, after a hard-fought war, defeated the Indian King Paurava (Poros) and took him prisoner. When he asked him how the latter expected to be treated, the Indian king advised him : Act like a king. So impressed was Alexander by the valour and courage of the Indian king that he not only returned him his kingdom but also granted some more territories, and gained a faithful friend 33.
32. Nagendra Singh, footnote 29, supra, p. 5, citing Raamaayana, Yuddhakanda, sloka 39. This example is clearly relevant in the context of contemporary debates on nuclear weapons. 33. Nagendra Singh, op. cit., pp. 7-8.

Humanitarian Intervention Today 2.1.1.5. Treatment of civilians and civilian objects

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The ancient Indian texts lay great emphasis on the protection of civilians and civilian objects from the adverse impact of warfare. A peaceful citizen walking along a road, or engaged in eating, or who has hidden himself, and all civilians found near the battle theatre should not be harmed. Fruits, flower gardens, temples and other places of public worship should be left unmolested. Even Kautilya, who otherwise so characteristically deviated from the majority of texts with regard to the conduct of war, emphasized the need to protect civilians and their way of life. His wise counsel, however, chiefly stemmed from the rationale of pragmatism or utilitarianism, rather than idealism : When a fort can be captured by other means, no attempt should be made to set fire to it ; for fire cannot be trusted ; it not only offends gods, but also destroys the people, grains, cattle, gold, raw materials and the like. Also the acquisition of a fort with its property all destroyed is a source of further loss. 34 And again, The territory that has been conquered should be kept so peacefully that it might sleep without fear. By destruction of trade, agricultural produce, and standing crops, by causing the people to run away, and by slaying their leaders in secret, the country will be denuded of its people. 35 As Nehru notes, it was a common practice in ancient times for the warring parties to enter into formal agreements with the headmen of self-governing village communities, undertaking not to harm the harvest in any way and to give compensation for any injury unintentionally caused to the land 36. Wars were usually fought on plains, away from inhabited and cultivated areas. 2.1.2. Buddhism The impact of Buddhism on the contemporary life was so great that its teachings even moved one of the mightiest emperors from
34. Samasastry, footnote 31, supra, Book XIII, Chap. IV, p. 434. 35. Ibid., p. 433. 36. Nehru, footnote 28, supra, p. 105.

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the path of violence. It converted Emperor Asoka (273-232 BC), the greatest king of his time, to the faith of non-violence. In Nehrus words : Unique among the victorious monarchs and captains in history, he [Asoka] decided to abandon warfare in the full tide of victory. 37 H. G. Wells, the celebrated British historian, has remarked : Amidst the tens of thousands of names of monarchs that crowd the columns of history . . . the name of Asoka shines, and shines almost alone, a star. But Asoka remains an exception to this day, although his conduct offered the most powerful challenge to the moral legitimacy of the many opportunistic rules of warfare propounded by Kautilya, his grandfathers stern mentor. In terms of humanitarian law, Asoka represents the earliest manifestation of the principle of non-use of force in international relations, now enshrined in Article 2, paragraph 4, of the United Nations Charter 38.
37. Ibid. 38. The 13th Asokan Rock Edict said the following : Beloved-of-the-Gods [devanaam priya], King Piyadasi [Priyadarsi = handsome looking, charming] conquered the Kalingas eight years after his coronation. One hundred and fifty thousand were deported, one hundred thousand were killed and many more died (from other causes). After the Kalingas had been conquered, Beloved-of-the-Gods came to feel a strong inclination towards the Dhamma [Buddhist Dharma]. Now Beloved-of-theGods feels deep remorse for having conquered the Kalingas. Indeed, Beloved-of-the-Gods is deeply pained by the killing, dying and deportation that take place when an unconquered country is conquered. But Beloved-of-the-Gods is pained even more by this that Brahmans, ascetics, and householders of different religions who live in those countries, and who are respectful to superiors, to mother and father, to elders, and who behave properly and have strong loyalty towards friends, acquaintances, companions, relatives, servants and employees that they are injured, killed or separated from their loved ones. Even those who are not affected (by all this) suffer when they see friends, acquaintances, companions and relatives affected. These misfortunes befall all (as a result of war), and this pains Beloved-of-the-Gods. There is no country, except among the Greeks, where these two groups, Brahmans and ascetics, are not found, and there is no country where people are not devoted to one another religion. Therefore the killing, death or deportation of a hundredth, or even a thousandth part of those who died during the conquest of Kalinga now pains Beloved-of-the-Gods. Now Beloved-of-the-Gods thinks that even those who do wrong should be forgiven where forgiveness is possible. Even the forest people, who live in Beloved-of-the-Gods domain, are entreated and reasoned with to act properly. They are told that despite his remorse Beloved-of-the-Gods has the power to punish them if necessary, so that they should be ashamed of their wrong and not be killed. Truly, Beloved-of-the-Gods desires non-injury, restraint and impartiality to all beings, even where wrong has been done. Now it is conquest by Dhamma that Beloved-of-the-Gods considers to be

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That war was immoral in any circumstances and that even a defensive war had no claim to moral justification were well recognized canons in the ancient Buddhism as it evolved in India. Hirata Seiko narrates a story retold in some Buddhist scriptures 39 involving Buddha himself, who decided not to rescue his Saakya clan from certain destruction. According to it, Virudhaka, the king of Kosala, the powerful country neighbouring the Saakya, of Kapilavastu, was insulted by the Saakyas, and he sent a powerful army to destroy the city of Kapilavastu. The armys progress was stopped as it came upon the Buddha sitting under a dead tree. According to an ancient custom, the army retreated home as it was forbidden to cross a Holy Mans path on a military campaign. This happened two more times. On the fourth time, the word of impending invasion reached Buddha, he decided not to intervene, and the entire Saakya clan (to which the Buddha belonged) was destroyed. He knew that the law of karma must take its own course 40. In Seikos view, this story
the best conquest. And it (conquest by Dhamma) has been won here, on the borders, even six hundred yojanas [1 yojana = 40 miles approx.] away, where the Greek King Antiochos rules, beyond there where the four kings named Ptolemy, Antigonos, Magas and Alexander rule, likewise in the south among the Cholas, the Pandyas, and as far as Taraparni. Here in the kings domain among the Greeks, the Kambojas the Nabhakas, the Nabhapamkits, the Bojas, the Pitinikas, the Andhras and the Palida, everywhere people are following Beloved-of-the-Gods instructions in Dhamma. Even where Beloved-of-the-Gods envoys have not been, these people too, having heard of the practice of Dhamma and the ordinances and instructions in Dhamma given Beloved-of-the-Gods, are following it and will continue to do so. This conquest has been won everywhere, and it gives great joy . . . the joy which only conquest by Dhamma can give. But even his joy is of little consequence. Beloved-of-the-Gods considers the great fruit to be experienced in the next world to be more important. I have had this Dhamma edict written so that my sons and great-grandsons may not consider making new conquests, or that if military conquests are made, that they be done with forbearance and light punishment, or better still, that they consider making conquest by Dhamma only, for that bears fruit in this world and the next. May all their intense devotion be given to this which has a result in this world and the next. Asokas Rock Edict No. 13 in English by Ven. S. Dhammika, Buddhism in India : the Edicts of King Asoka, DharmaNet ed., 1994. Dhammika acknowledges a great debt to Amulyachandra Sen and two others for the translation. 39. References are to Elottaraagama Sootra, Vaidooryaraaja Sootra and Arthavargeeya Sootra. See Hirata Seiko, Zen Buddhist Attitudes to War, Thomas Kitchner trans, p. 3, http://www.nanzan-u.ac.jp/SHUBUNKEN/publications/nlarc/pdf/Rude%20awakenings/Hirata.pdf. 40. In return, however, the law of karma caught up with Kosala, when a severe storm and lightning struck the country, killing several people including Virudhaka. Seiko, op. cit., p. 4.

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V. S. Mani provides a good illustration of the absolute rejection of war in ancient Indian Buddhism. The early Buddhist posture of nonviolence was based not on humanistic ideas about the value of life, but on a religious understanding of the workings of karma. The Buddhas ultimate refusal to act for the sake of clan and country was rooted in his belief that the Buddhist dharma transcends ethnic and national concerns. 41

By the time Buddhism expanded to China in the fourth century AD, it developed an interpretation based on Taoist and Confucian thoughts. Thus was established Chan (Japanese Zen) Buddhism in fifth-sixth century, a synthesis of Taoist, Confucian, and Buddhist thought 42. However, over a period of time, Buddhists came to be persecuted. Between 843 and 845 under Emperor Wu-tsung, about 40,000 Buddhist temples were closed, 260,000 monks and nuns returned to lay life and vast temple properties were confiscated. The doctrinal restoration of Buddhism was only possible with the recognition of the identity of the Buddhist law with the imperial law. Soon the Buddhadharma became the jewel (i.e., the sovereign), while the imperial law is the manifestation (i.e. subject) of this secret jewel 43. Thus Buddhism began to be bound to the earths laws. Soon, in some parts of China, a practice developed in Chinese temples : on the first and the fifteenth of every month prayers were held for the health and long life of the emperor, and whenever a new head priest assumed office, a special prayer was held for the peace of the nation 44. When the Sung dynasty was invaded and forced to relocate south of the Yangtze, there was considerable debate among the Buddhist orders whether its disciple officials should join armed resistance or whether it was better to sue for peace. Chan master Ta-hui Tsung kao argued in favour of taking up arms even if only for the honour of the dynasty. Finally, conciliators won the day, and Ta-hui and followers were exiled to far-off regions 45. However, slowly, Ta-huis arguments found the fancy of the later Zen masters. They travelled to Japan when Wu-hsuch Tsu-yuan
41. 42. 43. 44. 45. Seiko, op. cit. Seiko, op. cit., p. 5. Seiko, op. cit., p. 7. Ibid. Ibid.

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(1226-1286) was invited to Japan in 1279 by the Kamakura shognate. As the Mongols invaded Japan for the second time in 1281, Wu-hsuch inscribed on a scroll the phrase Dispel all illusion, and advised military defence against invasion. This is seen as a justification for defending the Buddhas realm (by then identical with the emperors realm) 46. Thus arose the Zen philosophy for the samurais : Death is the way of the samurai. It is in the law of the sovereign that the law of the Buddha must be found. Fighting for its honour ensures eternal bliss. Meiji reforms further accentuated this process of identification of the Zen Buddhism and the Chrysanthemum Empire. Zen simply replaced the Buddha with the Emperor and held that the service to the emperor was service to Buddha. The original Mahayana Buddhism largely replaced Vishnu with Buddha ; now under Zen, Buddha was replaced by the emperor as his representative on earth. Thus the wars that the Japanese fought in the twentieth century were just wars. What a swing of the pendulum from the Buddha-Asoka concept of non-violent dharma to the violent just war on behalf of the Buddha-incarnate emperor ! 2.1.3. Jainism Although Jainism was claimed to have been prevalent in India long before Buddhism, it was Mahaavira who formulated and gave effect to most of the current Jain precepts. It is said that Asoka was himself a Jain. Evidently, pre-Mahaavira Jains did participate in wars. Vardhmaana Mahaavira (599-527 BC), the most famous of the Jain preceptors, was the 24th Tirthankar of the Order of Jain Preceptors. Lord Mahaaviras preachings were orally compiled into many texts (number of scriptures) by his disciples. These scriptures are known as Jain gamas or gama Sutras. The gam Sutras teach great reverence for all forms of life, strict codes of vegetarianism, asceticism, compassion, non-violence, and opposition to war. The scriptures were not documented in any form but were memorized by ascetics and passed on by oral tradition to future generations of ascetics. Jainism is a religion that advocates that it is possible for one to become a Jin, i.e. a person who has attained liberation from birth,
46. Ibid., p. 8.

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death and suffering 47. But it does not believe in God in the sense of a Creator, Preserver and Destroyer. The path to become a Jin is by following the right faith, right knowledge and right conduct. The tenet of right conduct for Jains encompasses five great vows : Ahimsa (non-violence, compassion, not to cause harm to any living beings), Satya (truthfulness, to speak only harmless truth), Asteya (non-stealing, not to take anything not properly given), Brahmacharya (chastity, not to indulge in sensual pleasure), and Aparigraha (non-possession, non-attachment, complete detachment from people, places, and all material things). Ahimsa (non-violence) has a central place in Jainist philosophy. It has both positive and negative contents. It means not only abstinence from any form of violence, but also charity and sympathy to all living beings. Use of force, even for self-defence is forbidden. The basic prescription of Jainism is ahims paramo dharmah (non-violence is the supreme duty). Dharma relates to the true nature of a man Compassion is the true nature of a human being. The Jains also believe in the dictum Parasparopagraho jeevanam, i.e., life is for rendering service to one another 48. The supreme ideals of the Jain religion are non-violence (Ahims), equal kindness, reverence for all forms of life, nonpossessiveness, and non-absolutism (Anekantavada = multiplicity of views) in speech, thought, and action. Above all it is a religion of love and compassion to all living beings. 49 Anekaantavaada recognizes the manifestation of truth in diversity of views, each view representing a part of the truth. (One recalls Lord Actons saying : For every truth, there is a balancing truth.) A recognition of this leads to tolerance and non-violence in thought and speech, and thus in action. It would appear that the post-Mahaavira Jainism remained steadfast on its touchstone of non-violence and withstood the test of time. In a sense, both the Buddhism as it evolved in India and Jainism embodied many of the basic tenets of Vedic Hinduism, except for their disavowal of theism.
47. http://www.jcnc.org/Jainism/intro_Jainism.htm#_Toc22698619. 48. Ibid. 49. Ibid.

Humanitarian Intervention Today 2.1.4. Ancient Chinese traditions

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The ancient Chinese traditions covered here encompass Confucianism and the thoughts of Sun Tzu. 2.1.4.1. Confucianism Confucius is regarded as one of the most famous of political philosophers of the Orient. He is believed to have lived in China in the sixth-fifth century BC (born 550 or 551 BC). According to him, militarism was contrary to the principle of benevolent government. In his book on Spring and Autumn, he recorded some 400 wars within a period of some 242 years and condemned all of them, since war is contrary to humanity. He found absolutely no justification for any of these wars 50. His Book of Poetry contains a number of poems depicting the calamity of broken homes, the sorrow of widows, and the crying of mothers to show the human waste of war. Following the same vein, writers like Mo Ti and Mo Tzu (479-381 BC) denounced the crime and futility of war. Mo Tzu pointed to the death of innumerable people and animals due to wars. Mo Ti denounced aggressive war : When murder is committed in attacking a country it is not considered wrong ; it is applauded and called righteous. Can this be considered as knowing what is righteous and what is unrighteous ? When one man kills another man it is considered unrighteous and he is punished by death. Then by the same sign when a man kills ten others, his crime will be ten times greater, and should be punished ten times. . . . [I]f a small crime is considered crime, but a big crime such as attacking another country is applauded as a righteous act, can this be said to be knowing the difference between righteous and unrighteous ? 51 2.1.4.1.1. Limited justifications for war Confucius and his disciples appear to have recognized two justifications for war : one self-defence, and the other use of force against tyranny and oppression. In both cases, it was a matter of duty on the
50. Leonard Shihlien Hsu, Political Philosophy of Confucianism, London, George Routledge & Sons, 1932, p. 116. 51. Samuel B. Griffith, Sun Tzu : The Art of War, trans. with Introduction, Clarendon, Oxford, 1963, pp. 21-22.

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part of a ruler to use force. In the Book of Change Confucius advised the wise rulers to provide strong forts in order to protect the country from foreign aggression. This apparently meant that Confucius condoned going to war in self-defence. According to Confucius three things were essential in governance of a country : sufficient food for the people, sufficient military equipment and the confidence of the people in government 52. Confucius also advocated the use of the military when there was tyranny in another country, as the people under tyranny should be liberated and led to goodness 53. Hsu, a disciple of Confucius, explained thus : When a people are suffering from tyranny, naturally they will hate their own government and they will be inclined toward some other benevolent government, should there be any. When their wish for the other benevolent government is well crystallized, the will of Heaven is for the latter as against their own government. Then this benevolent government is duty bound to overthrow the tyrannical government. In such a case force may be used if necessary. But, after the invasion, the new territory could not be annexed without the consent of the people except where both the former tyranny and its people were bad, in which case, the conqueror had the duty to reform the people, by annexing the territory, even without the consent of the people 54. Yet as regards the means and methods of war, Confucian thought came close to the ancient Indian thought. Confuciuss king would never commit an act of unrighteousness or put to death one innocent person in order to gain the control of an Empire. So no war was permissible if killing of even one innocent person was involved 55. Until about 500 BC, war in China was in a sense ritualistic. Seasonal campaigns were conducted in accordance with a code generally accepted. Hostilities were prohibited during the months devoted to planting and harvesting. 56
52. Hsu, footnote 50, supra, p. 116. 53. Ibid., p. 117. 54. Ibid., p. 120. Hsun Tzu, a Confucian of 4th-3rd century BC, is reported to have approved use of armies for the purpose of stopping tyranny and getting rid of injury. See Griffith, footnote 51, supra, at p. 16. 55. Hsu, footnote 50, supra, p. 118. 56. Griffith, footnote 51, supra, p. 30.

Humanitarian Intervention Today 2.1.4.2. Sun Tzu

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Taoism in China flourished as a philosophy of life, of society and of governance. The Tao simply means the way. It is a wholesome way of looking at things, in total harmony with the surroundings ; it is a cosmological outlook of life. Thus it results in humaneness and justice. As Du Mu (803-852 AD), a commentator of Sun Tzu, 544496 BC), the master Chinese general, says : The Way means humaneness and justice. In ancient times a famous minister of state asked a political philosopher about military matters. The philosopher said, Humaneness and justice are the means by which to govern properly. When government is carried out properly, people feel close to the leadership and think little of dying for it. 57 Sun Tzu, probably one of the first philosophers to conceptualize war as the Way of life, takes war to be a serious business, as it involves total victory over the enemy. Therefore he argues that use of armed force must be the last resort. It should be applied so that victory was gained : (1) in the shortest possible time ; (2) at the least possible cost in lives and effort ; and with infliction on the enemy of the fewest possible casualties 58. Tzu lays down these conditions in the interests of efficiency of prosecution of military campaign and ensuring a quick and devastating victory over the enemy. To him, thus, waging a war not as a last resort would not be a just war, besides considerations of pragmatism and statesmanship. 2.1.5. Islamic traditions The very word Islam implies peace. The word peace and its derivatives are cited in more than one hundred verses of the Quran, while the word war and its derivative verb are mentioned in only six verses. 59 While the term Jihaad has the broad connotation of the allround struggle (both external as well as within ones own mind)
57. Thomas Cleary, trans., The Art of War : Sun Tzu, Shambhala South Asian Editions, Boston, Mass., 1999, p. 13. 58. Ibid., p. 38. 59. S. Mahmassani, The Principles of International Law in the Light of Islamic Doctrine, Recueil des cours, Vol. 117, 1966, pp. 205-328, at p. 242.

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against evil and injustice and for righteousness, it has also come to mean as just war to defend freedom of religion and social order, and to prevent aggression and injustice. It has always kept this character of a protective, defensive and preventive war, and has never been considered as an aggressive measure. Jihaad, from the verb jahaada, etymologically means extreme strife and struggle. In legal terminology, it is defined as the struggle for the cause of God by all means, including speech, life and property. 60 According to Mahmassani, In theory, war is just and permissible only on grounds of extreme necessity and subject to strict conditions. The grounds justifying such war may be grouped under the following headings, namely, protection of the freedom of religion, defence against aggression, prevention of injustice, and protection of social order. 61 War in defence of justice and in prevention of injustice is not only permissible when aggression or injustice is committed against the Muslim State, but also if it be non-Muslim. The Prophet is reported to have said : Whoever from among you sees a reprehensible action, he has to change it by his hand ; if he cannot, he has to do so by his tongue ; if he cannot, he has to do so by his heart, this being the weakest of faith. Thus all these forms of response are jihaad. The last one includes cases such as rebellion, highway robbery and apostasy (abjuration of Islam) 62. Oleh Ustaz Muhammad Hanif Hassan draws analogy, rather elaborately, from the European/Christian just war theories, to show that Islam, too, recognizes similar components of a just war 63. In
60. Ibid., pp. 279-280. 61. Ibid., p. 282. 62. Ibid., p. 285. 63. Oleh Ustaz Muhammad Hanif Hassan, Jihad and the Just War Theory : A Comparative Overview, www.pergas.org.sg/RisalahWebOct04/fiqh.html. Pergas, Fiqh (Singapore), October-December 2004. The portrayal of the Islamic concept of just war contained herein heavily relies on Hassans interpretation of the Islamic Scriptures.

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his view, Islam, like other religions, stresses morality to be central to Islamic concepts. Nothing, including war, can be detached from it, he asserts. Morality is one of the divinely ordained objectives of Prophet Muhammads mission on earth. Hassan cites Al-Hakim for the Prophets statement : I was sent [to this world] to perfect the morals. 64 In war, too, morality is an important consideration. As Hassan remarks, Muslims are bound by a certain code of conduct in war. Hence the importance of the just war theory. The argument runs as follows : In Islam, life is sacred and to be respected. Its preservation requires security. Islam advocates peace as the fundamental principle of life and takes all the necessary measures to secure and maintain it. However, it acknowledges that human society is not composed of angels who cannot and do not commit any wrong. There are individuals, as well as groups, who are violent and aggressive, and do not let others live in peace and security. They transgress all bounds of morality and ethics, and encroach upon other peoples rights without just cause. Such individuals and societies have to be kept under restraint so that other individuals and societies may live in peace. When there are such people who will not let others live in peace, fighting not only becomes justifiable but obligatory on Muslims. This is how war figures in Islam to restore conditions of peace and order 65. Thus, in this sense, war in Islam is much closer to the Just War Theory 66. 2.1.5.1. Elements of just war Closely following the pattern of the Western analysis of the Just War Doctrine, Hassan looks at the Islamic Scriptures to evolve an Islamic analysis of the doctrine. Thus he examines them in terms of the elements of Just War just cause, right intention, legitimate
64. Ibid. In one of the verses in the Holy Koran, says Hassan, Allah describes Prophet Muhammad as a person with the best morals. And verily, you (O, Muhammad) are on an exalted (standard of) character (morals) . . . (The Holy Quran, 68 : 4). Thus, Muslims are expected always to strive to emulate the Prophet, in their application of principles of morality to all aspects of life : individual, family, social, economic and political. Muslims are required to maintain good moral conduct in all aspects of their life. The Prophet said : The best of you are those who have the best manners/morals. (Narrated by Al-Bukhari and Muslim). Hassan, op. cit. 65. Afzalur Rahman, Muhammad as a Military Leader, The Muslim Schools Trust, London, 1980, p. 15, cited in Hassan, op. cit. 66. Hassan, op. cit.

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authority, proportionality of use of force, rule of discrimination, probability of success, and the rule of last resort. 2.1.5.1.1. Just cause Closely following the methodology of just war analysis in the Western literature, Hassan looks for similar elements in Islam that constitute an Islamic just war theory. He cites the following verses of the Holy Quran whereby war is justified, in terms of its cause : And fight with them until there is no persecution, and religion should be only for Allah, but if they desist, then there should be no hostility except against the oppressors. 67 And what reason have you that you should not fight in the way of Allah and of the weak among the men and the women and the children, [of] those who say : Our Lord ! cause us to go forth from this town, whose people are oppressors, and give us from You a guardian and give us from You a helper. 68 The obligation of the Muslims to protect and defend against oppression and persecution encompasses not only fellow Muslims, but all fellow human beings 69, and all places of worship, be they mosques, monasteries, churches or synagogues. What then is oppression that calls for justifiable use of force ?
67. The Holy Quran, 2 : 193, quoted in Hassan, op. cit. 68. The Holy Quran, 4 : 75, quoted ibid. Hassan quotes Louay Safis explanation of both verses : It should be made clear here that oppressiveness of a particular regime is not to be determined by comparing the values and conduct of that regime with Islamic norms and standards, but rather by its toleration of the Muslim interaction with its subjects and the communication of Islam to the general public. Corruption and mismanagement should not be considered, therefore, the criteria that classify a particular regime as oppressive, deserving, thus, to be fought, because, it may be recalled, Muslims are commanded to invite mankind to Islam through friendly means and effect social and political change using the peaceful methods of education and moral reformation. Only when their peaceful efforts are frustrated and met with violence, are they justified to use violence to subdue the aggressive party. . . . [T]he Prophet did not resort to war against the Pagan Arabs until they persecuted the Muslims and violated their lives and properties ; nor did he fight the Jews of Madinah until they betrayed the Muslims and conspired with their enemies. Similarly, the Prophet declared war against Byzantium and its Arab allies only when they killed the messengers and missionaries who were sent to peacefully summon people to Islam and introduce to them the new revelation of God. 69. And We have not sent you but as a mercy to the worlds. The Holy Quran, 21 : 107, cited by Hassan, op. cit.

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Mere acts of discrimination and injustice do not justify Muslims going to war or taking up armed rebellion against a state. The offending act must be severe to the extent that it involves violence against people and property, and all peaceful means of resolving the situation had been exhausted. 70 Whoever then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and be careful (of your duty) to Allah and know that Allah is with those who guard (against evil). 71 Thus use of force may only be justified in response to aggression. Permission (to fight) is given to those upon whom war is made because they are oppressed, and most surely Allah is well able to assist them ; Those who have been expelled from their homes without a just cause except that they say : Our Lord is Allah. And had there not been Allahs repelling some people by others, certainly there would have been pulled down cloisters and churches and synagogues and mosques in which Allahs name is much remembered ; and surely Allah will help him who helps His cause ; most surely Allah is Strong, Mighty. 72 A justifiable cause of war is self-defence and response to oppression 73,
70. Hassan, op. cit. Hassan cites in support Abdul Hamid A. Abu Sulayman who wrote : Jihad, as the duty to pursue what is true and right, includes protection of the human rights of life, belief, honour, family and education. The highest purpose of jihad is to change ones own life so that one will pursue these rights in submission to Allah. The second highest purpose is to defend the rights of justice for everyone, always, everywhere ; and the substance of justice is human rights. Abdul Hamid A. Abu Sulayman, Towards an Islamic Theory of International Relations : New Directions for Methodology and Thought, The International Institute of Islamic Thought, Hendon, Virginia, 1993, p. 24. 71. The Holy Quran, 2 : 194, in Hassan, op. cit. 72. The Holy Quran, 22 : 39, 40, Hassan, op. cit. This is amongst the first verses that Allah revealed allowing Muslims jihad with arms, notes Hassan. It was in response to the more than 10 years of persecution committed by people of Mecca on the followers of the Prophet, during which the latter were commanded to persevere patiently and maintain peaceful means of propagating Islam. They were prohibited from retaliating to the physical abuse and violence committed against them. 73. However, Hassan notes some of the verses in the Holy Quran, that are misused to justify use force against non-Muslims due to their infidelity or faith or to ensure Islams dominance over other religions. These are the following : So when the sacred months have passed, then slay the unbelievers wherever you find them, and take them captives and besiege them and lie

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although coexistence of Muslims with non-Muslims is the general rule 74.

in wait for them in every ambush, then if they repent and keep up prayer and pay the zakat, leave their way free to them ; surely Allah is Forgiving, Merciful. (The Holy Quran, 9 : 5.) Fight them, Allah will punish them by your hands and bring them to disgrace, and assist you against them and heal the hearts of a believing people. (The Holy Quran, 9 : 14.) Fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Messenger have prohibited, nor do they follow the religion of truth, out of those who have been given the Book, until they pay the tax in acknowledgment of superiority and they are in a state of subjection. (The Holy Quran, 9 : 29.) O Prophet ! Strive hard against the unbelievers and the hypocrites and be unyielding to them ; their abode is hell, and evil is the destination. (The Holy Quran, 9 : 73.) O you who believe ! Fight those of the unbelievers who are near to you and let them find in you firmness ; and know that Allah is with those who guard (against evil). (The Holy Quran, 9 : 123.) Hassan concedes that A faction of Muslims takes these verses as the final instructions on jihad because they were revealed near the end of the Prophets life, hence abrogating all other verses discussed earlier. However, the majority of Muslim scholars reject this view. For this proposition Hassan refers to Wahbah Az-Zuhaily, Al-Tafsir Al-Munir Fi Al- Aqidah wa Al-Shariah wa AlManhaj (Illuminating Interpretation Regarding Belief, Law and Approach), Dar Al-Fikr, Damascus, 1991, Vol. 10, pp. 110, 175-178. According to Hassan, The prevalent opinion is that these verses cannot be interpreted independently of the others. All the verses on jihad in Islam need to be studied together to derive the cause of war in Islam. Furthermore, there is no strong evidence that the above verses were revealed to abrogate the others, as Prophet Muhammad would have explained as such otherwise. Hassan draws our attention to the historical background to these five verses : all these 5 verses were revealed around the same time, during a state of war between the Prophet and the various Arab tribes, in particular the Quraiysh people of Mecca. The words used in the verses were direct and firm because of the prolonged persecution against Muslims, which had begun from the Meccan period. The hostilities remained even after the Muslims migrated to Medina in search of peace. Despite entering into various treaties with the Muslims in Medina, those tribes treacherously violated their part time and again. In that late stage in the Prophets mission, it became clear that peaceful relations with those tribes was impossible, hence the instruction in that chapter to denounce such treaties and wage war. The most appropriate interpretation of the above verses, in Hassans view, is that they refer to non-Muslims who have been in a prolonged state of war against Muslims through unprovoked aggression and violence. That explains why the verses pertaining to this incident seem discordant with those mentioned in other parts of the Quran, as discussed earlier. Some of the verses of chapter 9 of the Holy Quran referred specifically to the Arab Pagans of that time, not to non-Muslims of all time (Hassan cites the support of Az-Zuhaily, et al., cited above, pp. 108-109). Hassan, op. cit. 74. Hassan refers to two statements from the Quran to support this general rule :

Humanitarian Intervention Today 2.1.5.1.2. Right intention

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An essential element of a just war is the right intention. The intention of use of force to remove oppression, not to respond to any feeling of hatred against the initial wrongdoer. Hassan refers to the following verse in the Holy Quran in support : O you who believe ! Stand for Allah as bearers of witness with justice, and let not hatred of a people incite you to act inequitably ; act equitably, that is nearer to piety, and be careful of (your duty to) Allah ; surely Allah is Aware of what you do. 75 The significance of the above statement, according to Hassan, is that Islam prohibits any act based on malice, hatred and envy, be it in social life or war 76. As Hassan points out, Islam teaches forgiveAllah does not forbid you respecting those who have not made war against you on account of (your) religion, and have not driven you forth from your homes, that you show them kindness and deal with them justly ; surely Allah loves the doers of justice. Allah only forbids you from respecting those who waged war upon you on account of (your) religion, and drove you forth from your homes and backed up (others) in your expulsion, that you make friends with them, and whoever makes friends with them, these are the unjust. (The Holy Quran, 60 : 8-9.) let not the hatred of a people because they hindered you from the Sacred Masjid [Mosque] incite you to exceed the limits, and help one another in goodness and piety, and do not help one another in sin and aggression ; and be careful of (your duty to) Allah ; surely Allah is severe in requiting (evil). (The Holy Quran, 5 : 2.) Hassan, op. cit. 75. The Holy Quran, 5 : 8, cited in Hassan, op. cit. Hassan quotes the Prophet : Do not envy one another ; do not inflate prices by overbidding against one another ; do not hate one another ; do not harbour malice against one another ; and do not enter into commercial transaction when others have entered into that (transaction) ; but be you, O slaves of Allah, as brothers. A Muslim is the brother of another Muslim ; he neither oppresses him nor does he look down upon him, nor does he humiliate him. Piety is here (and he pointed to his chest three times). It is enough evil for a Muslim to hold his brother Muslim in contempt. All things of a Muslim are inviolable for his brother-in-faith : his blood, his property and his honour. 76. On self-aggrandizement, Hassan quotes the Prophet : The first person to be judged on Judgement Day is the shahid (he who died in Allahs cause). He will be brought forward and shown the favours bestowed upon him, and he will acknowledge them. Allah will then say, What have you done ? He replies, I fought in Your cause until I died (shahid). Allah will say, You lie. You fought so that you will be said to be brave and you have said so. He will then be dragged and thrown into Hell. (Narrated by Muslim.)

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ness, not vengeance. Even in a case of murder, the victims family members are encouraged to forgive the murderer. 77 Thus, the intention of resorting to war must not serve other than the cause permitted in Islam. 2.1.5.1.3. Legitimate Authority According to Hassan, Islam considers war as an issue of public domain to be decided only by the Ulil Amri, persons of appropriate authority 78. There is no private war recognized in Islam. As Hassan explains, No individual or groups are allowed to wage war or jihad in the name of Islam or for the community. War will always affect the public at large, thus the principle of consultation taught by Islam requires proper mandate from the people. The best people who are appropriate to hold such mandate are those who are mandated to be the government. Only in a situation where the government has collapsed, are Muslims allowed to organize themselves collectively to fights against any aggression as what had happened in Afghanistan during the invasion by Soviet Union. 79 Any Muslim state, which is a member of the United Nations, says Hassan, is by default, in a peaceful agreement with all other members of the United Nations by way of the United Nations Charter. This is further strengthened if such countries have diplomatic ties. 80 Thus, Islam does not permit Muslims to make unilateral decisions in terminating a peaceful treaty, even if the other party is not strictly observing the terms. 81

77. Hassan, op. cit. 78. Wahbah Az-Zuhaily, Al-Fiqh Al-Islami Wa Adillatuhu, Dar Al-Fikr, Damascus, 1991, Vol. 6, pp. 419 ff., Ibn Qudamah, Al-Mughni, Dar Al-Fikr, Beirut, 1984, Vol. 10, pp. 368-367, Al-Mawardi, Al-Ahkam As-Sultaniyah, Dar Al-Kutub Al-Ilmiyah, Beirut, 1982, p. 35 : all cited by Hassan, op. cit. 79. Hassan, op. cit. 80. Sheikh Faisal Mawlawi, Al-Mafahim Al-Asasiah Li Ad-Dawah AlIslamiah Fi Bilad Al-Gharb, available at www.mawlawi.net (10 February 2004), cited by Hassan, op. cit. Rahman, Muhammad as a Military Leader, footnote 65, supra, p. 285. See fatwa War Ethics in Islam. Available at http:// www.islam online.net /fatwa/English /Fatwa Display. asp? 81. Hassan quotes the Quran : O you who believe ! Fulfill (your) obligations (contracts). The Holy Quran, 5 : 1, Hassan, op. cit.

Humanitarian Intervention Today 2.1.5.1.4. The rule of proportionality

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In war, Muslims are required to comply with the rule of proportionality, notes Hassan : And fight in the way of Allah those who fight you, and do not exceed the limits, surely Allah does not love those who exceed the limits. 82 whoever then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and be careful (of your duty) to Allah and know that Allah is with those who guard (against evil) 83. And if you take your turn, then retaliate with the like of that with which you were afflicted ; but if you are patient, it will certainly be best for those who are patient. 84 And the recompense of evil is punishment like it, but whoever forgives and amends, he shall have his reward from Allah ; surely He does not love the unjust. 85 And we ordained therein for them Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal. But if anyone remits the retaliation by way of charity, it shall be for him an expiation . . . 86 O you who believe ! Retaliation is prescribed for you in the matter of the slain, the free for the free, and the slave for the slave, and the female for the female, but if any remission is made to any one by his (aggrieved) brother, then prosecution (for the blood wit) should be made according to usage, and payment should be made to him in a good manner ; this is an alleviation from your Lord and a mercy ; so whoever exceeds the limit after this he shall have a painful chastisement. 87 These are the limits ordained by Allah ; so do not transgress them, if any do transgress the limits ordained by Allah, such persons do wrong (to themselves as well as others). 88
82. 83. 84. 85. 86. 87. 88. Holy The Holy Quran, 2 : 190, quoted in Hassan, op. cit. The Holy Quran, 2 : 194, quoted in Hassan, op. cit. The Holy Quran, 16 : 126, quoted in Hassan, op. cit. The Holy Quran, 42 : 40, quoted in Hassan, op. cit. The Holy Quran, 5 : 45, quoted in Hassan, op. cit. The Holy Quran, 2 : 178, quoted in Hassan, op. cit. The Holy Quran, 2 : 229. Do not commit excesses in your religion. The Quran, 4 : 171, 5 : 77, quoted in Hassan, op. cit. Similarly, Prophet

60 Hassan points out that :

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The rule of proportionality is also invoked in some of the rulings pertaining to the Islamic code of conduct in war, which prohibits Muslims from [committing] certain acts such as, unnecessarily cutting off trees or destroying buildings, animals and places of worship for Muslims and non-Muslims. 89 Based on this principle, argues Hassan, contemporary Muslim scholars recognize the prohibition of use of weapons of mass destruction 90. In principle [observes Hassan], Muslims are not allowed to go beyond what is required and needed to repel aggression or more than what is inflicted on them. The basic principle of war in Islam is to use force only for removing the aggression of the enemy and also to protect the weak and the oppressed. Force is not intended to kill or destroy the enemy but to weaken, frighten or discourage him so that he might give up his aggression and hostility. 91 2.1.5.1.5. The rule of discrimination In waging war, Muslims are also required to adhere strictly to the Islamic code of conduct in war as taught by the Prophet. This defines the rule of discrimination, says Hassan. He then quotes the Prophet : Do not kill the elderly, sick, young children or women and do not behave excessively, accumulating the spoils of war. Be kind, for Allah loves those who are kind. (Retold by Abu Daud.)

Muhammad said : Distance yourselves from being extreme in religion. (Narrated by Ahmad, Ibn Khuzaimah, An-Nasaii, Ibn Majah and Al-Hakim.) Indeed that which destroyed the people before you is the extremist stance in practising religion. (Cited by Ahmad, Ibn Khuzaimah, An-Nasaii, Ibn Majah and Al-Hakim.) Disaster on those who are extreme. (Cited by Muslim, Abu Daud and Ahmad), Hassan, op. cit. 89. See fatwa against Destroying Places of Worship in War Times. Available at http://www.islam-online.net/fatwa/english/FatwaDisplay.asp?hFatwaID= 101 034 (10 February 2004). See also fatwa Islam and The Protection of Non-Muslims Places of Worship. Available at http: //www.islam-online.net/fatwa/english/ FatwaDisplay.asp?hFatwaID=101034 (10 February 2004), cited in Hassan, op. cit. 90. See fatwa on Using WMD in War : Islamic View, citd in Hassan, op. cit. 91. Afzalur Rahman, footnote 65, supra, p. 271, cited in Hassan, op. cit.

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Do not embezzle the spoils, do not break your pledge and do not mutilate (the dead) bodies, do not kill the children. (Retold by Muslim.) Do not kill people of monasteries. (Retold by Ahmad.) The reason for prohibiting the killing of the elderly, the sick, young children and women 92 is because generally they are noncombatants, in Hassans view. On the treatment of the prisoners of war, Allah has stipulated as follows : So when you meet in battle those who disbelieve, then smite the necks, until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favour or let them ransom (themselves) until the war terminates. That (shall be so) ; and if Allah had pleased He would certainly have exacted what is due from them, but that He may try some of you by means of others ; and (as for) those who are slain in the way of Allah, He will by no means allow their deeds to perish. 93 They fulfil vows and fear a day the evil of which shall be spreading far and wide. And they give food out of love for Him to the poor and the orphan and the captive. 94 As prisoners of war are no longer in a position to fight (hors de combat), Islam requires Muslims to provide humane treatment to them 95. Hassan recounts an incident from the Prophets life : During the conquest of Mecca, Prophet Muhammad showed magnanimity to its people despite their previous pro92. Al-Bukhari, Sahih Al-Bukhari, Vol. 4, Book 52, No. 257-8. Available at http://www.wponline.org/vil/hadeeth/bukhari/052.htm (10 February 2004). 93. The Holy Quran, 47 : 4, quoted in Hassan, op. cit. 94. The Holy Quran, 76 : 7-8, quoted in Hassan, op. cit. 95. 60 Dr Wahbah Az-Zuhaily, Al-Fiqh Al-Islami Wa Adillatuhu, Vol. 6, pp. 474-475. Hassan finds Rahman supporting the view that the Prophet treated prisoners of war very generously and often freed them, as in the case of prisoners from the Battle of Hunain. Some prisoners from the Battle of Badr were ransomed ; others were asked to teach some Muslim children in exchange for their release. He cites Afzalur Rahman, footnote 65, supra, p. 286. See also fatwa Islams Stance on Prisoners of War. Available at http://www.islam-online.net/ fatwa/english/FatwaDisplay.asp? hFatwaID=55158 (10 February 2004) ; also fatwa War Ethics in Islam. Available at http://www.islamonline.net/fatwaapplication/ english/display.asp?hFatwaID=79793 (10 February 2004). Hassan, op. cit.

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V. S. Mani longed ill-treatment of him. He said to them : O Quraish, what do you think I am going to do with you ? They replied : Good. You are a noble brother, son of a noble brother. He said : This day let no reproach be cast on you. God will forgive you. Go your way, for you are freed. 96 2.1.5.1.6. Probability of success

Success in war, says Hassan, is intrinsically related to the just cause as in Islam. He refers to a statement by the Prophet : A Muslim is not to despise himself. The Companions asked How does he despise himself ? Prophet Muhammad said He exposes himself to a disaster that he has no capacity to face. 97 Allah instructed the Prophet to achieve or perfect the common good, to hinder or reduce harm, and to avoid a bigger harm by accepting a lighter one. War may only be waged if the benefit derived from it is bigger than the harm it inflicts in relation to the objective it wants to achieve the just cause. If the harm outweighs the benefits, then Islam does not condone it 98. This rule [Hassan explains] requires Muslims to make due consideration between its advantages and disadvantages. Thus, in principle, resorting to war is only allowed if it will bring greater good or prevent greater evil. 99 2.1.5.1.7. Last resort While armed jihaad is permissible in Islam, emphasizes Hassan, there is enough evidence to show that Islam prefers peace rather than war or violence. He points out that the very word Islam means peace and tranquillity. Hence any act of aggression, war and violence would not be consistent with its meaning. Further, Allah says in the Quran : The good deed and the evil deed cannot be equal. Repel (evil) with one which is better. Then verily ! He, between
96. Rahman, footnote 65, supra, p. 287, referred to in Hassan, op. cit. 97. Retold by At-Turmuzi, in Hassan, op. cit. 98. Ibn Taimiyah, Majmu Al-Fatawa, Matabi Ar-Riyadh, Riyadh, 1372H, Vol. 28, pp. 126-127, cited in Hassan, op. cit. 99. Hassan, op. cit.

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whom and you there was enmity, (will become) as though he was a close friend. 100 The usual Muslim greeting, Assalamualaikum, itself means Peace be upon you. Preference for peace over war is ingrained in the teachings of the Quran. Hence Allah to the Prophet : And if they (the enemy) incline towards peace, do you (also) incline towards peace and trust in Allah, verily He is the All-Hearer and the All-Knower. 101 In Islam, peace is the rule and war is the exception ; it is adopted only as necessity to maintain and establish peace, the objective of humanity. 102 2.1.6. Christian traditions There is not one approach to war in the Christian thought. The religious and moral thoughts in Christianity, like in most other religions, have vacillated between pacifism and justifiability of war responding to contemporaneous realities. 2.1.6.1. Christian pacifism Like their more ancient counterparts in Asia and Africa, the Medieval European ethical and religious philosophies have, to begin with, centred on the divinely given the religious scriptures , but diverged in their approaches to the concept of just war. These scriptures prohibit killing : Thou shalt not kill (Fifth Commandment). Jesus Christ advised his flock to turn the other cheek. He also admonished St. Peter to keep his sword in its sheath. A simple and straightforward interpretation of these and other similar statements in the Bible has led to the pacifist thought that condemns all wars. In his Christmas message 1948, Pope Pius XII condemned aggressive war as a sin, an offence, and an outrage against the majesty of God 103. The Pope had, in his Christmas message of
100. The Holy Quran, 41 : 34, quoted in Hassan, op. cit. 101. The Holy Quran, 10 :61,quoted in Hassan, op. cit. 102. Rahman, footnote 65, supra, p. 19, cited in Hassan, op. cit. 103. Paul Ramsey, War and Christian Conscience : How Shall Modern War Be Conducted Justly ?, Duke University Press, Durham, 1961, p. 83.

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1944, said : The theory of war as an apt and proportionate means of solving international conflicts is now out of date. Interpreting this, Fr. John Courtney Murray, said : The use force is not now a moral means for the redress of violated legal rights. The justness of the cause is irrelevant ; there simply is no longer a right of self-redress ; no individual state may pursue to take even the cause of justice into its own hands. Whatever the grievance of the state may be, and however objectionable it may find the status quo, warfare undertaken on the sovereign decision of the national state is an immoral means for settling the grievance and for altering existing conditions. The explanation for this radical modification of the traditional doctrine is two-fold : (1) the immeasurably increased violence of war today disqualifies it as an apt and proportionate means . . . even for the redress of just grievances, and (2) it would impede the principle of peaceful settlement of disputes and correction of just grievances (possibly through international organization), which the Pope meant to be the only means of outlawing of war 104. The Pope proclaimed : [T]he statesman cannot escape from his evil necessities by asserting that his nations power to retaliate against whole peoples is for the purpose of deterrence. No ethics least of all Christian ethics gives him leave, either in his private or his public capacity, to kill another mans children directly as a means of weakening that mans murderous intent or act. Preparation to do so if that is the true and the only object of our weapons is also intrinsically a grave moral evil and politically wrong. 105 In the context of the impending invasion of Iraq by United StatesUnited Kingdom forces in March 2003, Pastor David B. Miller observes : The commitment to non-violence is rooted in a radical commitment to the meaning of the confession Jesus is Lord.
104. Ibid., p. 84. He cites Fr. John Courney Murray from his Remarks on the Moral Problem of War, Theological Studies, Vol. XX, p. 1. 105. Ibid., p. 306.

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We understand that to name Christ as Lord means to submit ourselves to seek to do what Jesus taught in word and deed. We do not claim perfection, but neither can we place the claim of nation above the commitment to Christ as Lord. Miller contends that Matthew 10.34 has been grossly misunderstood to be authorizing use of force. The text says : Do not think that I have come to bring peace to the earth ; I have not come to bring peace, but a sword. Miller argues that although this seems to give the impression that Christ is authorizing lethal force, but read in context the passage means the opposite, Jesus tells his disciples to anticipate bitter resistance, but not [to] fear those who can kill the body for Those who find their life will lose it, and those who lose their life for my sake will find it. Hence Miller asserts, Christs disciples are never authorised to kill, but told to be ready to lay down their own lives 106. Miller notes that, according to a Yale church historian, Ronald Bainton, From the end of the New Testament period to the decade 170-180 there is no evidence whatever of Christians in the army. All of the East and West repudiated participation in warfare for Christians. 107 And until the pre-Constantine era (313 AD), a military career for Christians was disapproved. Those who were already soldiers were admonished not to take the military oath, and pledged not to kill. If a . . . baptised Christian wishes to become a soldier, let him be cast out. 108 Quite possibly, The Lord in disarming Peter, unbelted every [Christian] soldier. 109 In Millers view, Christians only began to make peace with war following the accession of Constantine to the imperial throne. In a mere
106. Editorial by David B. Miller, pastor, University Mennonite Church, State College, PA, Peace and Faith : Antiwar Activism and Christianity Have Been Hand-in-Hand for Centuries, Central Daily Times 15 March, 2003, (Peace and Justice Support Nework of Mennonite Church, USA), available on website http://peace.mennolink.org/articles/opendmiller.html. 107. Ibid., Miller quotes Bainton. 108. Miller quotes Hppolytus, Apostlic Traditions, ca. 200 AD, ibid. 109. Miller quotes Tertullian, who wrote in early 2nd century. See ibid.

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V. S. Mani 75 years Christians went from being outlaws, condemned and persecuted for their faith, to those who wielded imperial power.

It was from this point in time that Christs teachings underwent rationalised interpretation to authorize a pragmatic, constrained use of lethal power (just war) in the cause of justice and order in the public sphere, whereas they applied their original intents in the realm of private behavior. Miller remarks, In the wake of this rationalization came forced conversions, the inquisition and the persecution of so-called heretics. This fateful shift in ethics made way for a series of wars of liberation that we know of as the crusades. 110. 2.1.6.2. Just war theories On the other hand, the diverse and evolving historical contexts in which Christianity began to take root by ensuring freedom of expression and conscience as also protection of those who embraced the Christian faith, against hostilities from those who practised other faiths, gave rise to a series of tortuous interpretations whose intention has been to recognize war to be morally and religiously justifiable, in view of the contemporaneous exigencies. Thus it is argued down to this age that while no one had any right to kill thy neighbour, use of force strictly according to the rule of proportionality is permissible to ward off any present and imminent threat to the safety of oneself, ones family and friends, and ones property a principle that, if extended, precludes condemnation of such use of force, if resorted to by or on behalf of a State or religion to protect itself in the interest of ensuring peace, an essential condition for people to live. Life in this world is not that of angels, but of men. The just war theories thus represent a superimposition of earthly realism over religious idealism. One would, however, recognize at least four doctrinal pegging points, drawn from James F. Childress 111 : 1. There is no single just-war theory [JWT]. Rather there is a living
110. Ibid. 111. James F. Childress, Just War Tradition and the Invasion of Iraq, at the Conference on Ethical Issues Raised by Pre-Emptive War, the Churches Center for Theology and Public Policy, Wesley Theological Seminary, Washington, SC, 1 May 2003. Available at http://www.cctpp.org/ childresspaper.htm. The above borrowing of the pegging points is without, however, agreeing with some of his analysis of the doctrine, which nowhere takes into account the impact of the normative order of the United Nations, even at the ethical level.

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tradition, with many sources and roots. This tradition provides a framework for moral deliberation and justification, but it is more than a historical deposit on which we can draw as needed. Instead, . . . we participate in and thus shape and reshape the JWT, for better or worse, through the judgments and arguments we make about war. 2. The JWTs function is to justify and limit to legitimate and restrain both resort to war and ways to conduct war. The states use of armed force in particular circumstances requires justification and it can sometimes be justified. . . . Properly understood, the just-war tradition restrains or constrains war in the sense of recognizing moral limits on the resort to and the conduct of war. In the process, it should prevent some wars the ones that are unjustified. 3. The just-war tradition embodies an on-going argument, . . . and debates occur about that traditions boundaries. 4. A major task for communities of moral discourse, including Christian and other religious communities, that embody the JWT is to make it viable and credible in the 21st century. This task includes examining the traditions presuppositions and implications in an on-going process of appropriation and re-appropriation in light of new historical, technological, and other realities. Fidelity to the tradition permits and even requires new formulations and sometimes revisions under changing circumstances. It must be noted that just war doctrine or doctrines are not necessarily a most logical or scientific way of understanding the phenomenon of war. But as Adeney rightly remarks, Just war theory has been the dominant tradition through which Christians have subjected war to ethical and theological analysis. Both as a mode of thinking and as a set of principles, just war theory frames an understanding of war through the questions it asks. Just war theory is not chosen because it is necessarily the best vehicle for the moral evaluation of war. Just war theory merits close analysis because it has exercised enormous influence on Christian thinking about war. 112
112. Bernard Temple Adeney, A Critical Assessment of Just War Theory and Political Realism as Methods for Evaluating Modern War, Dissertation presented to the Faculty of Graduate Theological Union, University of Los Angeles, Berkeley, University Microfilms International, Ann Arbor, Mi, 1982, pp. 1-2.

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Nor does the theory take into account the changes that have taken place in the ground realities of war, technology and the international system. The nature of warfare has changed over the years. In terms of its impact, participants, and technology, war has become increasingly globalized, dehumanized and automated. It is no longer confined to the erstwhile military elite. Technology has also made the military profession diffused into more and more sectors of society, and arms race reutilized as a permanent function of government. Nuclear weapons and other weapons of mass destruction have forced a major change in our perception of both war and peace. They have become a permanent part of our culture. Sophistry in weapons delivery technology now makes recall of a weapon, or rectification of a mistakenly executed manuvre impossible. Adeney says : As a concrete set of rules, however, just war theory is anachronistic because it does not address the unique problems of deterrence in a nuclear age [add : in any age]. The fundamental problem with just war theory is the impossibility of effectively defending a nation in modern war without breaking the canons of just warfare. A second area of difficulty is the ineffectiveness of the principle of discrimination as a means for the protection of the innocent. The key moral problem of modern war is the strategy of deterrence. [The issue is that deterrence implies an intention to use the weaponry, to overwhelm the enemy]. None of the attempts to reconcile deterrence with just war theory have been successful. 113 2.1.6.2.1. Historical contexts Like most theories, the Western just war doctrines were responses to contemporaneous events that overtook Europe since the early medieval times : they provided a doctrinal justification for the support of Christianity to defend itself, consolidate its flocks in Western Europe and then to encourage aggressive spread into other territories. Christianity became a mass movement in Europe around the third century, when some 10 per cent of the population of the Roman Empire became Christian. Emperor Constantine I gave it legal
113. Ibid., pp. 4-5.

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recognition in 312-313 AD. Christianity became one of the official religions of the empire in 392 under Theodosius. The simplicity of the Christian teachings and the message of equality among human beings appeared to have fast attracted people to the new faith, as they found a way out of oppressive and wretched life under the prevalent political, social and religious order. Those were the days beset with wars, troubles and tribulations, resulting from the political instability and internecine quarrels within the Church. The historians generally describe some of these wars by the generic term barbarian invasions. Some others were a natural consequence of the rise of Islam in the region of Holy Lands 114. The challenges to Christianity as a nascent religion, thus, were both internal as well as external. Numerous were the internal problems. When the Roman Empire had been divided into the Eastern and the Western, the political and religious impact of this division was not adequately anticipated. However, this led to the religious Schism between Rome, the seat of St. Peter and the Orthodox Church of Constantinople. By 451, five seats of Christianity, namely, Rome, Constantinople, Alexandria, Antioch and Jerusalem were recognized, and each was presided over by a bishop elected by his peers. Yet, the Schism even led to the excommunication of the Patriarch Michael Cerularius of Constantinople in 1095 and later the sack of Constantinople as an objective for the Western Crusaders to pursue in 1204. It was probably during the reign of Emperor Charlemagne that, along with his political power, the importance of Rome as the central seat of Christianity grew, a factor to further contribute to the Schism later. During his reign, peace was established with Caliph Haroon Al Rashid, which facilitated Christian pilgrimages to the Holy Land. This peace held on for a while. After Charlemagne, Rome was under frequent threats, and at times the Pope even had to run away from Rome as the city fell into the hands of invaders. It was threatened both by the Muslims from the south (who even occupied Sicily and had held their sway in Spain for a long time, having established a Caliphate at Cordoba) as well as by the northern barbarians. St. Augustine of the Hippo lived in those days. He had a
114. There was, of course, no appeal for help from a legendary land and a half-forgotten race. http://www.geocities.com/catholic_profide/history2.htm? 200529.

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view of contemporary history from the vantage point of his residence on and familiarity with the North African coast. The handful of Christian princes and the Catholic seat of Rome had to be doctrinally supported in their joint struggle against the Muslim thrusts from Egypt and Morocco on to Spain and other parts of southern Europe on the one side, and the pagans, Goths, Normans, Huns and whatnot from the north. Evidently, Augustine had to find a way out of, yet apparently based on, the Scriptures, to justify resort to arms against these barbarians and heretics. The clarion call for the First Crusade to the Holy Land was made so eloquently by Pope Urban II in 1095. From their inception the anti-Moslem crusades had been viewed by Christians as a defensive response to infidel aggression. 115 Thus, the prime goals of crusades were not only (although primarily) against Muslims to retrieve control over the Holy Land as well as their Spanish possessions. They were also directed against any non-Christian tribes that threatened the existence of the Christian princes and the pope. There was a crusade against the pagan Prussians during the lifetime of Aquinas. This followed the precedents set by earlier crusades against other northern European pagans the Wends, the Letts, and the Estonians. Despite the events of 1054, Rome never lost touch with Constantinople. There was a friendly exchange between Pope St. Gregory VII and Emperor Michael VII of Constantinople in 1073. In 1074 the Pope even made an attempt that failed to organize an army in defence of the Byzantine Empire. The Pope made out a strong religious case for such a military campaign : These pagans have made a vigorous onslaught on the Christian empire : they have pillaged and laid waste the whole land with unheard of cruelties up to the very gates of Constantinople. They have occupied these countries with tyrannical violence and massacred thousands and thousands of Christian people, the unhappy fate of this great empire and the deaths of so many Christians must be for us all a great anxiety. Our Lords own example, who redeemed us, and the duty of
115. LeRoy Brandt Walters, Jr., Five Classic Just War Theories : A Study in the Thought of Thomas Aquinas, Vitoria, Saurez Gentili, and Grotius, Yale University Ph.D. 1971, Religion, University Microfilms International Law, Ann Arbor, Michigan, London, 1980, p. 14.

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Christian charity, bid us not only to lament these misfortunes, but also, if it be necessary, to give ourselves in sacrifice for our brethren. 116 However, there were no takers for this appeal, which at any rate was overtaken by a long war with the German king, that commanded all papal attention. But what Gregory VII had failed to do in 1074, it is aptly said, his disciple and alter ego Urban II did achieve twenty years later. 117 Urgency of pleas for help from Constantinople was getting stronger. Pope Urban II was ready when the emissaries of Byzantine Emperor Alexis I repeated these pleas at the Council of Piacenza in March 1095, now against a new enemy, the Seljuk Turks. On 11 November 1095, the Pope exhorted a vast council, the Council of Clermont in France a multitude of some hundred thousand common folks, besides some 12 archbishops, 225 bishops, and over 90 abbots, scores of princes and others to give themselves generously to deliver the Christians of the East 118. The cries of God wills it rent the air. The volunteers took as their badge the Cross-of116. Quoted in A History of the Church, http://www.geocities.com.catholic _profide/history2htm?200529. 117. Ibid. 118. Pope Urban II exhorted : Although, O sons of God, you have promised more firmly than ever to keep the peace among yourselves and to preserve the rights of the church, there remains still an important work for you to do. Freshly quickened by the divine correction, you must apply the strength of your righteousness to another matter which concerns you as well as God. For your brethren who live in the east are in urgent need of your help, and you must hasten to give them the aid which has often been promised them. For, as the most of you have heard, the Turks and Arabs have attacked them and have conquered the territory of Romania [the Greek empire] as far west as the shore of the Mediterranean and the Hellespont, which is called the Arm of St. George. They have occupied more and more of the lands of those Christians, and have overcome them in seven battles. They have killed and captured many, and have destroyed the churches and devastated the empire. If you permit them to continue thus for awhile with impurity, the faithful of God will be much more widely attacked by them. On this account I, or rather the Lord, beseech you as Christs heralds to publish this everywhere and to persuade all people of whatever rank, foot-soldiers and knights, poor and rich, to carry aid promptly to those Christians and to destroy that vile race from the lands of our friends. I say this to those who are present, it means also for those who are absent. Moreover, Christ commands it. All who die by the way, whether by land or by sea, or in battle against the pagans, shall have immediate remission of sins. This I grant them through the power of God with which I am invested. O what a disgrace if such a despised and base race, which worships demons, should conquer a people

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red-cloth whence came the name the Crusade. To those who vowed to go to the Holy Land and fight, Urban II granted plentiful incentive of plenary indulgence remission of all past sins, but the vow was irrevocable, and if broken was to be punished with excommunication. The Church also gave protection to the property and kin of the crusaders, organized through the bishoprics and parishes 119. The motley crowds that included tens and thousands of wretched humans who found a way to escape the oppressive feudalism of the day moved in the direction of Constantinople and wherever they went they wreaked havoc, plundered and pillaged the towns and villages, also got themselves massacred, and finally reached Constantinople and then turned towards the Holy Land only to be totally slain en route by the Muslim forces. The subsequent waves, however, wrested the Holy Lands from Muslim control, for a brief while, only to lose them soon. But the first crusade set the tone for the further crusades 120 that of pillages, lootings, massacres,
which has the faith of omnipotent God and is made glorious with the name of Christ ! With what reproaches will the Lord overwhelm us if you do not aid those who, with us, profess the Christian religion ! Let those who have been accustomed unjustly to wage private warfare against the faithful now go against the infidels and end with victory this war which should have been begun long ago. Let those who for a long time, have been robbers, now become knights. Let those who have been fighting against their brothers and relatives now fight in a proper way against the barbarians. Let those who have been serving as mercenaries for small pay now obtain the eternal reward. Let those who have been wearing themselves out in both body and soul now work for a double honor. Behold ! on this side will be the sorrowful and poor, on that, the rich ; on this side, the enemies of the Lord, on that, His friends. Let those who go not put off the journey, but rent their lands and collect money for their expenses ; and as soon as winter is over and spring comes, let hem eagerly set out on the way with God as their guide. Version of Fulcher of Chartres in Bongars, Gesta Dei per Francos, 1, pp. 382 ff., trans in Oliver J. Thatcher and Edgar Holmes McNeal, eds., A Source Book for Medieval History, Scibners, New York, 1905, pp. 513-517. There are several versions of Urban IIs oration. 119. The Bishop of Le Puy was appointed to supervise the whole vast affair. Constantinople was appointed to be the rendezvous and Assumption 1096 as the date, before the final assault on the Holy Land. Special preachers were appointed to stir up enthusiasm and enlist recruits even in smallest towns and remotest villages. Never had Europe known, in any cause such a vast campaign of propaganda. Walters, footnote 115, supra. 120. Customarily there have been eight Crusades : (1) the first 1095-1101 ; (2) headed by Louis VII, 1145-1147 ; (3) by Philip Augustus and Richard Coeurde-Lion, 1188-1192 ; (4) When Constantinople was taken in 1204 ; (5) Conquest of Damietta, 1217 ; (6) 1228-1239 in which Frederick II, Thibaud de Champagne and Richard of Cornwall took part at various times ; (7) led by St. Louis 12491252 ; and (8) also under St. Louis, 1270 see Catholic Encyclopaedia Website on Crusades.

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and most importantly of sowing the seeds of animosity between Christians and Muslims. Thus it came naturally to President George Bush Jr. to announce a crusade in response to the 9/11 terrorist attacks. Conversion was certainly one of the objectives of the crusade against Prussia. In a treaty of 7 February 1249, one of the treaties that established peace, it was stipulated that all who were not baptized must receive the rite within a month, that those who declined to comply should be banished from the company of Christians, [and] that any who relapsed should be reduced to slavery 121. As alluded to already, there was also a thirteenth-century crusade against the Greek Orthodox Christians, when in 1204 the participants in the fourth Crusade diverted to Constantinople and ousted the Byzantine Emperor, and established a Latin Kingdom of Constantinople. In 1454, Prince Henry of Portugal received from Pope Nicolas V the right to all discoveries up to India. The Papal Bull conceded to King Alphonso, the right, total and absolute, to invade, conquer and subject all countries which are under the rule of the enemies of Christ, Saracen or Pagan. The Bull further wished the king, the prince, and their successors, [to] occupy and possess in exclusive right the said islands, ports and seas . . .. It proclaimed : all faithful Christians are prohibited without the permission of the said Alfonso and his successors to encroach on their sovereignty. Of the conquests already made, or to be made, all the conquests which extended to . . . all the Orient is perpetually and for the future the sovereignty of King Alfonso. 122 The Bull further said that this authorization was in response to Prince Henrys expressed desire to find a sea route to India, which, it is said, is already subject to Christ . . . If he enters into relations with these people, he will induce them to come to the help of the Christians of the West against the enemies of the faith. At the same time, he will bring under submission, with
121. Walters, footnote 115, supra, at p. 19, quotes from Kenneth Scott Latourette, A History of the Expansion of Christianity, Vol. II : The Thousand Years of Uncertainty : A.D. 500-A.D. 1500, New York, Harper & Brothers, 1938, pp. 207-208. 122. K. M. Panikkar, Asia and World Dominance : A Survey of the Vasco da Gama Epoch of Asian History, 1498-1945, George Allen and Unwin, London, 1959, 8th Impression, 1970, p. 27.

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Thus the Papal Bull that ignited the surge of colonial expansion into the Asian continent, with the Portuguese in the lead, set a twin objective for the search India : one, to continue the Crusades against the Muslims from the rear (as it were) with the help of the people waiting to be converted to Christianity, and two, to commend the spread of Christianity to the Orient as a prime objective of European colonialism. In other words, the meaning of just war varied with the type of opponent that the Pope in Rome selected as the target. The term infidels meant anyone other than my churchmen. Evidently, in terms of practice, a war became a Crusade depending on which side you were on. Indeed, it was the inherent right of the Pope to decide which war should qualify for the sacred label of Crusade that included sovereign power to authorize colonial expansion. Just war surely came full circle with the Bull of 1454, lost all its credibility and became a vehicle for export of colonialism. Further, despite the theological admonitions against it, the Middle Ages had shown an enormous propensity to accept cruelty and barbarity as a fact of life, let alone as a given in wars. Thus, for instance, Sir John Hawkwood, who would probably be at home as a warlord in Bosnia or Somalia in the recent past, was praised sky-high in the fifteenth century as a chivalrous and noble knight who deserved to be remembered alongside Edward III. It is this free-for-all, no-holds-barred, just war that we shall now examine in terms of the doctrine, an examination that the contemporaneous European practice has rendered so totally irrelevant and abused in its own time. 2.1.6.2.2. The doctrine Adeney identifies four stages in the evolution of the Christian just war tradition : first period is represented by Cicero deeply influ123. Ibid., pp. 26-27. In these pages Panikkar, the redoubtable Indian historian-statesman-diplomat, reproduces the Bull in extenso. In 1456, Pope Calictus confirmed this Bull by a second Bull. For a legal analysis of this Bull, see V. S. Mani, An Indian Perspective on the Evolution of International Law on the Threshold of the Third Millennium, Asian Yearbook of International Law, Vol. 9, 2000, pp. 31-77, at pp. 45-46.

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enced by the Roman natural law thinking and the stoic philosophy resulting in a moral justification of the expansion of the Roman empire 124. This is analogous to the post-war ideological approach to justifying war in defence of or propagation of Western democracy, or Marxism. Second period is represented by Augustines theological concept of just war that separated internalized motivations from external actions, relying more on just intentions. Yet, Augustines was the burden of propounding a justification for Christian war in the face of the Fifth Commandment : Thou shalt not kill. His cunning logic turned it around to Thou shalt not kill, but Thou shalt kill in defence of religion or in defence of thyself. In fact, Ramsey says that bellum justum should be translated as the justified war rather than the just war 125. Third period drew heavily from Augustine, but refined and reduced his theory at places even diverging from it to an elaborate code of rules, roughly coinciding with the rise and fall of Christendom in Europe 126. Fourth period witnessed the break-up of the Christendom and the rise of the nation-State. This period saw attempts to de-emphasize the justifiability of war and concentrate on rational means of restraining its destructiveness. The emphasis now was on the rules of war, based on the reciprocal self-interest of the parties involved. This approach downplayed the strictly moral question and gave birth to international law then there was Grotius. Hence, in Adeneys view, Strictly speaking, traditional just war theory is not a theory at all but a set of normative and empirical assumptions from which proceeds both a qualified justification of warfare and a strategy for its limitation. 127
124. Adeney, footnote 112, supra, pp. 36-37. 125. Ramsey, footnote 103, supra, p. 15 126. Adeney, footnote 112, supra, p. 37. Hence his remark : Just war theory as a code of rules, had some very modest success in Europe. However its ineffectiveness, in spite of a cultural, moral consensus and the mediation of the Church, is also striking. Codified just war theory is still a basis for moral discussion of war. But the major changes in the nature of war have undercut the usefulness of the rules. Ibid., at p. 38. 127. Ibid., pp. 38-39.

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V. S. Mani 2.1.6.2.2.1. Cicero [106-43

BC]

Cicero is regarded as the first great proponent of a universal theory of just war 128. He begins with the statement that all peoples are subject to the eternal principles of natural law and justice : Although reason is characteristic of men and force of beasts, you must resort to force if there is no opportunity to employ reason. Therefore, wars should be undertaken only so that one may live in peace without wrongdoing. 129 Cicero makes a patriotic presentation of his theory of duties : [O]ur first duty is to the immortal gods, our second, to country ; our third, to parents ; and so on, in a descending scale, to the rest. 130 He also says that evil should never be done even to save ones country. The Roman State was the highest human embodiment of natural law. Thus any war that upheld the States honour and reputation was a just war. We ought to be more prepared to wage war over honour and reputation than over advantages of other sorts. 131 All people are equal before natural law, but Cicero holds the conviction that Rome was destined to rule the world. War whose object is the glory of supremacy must be waged less bitterly than a war for survival. To Cicero, a just war must aim at establishment of a just peace. War is just only if it is waged according to the Roman law. Thus no war is just unless it is waged after the Government has demanded restitution or unless the war is previously announced and declared. There should be a legitimate case for war 132. Enemies who are not cruel or barbarous in warfare must be spared after the war. A liberal peace is the only sound basis to build an empire. In both war and peace one should be guided by the principle of humanitas. It includes decorum, civility, refinement, benevolence, magnanimity and mercy 133. Cicero emphasizes on fidelity to oath between States. War can only be legally fought between them, by persons authorized by them.
128. Ibid., p. 39. Marcus Tulllius Cicero, On Duties, Harry G. Edinger, trans., Bobbs Merrill Co., NY, 1974, Book I, 34, p. 19. 129. Cicero, On Duties Book I, 34, p. 19, cited in Adeney, footnote 112, supra, pp. 39-40. 130. Cicero, op. cit., I, 160, p. 73, cited in Adeney, op. cit., p. 40. 131. Cicero, op.cit., I, 83, p. 39, cited in Adeney, op. cit., p. 40. 132. Adeney, op. cit., p. 41. 133. Ibid., p. 42.

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Thus there can be no private war, by an individual against a State even if the cause is just. Romes dominion of the world is not as a ruler but as the protector of the world. Cicero recognizes that excessive cruelty sometimes occurred in war, as expediency led to the breaking of natural law. In the government the securing of an apparent advantage very frequently causes wrongdoing as the Romans did wrong in the sack of Corinth, says Cicero. Nothing is advantageous that is barbarous, barbarity is extremely repugnant to the nature of human being and we ought to follow nature. While he viewed Roman warfare as a glorious activity, he took a humane view of warfare. Plato and Aristotle were rather parochial in that they advocated moral restraints in war only between socially equal Greek States, not with non-Greeks. But Cicero was universalistic 134. 2.1.6.2.2.2. St. Augustine of the Hippo (353-430
AD)

Augustine, whose theory held sway in the Christian thinking for 1,500 years, added to Ciceros theory the bases of theology, anthropology and political realism 135. Paul Ramsey describes St. Augustine to be the first great formulator of the theory that war might be just, which thereafter has mainly directed the course of Western Christian thinking about the problem of war 136. Augustine, as noted already, lived on the brink of destruction of the Roman Empire. Rome had been sacked, but the Roman legions still offered some resistance 137. The primal roots of war, according to Augustine, lie in the original rebellion the original sin committed by Adam in defying Gods interdiction in the Garden of Eden and fall of humanity. The Fall has brought sin into the world, passed on from generation to generation and that has been the cause of all war. The founding of the Earthly City was an act of fratricide. Cain who represented the Earthly City killed Abel who represented the Heavenly City. Initial Roman wars were just because the target neighbours were unjust. Soon Romans were propelled by love of domination and thirst for glory. God does not intend that man should have dominion over
134. 135. 136. 137. Ibid., p. 43. Ibid., p. 44. Ramsey, footnote 103, supra, p. 15. Adeney, footnote 112, supra, p. 44.

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man. Pursuit of domination and glory is a rejection of God and His role 138. Adeney picks up five points made by Augustine as the bases of his jus ad bellum (right to war) as well as the jus in bello (just conduct of a war) : (1) War should be waged only as a necessity, as a necessity for peace. So the officer who fights the war must have the spirit of a peace maker. (2) Wars must have a just cause. A war is just if it avenges injuries (justa bella ulciscuntur injuria = just wars avenge injuries). Primarily Augustine meant an attack on the existence of the [temporal] state. 139 (3) The inward attitude of love was a third requirement of a just war. Love is not incompatible with killing because it is an attitude of the heart, not of action. Love of enemy does not exclude war of mercy waged by the good. But this is not for private Christian citizens, but public functionaries who alone can deliver justice without negative emotions, but with love (Augustines mournful magistrate who is mournful because of his love, but delivers the punishment which he must). (4) War should be waged under proper auspices under a legitimate ruler or Government. Conduct of war must be just. No wanton violence, profaning of temples, looting, massacre, or burning, vengeance, all atrocities and reprisals. To Augustine, the words, glory and victory are evil masks that hide the true character of warfare. Tear off the disguise of wild delusion, and look at the naked deeds ; weigh them naked, judge them naked. 140 Augustine denies that any war can bring lasting peace. To him peace is not simply the absence of conflict, but the perfectly ordered, harmonious enjoyment of God and one another in God 141. But this state of peace will only materialize when the Human City is subsumed by the City of God. For, in the Fallen World, in the City of Man, war is a tragic fact. A Christian must judge on the basis of love between greater and lesser evils. War may be an evil necessity against even greater evils 142. Only the monks or clerics are bound by the counsels of perfection, not lesser mortals 143. The former are
138. Ibid., p. 45. 139. Ibid., pp. 50-52. 140. Ibid., p. 52 (citing Augustine, The City of God, Marcus Dods, trans., Great Books of the Western World, Vol. 18, Chicago, Encyclopaedia Britannica, 1957, Book XII, Chap. 13, p. 174). 141. Ibid., p. 53, citing Augustine, op. cit., Book XIX, Chap. 11, p. 519. 142. Ibid., p. 54. 143. Ibid., p. 55.

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bound by the Commandments to the letter ; they are bound to turn the other cheek, adhering to Christs postulates which are not to bind the lesser mortals. Augustine arrives at this interpretation of the Scriptures on the foundation of a perception of Two Cities of God implicit in them. As he finds the city of Rome crumbling around him, he perceives Rome (or even Constantinople) symbolizing as the City of Man representing all that is worldly and Jerusalem as the City of God. The City of God is in the Heaven, around God, and the City of Man is what we have on earth with all its imperfections, as a result of the Original Sin of Adam, for which all Adams progeny is even congenitally punished with greed, envy and power, and their evil consequences. Mans journey now is from the latter to the former. Quite possibly, the two cities vie with each other for primacy in the minds of men. To Augustine, justice is one of the four personal virtues (the other three being prudence, courage and temperance) of an individual. However, he denounces its actualization in the materialistic world health, wealth, pleasure or honour. These forms of actualization being temporal, they do not serve the ultimate journey of the soul to rest in God. They are vain and also selfish 144. If justice is a personal virtue, social justice is a social virtue of the community. Ramsey quotes Augustine, When a man does not serve God what justice can we ascribe to him . . . ? And if there is no justice in such an individual, certainly there can be none in a community of such persons. The social justice in such communities will be lacking in rectitude 145. So this was the concept of justice that Augustine was talking of when he spoke of wars in which Christian engagement was justified. Speaking of the numerous great wars and how much slaughter and bloodshed providing for the unity of the imperial city, Augustine says : but, say they, the wise man will wage just wars, as if he would not all the rather lament the necessity of just wars, if he remembers that he is a man ; for if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposite party which compels
144. Ramsey, footnote 103, supra, p. 16. 145. From Augustines City of God, XIX, p. 21, Ramsey trans., footnote 103, supra, at p. 26.

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V. S. Mani the wise man to wage just wars ; and this wrongdoing, even though it give rise to no war, would still be matter of grief to man because it is mans wrongdoing. Let every one, then, who thinks with pain on all these great evils, so horrible, so ruthless, acknowledge that this is misery. And if any one either endures or thinks of them without mental pain, this is a more miserable plight still, for he thinks himself happy because he has lost human feeling. 146

The justness in Augustines just war derives more from the mental pain that every man must feel triggering his waging the war than just because the opposite party has done something wrong. One does not feel happy going to war, one must feel sad that one has to go to war to rectify a wrong. Augustine also says, even when we wage just war, our adversaries must be sinning 147. 2.1.6.2.2.3. St. Thomas Aquinas (1224-1274) In Ramseys view, from Augustine to Aquinas, first, there was a shift from voluntarism to rationalism in understanding the nature of political community, and therefore an increasing emphasis upon the natural-law concept of justice in analysis of the cause that justifies participation in war. This is what is usually meant by just war. Secondly, rules of conduct of war were also drawn up for the protection of noncombatants 148. Bigongiari crisply summarizes the Aquinas logic thus : The ruler, who is under the obligation to protect the common good from the assaults of a foreign enemy, has the right and duty to resort to the necessary measures of war. The nature of his power authorizes the destruction of life and property, provided the war is just. An offensive war is just when three conditions are complied with. First, it must be declared by the sovereign.
146. Ramsey, op. cit., p. 27, quoting Augustine from p. 7 of his City of God, XIX. 147. Ibid. As to the result of the war, every victory, even though gained by wicked men, is a result of the first judgment of God, who humbles the vanquished wither for the sake of removing or punishing their sins. (Augustine, op. cit., XIX, p. 15.) 148. Ibid., at p. 32.

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Private wars are not allowed, because to settle private disputes there is a superior authority to adjudicate ; and also a private individual cannot raise enough men to wage a war. The second condition is a just cause. Here Aquinas restates the argument endorsed by Augustine : A just war is usually defined as one by which a wrong is righted, viz., when a state or a nation is attacked because it neglected to punish some crimes committed by one of its members or when it failed to make restitution of something that had been unjustly seized. The third condition is the maintenance of righteous intentions on the part of those who have declared war, viz., that the purpose of war is to lay the foundations of a better and more lasting peace. Thus a war can be made iniquitous by the evil intentions entertained by the attacking power. What are these evil intentions ? St. Thomas tells us in the words of St. Augustine : They are a desire to harm the enemy more than the conduct of hostilities demands, a spirit of revenge, implacability, recourse to destructive practices that fit beasts better than men, and finally lust of supremacy. 149 Walters examines the thoughts of Aquinas on the issue of war in terms of four central questions (the way in which Aquinas himself organizes them) 150 : Whether Whether fighting in war is always a sin. Whether any war is lawful. Who The authority of the prince. Whether it is lawful for clerics and bishops to fight. When A just cause is required.
149. Dino Bigongiari, ed., The Political Ideas of St. Thomas Aquinas : Representative Selections, Hafner Publishing Co., NY, 1953, Introduction, pp. xvixvii. 150. Walters, footnote 115, supra, p. 59. (Mostly in Aquinass Summa Theologiae.)

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V. S. Mani

It is required that the intention of those fighting be right. Whether it is lawful to lay ambushes, Whether it is lawful to wage war on holy days. Walters identifies three sets of religious texts that Aquinas has had to circumvent, or explain away, to uphold his theory of just war the texts from the Scripture, religious morality and the canon law : Objections based on the Scriptures (the Bible) : The first difficult text is Jesus statement : All who take the sword will perish by the sword. (Mathew 5 : 39.) Thomas Aquinas, following Augustine, limits the application of this text by giving the words take the sword a technical meaning : i.e., to use the sword without official authorization 151. Second, in his Sermon on the Mount, Jesus counselled his followers : But I say to you. Do not resist evil. (Mathew 5 : 59.) In Romans 12 :19, Paul said : Do not defend yourselves, beloved, but give place to wrath. Aquinas limits the application of these two injunctions to a case of self-defence involving no more than two private citizens. He denies their applicability to (1) a situation involving punishment rather than self-defence, (2) a situation involving such official roles as those of prince, judge, policeman, or soldier, and (3) a situation involving moral responsibility for third persons. Even in the case of self-defence, the injunctions applies only to the preparation of the mind and not to external action. Thus the Roman law dictum, force may be repelled by force applies in cases of self-defence, despite the Jesus-Paul dictum 152. Third is Jesus command to Peter (when Peter sought to draw his sword in defence of Jesus) : Put up your sword into its scabbard. (Matthew 26 : 52.) Aquinas explains that Christs command applied to Peter only as representing bishops and clerics not as a moral precept. The clergy, as a vocation, is forbidden from resorting to force, but this is not an issue of morality 153. Finally, again following Augustine, Aquinas interprets from what John the Baptist said to what he did not expressly forbid. John urged
151. Ibid., p. 62. 152. Ibid., p. 62-63. 153. Ibid., pp. 63-64.

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the soldiers to do violence to no one and be content with their pay (Luke 3 : 14). Aquinas argues that John did not tell the soldiers to leave the army. Thomas seems not to have reflected further on the normative status of Johns advice or the validity of an argument from silence, observes Walters 154. Religious-moral objections : The moral objections flow from the treatise on charity. One of the effects of charity is peace. War is denial of peace. Hence it is denial of charity 155. Aquinas defines peace in decisively moral terms. It does not mean absence of violence. Peace is an integrated orientation toward what is truly good. As such, it includes both personal self-integration and social harmony. According to him, opposed to true peace is evil peace, which aimed at an apparent but false good. Hence Walters : According to Thomas, those who waged just wars intended true peace as the end of war. They thus destroyed only the evil peace of their enemies, bringing them to the prosperity of [true] peace. 156 Canon law prohibitions : Prohibiting tournaments, Pope Gregory IX had decreed as follows : We prohibit those detestable festivals which people call tournaments, in which soldiers are accustomed to come together by agreement and, to show off their manliness and boldness, rashly engage in combat. These tournaments often cause death to men and danger to souls. 157 Walters notes : Thomas carefully limited the application of this decree to warlike exercises which were not inordinate and perilous, and end in slaying or plundering. But he would exclude military training from this interdiction 158.
154. 155. 156. 157. 158. Ibid., p. 64. Ibid. Ibid., pp. 64-65. Ibid., p. 65. Translation from Latin, by Walters. Ibid.

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The conclusion that Thomas derives from the above analysis of the whether-question is : In principle, there is no valid objection to the act of waging war. 159 According to Aquinas, there are three primary aspects of a moral act : (1) the object (objectum) of the act, (2) the circumstances (circumstantiae) of the act, and (3) the end (finis) of the act. A defect with respect to any of the three makes an act immoral. Aquinas lists seven possible circumstances of an act who, what, where, by what means, why, in what manner, and when 160. The first two primary aspects relate to the faculty of reasoning, while the third, the end, the faculty of the will or intention. His whether-question relates to the object of the act, i.e., going to war. Thus the moral question of whether war is good or bad depends essentially on the other aspects. Consequently, Aquinas would have accepted the following ethical proposition : It is morally right to wage war (the object), provided that due circumstances are observed and a proper end is intended. 161 Aquinass three famous criteria for a just war (1) the authority of the prince (proper authority to wage war), (2) a just cause, namely the blameworthy or the culpable act of the victim, and (3) a right intention, namely, the advancement of the common good flow from the above ethical considerations. Ecclesiastical authority in military matters took three forms : (1) the granting of crusade-indulgences ; (2) urging secular princes to wage war 162 ; and (3) furnishing chaplains for arms in the field 163. In his ex professo treatment of just war Aquinas defines just cause in the following terms : A just cause is required, namely, that those who are attacked merit the attack because of some fault (propter aliquam culpam). 164 Culpa, to Aquinas, is critical to his just-cause formula. It means that the enemys offence had to be voluntary or wilful, not involuntary or accidental. It must be one of subjective guilt. Yet, despite his
159. Ibid., p. 66. 160. Ibid., p. 69. 161. Ibid., p. 71. 162. Walters, op. cit., at p. 86, footnote 89 cites an interesting case : Pope Adrian I complained to Emperor Charlemagne that the Christian King of the Lombards was usurping papal territories, and Charlemagne went to war against the king. 163. Ibid., p. 85. 164. Ibid., p. 111.

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emphasis on the culpa of the enemy, he includes among his selection of the just causes of war, the following non-religious causes : Defending the commonwealth from external enemies. The salvation of the fatherland. Conserving the temporal peace of the commonwealth. The assistance of neighbours, not only as regards the defence of private persons but also as regards the defence of the whole commonwealth. Defence of the poor and oppressed. 165 Failure of a Government to punish what has been done wickedly by its own [citizens]. Failure of a Government to give back what was unjustly carried away. Despite this listing of seven non-religious, Aquinass formulations of just causes, whether positive or negative, remained in the realm of generality 166. The religious causes justifying war include injustices or wrongs (injuriae) done to God. Aquinass justification for issuance of crusade-indulgences was that they aimed at the repression of the Churchs enemies, who disturb her peace 167. He also justified the establishment of the various military-religious orders, as according to him, their establishment had been necessary for resisting unbelievers in certain lands 168. Aquinas defines a suitable cause (causa conveniens) as a cause pertaining to the honour of God, or to the necessity or utility of the Church. In his words, religious wars could be commended for the following causes : For the conservation of the divine worship. Because of service to God. For the utility of the Church. For the truth of the faith. For the defence of Christians. For the defence of the commonwealth of the faithful.

The Crusades, fought for the support of the Holy Lands (in subsidium terrae sanctae), were just religious wars. Aquinas says :
165. 166. 167. 168. Ibid., Ibid., Ibid., Ibid., p. p. p. p. 115. 116. 120. 121.

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V. S. Mani The faithful of Christ frequently wage war against unbelievers, not indeed in order to force them to believe because, even if they conquered them and held them as captives, they would leave to their liberty whether they wish to believe but rather to compel them not to hinder (impediant) the faith of Christ. 169

Aquinass definition of just cause is simplistic : A just cause is required, namely, that those who are attacked merit the attack because of some fault (propter aliquam culpam). As Walters remarks, What is surprising in retrospect is the elasticity of Thomass formula : its language was sufficiently abstract to allow for a variety of possible applications. 170 However, the canon-law experts of Aquinass period had already reached a consensus on three just causes for war : (1) defence of the fatherland (patria) against enemy attack ; (2) the recovery of goods seized by the enemy ; and (3) denial by the enemy of the right of free passage 171. 2.1.6.2.2.4. Just war theories of the fifteenth to seventeenth centuries The chief proponents of just war theories of fifteenth-toseventeenth-century Europe are Francisco de Vitoria (1492-1546), Francisco Suarez (1548-1617), Alberico Gentili (1552-1608), Hugo Grotius (1583-1645). During the three centuries that spanned between Vitoria and Aquinas, a number of canon lawyers, civil lawyers and theologians continued the debate on permissible wars 172. There was a minority of pacifist views as well. Peter Chelciky, Erasmus and Sebastian Franck spoke of pacifism in general, although the latter two did not approve of total pacifism. The Anabaptists, a radical reformist group,
169. Aquinass discussion of the relations between the believers and the nonbelievers leads him to add two more suitable reasons for religious just wars combating extension of pagan authority over Christians, and preventing the exercise of such authority in certain cases. Ibid., p. 124. In the early thirteenth century Pope Innocent III had already affirmed the Churchs authority to determine whether a war waged by one Christian prince over another Christian prince was just. Ibid., p. 128. 170. Ibid., p. 126. 171. Ibid., p. 138. 172. Ibid., p. 217.

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constituted the bulk of the pacifists who argued on scriptural and theological grounds that all participation in warfare was forbidden to Christians. Machiavelli brought in realism to argue that necessities of State, rather than considerations of justice or religion, should ultimately determine a nations military policy. Vitoria and Suarez were Spanish Catholic priests. Gentili, a Protestant, though born in Italy had to live in England. Grotius, born in Holland, had to live in France. All the four were post-Renaissance scholars. Vitoria was influenced by Renaissance humanism as well as Aquinass integrity of human nature and natural human communities 173. Vitorias humanism is evidenced by his strong views on the manner in which the European colonialism was being imposed on the New Territories in the Amercas. In a letter dated 8 November 1534, Vitoria wrote to a Dominican superior that the very mention of events in the [West] Indies (Americas), especially in Peru, makes my blood run cold 174. All four discussed the questions of whether, who, when and how. They recognized that some contemporary writers seemed to espouse pacifism 175. They had, wrongly, even found fault with Luther for being a pacifist in his attitude towards the Turks 176. While the
173. Ibid., pp. 221-222. Walterss examination is based on Vitorias De Indis et de iure belli relectiones, Ernest Nys, ed., and John Bowley Pate, trans., Classics of International Law, Washington, DC, Carnegie Institution, 1917. 174. Ibid., p. 227. Indeed, Vitoria was not the first to protest against the methods of colonization of Latin America used by the Spanish colonizers. Ibid., p. 223. In a sermon preached the Sunday before Christmas, a Dominican friar, Montesinos, protested Spanish treatment of the Indians in Hispaniola (Haiti) : Tell me, by what right or justice do you keep these Indians in such a cruel and horrible servitude ? On what authority have you waged a detestable war against these people who dwelt quietly and peacefully on their own land ?. . . Why do you keep them so oppressed and weary, not giving them enough to eat nor taking care of them in their illness ? For with the excessive work you demand of them they fall ill and die, or rather you kill them with your desire to extract and acquire gold every day. [A]nd what care do you take that they should be instructed in religion ? . . . Are these not men ? Have they not rational souls ? Are you not bound to love them as yourselves ? . . . Be certain that, in such a state as this, you can no more be saved than the Moors or Turks. Pedro Henriquez-Urena, Literary Currents in Hispanic America, pp. 15-16, cited by Walters, ibid., p. 224. On the other hand, Walters says, there was also a Dominican missionary who declared before the Council of the Indies that the Indians were beasts and need not be treated at par with the Europeans. 175. Ibid., pp. 278-281. 176. Ibid., p. 285.

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four endorsed and embellished Aquinass arguments, they also argued, that without war wrongdoing would not be deterred, innocent persons would suffer harm, the security of the state would be threatened, and the good of the whole world undermined 177. They were concerned to deny that the object (objectum) of war was evil and conversely to affirm that war could be morally permissible, provided that its circumstances and end were properly regulated. 178 Who had the just-war-making capacity ? Like Thomas Aquinas, the four theorists attributed the war-making authority to a plurality of princes Christian sovereigns of Europe, also the pagan princes, even of Latin America, and the Indies (of both east and west). But Suarez supported the Spanish annexation of Portugal of 1580, whereas Gentili and Grotius opposed 179. Vitoria and Suarez favoured the indirect capacity of the Pope to influence princes to go to war, while Gentili was critical, and Grotius wanted the kings rather than the Pope to correct gross abuses against religion 180. Suarez and Grotius disagreed on the Dutch revolt against Spain, and Gentili essentially agreed with Grotius and argued that Queen Elizabeth could rightly have aided the Dutch against the Spanish injustice. When should a just war commence ? All the four theorists, like Aqauinas, distinguished between natural and religious causes for war. Natural causes were based on the law of nature. They sought to discover universally-applicable ethical criteria standards which would be normative for all men and nations in all times and places 181. Why ? All the four with minor variations accepted a trilogy of general causes for war : defense (defensio), recovery of property (recuperatio rerum), and punishment (punitio) 182. The first was identified with defensive war, and the third with offensive or
177. Ibid., p. 286 : these are Vitorias words. 178. Ibid. 179. Ibid., p. 293. 180. Ibid., pp. 294-295. 181. Ibid., pp. 310-311. 182. Ibid., p. 312. At footnote 127 to this page, Walters notes, Vitoria added two more general causes : compensation, and peace and security. Grotius added one more : the obtaining of what is owed to us.

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aggressive war 183. The status of the second whether defensive or offensive war is less clear. To Vitoria, a defensive war is to ward off an attack and to avoid an injury or wrong. The attack could be either imminent or already in progress. Following the natural law as reflected in the Roman civil law, the right of defence would apply to both persons and property and could be exercised either by individuals or by States 184. The reason why war for punishment was designated as an offensive or aggressive war was probably because it was in response to a wrong or injury already suffered, not necessarily preceded by military action on the part of the enemy. The categories of defence and punishment underwent considerable extension in the hands of Gentili and Vitoria, to include defending the subjects of another sovereign against their sovereign, and the defence of allies. The ultimate extension was reached when the defence of innocent persons anywhere in the world was accepted. 185 Similarly, the concept of punishment was first applied to crimes against oneself or ones own nation, then to crimes against ones allies or friends 186. In Walterss view, Grotius took the final step when he accorded [the right of punishment] to princes not guilty of the same crime committed anywhere in the world. 187 On the central issues concerning the cause, all four theorists affirmed that a just cause was necessary and that the employment of military force should be a last resort 188. None of them gave any central role to arbitration as a means of avoiding war. But Gentili and Grotius recognized a formal declaration of war with a grace period to settle the dispute, where possible, to be appropriate. Since war resulted in serious damage, the cause had to pass a certain threshold or exceed a minimum limit before it constituted a just cause for war. In other words, resort to war was not proportionate to a slight, trifling, trivial,
183. Ibid. Walters in footnote 128 expresses the view : The terms defensive war and offensive war seem to have occurred first in Vitoria. Suarez used the term aggressive rather than offensive. Grotius avoided both terms, while Gentili used the term make war for offensive war. 184. Ibid., p. 313. 185. Ibid., p. 315. Footnote 138 refers to Vitoria and Suarez. 186. Ibid., with footnote 139 referring, again, to Vitoria and Suarez. 187. Ibid., footnote 140 refers to Grotiuss De jure belli ac pacis, Vol. II, 20, 40, 4, and 20, 44, 1. 188. Ibid., pp. 316-331.

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V. S. Mani or endurable cause. Rather, the cause had to be grave, weighty, great, very important, or sufficient. 189

All four agreed that an enemys objective offence against justice constituted a just cause for recourse to military action. To Suarez and Gentili, the enemys persistence in wrongdoing was good enough to make it a just cause. But Grotius and Vitoria would insist on culpa (subjective element) on the part of the enemy to justify use of military force against him 190. The four theorists generally recognized the principle of proportionality in the prosecution of a just war. But, proportionality also referred to an imaginative, anticipatory comparison of the harm caused by unchecked evil with the damage resulting from the effort to check or punish that evil 191. Gentili, on the other hand, does not accept proportionality limits to cases involving defence or those involving divine matters 192. Both Suarez and Gentili argued that the entire enemy must be punished for collective guilt, even if a minority (in the enemy nation) had voted against the action taken by the enemy 193. But Vitoria and Grotius argued for individualization of both guilt and punishment. This also was in conformity with their insistence of the culpa doctrine 194. Walters quotes Grotius : Properly speaking, no one may be punished for anothers wrong . . . Again, Guilt . . . attaches to the individuals who have agreed to the crime, not to those who have been overmastered by the votes of others. No one may rightly be killed because of ill-fortune . . . for example those who take sides under compulsion. 195 In a case where both sides to a war claimed the probability or certainty of the just cause, Vitoria would propose that the proper course was to arrange a compromise or maintain status quo 196. But he said, objectively speaking, no war could be just on both sides so for one side it was objective, and the other side it could be wrongly subjective 197. However, Grotius argued that either party may justly,
189. 190. 191. 192. 193. 194. 195. 196. 197. Ibid., Ibid., Ibid. Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., p. 318. pp. 322-323. p. 319. pp. 323-324. pp. 324-325. at p. 325. at p. 327. p. 328.

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that is in good faith, [and] plead his case. For both in law and in fact many things out of which a right arises ordinarily escape the notice of men. 198 The concept of neutrality, in the context of the just war doctrine, produced a unique response from Grotius who, in Walterss words, felt that non-involved states were under obligation to determine the just cause of every war and to discriminate in their treatment of the just and unjust sides. Only when the justice of the cause was seriously in doubt did Grotius countenance non-intervention. 199 Vitoria gave the most elaborate consideration of the decisional process leading to war : He cautioned princes against snap-judgments, urging them to make an exceedingly careful examination . . . of the justice and cause of the war. The careful examination is not complete until the prince has listened to, in Vitorias words, even the reasons of those who oppose the war on the grounds of equity and the good. The king alone does not suffice to examine the causes of war. It is very possible for him to err, and his errors bring great evil and ruin to large numbers of people. Therefore war ought to be waged, not on the basis of the kings judgment alone, nor because of the judgment of a few persons, rather, war ought to be waged only when approved by many wise and honest men. 200 Walters presents in a tabular form as many as 14 causes of just war culled out from the opinions of the four theorists 201. In his view 202, the four theorists are in agreement on five propositions : extension of empire or aggrandizement is not a just cause ; natural slavery or inferiority of primitive people is not a just cause ; human sacrifice of innocent victims is a just cause ;
198. 199. 200. 201. 202. Ibid., Ibid., Ibid., Ibid., Ibid., p. 329. p. 330. pp. 330-331. pp. 340-341. p. 345.

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killing of innocent persons for cannibalistic purposes is a just cause ; and harming an ambassador is a just cause. They differed theoretically, but not practically, on : inability of a primitive people to govern themselves (Vitoria was unsure of this being or not being a just cause ; Suarez felt that this could very seldom be a just cause ; Gentili did not deal with it at all ; and Grotius felt that this could sometimes become a just cause) ; sexual immorality opposed to the law of nature (Gentili and Grotius would recognize this as a just cause). The foursome had some basic disagreements on some of the candidates for just causes : denial of the right of innocent passage through territory (Grotius argued that even enemies should be allowed innocent passage ; Gentili differed with Grotiuss view ; Vitoria and Suarez held that the denial is a just cause, except where the Pope had assigned a sphere of influence) ; denial of free trade or freedom of the seas (Vitoria and Suarez would hold it a just cause, except where the denial was approved by the Pope ; Grotius, however, emphatically without any such qualification supported the cause ; Gentili conceded that this could sometimes be a just cause) ; trading with an enemy belligerent (Gentili felt that this should be considered a just cause ; Grotius felt that it could sometimes be used as a just cause : it depended on how it affected ones war. Vitoria and Suarez did not deal with it as a just cause) ; growth in the power of the traditional enemy (Vitoria and Suarez did not deal with this ; Grotius did not regard this as a just cause, and Gentili considered it as a just cause). Walters also presents in a tabular form eight religious causes for just war 203. Of these, The refusal to accept the Christian faith received all the four votes. Papal enforcement of the law of nature got three negative votes (Gentili did not deal with it).
203. Ibid., p. 346.

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Harassment of Christian missionaries or teachers by unbelievers, got the same votes. Forcible prevention of unbelievers conversion into Christianity (Vitoria and Suarez considered this as a just cause, while the other two did not deal with it). Persecution of Christians (all four voted in favour). Heresy (Suarez voted for war against a deposed heretical king ; Gentili and Grotius disagreed with him, while Vitoria did not deal with it). Idolatry (Grotius said it could be a just cause, if the idols were morally evil ; while the other three denied it the just cause status). Atheism, total lack of religious belief (Gentili and Grotius accepted this as a just cause ; the other two did not deal with this). Of the four theorists, only Suarez discussed the relationship of political and religious causes. In his view, all suitable causes for religious war are analogous to, or ultimately reducible to, the just causes of purely secular wars 204. How should a just war be fought ? All the four theorists agreed that how was a question of means and methods of warfare, rather than of intention. A just war had to be fought with justice. In a just war only one side is objectively righteous. However, the other side might mistakenly consider itself to be righteous and so has a right of selfdefence. In a just war where one side is clearly just, the other side is required to submit to the judgment, to the righteous side, and that was the only means of war open to it 205. Self-defence by the unrighteous side (offender) is equated with the crime of resisting arrest 206. Grotius proposed a combination of both legal and moral approaches to the means-question, in order to promote maximum moderation in warfare. According to him, neither side could be held legally liable for employing, in a formally declared war, the means allowed by the law of nations (jus gentium). Prescribing the maximum standards of morality to the means-question, he contended : the righteous side was obliged by moral justice or Christian ethics to exercise far greater moderation in warfare than the law of nations required 207.
204. 205. 206. 207. Ibid., Ibid., Ibid., Ibid., pp. 350-351. pp. 353-388. pp. 357-358. p. 362.

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The four theorists also considered whether a just cause justifies unlimited employment of all available military means whether the just end justified the means. Their unanimous answer was that the end of promoting justice justified the use of all military means necessary for achieving victory 208. But they expressed their concern for proportionality in warfare 209. Grotius gave proportionality the most central role. He spoke of a temperamentum ac belli [temperamentum = a mixture in due proportion, or a proper measure] 210. He discussed both qualitative and quantitative proportionality 211. Qualitative proportionality includes the assessment of several factors : the nature of the enemys offence ; damage to a particular region, to ones own state, to the enemy state, or to the Church ; harm to innocent persons 212. Proportionality, quantitatively, calls for a cost-benefit analysis of specific means or policies. The enemy is held accountable not only for the original cause of war but also for subsequent attempts to resist the administration of justice by the righteous side 213. Vitoria, Suarez and Grotius allowed unintentional killing of innocent persons during the period of actual combat and in cases of necessity 214. They evidently recognized the concept of collateral damage in the interest of military necessity. Walters concludes his study of the just war theorists (Thomas Aquinas, Vitoria, Suarez, Gentili and Grotius) : It is misleading, if not incorrect, to speak of the just war theory. Despite a measure of continuity within the tradition there was striking diversity of opinion in the theoretical formulation of just-war views to say nothing of disagreements in concrete application. The major areas of historical consensus and dissensus can be rather precisely delimited. 215 2.1.6.2.2.5. Grotiuss De Jure Belli ac Pacis (1625) Hugo Grotius is generally regarded as the father of the modern (European-born) international law, many parts of which, even with
208. 209. 210. 211. 212. 213. 214. 215. Ibid., pp. 364-365. Ibid., p. 366. Ibid., p. 367. Ibid., pp. 368-369. Ibid., at p. 368. Ibid., p. 369. Walters, op. cit., p. 388. Ibid., at p. 418.

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changes inflicted on it by the shifting sands of history, have still stayed in place to this day. He calls for special notice for two further reasons. One, he probably anticipated the Westphalian system of sovereign States that began to set in since 1648. Two, while he drew a wide range of authorities to support his propositions, including religious, he is largely seen to be secular in his perception of aspects of international law. For these reasons, his contribution should be separately treated, not just alongside other European scholars of the past. One of the initial principles upon which Grotius relies for his intellectual endeavours in international law is this : It is not contrary to the nature of society to look out for oneself and advance ones own interests, provided the rights of others are not infringed ; and consequently the use of force which does not violate the rights of others is not unjust. 216 [I]f the usurper has seized the governmental power by means of a war that is unlawful and not in accordance with the law of nations, and no agreement has been entered into afterward, and no promise has been given to him, but possession is maintained by force alone, it would seem that the right to wage war against him still remains, and whatever is permissible against any enemy is permissible against him. 217 Grotius firmly holds the view that every war must have a just cause. According to him, Authorities generally assign to wars three justifiable causes, defence, recovery of property [the obtaining of what is owed to us], and punishment. 218 As he explains further, It was in accordance with this natural principle that a king of India, according to Diodorus, brought against Semiramis the charge that she commenced war without having suffered any wrong. So also the Romans demanded of the Senones that they should not attack a people at whose hands they had received no injury. 219
216. Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Vol. II, Translation Book I by Francis W. Kelsey, William S. Hein & Co. Inc., Buffalo, New York, 1995 reprint, p. 54. 217. Book I, p. 160. 218. Book II, p. 171. 219. Ibid., p. 172.

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Grotius would probably include this right to respond to a wrong in his concept of right of self-defence. This right of self-defence, it should be observed, has its origin directly, and chiefly, in the fact that nature commits to each his own protection, not in the injustice or crime of the aggressor. 220 Grotius is against the modern day concept of preventive war. He said : Quite untenable is the position, which has been maintained by some, that according to the law of nations it is right to take up arms in order to weaken a growing power which, if it becomes too great may be a source of danger. . . . But that the possibility of being attacked confers the right to attack is abhorrent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed to us. For protection against uncertain fears we must rely on Divine Providence, and on a weariness free from reproach, not on force. 221 Grotius readily agrees : There are certain causes which present a false appearance of justice. They include, the fear of something uncertain, advantage, desire for richer land, discovery of things previously taken over by others, and desire for freedom among a subject people. An unjust cause of war also is the desire to rule others against their will on the pretext that it is for their good. 222 These are among the unjust causes of war 223. To Grotius, war is too serious a business to engage in by States on frivolous grounds : Now war is of the utmost importance, seeing that in consequence of war a great many sufferings usually fall upon even innocent persons. Therefore in the midst of divergent opinions we must lean towards peace. 224 Conference, arbitration, and drawing of lots are the three ways
220. Ibid. 221. Ibid., p. 184. 222. Ibid., p. 551. Can Grotius be considered to be one of the forerunners of anti-imperialism ? 223. Ibid., pp. 546-556. 224. Ibid., p. 560.

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that Grotius suggests to avoid war 225. As Grotius reminds us, there is no rule that where a right has been adequately established, either war should be waged forthwith, or even that war is permissible in all cases. On the contrary, it frequently happens that it is more upright and just to abandon ones right [to wage war]. Commending that as the right conduct above all becoming for Christians, Grotius asks them to imitate the most perfect example set by Christ, for He was willing to die for us who were as yet ungodly and hostile (Romans, v. 6). This fact of itself much the more urges us not to follow up our own interests or what may be due to us, so far as to cause others the suffering that wars bring with them. 226 Hence the ground rule : war is not to be undertaken, unless of necessity 227. The patriarch of international law does not hide his strong feelings against war : Warfare has no place among the useful arts. Nay, rather, it is so horrible that only the utmost necessity, or true affection, can render it honourable. 228 2.1.7. Kantian philosophy and just war Emmanuel Kant (1724-1804) is a serious philosopher who has sought to establish a connection between what is and what ought to be, between the world of realities and the ideal world, and between selfishness and human happiness as an ultimate goal of all human activities informing and conditioning human institutions towards achievement of that goal. Thus, many of the Kantian quotes normally used as a strong philosophical support for propositions commending just war doctrine, tend to be eclectic, without taking into account in a wholesome manner, what the great thinker from the former Konigsberg has perceived of the humankind and its institutions, and its place in the universe of matter and ideas. Using them eclec225. Ibid., pp. 560-563. 226. Ibid., p. 567. 227. Ibid., p. 575. 228. Ibid., pp. 585-586. See also Onuma Yasauki, War in his ed., A Normative Approach to War : Peace, War, and Justice in Hugo Grotius, Clarendon Press, Oxford, 1993, pp. 57-121.

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tically and out of context in support of just war doctrines has indeed become a pastime with just warriors these days. Here are two of them 229 : So act that you treat humanity, both in your own person and in the person of every other human being, never merely as a means, but always at the same time as an end. 230 When it comes to happiness the promotion of which as an end is my duty, it must be the happiness of other people whose permitted end I hereby also make my own. 231 The principal problem in using such quotes from Kant to justify a just war doctrine is principally two-fold. One, Kants propositions logically arise from his earlier deductions and often stand as steppingstones to his subsequent deductive propositions or conclusions. Two, such statements do not necessarily a priori imply Kants approval (or disapproval) for use of force to remedy a situation, nor do they underscore the existence of any legal rule to that effect 232. Take for example the second quote above. It is part of Kants concept of the metaphysics of morals. In fact, Kant here examines a system of duties. He states : All duties are either duties of right, that is, juridical duties (officio juris), or duties of virtue, that is ethical duties. Juridical duties are such as may be promulgated by external legislation ; ethical duties are those for which such legislation is not possible. 233 His general divisions of metaphysics of morals are at diverse levels : as a system of duties generally, according to the objective
229. Gwyn Prins, The Politics of Intervention, Pugwash Occasional Papers, Vol. 1, No. 1, February 2000 (Pugwash Study Group on Intervention, Sovereignty and International Security). 230. Gwyn quotes this from Kant, Groundwork of the Metaphysics of Morals, 1785. In Kants Fundamental Principles of the Metaphysics the translation of a nearly identical statement reads as follows : So act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as means only. We will now inquire whether this can be practically carried out. 231. Gwyn quotes this from Kants The Metaphysics of Morals, 1797. 232. Kants opposition to war is in fact absolute and unqualified. In his essay on Perpetual Peace : A Philosophical Sketch, 1795, he speaks of reason, from its throne of supreme moral legislating authority, absolutely condemns war as a legal recourse and makes a state of peace a direct duty, even though peace cannot be established or secured except by a compact among nations. See his explanation under the Second Definitive Article. 233. Kant, Introduction to Metaphysics of Morals, 1785, trans. W. Hastie.

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relation to the law of duty, according to relations of obligations, according to the subjective relation of obligors and obligees, and so on. His concept also encompasses the relation of the faculties of the human mind to the moral laws. Evidently, Kants philosophical search has been on a higher plane of concept rather than just war in exposition of metaphysics of morals. It is precisely for this reason that we find it appropriate to examine the major contours of Kantian concepts specific to international law and relations 234. To begin with, Kant treats the relations between States and issues of war and peace mainly with reference to two social conditions, namely what is in the international state of nature and what ought to be in progression from that state towards attainment of perpetual peace and a permanent congress of nations. 2.1.7.1. International state of nature In the international state of nature, Kant recognizes the scenario of relations between the States similar to the inter-individual relations in a state of nature as they begin moving from nationhood to statehood. In the international state of nature, he perceives interState relations in terms of (1) a right of going to war against hostile States, (2) a right during war, (3) a right after war, (4) a right to peace, and (4) a right against unjust enemy. 2.1.7.1.1. The right to go to war There seems to be a widespread view that Kantian worldview is essentially romantic in the sense that it is intrinsically sunshine, now or ever. Contrary to this perception, Kant, conditioned as he is by his critical empiricism, begins with the primary assumption that nations, conglomerates of humans, are prone to hostilities, as they were in a state of nature of Hobbesian fame. Hence his opening statement on the Right of Going to War in relation to Hostile States : Viewed as in the state of nature, the right of nations to go to war and to carry on hostilities is the legitimate way by which they prosecute their rights by their own power when they regard themselves as injured ; and this is done because in that
234. For this purpose, we have identified two of Kants important works, namely, Metaphysical Elements of Justice, Sections 56 to 62, and Perpetual Peace : A Philosophical Sketch.

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V. S. Mani state the method of juridical process, although the only proper to settle such disputes, cannot be adopted. 235

Kant examines the above right to war in terms of right of going to war in relation to hostile states 236, right during war, and right after war. The right of going to war is subject to further distinction between the threatening of war, the active injury of a first aggression, and general outbreak of hostilities. According to him, [t]he right to go to war is constituted by any overt act of injury. This includes any arbitrary retaliation or act of reprisal (retorsio) as a satisfaction taken by one people for an offence committed by another, without any attempt being made to obtain reparation n a peaceful way. There is no distinction between just and unjust wars in a state of nature. 2.1.7.1.2. The right during war While addressing the issue of the right during war, Kant feels that [t]he determination of what constitutes right in war, is the most difficult problem of the right of nations and international law. It is very difficult even to form a conception of such a right, or to think of any law in this lawless state without falling into a contradiction. Inter arma silent leges. It must then be just to carry on war according to such principles as render it always still possible to pass out that natural condition of the states in their external relations to each other, and to enter into a condition of right. 237 Kant envisages some rudiments of international humanitarian law informing the right of States during war. 2.1.7.1.3. The right after war The right after war in a state of nature begins with a treaty of peace dictated by the power of the victor 238. This treaty of peace is
235. Kant on War (excerpts from his Metaphysical Elements of Justice), Section 56, Right of Going to War in Relation to Hostile States, http://www. uwplatt.edu/~drefcins/113KantWar.html. 236. Section 56, ibid. 237. Section 57, ibid. 238. Section 58, ibid.

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essentially a truce until the next war breaks out (and this should be distinguished with the permanent treaty of peace whereby perpetual peace is to be established). 2.1.7.1.4. The right to peace In his state of nature, Kant also recognizes some rights of peace. The rights of peace are : The right to be in peace when war is in the neighbourhood, or the right of neutrality. The right to have peace secured so that it may continue, when it has been concluded, that is the right of guarantee. The right of the several states to enter into a mutual alliance, so as to defend themselves in common against all external and even internal attacks. 239 2.1.7.1.5. Right against unjust enemy ? What about the right against an unjust enemy ? The right of a state against an unjust enemy has not limits, at least in respect of quality as distinguished from quantity or degree. In other words, the injured state may use not, indeed any means, but yet all those means that are permissible and in reasonable measure in so far as they are in its power, in order to assert its right to what is its own. 240 However, Kant expresses conceptual difficulties to accept the concept of unjust enemy. For one thing, in this international state of nature, every state is judge in its own cause. For another, the expression an unjust enemy in the state of nature is pleonastic ; for the state of nature is itself a state of injustice 241. A just enemy would be one to whom I would do wrong in offering resistance ; but such a one would really not be my enemy. 242
239. This right of federation, however, stresses Kant, does not extend to formation of any league for external aggression or international aggrandizement. See ibid. 240. Section 60 on Right as against an Unjust Enemy, ibid. 241. This statement is itself a negation of any Kantian concept of humanitarian just war. 242. Section 60, footnote 235.

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2.1.7.2. Duty to strive for perpetual peace According to Kant, The natural state of nations as well as of individual men is a state which it is a duty to pass out of, in order to enter into a legal state. 243 Even as individuals in a nation have a duty to progress towards establishment of a State to ensure in common pursuit of happiness, so have States the duty in the international state of nature to pursue the happiness of their peoples by striving for the establishment of a perpetual peace, a federation of free states or a permanent congress of nations, and a world citizenship limited to the conditions of universal hospitality. This pursuit, to Kant, is analogous to that by which a nation becomes a state 244. The pursuit of perpetual peace is our duty, according to Kant, because : The universal and lasting establishment of peace constitutes not merely a part, but the whole final purpose and end of the science of right as viewed within the limits of reason. 245 A staunch critic of war all wars , Kant vehemently argues in favour of a peaceful legal process to replace war as an institutional remedy : Without the control of criticism, reason is, as it were, in a state of nature, and can only establish its claims and assertions by war. Criticism, on the contrary, deciding all questions according to the fundamental laws of its own institution, secures to us the peace of law and order and enables us to discuss all differences in the more tranquil manner of a legal process. In the former case disputes are ended by victory, which both sides may claim and which is followed by a hollow armistice ; in the latter by a sentence, which, as it strikes at the root of all speculative differences, ensures to all concerned a lasting peace. 246 A focal point of Kantian philosophy is the people, not the rulers, nor States. People ought to be treated as an end in themselves, and not a means to an end selected by the ruler. They ought not to be
243. 244. 245. 246. Ibid., Section 61. Ibid. Kant, The Science of Right, W. Hastie, trans., Conclusion. Kant, The Critique of Pure Reason, J. M. D. Meikeljohn, trans., p. 222.

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treated as objects for a warlike purpose. Being the immediate victims of war, As such they must give their free consent, through their representatives [Kants concept of republican government], not only to the carrying on of war generally, but to every separate declaration of war ; and it is only under this limiting condition that the state has a right to demand their services in undertakings so full of danger [i.e., wars]. 247 Kants Perpetual Peace : A Philosophical Sketch probably grew out of his Metaphysical Elements of Justice, noted above. It begins with a satire : Whether this satirical inscription on a Dutch innkeepers sign upon which a burial ground was painted had for its object mankind in general, or the rulers of states in particular, who are insatiable of war, or merely the philosophers who dream this sweet dream, it is not for us to decide. 248 Kants postulations and observations on his Perpetual Peace are riddled with such subtle satirical statements, perhaps reflecting his intellectual impatience with the irrationality of the international state of nature in an Age of Reason. 2.1.7.2.1. Perpetual peace : preliminary articles Kant believes : The state of peace among men living side by side is not the natural state (status naturalis) ; the natural state is one of war. This does not always mean open hostilities, but at least an unceasing threat of war. A state of peace, therefore, must be established, for in order to be secured against hostility it is not sufficient that hostilities simply be not committed ; and, unless this security is pledged to each by his neighbour (a thing that
247. Kant, footnote 235, supra, p. 55. 248. Immanuel Kant, Perpetual Peace : A Philosophical Sketch, 1795, first published in 1796, http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm, opening sentence. For another translation of this book, see the Grotius Publications, Kants Perpetual Peace. A Philosophical Proposal, translated by Helen OBrien, with an Introduction by Jessie H. Buckland, Sweet & Maxwell, Ltd., London, 1927.

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V. S. Mani can occur only in a civil state), each may treat his neighbour, from whom he demands his security as an enemy. 249

Kant, therefore, deals with the problem of perpetual peace in two phases. First, he states his preconditions for a perpetual peace under Section I of his essay containing the preliminary articles for perpetual peace among states. He postulates six Preliminary Articles aimed at cleansing the Aegeans stable, as it were, to prepare for the transition from a state of war to a state of peace, whose conditions are laid down in Section II : 1. No treaty of peace shall be held valid in which here is tacitly reserved matter for a future war. Explanation : Kant explains : Otherwise a treaty would be only a truce, a suspension of hostilities but not peace, which means the end of all hostilities so much so that even to attach the word perpetual to it is a dubious pleonasm. He is keen that all causes of war must be eliminated. 2. No independent state, large or small, shall come under the dominion of another state by inheritance, exchange, purchase or donation. Explanation : Kant points out by way of explanation : A state is not, like the ground which it occupies, a piece of property (patrimonies). It is a society of men whom no one else has any right to command or to dispose except the state itself. It is a trunk with its own rots. But to incorporate it into another state, like a graft, is to destroy its existence as a moral person, reducing it to a thing : such incorporation thus contradicts the idea of he original contract without which no right over a people can be conceived. This preliminary article is Kants response to the many wars that took place in Europe during his lifetime and before, triggered as they
249. The paragraph introductory to the Definitive Articles for Perpetual Peace among States, ibid.

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were by the diverse methods of gaining domination over other States 250. 3. Standing armies shall in time be totally abolished. Explanation : For they incessantly menace other states by their readiness to appear at all times prepared for war ; they incite them to compete with each other in the number of armed men, and there is no limit to this. . . . A standing army is itself a cause of offensive war. Add to this that to pay men to kill or to be killed seems to entail using them as mere machines and tools in the hand of another (the state), and this is hardly compatible with the rights of mankind in our own person. But Kant makes an exception to one possibility of war for which there is need for military preparedness on the part of a State : But the periodic and voluntary military exercise of citizens who thereby secure themselves and their country against foreign aggression are entirely different. On the basic principle of abolition of standing armies, however, Kant is firm. He underscores the role of three powers of State the power of armies, of alliances, and of money that lead to war. 4. National debts shall not be contracted with a view to external friction of states. Explanation : Kant is not against a State contracting external debt when the purpose is domestic economy. Without such justification, accumulation of national debt constitutes a dangerous money power. Kant explains : This ingenious invention of a commercial people [England] in this [eighteenth] century is dangerous because it is a war treasure which exceeds the treasures of all other states . . . This facility in making war, together with the inclination to do so on
250. Kants subtle satire is at its best when he says that it [the propensity of European States for territorial aggrandizement by the presumption that States could espouse one another through diverse ways such as these] is in part a new kind of industry for gaining ascendancy by means of family alliances and without expenditure of forces, and in part a way of extending ones domain. Kant, op. cit., explanation of Preliminary Article 2.

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V. S. Mani the part of rulers an inclination which seems inborn in human nature is thus a great hindrance to perpetual peace. Therefore to forbid this credit system must be a preliminary article of perpetual peace all the more because it must eventually entangle many innocent states in the inevitable bankruptcy and openly harm them. They are therefore justified in allying themselves against such a state and its measures.

Surely, these words are quite a morale-booster for the debt-ridden developing counties of today ! They now have a justification to take collective measures against the International Shylocks ! Kant does not indeed go as far as clearly expressing himself in favour of a just war against these Shylocks, yet on a lighter vein his arguments could be used in support of such a just war, if ever such a war would be practically possible (for the debt-ridden States are not likely to be powerful enough to launch such wars). 5. No state shall by force interfere with the constitution of government of another state. Explanation : Is not such interference an offence, perhaps, which a state gives to the subjects of another state ? Explaining further the limit of this rule, Kant says : But it would be quite different if a state, by internal rebellion, should fall into two parts, each of which pretended to be a separate state making claim to the whole. To lend assistance to one of these cannot be considered an interference in the constitution of the other state (for it is then in a state of anarchy). But so long as the internal dissension has not come to this critical point such interference by foreign powers would infringe on the rights of an independent people struggling with its internal disease ; hence it would itself be an offence (scandalum acceptum) and would render the autonomy of all states insecure. This is Kants doctrine of non-interference in the internal affairs of a State by another. It is here that all eclectic quotes from Kant in support of a humanitarian just war doctrine fall flat, for basically, he is a non-interventionist in respect of inter-State relations. And he regards all external interventions in the affairs of a State as morally untenable because they violate the self-determination of the people of the State. To him, State sovereignty represents the self-determination of its people.

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6. No state shall, during war, permit such acts of hostility which would make mutual confidence in the subsequent Peace impossible : such are the employment of assassins (percussores), poisoners (venefici), breach of capitulation, and incitement to treason (perduellio) in the opposing state. Explanation : This principle brings out Kants perception of international humanitarian law, even if on the moral plane : These are dishonourable stratagems. If the belligerent parties do not recognize such limits to means and methods of warfare, no [worthwhile] peace could be concluded and the hostilities would degenerate into a war of extermination (bellum internecinum). War, however, is the only sad course in the state of nature (where there is no tribunal which could judge with the force of law) by which each state asserts its rights by violence and in which neither party can be adjudged unjust (for that would presuppose a juridical decision) ; in lieu of such a decision, the issue of the conflict (as if given by a so-called judgment of God) decides on which side justice lies. A further reason why Kant cannot support a humanitarian just war doctrine. Kant contends, in the same vein : a war of extermination, in which the destruction of both parties and of all justice can result, would permit perpetual peace only in the vast burial ground of the human race. Therefore, such a war and the use of all means leading to it must be absolutely forbidden. Kant makes a distinction between principles contained in Preliminary Articles Nos. 1, 5 and 6, and others (in Nos. 2, 3, and 4). The former are leges strictae principles that are of that strict kind which hold regardless of circumstances and which demand prompt execution. Whereas the latter, while not exceptions from the rule of law, nevertheless are subjectively broader (leges latae) in respect of their observation [i.e., compliance], containing permission to delay their execution without, however, losing sight of the end.

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V. S. Mani 2.1.7.2.2. Perpetual peace : definitive articles

Having postulated for transition from the war-torn international state of nature, Kant now seeks to prescribe three essential conditions as the fundamental bases for his perpetual peace. The postulate which is basic to all the following articles, says Kant, is : all men who can reciprocally influence each other must stand under some civil constitution. 251 His three Definitive Articles in Section II of his essay are the following : 1. The civil constitution of every state should be republican. Explanation : According to Kant, the only constitution which derives from the idea of the original compact, and on which all juridical legislation of a people must be based, is republican. Clearly, Kant conceives of a republican constitution to be what is now understood to be democratic 252, as his republican constitution is established by the principle of freedom of the members of a society, by principles of dependence of all upon a single common legislation, and by the law of their equality as citizens. Hence his conclusion : The republican constitution, therefore, is, with respect to law, the one which is the original basis of every form of civil constitution. Kant feels that a republican constitution is a safer bet for
251. Ibid., Section II, first paragraph, footnote 3. Kant further states : Every juridical constitution which concerns the person who stands under it is one of the following : (1) The constitution conforming to the civil law of men in a nation (ius civitas). (2) The constitution conforming to the law of nations in their relation to one another (ius gentium). (3) The constitution conforming to the law of world citizenship, so far as men and states are considered as citizens of a universal state of men, in their external mutual relationships (ius cosmopoliticum). This division is not arbitrary, being necessary in relation to the idea of perpetual peace. Ibid. 252. Republicanism, says Kant, is the political principle of the separation of the executive power (the administration) from the legislative ; despotism is that of the autonomous execution by the state of laws which it has itself decreed. Perhaps following the Aristotelian classification of forms of government, he remarks : Of the forms of the state, that of democracy is, properly speaking, necessarily a despotism, because it establishes an executive power in which all decide for or even against one who does not agree ; that is, all, who are not quite all, decide, and this is a contradiction of the general will with itself and with freedom. Ibid., explanation to the First Definitive Article.

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peace than any other form of government, as in the former the issues of war would need the consent of the citizens to be determined, and nothing is more natural than that they would be very cautious in commencing such a poor game, decreeing for themselves all the calamities of war. On the other hand, in other forms of government, a declaration of war is the easiest thing in the world to decide upon ; the ruler may resolve on war as on a pleasure party for the most trivial reasons, and with perfect indifference leave the justification which decency requires to the diplomatic corps who are ever ready to provide. 2. The law of nations shall be founded on a federation of free states. Explanation : In a state of nature, peoples, as states, like individuals, live in a condition of threat of mutual injury. Hence, Each of them may and should for the sake of its own security, demand that the others enter with it into a constitution similar to the civil constitution, for under such a constitution each can be secure in his right. This, Kant clarifies, does not mean that they are creating a supraState. That would be contradictory, since a state implies the relation of a superior (legislating) to an inferior (obeying). Kant now prefers to call it a league, a league of peace (foedus pacificum) 253,
253. Ibid. At an earlier attempt at Perpetual Peace, Kant conceives of a union of States, which in order to maintain peace, may be called a permanent congress of nations ; and it is free to every neighbouring state to join in it. A union of this kind, so far at least as regards the formalities of the right of nations in respect of the preservation of peace, was presented in the first half of his century, in the Assembly of the States-General at The Hague. In this Assembly most of the European courts, and even the smallest republics, brought forward their complaints about the hostilities which were carried on by the one against the other. Thus the whole of Europe appeared like a single federated state, accepted as umpire by the several nations in their public differences. But such an assembly of nations soon dissipated. Kant would therefore recommend a union of states similar to the United States of America. See his Metaphysical Elements of Justice, Section 61. The Assembly of the States-General that he refers to was probably of 1651. The gathering of more than 300 delegates met from January to August 1651 following the sudden death of Sadholder Prince William II in November 1650. The extraordinary assembly was convened in the Great Hall of the Binnenhof in The Hague, the former court of the counts of Holland, when Holland (the Republic of United Provinces) was much vaster than what it is today. An earlier meeting of the States-General had taken place in the same venue in 1581. The Hague Assembly was made permanent from 1593.

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which would be distinguished from a treaty of peace (pactum pacis) by the fact that the latter terminates only one war, while the former seeks to make an end of all wars forever. Kant is convinced that the practicality (objective reality) of this idea of federation, which should gradually spread to all states and thus lead to perpetual peace, can be proved. His optimism seems to lie in his argument that any enlightened people could get together to form a republican constitution establishing legislative, executive and judicial authorities to replace the war as a method of resolution of disputes, such a federation could form a fulcrum around which other similarly minded peoples could do the same and get associated together, even though they might not acknowledge any supreme legislative power over all of them, except that which they have established for each of them to govern themselves internally. Each of them could pledge, There ought to be no war between myself and other states, even though I acknowledge no supreme power by which our rights are mutually guaranteed. The result will be a free federation, the surrogate of the civil social order, which reason necessarily associates with the concept of the law of nations . . .. 3. The law of world citizenship shall be limited to conditions of universal hospitality. Explanation : Kant censors inhospitality to foreigners, including their ill-treatment being opposed to natural law. Nationals of different countries should be allowed to interact between themselves. In this way distant parts of the world can come into peaceable relations with each other, and these are finally publicly established by law. Thus the human race can gradually be brought closer and closer to a constitution establishing world citizenship which is a sure guarantee against war. The idea of the law of world citizenship, Kant suggests, is a supplement to the unwritten code of the civil and international law, indispensable for the maintenance of the public human rights and hence also of perpetual peace. 2.1.7.2.3. Kant and Bentham : a comparison Finally, our examination of Kants views on just war invites us to the striking similarity of some of the conclusions of Kant and Bentham, both contemporaries. Jeremy Bentham (1748-1832), the celebrated British jurist and philosopher, like Kant, believes in the

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greatest happiness of the greatest number to be the end of all government, all human activity 254. But then, Kant relies on the sovereign reason (high reason is the sovereign to determine any decision) to dictate human action to this end, whereas Bentham, conditioned by a trade-driven era of British industrial revolution, advocates utilitarianism as the essential philosophy that would naturally dictate the progress to that end. Both believe in humanity, and human welfare, even if they denoted more of materialism in Bentham (who has a hedonic calculus to measure the positive (pleasure) and negative (pain) consequences of any human decision), and more of spiritualism in Kant. Kants Perpetual Peace is a state of happiness dictated by reason, and represents progress away from international state of nature of perpetual war. Whereas Bentham envisions his state of Perpetual Peace to be one determined by conditions of the greatest happiness of the greatest number, its utility being a function of these conditions the utility of Perpetual Peace informs these conditions 255. Bentham, like Kant, believes that everyone suffers from war. But he wants peace more because that condition promotes trade and trade human happiness 256. Benthams plan has two main propositions to reduce military forces in Europe and to emancipate colonies 257. And for the welfare of all civilized nations he has three goals simplicity of government, national frugality, and peace 258. Benthams feels colonies are a drag on nations, for maintaining them with the help of large navies is in the long run not utilitarian for the mother country. Perpetual treaties should be established to limit armed forces, end mutually inimical
254. Jeremy Bentham, The Principles of Morals and Legislation, 1789, p. 2. Bentham says : By utility is meant that property in any object whereby it tends to produce benefit, advantage, pleasure, good, or happiness, or to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered ; if that party be the community in general, then the happiness of the community ; if a particular individual, then the happiness of the individual. 255. Jeremy Benthams essay, A Plan for a Universal and Perpetual Peace, 1790, http://www.la.utexas.edu/research/plotheory/bentham/pil/pil.e04.html. 256. All trade is in its essence advantageous. even to that party to whom it is least so. All war is in its essence ruinous ; and yet the greatest employments of government are to treasure up occasions of war, and to put fetters upon trade. See Bentham, op. cit. 257. Sanderson Beck, Peace Plans of Rousseau, Bentham, and Kant, http:// www.san.beck.org/GPJ15-Rousseau. Kant.html. 258. Bentham, footnote 255, supra.

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alliances, and to create a common court of judicature to adjudicate differences between countries peaceably. He advocates open and transparent diplomacy. Each country must have a Congress of Deputies whose proceedings should be public, with power to report to public opinion. In Benthams view, if secrecy is given up and such public reporting is assured, then the public will not support war. No ruling elite has the right to push a nation into war against its peoples will. Like Kant, Bentham too expresses himself very clearly against the utility of any war whether bona fide wars (wars resulting from injuries, transgression of boundaries or territories, enterprises of conquest, etc.) or mala fide (wars with no such reasons). In either case, the miseries of a more or less hopeless war must tilt the balance against any war. And the expense of a single campaign would more than outweigh the cost of suing for a peaceful solution 259. In Benthams view, a remedy against the bona fide wars is to be found in The Tribunal of Peace. Whereas the remedies for other kinds of wars (wars of passion, and wars of ambition) include reasoning, showing the repugnancy betwixt passion on the one hand, and justice as well as interest on the other, or showing the repugnancy betwixt ambition and true interest, and remedies of regulation, in the event of a temporary ascendancy on the part of reason 260. 2.2. Changing Responses of Traditional International Law The traditional international law and relations responded to the theories of just war principally in three ways the balance of power doctrine, interventions kept out of the pale of international law, intervention as a legal right and duty, and a total prohibition of intervention. 2.2.1. Balance of power doctrine In quest of the causes of modern [eighteenth-century] European wars, Sheldon Amos identifies Balance of Power as one of the principal causes. He observes : The most striking form the doctrine of Intervention has
259. Jeremy Bentham, Of War, Considered in Respect of Its Causes and Consequences, http://www.la.utexas.edu/research/poltheory/bentham/pil/pil.e03.html. 260. Ibid.

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taken is that of the Balance of Power, as it was understood in the sixteenth, seventeenth, and part of the eighteenth century, and according to which a certain relative and existing political situation of the States of Europe was to be definitely guaranteed to each State, and any political assumption or encroachment incompatible with this situation was ground for War to be waged by any or all of the other States. He finds the Holy Alliance as a manifestation of a tendency to intervention. As it resulted from the wars of the French Revolution, it provided a framework in accordance with which certain leading States allied themselves together, with the avowed purpose of making War on any State which should adopt institutions uncongenial to themselves 261. With biting sarcasm, Amos remarks : England, especially, from her insular position, and her complicated commercial system, has been prominent in advocating doctrines of so-called Non-intervention, which present a career. Not that England had been consistent in this ; its consistency or the lack of it often depended on the divergent views of the British political parties. In actuality, England did practice intervention often enough. Amos cites the examples of its interventions resulting in establishment of the kingdom of Greece, the principality of Servia, the kingdoms of Belgium and Holland at diverse times 262. Often, the doctrine of non-intervention is further professed as a tenet even by those States which are most habitually tempted to intervene. An apology often very much laboured and tortuous is always alleged in the diplomatic correspondence, which must not be turned into a precedent. Each case is treated as exceptional, and as justifying special measures, which must not be turned into a precedent. Either the circumstances are those of the alleged oppression of a nationality, or religious persecution, or a mere succession of brutal outrages, due to a tyrannical or incompetent government, or apprehended danger to neighbouring States ; and a State representing persons having a common nationality or religious
261. Sheldon Amos, Political and Legal Remedies for War, New York, Harper & Bros, 1880, p. 58. (Amos was Professor of Jurisprudence in University College, London.) 262. Ibid., pp. 58-59.

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V. S. Mani creed with the oppressed, or bound by historical ties of various sorts, conceives itself entitled to interfere in the avowed behalf of humanity or abstract justice, if not of obvious selfinterest. 263

To the same genre had been the US intervention (liberation of) in Cuba, Russian and Austro-Hungarian intervention in the Turkish Empire (to ameliorate the condition of the European provinces of the Empire !). Amos, writing in 1880, notes that Austria and France within the last twenty years, vied with each other in interfering in the internal struggles of Italy ; and France, Italy, and Germany have each held themselves, and would again doubtless hold themselves, on one ground or another entitled to intervene in the case of serious internal discord in Switzerland 264. Amos finds a romantic two-face of the instrument of intervention, in pursuit of the foreign policy of the intervening power. One, it had to be proved that the intervention had been timely and in the best interest of the target State, to be decided by the real and internal, and not by the factitious and external, elements of victory. Two, it is always open to a State, influential, designing, and unscrupulous, to foster in another State, subject to its moral control, the very condition of things which will, sooner or later, being about a fit opportunity for its own overt interference. (E.g. Russias role in Servian War and the Herzegovinian Insurrection 265.) The the shadowy line which separates a legal from a moral right to intervene, remained in a sense the inherent imperfection which at present clings to International Law 266. But to begin with it was non-intervention that appealed to States, particularly Britain, in the late eighteenth and the nineteenth centuries. It is well known that the general principle of non-interference in the affairs of foreign States was first practically asserted by Lord Canning in 1826, especially against the doctrines of the Holy Alliance. Amos adds :
263. 264. 265. 266. Ibid., p. 59. Ibid. Ibid., p. 61. Ibid., p. 103.

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The Free-trade Movement, and his innate pacific disposition, stimulated Mr. Cobden to go still farther in the same direction, and prepare the way for Non-Intervention being erected into a dogma, advocated by a distinct party, and having no inconsiderable influence in the domain of practical politics. 267 As the nineteenth century began to wear out, a sense of realism dawned on the practitioners of statecraft. Lord Derby, then British Foreign Secretary, made a statement on 14 July 1876 (which according to him expresses, fairly enough, the modern doctrine of Intervention, as held in England by practical statesmen) : The doctrine of absolute indifference is not one which this country ever has professed, and I do not think it is one which would be popular with the nation at large. We have a great position in Europe ; and with nations, as with individuals, a great position involves great responsibilities. We cannot absolutely decline to accept our responsibilities ; for if every nation that had reached a certain state of civilization were to accept the principle of Non-Intervention in its absolute and extreme form, and say, we will never meddle in any international questions unless our own interests are touched, the effect of that would be to leave the regulation of all international affairs to nations which have not reached that state of civilization. If voice of England, in questions such as those we are now discussing, were to be silenced altogether, there would be one voice less heard on the side of Peace. No one is more strongly in favour of Non-Intervention, within reasonable limits, than I am ; but we must push no doctrine to extremes ; and an absolute declaration of Non-Intervention on all occasions would be a proclamation of international apathy, and I need not tell you that international apathy does not mean either Peace or progress. 268 Some of these words a great position involves great responsibilities remind us of recent history resonating some of the statements by President George Bush, Jr. and Prime Minister Tony
267. Ibid. 268. The Times (London), 15 July 1876, quoted by Amos, op. cit., pp. 113114.

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Blair. The reference to States which have not reached that state of civilization did fit into the world of the nineteenth century, yet some of the big powers of today do relapse quite frequently into a similar, if not the same, mindset about other smaller nations. They continue to carry the White Mans burden. Given the emerging State attitudes of his time and recognizing the theoretically justifiable (read objective) need for international intervention into the internal affairs of weaker States, Amos too believes that, ideally, there was a moral rationale to recognize intervention into the internal affairs of a foreign State to be justifiable in two situations : one engendered by the duration of an anarchical condition, coupled with the apparent improbability of order ever being restored (intervention justified on the ground of the interest which all States are presumed to have in the stability and integrity of each State) ; and the other when gross acts of inhumanity persisted (on grounds of humanity) 269. Yet, Amos concedes, it is obvious that there are a number of indeterminate elements still left open, the arbitrary determination of which, by a single interested State in any given case, may lead to serious abuses 270. Writing at a time when there was no global international organization like the United Nations, Amos strongly recommends : It is in the highest degree desirable that the element of private interest should be entirely removed an object which can best be secured, in respect of such cases as these, by habits of combined policy among as great a number of States as possible, and those States especially who are above the suspicion of having an interested motive lower than that of promoting Peace, order, and general well-being. Thus, so far as this sort of Intervention is concerned, it is, above all, desirable that the purity of the motives should be conspicuous, and, for this end, the more States that join, the better the reputation for public honesty of the Government of those States ; and the greater the publicity of the grounds of Intervention alleged, the less likely is the intervention to be inexpedient, unjust, and provocative of general War. 271 Balance of Power has been a policy followed by many countries
269. Ibid., p. 114. 270. Ibid. 271. Ibid., p. 115.

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and great powers in particular over time 272. It, indeed, bore two faces. Status quo in terms of territorial possessions and military power should be maintained at all times, so that no great power should be more powerful than its natural adversaries. This required it to follow a general policy of non-intervention in the affairs of other States, as any such intervention would tilt this balance of power, the status quo. On the other hand, if, after all, an intervention did take place, spoils needed to be shared with other great powers, again to restore status quo in terms of power equilibrium. Some of the treaties that resulted from the Napoleonic wars embodied the concept of balance of power, even as some of them sowed the seeds for the Concert of Europe system (the nineteenthcentury equivalent of P-5). The Preamble to the Treaty of Paris of 30 May 1814 recited, inter alia, the desire of the parties (Austria, Great Britain, France, Portugal, Prussia, Russia, Spain and Sweden) to terminate the long agitations of Europe, and the sufferings of mankind, by a permanence of peace, founded on a just repartition of force between parties, and pledged its durability. Four Separate and Secret Articles were also signed at the same time by the Great Powers (Austria, Britain, France, Prussia and Russia). Article I, spoke of a system of real and permanent balance of power in Europe based on the settlement of territories, Austro-Sardinian boundary in Italy and the guarantee of Switzerland, with the territory of Holland, and with the aggrandisement of Holland by the acquisition of the German territories from France. The third Article expressly stated that the establishment of a just Balance of Power in Europe requires that Holland should be so constituted as to be enabled to support her Independence through her own resources. The Congress of Vienna, participated in by Austria, Great Britain, Prussia and Russia (France, a defeated power, was not yet granted admission into this meeting of the founders of the Concert of Europe), on 14 June 1814 adopted a protocol on the Union of Belgium and Holland. Its very first clause stated, unabashedly, the union was decided upon, by virtue of the political principles adopted by them for the establishment of a State of equilibrium in Europe. The establishment of a just equilibrium in Europe was again
272. For an extensive examination of Balance of Power, see Hans J. Morganthau, Politics among Nations The Struggle for Power and Peace, 4th ed., 1967, Indian ed., by Scientific Book Agency, Calcutta, 1969, Part IV on Limitations of National Power : The Balance of Power, pp. 161-218.

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referred to among the general objects of the Treaty of 31 May 1815. This treaty later formed Annex X of the Vienna Congress Treaty of 9 June 1815. The Prussia-Russian treaty of 3 May 1815 in its preamble referred to a just Balance of power. The London Conference of 1850 adopted a protocol considering that the maintenance or integrity of the Danish Monarchy, bound to the general interest of European equilibrium, is of great importance for the preservation of Peace. The 12 March 1854 treaty between Britain, France and Turkey agreed on the principles of their alliance against Russia, with its Preamble stating that the Parties to the Treaty were fully persuaded that the existence of the Ottoman Empire in its present limits was essential to the maintenance of the Balance of power among the States of Europe 273. If the balance of power policy was rather opportunistic and immoral in practice, the wars fought to restore or maintain the European balance of power, more often than not, cared little about principles of humanity that some of the early theorists of just war advocated so strenuous. Sutherland Edwards, one of The Times correspondents who covered the Franco-German War, remarked rather sarcastically : Laws are not silent in the midst of arms, but the laws made to replace ordinary laws are of a primitive and barbarous type. In the principle they might, not unfairly, be summed up as follows : 1. For every offence punish someone ; the guilty if possible, but someone. 2. Better a hundred innocents should suffer than that one guilty man should escape. 3. When in doubt, shoot the prisoner. 274 2.2.2. Intervention as a policy issue, outside the pale of law There have been many Western writers of the nineteenth century who have argued seriously that intervention into the affairs of another country was never a matter of international law, but exclusively one of policy and that therefore it was not amenable to be judged on the basis of legal principles. Indeed it needed no legal justification at all.
273. Amoss quotes, ibid., p. 224. 274. Ibid., p. 225. Amoss quote.

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Thus, speaking of proposals on the possible British intervention in the American Civil War, Historicus, the irrepressible and regular academic contributor these days to the Letters to the Editor columns of The Times, proclaimed : Intervention is a question rather of policy than of law. It is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect to it, may be the highest policy of justice and humanity. But in order to do this, it is obviously necessary that those who are to intervene should know and be able to declare what they are prepared to enforce, or that those who offer to mediate should be in a position to state what they propose to recommend. . . . There are many things which we cannot help, but there are some things with which it were wise to have nothing to do. 275 Further, according to Historicus, intervention is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in the case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most unjustifiable and the most impolitic is an unsuccessful Intervention. 276 Intervention is not necessarily an abrupt strike of force ; it may comprise a range and variety of application of force as a situation may demand. As Historicus pointed out, It may be of various kinds and of different degrees. As a famous physician said of scarlet fever, it may be anything, from a fleabite to the plague. And it is by no means impossible that it may begin with one and end with the other. 277 But, to Historicus, the object of intervention is eminently important :
275. William Vernon Harcourt (Historicus), Letters by Historicus on Some Questions of International Law, reprinted from The Times, London, Macmillan and Co., London and Cambridge, 1863, Kraus Reprint Co., New York, 1971, pp. 14-15. A similar view is held by Lawrence : An intervention to put a stop to barbarous and abominable cruelty is a high act of policy above and beyond the domain of law. Thomas Joseph Lawrence, Principles of International Law, 4th ed., Boston, Mass., 1910, p. 129. 276. Ibid. 277. Ibid., p. 41.

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V. S. Mani The only object and justification of intervention is peace. To interpose without the means or the intention to carry into effect a permanent pacification is not to intervene, but to intermeddle. . . . it [intervention] must be efficacious. An inconclusive interference is at once impertinent and mischievous. 278

In Historicuss view, to mount a successful intervention is not a simple follow-up to a decision to intervene. Its potential success demands that it meets with a congenial condition in the target State and that therefore the potential intervener ought to prepare the ground, as it were, before actual intervention takes place. The records of history will teach us that interventions have not been accomplished with Foreign-office rose-water alone. 279 Hence the wise counsel : Intervention may be wise, may be right, nay, sometimes may even be necessary. But let us not deceive ourselves ; intervention never has been, never will be, never can be short, simple, or peaceable. 280 Thus, If we are to intervene it is in order to establish peace. But we cannot establish peace except by settling all the bellicose questions between the parties ; for otherwise they will infallibly recur to arms in order to resolve them. 281 In short, finding that unilateralism in use of force has serious limits in international law (see his observation that a failed intervention is illegal), Historicus perhaps pragmatically takes the safest course of taking intervention outside the realm of law, and places it in the centre of policy assuming of course that operationality of policy stays outside the scope of law. However, if a failed intervention is illegal, why should a successful intervention be deemed legal, simply by virtue of its success ? How is the legality of a certain activity be determined not in terms its intrinsic nature, but in terms of quantum or the manner of force applied to make it succeed 282 ?
278. Ibid., p. 42. 279. Ibid., p. 43. 280. Ibid., pp. 46-47. 281. Ibid., p. 48. 282. Ivor Jenningss domestic constitutional law analogy (A revolution, if successful, is legal) should remain confined to the circumstances of domestic law, where the acquiescence of the people is critical to the legitimacy of the revolution).

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We pick up Stowell, a well-known, early twentieth-century publicist on law of war, to present the aggressive Western view that traditional international law clearly recognized a legal right on the part of a State to forcibly intervene in the affairs of another State, provided the exercise of the right was within certain limits. Indeed, he even recognizes that there could even be an obligation to intervene. Stowell recognizes, at the outset, a rule of transcending practical importance for the preservation of a just peace among nations, namely : that no state shall unreasonably insist upon its rights or pursue its interests to the detriment of the opposing rights and interests of other states 283. This circumscribes the general right of intervention. He further emphasizes : [T]he rule of conduct which general practice recognizes as correct does not justify a selfish insistence upon the right of each state to act absolutely independently even within its own domain, nor does it authorize any state lightly to interfere with the independence of a neighbor. The law of intervention lies between the extremes of absolute independence on the one hand and unregulated interference on the other. 284 Thus Intervention in the relations between states is, . . ., the rightful use of force or the reliance thereon to constrain obedience to international law. 285 While there was under traditional international law an obligation, as well, to intervene in certain situations, Stowell warns : Under the present conditions the obligation to intervene for the vindication of the law cannot be made absolute, but must be left to the discretion of each state. Reasonable action by way of remonstrance and discrimination will generally be taken in support of the innocent, as opposed to the transgressor. Occasion283. ington, p. vi. 284. 285. Ellery C. Stowell, Intervention in International Law, John Byrne, WashDC, 1921, reprint by Fred B. Rothman & Co., Littleton, Col., 1983, Ibid., p. v. Emphasis added. Ibid., p. vi.

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V. S. Mani ally a government will go further and intervene by force of arms for the vindication of the law. Such intervention is legal. It is commendable, but it must be confessed that it has generally been actuated by political considerations. 286

Stowell deals with humanitarian intervention quite extensively 287. He defines humanitarian intervention as follows : Humanitarian intervention may be defined as the reliance upon force for the justifiable purpose of protecting the inhabitants of another state from treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within which the sovereign is presumed to act with reason and justice. 288 Stowell proclaims : For it is a basic principle of every human society and the law which governs it that no member may persist in conduct which is considered to violate the universally recognized principles of decency and humanity. 289 In a long footnote to this sentence, he says : That the flagrant and persistent violation of the recognized principles of humanity is a violation of international law, as well as of international morality, is indicated by the preamble to the Hague Convention Respecting the Law and Customs of War on Land. He then quotes the de Martens clause in support 290. Stowell cites a number of authors supporting the legality of humanitarian intervention 291.
286. Ibid., p. 49. 287. Ibid., pp. 51-277, nearly one half of his book. 288. Ibid., p. 53. 289. Ibid., pp. 51-52. 290. Ibid., p. 52, fn. 8. 291. Ibid., pp. 53-54. The authorities include : Antoine Rougier, La theorie de lintervention dhumanit, Revue generale, Vol. 17, 1910, pp. 468-526 (Stowell seems to have quite heavily relied on Rougier) ; John Westlake, International Law, Vol. I, pp. 319-320 ; J. B. Moore, Principles of American Diplomacy, New York, 1918, p. 262 (Moore quotes what President Theodore Roosevelt wrote in 1904 : Brutal wrong-doing, or impotence, which results in the general loosening of the ties of civilized society may finally require intervention by some civilized nation in Western Hemisphere ; the United States cannot ignore its duty) ; Alfred Mahan, Some Neglected Aspects of War, 1900, p. 107 ; Grotius, Wheaton, Heiberg, Woolsey, Bluntschli, Westlake and many others.

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Stowell quotes with approval Borchard who, while asserting the existence of certain minimum rights for all individuals under international law, observes : This view, it would seem, is confirmed by the fact that where a state under exceptional circumstances disregards certain rights of its own citizens, over whom presumably it has absolute sovereignty, the other states of the family of nations are authorized by international law to intervene on the grounds of humanity. 292 Stowell notes that William Edward Hall 293 does not approve of humanitarian intervention, but recognizes that the weight of authority and State practice are at variance with his view. In view of the possibility of frequent abuse, a right to humanitarian intervention should only be recognized when the whole body of civilized states have concurred in authorizing it. Similarly, although the original Oppenheim expressed doubts about the legality of humanitarian intervention, he did concede State practice to the contrary 294. According to Stowell, it is possible to conceive of a doctrine of international nuisance built upon the analogy of the common law right to remove a nuisance, to justify humanitarian intervention. He cites J. B. Moore : there existed in Cuba conditions so injurious to the United States, as a neighboring nation, that they could no longer be endured. Its [US] action was analogous to what is known in private law as the abatement of a nuisance. 295 But Stowell disagrees that US intervention could be described as humanitarian. The United States could have waited longer. US intervention was simply in defence of American interests 296. Stowell identifies seven reasons, based on his interpretation of contemporary State practice, invoked in justification of humanitarian intervention : Persecution. Oppression.
292. Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 15, cited in Stowell, footnote 283, supra, at p. 55. 293. William Edward Hall, International Law, 4th ed., London, 1880, pp. 302-305, and pp. 307-308, cited ibid., p. 60. 294. Lassa Oppenheim, International Law, vol. I, 2nd ed., London, 1912, pp. 194-195, cited in Stowell, op. cit. p. 61. 295. Stowell, p. 62, fn. 14, citing Moore, footnote 291, supra, p. 208. 296. Ibid., p. 63.

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V. S. Mani Uncivilized warfare. Injustice. Suppression of the slave trade. Humanitarian asylum. Protection of foreign commerce.

2.2.3.1. Persecution Stowell cites as an example of intervention to prevent persecution of nationals of another country the French occupation of Syria in 1860-1861. The French intervened in Syria to prevent religious persecution as Turkey as the territorial sovereign could not. But this was based on a Protocol of 1860 signed by France, Turkey, the United Kingdom, Russia and Germany. Turkey was in fact forced to sign this. Stowell also refers to the persecution of Jews in Romania and Russia, and Armenians in Turkey, and the diplomatic interventions by the United States, the United Kingdom and France 297. 2.2.3.2. Oppression Stowell refers to the US diplomatic intervention in Irish affairs in 1948 as an example 298. In 1830 when the Poles rose in revolt, the Russians suppressed the revolt brutally. The United Kingdom and France, even if, mildly, protested against the oppression. 2.2.3.3. Uncivilized wars Violations of laws and customs of war particularly during civil wars may call for intervention by foreign powers. An example was the collective intervention of the United Kingdom, France and Russia in the civil war in Greece in 1827. In 1875 and 1876, the Balkans were in turmoil. The British agent described Turkish outrages in Bosnia, Herzegovina and Bulgaria as the most heinous crimes that had stained the history of the century 299. The French and the German consuls in Salonica had been murdered. Servia and Montenegro were up in arms. Russia, Austria and Germany decided to intervene,
297. Ibid. 298. Ibid., p. 86. Stowell categorizes this as an instance of intervention in defence of self-determination. 299. Ibid., p. 127.

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produced the Berlin Memorandum on 13 May 1975, and asked the United Kingdom, France and Italy to join in. But the Disraeli government in the United Kingdom refused to participate. Encouraged by the UK moral support, the atrocities against Christians continued. In July 1876, Servia and Montenegro declared war on Turkey. And Russia mobilized troops along its borders with Turkey. The great powers met again in London and drew up a proposal for Turkey to follow, but the United Kingdom made a reservation, following which Turkey did not accept the London Protocol. Russia declared war on Turkey. It cited the atrocities on Christians and refusal by Turkey to accept the reform proposals as the reasons for the war. The United Kingdom of was course critical of Russia for not allowing more time to Turkey, and for not consulting other powers in the Concert of Europe. Bulgarian atrocities brought Gladstone out of retirement ; in the next elections Disraeli got defeated. In 1849, Sicily revolted against the Crown of Naples, and the king of Naples despatched armed forces to Messina and Palermo. The bombardment of the two towns was followed by widespread acts of violence and cruelty. The French and the English fleets intervened and forced an armistice 300. 2.2.3.4. Injustice This is a broad ground that includes extraordinary crimes such as cruel regicides, persistent abusive treatment, violations of constitutionalism, refusal to grant favoured treatment for aliens 301, and treatment of aborigines 302.
300. Ibid., 137-138. 301. Ibid., p. 154 : In many instances the great and highly civilized states have interposed to assure for their nationals a better treatment than certain backward states were according their own nationals. 302. Ibid., p. 162 : Stowell refers to two instances : (1) concurrent representations made by the United Kingdom and the United States to Belgium during 1906-1909 on behalf of the aborigines in the Congo (Stowell, p. 179), (2) USUK representation to Peru against Putumayo atrocities (including bonded labour and slave trade) on mild, docile, inoffensive and childlike Indian tribes (so described in a 1912 report of the American representative to his government Stowell, p. 191) in the rubber districts of Peru in 1907-1913 when the matter was revived by the British with the Americans in 1913 after a visit on the spot by the US and UK consuls together (p. 195), For some reason not stated in the correspondence, the US Department of State at that time was unwilling to cooperate with Great Britain in undertaking a humanitarian intervention which would have had a salutary effect upon Peru and other countries which, in violation of international law, con-

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Stowell cites two instances of intervention. (1) In 1862-1864 the British Government intervened to prevent the importation into Peru of Polynesians as labourers under conditions of extreme cruelty and slavery by the traders and plantation owners by launching expeditions into the Polynesian islands. The Peruvian Government undertook to stop the practice 303. (2) In 1888-1889, Britain and Germany instituted a pacific blockade of the coasts of Zanzibar, generally stated to have had the purpose of preventing the exportation of slaves. However, what really happened was that there was a rebellion against the Sultans authority, under the influence of the slavedealers, and that Britain and Germany decided to assist the Sultan and mount the blockade along the coasts of his continental dominions in order to cut off the importation of munitions of war to the insurgents and incidentally to put a stop to the exportation of slaves 304. The legal basis of war derived from the Act of Brussels, relative to the African Slave Trade 1890. 2.2.3.6. Humanitarian asylum Stowell notes that asylum was one of the means of carrying out humanitarian intervention 305. He recognizes two possibilities 306 : (1) Fugitive slaves In 1876, British public opinion was stirred on learning that the British naval officers had been instructed to return to the local authorities a fugitive slave seeking asylum in a ship under the British flag. The Disraeli Government appointed a Royal Commission on Fugitive Slaves that recommended a wide discretion to the naval officers, but said In the exercise of this discretion, the officer should be guided, before all things, by considerations of humanity. Whenever in his judgment humanity requires that the fugitive should
done and protect the perpetrators of atrocities upon defenseless aborigines. (Stowell, p. 195.) The atrocities on the aborigines were the cumulative result of criminal negligence of Peruvian and British concerns involved in the rubber trade and controlled the district, with total government apathy). 303. Ibid., p. 200. 304. Stowell, pp. 203-204. 305. Ibid., p. 205. 306. Ibid., fn. 96.

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be retained on board, as in cases where the slave has been, or is in danger of being, cruelly used, he should retain such fugitive. 307 (2) Political Refugees In August 1848, the Duke of Parma, whose life was threatened, was received at Civita Vechia in Italy on a British warship Hecate. The same month, the British admiral ordered HMS Bulldog to the same port to receive the Pope, should the commons render it desirable for the Pope to seek refuge on board. During the revolution in Greece in 1862, King Otho and his queen were given protection on the British frigate Scylla, while a member of his cabinet and his family, on another British vessel, the Queen, and several persons were sheltered on the French warship Zenobie 308. During the Franco-German war of 1871, Britain was again ready to carry the Pope safely to England. Had the Pope accepted the offer, it would have resulted in an intervention to prevent any danger to the person and dignity of the head of the Roman Catholic Church 309. On the other hand, US policy has been not to exercise a right to grant asylum, but to give, in appropriate cases, temporary resi307. Ibid., p. 210, quoting from UK Parliamentary Papers, 1876, Vol. 28, Report of the Royal Commission on Fugitive Slaves, p. xviii. There was, however, a dissenting view of three Commissioners, Sir Robert Phillimore, Professor Mountague Bernard and Sir Henry S. Maine, but the majority of the Commission did not agree with it, because, according to it, that view was neither practical nor desirable. For, even if Britain did not recognize slavery, a British ship visiting a foreign coast must respect the local law. The eminent dissenters felt strongly that the officer who gave an asylum to a fugitive slave would violate neither international law nor the local law to which he could not be considered to be subject. The dissenters observed, inter alia : Where the execution of the local law would be plainly repugnant to humanity or justice, the sovereign with whose commission the ship sails cannot reasonably be held bound to instruct his officers to enforce the law, or permit it to be enforced, on board of her. He may rightly instruct them not to enforce it there, and not to permit it to be enforced. The dissenters said further : It is a general assumption, on which governments must habitually act, that the laws of civilized states, framed to secure public order and private rights, will not so operate as to be in conflict with humanity or justice. . . . Where British subjects are interested, this country deems it no infringement of an international obligation to insist, against the local law, on its own view of what justice or humanity demands, and even, if need be, to exact redress by force. Where no British interest is involved, the British Government has the right to say at least that the authority delegated by it to its officers shall not be used to do what is plainly inhuman or unjust. Stowell, pp. 213-215. 308. Ibid., p. 242. 309. Ibid., p. 243.

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dence/shelter 310. Soon after the disturbances in Vera Cruz in 1912, the Mexican federal forces moved in and suppressed the rebels and took into custody General Diaz. A year later Diaz and two of his friends sought asylum on board the US warship the Wheeling. The Secretary of State Bryan advised the Secretary of the Navy that in conformity with the US policy of not claiming a right of asylum in its legations and vessels, Diaz and friends could only be granted temporary refuge, until they found another ship to take them away from Mexico 311. 2.2.3.7. Foreign commerce Stowell identifies three categories of situations for application of intervention to protect foreign commerce : (1) Regulation of Foreign Shipping Legislative enactments to compel foreign States to adopt for their vessels regulations to protect the lives of passengers and guarantee the humane treatment of all seamen. The British Merchant Shipping Act 1876 imposed a heavy penalty on a ship, whether British or foreign, for violating the law. The American Seamens Act of 1915 followed suit. (2) Denial of Transit in violation of local law. Such a right was provided in the US Prohibition Act, but this was reviewed in the light of protests from the United Kingdom and Italy. (3) Prohibition of entry The same American prohibition law authorized such prohibition of foreign ships 312. Stowell also cites Stapleton who argued against permitting slave-grown sugar from Cuba at par with sugar from our West Indian colonies which had ruined our colonies to enter English markets 313. While Stowell is entitled to interpret the traditional law as he finds it one may or may not agree with him , one finds that he seems to rely on quite a mix of State practice of the nineteenth century, part of which involving actual use of force, part not involving use of force, and still a part relying on treaty rights. On issues like slave trade, one doubts whether it should be considered a valid State practice when a State seeks to prohibit slave trade, although not long ago it was itself an active participant in promoting slave trade. Is it
310. Ibid., p. 248. 311. Ibid., p. 252. 312. Ibid., pp. 258-269. 313. Augustus Granville Stapleton, Intervention and Non-Intervention : or, the Foreign Policy of Great Britain from 1790 to 1865, J. Murray, London, 1866, pp. 265-266. See Stowell, p. 276.

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that the old freedom of commerce in slaves has now given place to prohibition of slave trade (that had at any rate reached a point of saturation) ? If so should not similar changes be recognized in all aspects of international law ? Further, practice of how many States is needed to establish or change a rule of law ? Evidently, Stowell, like many other publicists, has been eclectic in his reliance of practice of some States (rather than others) to give rise to legal rules on the international plane. 2.2.4. Legal prohibition of intervention During the heydays of the Euro-centric traditional international law, there, indeed, were a few strong dissenting voices heard from the Latin American continent. Carlos Calvo of Argentina stands out as a consistent critique of that law, often totally ignored in the Western literature on international law 314. In his celebrated book on international law, Calvo deals with Intervention in the context of Independence and Conservation (Preservation) of States. He asks the question squarely : But if independence of States and the rights that flow from it are absolute, on what principles shall one base the interventions ? 315 After examining the opinions of publicists like Heffter, Grotius, Vattel, Fiore, G.-F. Martens, Wheaton, Kluber, Kant, Bello, De Cussy, Creasy, Travers Twiss, Phillimore, Bluntschli, Guizot, Arntz, H. Strauc (who in varying degrees recognized intervention as justifiable), Seebohm, Rossi, Woolsey, Wolff, Verge, Casanova, Carnazza Amar, De Laveleye, Funck Brentano and Sorel (favouring non-intervention), the conclusion that Calvo arrives at is that there is a considerable divergence of opinions among the publicists on the issue. Some approve of intervention, others condemn it, and repudiate it ; some consider it as a right, some attribute to it the idea of a duty ; others recognize it as a simple fact of international life, some a brutal fact, having its place in history, born of certain necessities and reborn in certain identical circumstances 316.
314. Such policy of exclusion of the views of the scholars from developing countries on the part of a majority of the Western scholars is still very much prevalent to this day. A look at most scholarly works from the West suffices to prove this point. There indeed is an attitude of academic apartheid among most western scholars. 315. Carlos Calvo, Le droit international thorique et pratique, Vol. I, 5th ed., 1896, Arthur Rousseau, Paris (1st ed., 1868), at pp. 266-267. 316. Ibid., pp. 278-279.

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Calvos considered view is : Right or duty, no author has furnished us with tenable postulates on the basis of which one can base fixed or precise rules. . . . The multiplicity of appreciations that they present and the divergence that we see indicated in their opinions, sufficiently demonstrate the difficulty that presents itself to the purely theoretical discussion of the right of intervention. 317 Calvo refers to a letter by Lord John Russell to The Times of 2 September 1876. The letter said, no one dare recommend to our ambassador to Berlin or at Saint-Petersburg to intervene in the administration of justice in Prussia or in Russia. But Turkey is one exception to all the diplomatic rules that govern our relations with foreign powers. 318 So, there was the principle of non-intervention governing relations between Britain and other foreign powers, but excluding Turkey. (While Calvo was not interested in probing deeper, one could in the same vein ask the question : Why this exception ? A historical hangover of Crusades ? Or was it that intervention could come handy to help the Sick Man of Europe to keep his date with destiny, sooner rather than later ?) After examining a number of European interventions in Latin America, Calvo remarks : it is impossible to discover one sole serious and legitimate reason that can justify to a certain point these European interventions in the internal affairs of America 319. Indeed, he ought to know this he belongs to that Continent. A comprehensive evaluation of a large number of instances of interventions in the seventeenth and eighteenth centuries leads Calvo to conclude : From the historical expos of intervention and the doctrines developed by the interpreters of international law, it results that intervention as well as non-intervention have been considered as principles of the law of nations ; the discussion stays uniquely on the question which of the two is the rule. . . . [With the exception of relations of the European powers with
317. Ibid., p. 279. 318. Ibid., p. 135. 319. Ibid., p. 348.

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Turkey], the system of non-intervention appeared generally to prevail in the political relations of States between them. 320 Calvo clarifies that the principle of non-intervention does not exclude the right of nations to appeal for help from other states . . . for defending their independence or for retrieving their autonomy from under a foreign domination 321. This is concomitant of the principles conditioning the independence and conservation of States. Calvo feels that the principle of non-intervention is fundamental and critical in assuring the independence and conservation of States, insulating them from the policies of aggrandizement followed by big powers. While participating in the debates of the International Law Commission on Article 5 (the duty of non-intervention) of the draft Declaration on the Rights and Duties of Sates, Jesus Maria Yepes of Colombia said that the Latin American position with regard to intervention was the result of events which had taken place during the nineteenth century and the first three decades of the twentieth century. During that period, the Latin American countries had been the victims of a series of unilateral and unjustified interventions by a large number of European nations and by the United States. He quoted as an example the intervention by France and the United Kingdom in Argentina and Uruguay ostensibly for the purpose of protecting their nationals and the peaceful blockade of Venezuela by the United Kingdom in 1902. He also mentioned the United States intervention in Mexico in 1836, 1845, 1848 and 1849, which had led to an unjust war during which Mexico had lost some of its richest provinces. That intervention had been carried out in the name of the doctrine of manifest destiny 322. Reflecting a similar view, Vladimir M. Koretsky, the first member of the former Soviet Union in the International Law Commission, while participating in the same debates, pointed out : Non-interventionist principles had always been supported by the smaller countries. Nevertheless, some sixty years earlier in the 1890s Burgess had contended that it was the duty of Anglo-Saxons to establish law and order wherever the people
320. Ibid., p. 351. 321. Ibid. 322. Yearbook of the International Law Commission, 1949, Vol. I, pp. 91-92.

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V. S. Mani native to an area were unable to do so. In the interests of civilization it was therefore the duty of the Anglo-Saxon to intervene in the international affairs of a nation or a people so that law and order would reign supreme ; intervention and the use of force were therefore completely justified. 323

What emerges from the above analysis of State attitudes and practice of the sevententh-nineteenth centuries as interpreted by diverse publicists is that no clear authority existed even in traditional international law to anoint a right or duty of humanitarian intervention as a legal right or a duty. If anything, humanitarian intervention has been resorted to by the big powers as an opportunistic policy, mainly in pursuit of their respective national interests and foreign policy goals. There has been rampant abuse of the policy, and hence Amoss strong suggestion that such external interventions must in principle be collective, a collectivity of States by this suggestion, he in fact raises the issue of who shall have the authority to decide and ensure proper application of humanitarian intervention. Indeed, he lived at a time when there existed no international organization of a global character, mandated with global jurisdictional canvas and global functions, but had to rest content with what best he could do with the then prevalent international system. Nor did he have to worry about the contemporary issue of how broad-based the so-called collectivity of the intervening States should be, in view of the repetitive performances of collective unilateralism a coalition of the willing clustered around or at the instance of the sole surviving superpower. 2.2.5. Implications of traditional doctrines for traditional international law The burden of this chapter is two-fold. First it endeavours to examine the diverse prominent philosophical strands in the ancient civilizations such as those of Asia, the Islamic and Christian traditions on the justifiability of war and circumstances justifying it. Evidently, the predominant concern of these strands has been to circumscribe the otherwise unrestrained right of States to go to war in the unruly international state of nature and hence the just war doctrine
323. Ibid., pp. 70-71.

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as initially conceived. However, in the context of religious rivalries after the rise of Christianity and Islam, the term just war received a pre-eminent religious tenor and colour. Slowly, however, after the onset of the Westphalian system of sovereign States, a regime of international law and relations came into existence in Europe. This initiated a process of secularization of State system and the rules governing it, thus secularizing the just war doctrine as well limiting the right to go to war to circumstances justifying self-defence, response to an injury or for humanitarian reasons. A second focus of this chapter has been to examine the response of traditional international jurisprudence and State practice to such limitations. The study in the process reveals three major doctrinal responses, one recognizing the continued relevance of the traditional limited justifications for war, including the right to intervene for humanitarian reasons, a second denying international law any role at all to decide on issues of permissibility of such interventions, and a third, a typical Latin American assertion of an absolute principle of non-intervention. On the other hand, the State practice the practice of the great powers was essentially one of open exhibition of disdain to any constraining legal rules, even when sometimes they sought at times to justify an intervention on moral or humanitarian grounds. Thus the cumulative effect of such a situation in the traditional international law was that while States resorted to unilateral interventions, the law was ambivalent on their legality such practice of powerful States did not necessarily establish any categorical rule in favour of humanitarian intervention. But this was only to be expected of the seventeenth, eighteenth and nineteenth century system of international relations, where the relations between States were rather rudderless and the Concert of Europe of great powers presided over the affairs of the world, giving no voice to smaller powers. The relations between great powers themselves were dictated by considerations of power equilibrium (alternating between policies of non-intervention and interventionism), where law had no role to play, nor did the international relations of that era provide any mechanism in the nature of international organization to ensure international public censor.

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CHAPTER III

RESPONSE OF THE CONTEMPORARY INTERNATIONAL LAW The response of the contemporary international law is examined principally in terms of the evolution of international institution as a new actor sui generis on the international plane, the normative order of the United Nations (the global institution par excellence) and modern international law, peremptory norms of modern international law, and the challenge of the new doctrines of humanitarian intervention. 3.1. The United Nations as an Actor in International Relations The role of the United Nations will be examined in terms of (1) a doctrinal perspective on international institutions as a genre, (2) the emergence of the United Nations as a watershed in the historical process of the evolution of international organization. 3.1.1. International institutions : a doctrinal perspective The doctrinal perspective herein attempted encompasses two facets, namely, the process of international organization in the context of plurality of competing forces, both centrifugal and centripetal, and the nature and extent of autonomy that the international organization enjoys. 3.1.1.1. Organizing in the vortex of plurality of competing forces It is axiomatic that the process of international organization began with the onset of the sovereign State system. Kant, we have seen, has advised us that the progress from the international state of nature to a state of perpetual peace is not necessarily the establishment of a world State, but a realization of peaceful coexistence of States and co-operation in mutuality of interests striving towards a condition of human welfare, both nationally and internationally. In view of the fact that the contemporary State system has its roots in Europe rather than the ancient civilizations of Asia, Africa

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or Latin America, the seeds of this system alongside those of international organization were sown in the Peace of Westphalia 1648. International constitutionalism in terms of formal institutional mechanisms, however, took shape much later, in the form of bilateral, regional and international institutions. Constitutionalism within a national community is generally identified with a pyramidal normative and institutional, usually formal, structure of governance. The structure might have evolved over time corresponding to the demands of a community in search of a system of governance mandated to provide it and its individual members relative safety and security from forces inside and outside it. Soon, even as such communities continued to subsist, or changed and regrouped seeking to find some common identity of their respective members, such as nationhood, the mandate of the structure of governance transformed it now focused on human welfare through social welfare. This dominant expectation of welfare from governance caused havoc in most communities. Monarchies and dictatorships were overturned and some communities began to practise democracies 324. Over time States expanded territorially, broke up, regrouped, often gave way to new States, new forms of governance. As in a community of individuals, the international community of States constantly experiences a tension between certain centripetal and centrifugal tendencies. The tension is dictated by the multiple interactions between the plurality of interests within a national community and the plurality of interests transcending national boundaries at different levels. Basic to staying together of a national community is the collective decision to pursue consensually selected common goals through a consensually evolved system of governance that by and large recognizes the right of self-determination of the people. The bulk of the individuals recognize that the right of self-determination of each of them must be subsumed in the collective right of the community. The integrity of the process and institutions of governance is a function of that recognition. It is a function of faith of the individuals on the achievement of their right of self324. In some ancient civilizations, such as the Indian, it is difficult to say whether the transformation took place precisely in this order. There is evidence to show that even during the Vedic period, powerful kingdoms coexisted with independent republican States (or at least communities) some of which appear to have enjoyed some degree of democratic governance. See, e.s., A. S. Altekar, State and Government in Ancient India, Motilal Banarsidass Pub, Delhi, 1949, 1997 reprint, Chap. VI, Republics, at pp. 109-138.

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determination through achievement of collective good. However, there is always an operational gap between the normative and institutional structure of governance and the level of social and human welfare resulting from this structure. There is an on-going tension between the norm and its realization on the ground. Should the process of tension cross a threshold point, the trust of the individuals on the community institutions and norms breaks down, and chaos follows, regrouping of individuals takes place, another attempt at establishing a new normative and institutional order of governance takes shape. The process goes on. What are these centripetal and centrifugal tendencies in a community that play havoc with the normative and institutional structures of governance ? At the outset, it must be recognized that it is difficult to characterize for all time to come any tendency as unifying or divisive per se. A feature of federalism, for instance, could preserve the integrity of a nation at one point in time, but could contribute to its breakdown at another. Indeed, these forces change responding to time and space. The above perception of the dynamic tension between centripetal and centrifugal tendencies is in fact more easily demonstrable in respect of the nature and functioning of international institutions, whether intergovernmental or non-governmental. All international institutions, both intergovernmental and non-governmental, reflect a level of crystallization of the forces in the international community that promote creation of varied levels of formal institutional frameworks. The progression from informal set-up to a formal institutional mechanism is typified by the Commonwealth which in 1965 decided to set up some skeletal administrative set-up giving it some semblance of an institutional form. So has been the case of the South Asian Association for Regional Co-operation (SAARC). Such institutions illustrate the pronounced hesitation of national communities to evolve formal institutional mechanisms to steer their common operational projects. Indeed, all this represents a stage in the process of international organization, a process whereby certain goal values commonly shared by the members of the international community dictate expression through formal institutions. Quite possibly, the present State system must have undergone a similar, if not the same, process of consolidation or at least coincidence of interests of individuals and groups over millennia. The loosely knit 13 colonies eventually became the United States, in spite of the fact that

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some of the participants at the 1789 constitutional convention at Philadelphia did at that time find that they were in a strange land. The progress of constitutionalism in America further integrated the country giving American nationalism a new identity and the traumatic experience of the Civil War further cemented the interindividual and inter-State bonds. 3.1.1.2. International institution as an autonomous actor The above perception of international institutions informs their performance in the global scenario. A global international organization, such as the United Nations, evidently underscores in a large measure the nature and structure of the international community and the problems it faces in evolving generally agreed world order goals, and the institutional frameworks through which it seeks to achieve those goals. At least three points of perspective may be made here. First, in a world of sovereign States, neither the United Nations (or for that matter any international organization) nor the regulatory framework it seeks to implement can truly be autonomous. Sovereign equality, peaceful co-existence, good faith and international co-operation are no doubt at the foundation of international law and organization. In a generally understood legal order, legal norms prompt compliance and behavioural restraint on the part of the subjects mainly in two ways : one, by a sense of duty to comply, or, two, by a cost-benefit (expectation of advantage or the detriment of punishment) analysis of compliance/non-compliance. As a general rule, both forms of restraints are rudimentary among the members of the international community. And they are as good as being absent in situations of self-defined vital interests of members, particularly those of the more powerful ones. As Hoffmann points out, The trouble with international law [and, we may add, with international organization] is, each time the more important interests of the members are in play (1) that the nature of the group rules out the first form of constraint, for . . . the international milieu cannot practice the ethics of law alone ; it has, at best, to find a compromise between those ethics and the ethics of combat, between Kant and Machiavelli. Only a group in which violence is effectively outlawed can afford to be guided by Kant alone ; (2) that the second form of constraint . . . does

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V. S. Mani not always coincide with the imperatives of international law [and organization], i.e., calculations of power and commands of law, instead of converging, tend to live on separate planes ; (3) that coercion through self-help again has often nothing to do with the enforcement of law. 325

Hoffmann is in fact alluding to the volatile nature and level of integrity of international community core values. Thus the nature and effectiveness of both international law and organization are a function of coincidence of wills of States, Gregory Tunkin said long ago at the height of the Cold War. There is no guarantee for the strength and stability of this state of coincidence. This conditions not only the legendary gap between the normative order (the promise) and ultimate compliance (the voluntary performance) a phenomenon obtaining in all legal order , but also the tentative nature of agreement on both the form and substance of the international normative order itself. States remain the final individual arbiters, at any point in time, to determine how much of power of restraint they consider themselves to have conceded to the world order. After all, they retain the vital functions of global governance, including enforcement of international norms they agree on. Second, while State sovereignty has suddenly become a much maligned term in the West since the 1990s, the current Western debate points to only a partial story of absolutism and expansionism of the historically evolved concept of sovereignty in terms of abuse of State authority resulting in gross violations of human rights, particularly in small States (the prevalent human rights deprivations in some of the great countries are, of course, not considered gross enough to render their sovereignty abhorrent 326), yet claiming pro325. See Stanley Hoffmann, International Law and the Control of Force, in Karl W. Deutsch and Stanley Hoffmann, eds., The Relevance of International Law : Essays in Honor of Leo Gross, Schenkman Publishing, Cambridge, Mass., 1968, pp. 21-46, at pp. 25-26. 326. See the Amnesty International Report of 1998 (United States of American Rights for All 1998, pp. 2-3) castigating the United States for a persistent and widespread pattern of human rights violations. The report has been noted in Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, American Journal of International Law, Vol. 99 (1999), pp. 657-659. In its first ever campaign against a Western country, the AI claims that the US authorities, notes Murphy, failed to prevent repeated violations of basic human rights : the right to freedom from torture and cruel, inhuman or degrading treatment, the right to life and the right to freedom from arbitrary detention. AI says the majority of the victims of custodial crimes have been members of racial or ethnic minorities . . .. US authorities persistently violate

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tection under an absolutist concept of sovereignty. Without taking away the human rights thrust of the debate (as there is some truth in it : the very functional justification for a States claim to sovereignty is its responsibility to strive for the welfare of its people), it must be pointed out that the question is not simply whether the Westphalian concept of absolute sovereignty should cease to be acceptable. In fact, the so-called absolute sovereignty of small or weak countries ceased to be operational ages ago, ever since the Concert of Europe, ever since the great powers decided to run the world affairs the way they wanted, with little or no regard for what the small States said or felt. In other words, the sovereignty of the latter never mattered, whereas the sovereignty of the great powers subsumed and transcended that of the small countries in every situation in which the two came in direct conflict. Viewed in terms of transnational interests of dominant groups in power in these days of transnationalism, it is logical even if, indeed, highly inequitable that the transnational interests of the dominant groups in a powerful State should persuade those ruling groups to utilize all the power available with the State machinery to prevail over other States 327. Laski wrote during the 1930s : The sovereignty of the great state today is a technique for the protection of its imperialism. That imperialism is the outcome of its own internal relations which, given the distribution of effective demand within its boundaries, is driven to the
the fundamental human rights of people who have been forced by persecution to leave their countries and seek asylum. IA report further says : International human rights standards exist for the protection of all people throughout the world, and the USA has been centrally involved in their development. . . . While successive US governments have used these international human rights standards as a yardstick by which to judge other countries, they have not consistently applied those same standards at home. For a critique of the first US report to the Human Rights Committee, see Upendra Baxi, A Work in Progress ? The United State Report to the United Nations Human Rights Committee, Indian Journal of International Law, Vol. 36, 1996, pp. 34-53. 327. The State has sovereign rights ; and those who manipulate it will too often cause it to be used for the protection of existing rights. The two get identified ; the dead hand of effete ancestralism falls with a resounding thud on the living hopes of to-day. Harold J. Laski, Studies in the Problem of Sovereignty, first pub. 1917, 1997 reprint published by Routeledge, London, New York, Chap. I on Sovereignty of the State, at p. 22.

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V. S. Mani competitive search for markets abroad in order to realise profit. Its sovereignty is the protective armament of that adventure. The international law [and the international organization, one might add] that it recognises is, therefore, always hampered and frustrated by the logical requirements of imperialism. It cannot part with the control of any vital function, the scale of its armament, the right to make war, its hold on colonies and spheres of influence, its power over tariffs, currency, migration, labour conditions, because to do so is to threaten, internally, the relations of production its sovereignty exists to maintain. 328

Thus the sovereignty of great powers is one of creeping character, transcending their political or territorial boundaries, but dictated by the interests of the dominant groups in those countries 329. It asserts itself, holding the entire world of small powers to ransom. The small powers today hold their sovereignty rather zealously for several reasons. One, most of them have emerged independent after a sustained, often bloody, freedom struggle. Two, now that they have won their political independence, they still have to continue fighting for their economic independence 330, including protection from the creeping, expansionist economic sovereignty of the great countries. Three, this struggle coupled with the urgency of economic develop328. Harold J. Laski, A Grammar of Politics, 3rd ed., 1934, 1997 reprint, Routledge, London, New York, p. xxi. 329. Hence the propensity of the United States, the sole superpower, to unilateralism. A recent (yet pre-Iraq war of 20 March 2003) study identifies the following issue areas in respect of which US predilections for unilateral behaviour are the strongest over the years : international law, the United Nations, nuclear policy, international monetary co-ordination, and the environment. On the issue of peacekeeping, the United States vacillates between multilateral and unilateral strategies. In the area of human rights, the United States is a party to many multilateral human rights regimes, although the US Senate qualified US commitments by attaching reservations. Moreover the United States remains outside several important human rights regimes. See David M. Malone and Yuen Foong Khong, eds., Unilateralism and US Foreign Policy : International Perspectives, Lynne Rienner, Boulder, London, 2003, p. 422. 330. Speaking at a joint session of the US Congress on 13 October 1949, Indias Prime Minister Jawaharlal Nehru said : we have achieved political freedom but our revolution is not yet complete and is still in progress, for political freedom without the assurance of the right to live and to pursue happiness, which economic progress alone can bring, can never satisfy a people. Therefore, our immediate task is to raise the living standards of our people, to remove all that comes in the way of the economic growth of the nation. (Available at http ;//www.indianembassy.org/indu...us/nehru_congress_Oct_13_1949.htm.)

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ment demands international co-operation, not predatory interference, from the developed countries, particularly the great powers. Third, the small countries well realize that the modern concept of sovereignty is issue-based. Hence their dependence on international law and organization, not just for their own security, but more importantly because they need them as instruments conditioning and catalyzing their development through international co-operation. In fact, the relevance of or dependence on international law and organization are inversely proportionate to the military and economic might of a State. The less powerful a State is, the more is its reliance on international law and organization. As Dag Hammarskjld said in 1960, it is the small powers which need the United Nations, not the great ones. In an interface between multilateralism and unilateralism, the unilateralism of the great powers holds sway, unless of course they decide to pursue a course of enlightened unilateralism. Some of the small countries may have failed to live up to the demands of good governance and realization of human rights, both of which require considerable economic resources. However, the more fortunate members of the international community have on their part grossly failed to live up to their commitments of international cooperation (Articles 55 and 56 of the United Nations Charter). Their failure to promote international transfer resources has been one of the principal contributory factors to occurrence of the phenomenon of failed States in the developing parts of the world. Having patently failed to live up to their Charter commitments, these powerful States now resort to unilateral use of force on the ground of humanitarianism. Indeed, the label of humanitarian intervention has become a convenient faade for the powerful to pursue their hegemonic goals in gay abandon. Thus, the sovereignty of the powerful subsumes and is far greater than that of the weak. An international organization founded on the vortex of the dynamic clash of sovereignties of great powers is also expected to plough through it, often surrendering itself to their mercy. Very clearly, as Inis Claude Jr. remarked some years ago, it is a rudderless ship thrown into the troubled waters of history, commanded by a succession of men, each of whom has his own idea of where to go. This is the principal phenomenon that conditions the transience of coincidence of State sovereignties, and often leads to a perception of fragmentation of the international system the so-called fragmentation of international law and international organization.

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3.1.2. Emergence of the United Nations The process of international organization began with the establishment of the sovereign State system in the seventeenth century. It is customary to accept that if a historical benchmark is sought to trace the origin of the contemporary international organization, it is the Peace of Westphalia, 1648. It is generally recognized that the Peace of Westphalia brought the religious wars to an end and made the territorial state the cornerstone of the modern state system 331. Strange as it may seem, it simultaneously embodied the seeds of the future international organization 332. The European powers that signed the Peace swore In the name of the most holy and individual Trinity, that they had been driven by Thoughts of universal Peace 333, first gave rise to bilateral institutions, such as those for settlement of disputes concerning rivers, boundaries and private claims 334. On the international plane, there have been three strands of developments. First was the development of functional international organizations like the Universal Postal Union and the International Telegraph Union (which in 1935 became the International Telecommunication Union). The Westphalian system, recognizing the principle of equality of sovereign States, was soon superimposed by the Concert Europe system. If the former found expression in international gatherings like the Hague Peace Conferences, the latter dominated the affairs of Europe and the world it even partitioned Africa, sitting in Berlin in 1885. Both these trends produced the two principal organs of the League of Nations and later the correspond331. It is good to quote a celebrated antagonist of international organization, Hans J. Morganthau, Politics among Nations : The Struggle for Power and Peace, Scientific Book Co., Calcutta, Indian ed. of 4th ed., 1969, p. 264. By the end of the Thirty Years War, sovereignty as supreme power over certain territory was a political fact, signifying the victory of the territorial princes over the universal authority of emperor and pope, on the one hand, and over the particularistic aspirations of the feudal barons, on the other. Morganthau, op. cit., p. 299. 332. See Leo Gross, The Peace of Westphalia 1648-1948, AJIL, Vol. 42, 1948, pp. 20-41, also reprinted in Leo Gross, International Law in the Twentieth Century, New York, 1969, pp. 25-46. See also Richard A. Falk, The Interplay of Westphalia and Charter Conception of International Legal Order, in Cyrill Black and Richard A. Falk, The Future of International Legal Order, Princeton University Press, Princeton, NJ, 1969, Vol. I, pp. 32-70. 333. The Treaty of Westphalia (Osnabruck), 24 October 1648, chapeau. 334. E.g., the dispute settlement mechanisms, predominantly arbitration tribunals under the Jay Treaty, 1794, between the United States and Britain.

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ing organs of the United Nations, the General Assembly and the Security Council. The United Nations is the prime example of a modern international intergovernmental institution. Christened by President F. D. Roosevelt of the United States as The United Nations Organization at its inception, it lost the last word, Organization, somewhere down the road. Did this anticipate what was to come over the years ? Did the United Nations end up being merely a standing conference of States, now only to be a plaything at the hands of the powerful ? In which case, what advance did it make, except having acquired some fixed assets in Geneva, Vienna, Bangkok and such other places, besides of course New York ? Or is it an organization that now you see and now you dont ? Indeed, it is a mix of realism and idealism at once. It is an association of States whose ruling elites may or may not represent the vast majority of the people in their respective nations. Article 1 (4) of the UN Charter (the Constitution for the international community ?) perceives its role to preeminently lie in being a centre for harmonization of national action. Has it been able to fulfil this minimalist role ? Or do the other objectives laid down in Article 1, such as maintenance of international peace and security and protection and promotion of human rights, tend to impose on it a larger-than-life role, as it were, to step into the role of an international humanitarian intervener ? The answers perhaps lie in understanding the nature of the United Nations and its day-to-day response to the currents and crosscurrents of international relations 335. 3.1.3. The United Nations : a mix of idealism and realism On the opening day of the San Francisco Conference on International Organization on 25 April 1945, President Harry S. Truman of the United States reminded the participating national delegations of their mission : You members of this Conference are to be the architects of the better world. In your hands rests our future. By your labors at this Conference, we shall know if suffering humanity is to achieve a just and lasting peace.
335. Some of the materials used for this part are drawn from V. S. Mani, Six Decades of the United Nations An Indian Perception, Indian Journal of International Law, Vol. 44, 2004, pp. 1-74, at pp. 2-9.

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V. S. Mani We must make certain, by your work here, that another war will be impossible . . . With ever-increasing brutality and destruction, modern warfare, if unchecked, would ultimately crush all civilization. We still have a choice between the alternatives : the continuation of international chaos or the establishment of a world organization for the enforcement of peace. It is not the purpose of this Conference to draft a treaty of peace in the old sense of that term. It is not our assignment to settle specific questions of territories, boundaries, citizenship and reparations. This Conference will devote its energies and its labors exclusively to the single problem of setting up the essential organization to keep the peace. You are to write the fundamental charter. 336

The leader of the mightiest nation then said : While these great states [which had to muster the force necessary to defeat the conspiracy of the axis powers to dominate the world] have a special responsibility to enforce the peace, their responsibility is based upon the obligations resting upon all states, large and small, not to use force in international relations, except in the defense of the law. The responsibility of the great states is to serve, and not to dominate the peoples of the world . . . The essence of our problem here is to provide sensible machinery for the settlement of disputes among nations. Without this, peace cannot exist. We can no longer permit any nation, or group of nations, to attempt to settle their arguments with bombs and bayonets. The presidential Proclamation of the United Nations Charter and Statute of the International Court of Justice issued by Truman on 31 October 1945 proclaimed and made public the UN Charter and the ICJ Statute to the end that the same and every article and clause thereof may be observed and fulfilled with good faith, on and from 24 October 1945, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof 337.
336. http://www.trumanlibrary.org/whis.../large/sf_conference/un_sf7-1.htm. 337. Available at the Yale Avelon Project, A Decade of American Policy, wysiwyg;//13http;//www.yale.edu/ lawweb/avalon/decade/decad029.htm.

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Addressing the inaugural plenary meeting of the UN General Assembly in London, British Prime Minister Clement Atlee, emphasized on the rule of law in world affairs and asserted : The United Nations Organization must become the overriding factor in foreign policy. . . . [G]reat nobles and their retainers used to practice private war in disregard of the authority of the central government. The time came when private armies were abolished, when the rule of law was established throughout the length and breadth of this island. What has been done in Britain and in other countries on a small scale has now to be effected throughout the whole world. 338 Atlee also underscored the fact that the constitution of the new Organization is essentially realist in that it provides for the sanction of force to support the rule of law 339. However, the drafting of the UN Charter was pre-eminently an exercise of down-to-earth people wedded to the national interests they represented. Thus, although [t]he United Nations took birth on a note of high idealism embodied in the noble wording of the Charter, Pundit Jawaharlal Nehru, independent Indias first Prime Minister, remarked on the floor of the General Assembly in 1960 : there was also a realization of the state of the post-war world as it was. Therefore, provision was made in the structure of the organization to balance certain conflicting urges. There were permanent members of the Security Council and there was provision for unanimity amongst the great powers. All this was not very logical. But it represented certain realities of the world as it was and because of this, we accepted them. 340 Although India is recognized as a founding member of the United Nations, the Indian delegation that participated in the San Francisco Conference on International Organization (UNCIO) did not represent the voice of the independent India independence
338. GAOR, 1st Plenary Mtg., London, Thursday, 10 January 1946, at pp. 4041. 339. Ibid., p. 42. 340. Prime Minister Nehru at the UN General Assembly, 3 October 1960. Available at http://www. Indianembassy.org/policy/Disarmament/disarm4.htm.

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came only in 1947 341. In fact, the world representation in the UNCIO was still grossly lopsided. Of its original 50 members, 17 were from Europe, North America and Oceania, 20 were Latin American countries, 9 Asian and 4 from Africa (of which one had the White minority government). Did the UN Charter evolved in 1945 truly reflect the aims and aspirations of the vast unrepresented multitudes of peoples of Asia and Africa then under the colonial yoke ? Be that as it may, many of the ideals embodied in the UN Charter were largely shared by the people of India and the rest of the developing world freedom and human dignity, peace, international cooperation, and an equitable international economic and social order of human welfare. Making his first radio broadcast, as the VicePresident of the Interim Government of India, Jawaharlal Nehru, the architect of the independent Indias foreign policy, proclaimed : We believe that peace and freedom are indivisible and the denial of freedom anywhere must endanger freedom elsewhere and lead to conflict and war. We are particularly interested in the emancipation of colonial and dependent territories and peoples and in the recognition in theory and practice of equal opportunities for all peoples . . . We seek no domination over others and we claim no privileged position over other peoples . . . The world, in spite of its rivalries and hatreds and inner conflicts, moves inevitably towards closer co-operation of free peoples and no call or group exploits another. 342 More as a pragmatist than an idealist 343, Nehru emphasized the
341. More on this, see M. S. Rajan, India and the Making of the UN Charter, International Studies, New Delhi, Vol. 12, 1973, pp. 430-461, at pp. 434435. Mrs. Vijayalakshmi Pundit (Nehrus sister, and a future 1953 President of the General Assembly) denounced the British-appointed Indian delegation at the venue of the Conference as lacking the slightest representative capacity. Rajan, op. cit., Professor Rajan also wrote a sequel to this essay. See his India and the Making of the UN Charter-II, International Studies, Vol. 36, 1999, pp. 3-16. 342. Jawaharlal Nehrus speech on the All India Radio, 7 September 1946, The Hindu (Madras), 9 September 1946, reprinted in Surjit Mansingh, ed., Nehrus Foreign Policy, Fifty Years On, India International Centre & Mosaic Books, New Delhi, 1998, pp. 19-24, at p. 21. 343. There are many in India who describe Nehru as an idealist, and hence blame him for taking the Kashmir issue to the UN Security Council in 1947, without adequately assessing the implications of Cold War politics that bedevilled the functioning of the Council at that time.

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role of international law and of the United Nations to facilitate it. An important goal of international law, according to him, was to promote understanding of peace between nations, friendly relations among nations, elimination of war, peaceful settlement of disputes and international co-operation 344. He was concerned that while international law had considerably expanded, its effectiveness had not in equal measure. It was a function of commitment to and acceptance of rule of law by all nations, big and small a function of disarmament and an acceptable international order and international authority 345. There is not much of a choice left between some international order, international authority, and the ever present danger of a major war between nations, Nehru said 346. The United Nations, in Nehrus perception, reflected a very noble attempt to bring the world into some scheme of international law. The Charter of the United Nations is a very fine and inspiring document I mean the objectives and ideals that it sets before itself. 347 Responding to the criticism that the United Nations had not lived up to its ideals, he remarked : That criticism is both justified and unjustified justified because it is true and unjustified because the United Nations has only to function in the world as it is. It cannot function in some rarefied atmosphere, which is away from the world . . . Nevertheless, here is something, which keeps this ideal of some kind of world order, the international law applied to the world before us. It is true that in practice it is not applied, in the opinion of many, as justly and as equitably as it ought to be. Great interests pull the United Nations, this way or that . . . groups of nations pull it in various directions. It may be so, but the ideal is there and that itself is a great gain. 348
344. Nehrus inaugural address at the establishment of the Indian Society of International Law on 29 August 1959, reprinted in Indian Journal of International Law, Vol. 1, 1960-1961, pp. 509 ff. 345. Nehru, Proceedings of the Annual Conference of the Indian Society of International Law, 1963, pp. 4 ff, at pp. 4-5. 346. Ibid., at p. 5. 347. Footnote 344, supra, at p. 7. 348. Ibid., at p. 8. Nehru echoed these views when he addressed the UN General Assembly on 3 October 1960. He said : During these past fifteen years, the United Nations has often been criticised for its structure and for some of its activities. There criticisms have some justification behind them. But, looking at the broad picture, I think we

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Now, 45 years later, is our assessment of the United Nations any different, even after the two wars of the twenty-first century ? Perhaps not, in a general way. India, like many other non-great powers, does believe that the organization is becoming rather too intrusive of small States sovereignty, as an international humanitarian intervener. 3.1.4. The normative order of the United Nations Charter The normative order of the Charter of the United Nations is dealt with against a brief normative historical backdrop, the evolution of international human rights law, the normative network of sovereign equality of States, non-use of force and non-intervention, and the institutional mechanism of the United Nations. 3.1.4.1. A historical perspective It is axiomatic that the establishment of the United Nations in 1945 was dictated by the inexorable logic of momentous events that precipitated a great war, such as the Second World War. The outbreak of the war represented a certain failure of its immediate predecessor, the League of Nations 349. A number of factors ensured the impotence and the eventual downfall of the League, despite the early successes that it tasted the policy of isolationism of the United States, the treatment meted out to the Soviet Union, the exclusion of a number of small States from Latin America, the imposition of a dictated peace, a Carthaginian peace (the famous words of Lord Keynes) on war-devastated Germany, alienation and isolation of Japan, despite its being a victorious power in the First World War, rise of ruthless dictatorships in Germany and Italy, the British policy
can definitely say that the United Nations has amply justified its existence and repeatedly prevented the recurrent crises from developing into war. It has played a great role, and it is a little difficult now to think of this troubled world without the UN. If it had defects, they lay in the world situation itself which inevitably it mirrored. If there had been no United Nations today, our first task would be to create something of that kind. I should like, therefore, to pay my tribute to United Nations as a whole, even though I might criticize some aspects of it from time to time. http:// www.indianembassy.org/policy/Disarmament/disarm4.htm. 349. The students of international organization are well aware of such criticisms cast on the League. But, as Prothero rightly remarked, it is not the League of Nations that failed, it is the nations of the League.

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of appeasement, and so on 350. The war also revealed certain serious value gaps in the international system, that now forced the international community to repair. Doctrinally, however, as the successor to the League of Nations the United Nations represents both a continuum as well as the next step in the evolution of international organization. The legal order of the League of Nations was in fact revolutionary. To begin with, it represented an attempt to bring in the whole gamut of international relations within the scope of work of an international organization. The Leagues legal competence encompassed all issues of war and peace, and its Covenant provided for a mechanism of dispute settlement, and this comprehensive canvas was itself novel to an international organization. For the first time in the history of the world, war became a matter of concern of the whole League, the whole membership of an international organization a sharp contrast, indeed, to the traditional international relations that had recognized the right of States to go to war with each other and also recognized that war was a business exclusively for the warring parties to deal with, conceding no right or role to third parties (neutrality), unless of course they themselves decided to join the war as belligerents and face the consequences of such intervention. The Leagues mandate also covered, for the first time in history, matters of social and economic development. Thus, it subscribed to the view that peace is a function of the comprehensive whole of international relations, including social and economic development of the humankind. Keeping the above in view, the League embodied a normative and institutional order. Its normative order was unique. It was founded upon a bundle of obligations that the League members undertook to comply with (but, more often than not, failed to, bringing the whole edifice crashing down). The obligations of members included the following : to strive to outlaw war ; to disarm themselves down to a point necessary for their national security ; to protect the territorial integrity and political independence of all States ; to exercise the friendly right to invoke
350. For an authentic book on the League of Nations, see F. P. Walters, A History of the League of Nations, 2 vols., Royal Institute of International Affairs and Oxford University Press, London, 1952. Walters was Deputy SecretaryGeneral of the League.

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the institutional order of the League in case of war between two other States ; to strive to settle disputes through peaceful means, preferably through international arbitration, the Permanent Court of International Justice, or the Council or the Assembly of the League ; to abide by the decisions/recommendations of these dispute settlement bodies ; to cease hostilities forthwith the moment any of these peaceful methods became operational, until after three months of pronouncement of a decision ; to regard all violations of dispute settlement provisions of the League Covenant as automatically constituting an aggression ; to take measures (including economic sanctions, and if necessary, the use of armed force) against the recalcitrant State ; to respect the supremacy of the Covenant obligations (with one exception the Monroe doctrine !) ; and to cooperate in international economic and social matters. In order that State compliance with the above obligations be monitored, and if necessary the sanctioning and enforcement measures be triggered, the League, perhaps for the first time in the history of international organization, formally institutionalized both the elements of the Westphalian system and the Concert of Europe system the Assembly, the most representative of the League organs, manifested the former, and the Council, the smaller executive organ, the latter, assuming perhaps that both the strands in the process of international organization would work in tandem with each other. Both these organs, however, had only the power to make recommendations, leaving the compliance monitoring and enforcement measures to the good sense of the big powers operating whether inside or outside the League (it was a different story that the big powers rarely used their good sense to the cause of the Covenant). The essential features of the normative and institutional order of the League of Nations did not yet ensure both the illegality and impracticality of war. As an eminent commentator on the legal aspects of the use of force on the international plane observes : There were innovations [in the League Covenant], of course, and these took the form of procedural constraints on resort to war. But, provided the procedures foreseen in Articles 11 to 17 were exhausted, resort to war was permissible. This appeared to be the intention of the draftsmen in spite of the provisions of Article 10, according to which there was an obligation by members to respect and preserve as against exter-

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nal aggression the territorial integrity and existing independence of all members of the League. 351 Attempts at strengthening the normative and institutional of the League began as soon as the League came into existence, thanks mainly to the French quest for security in Europe. These led to the drafting of the Geneva Protocol of 1924. The draft Geneva Protocol was a big event in the evolution of international organization it sought to institutionalize the compliance monitoring and enforcement measures. But the protocol fell through when a change of government in Britain ensured its death Britain did not want to take up the burden of making the League any more effective than it was. Indeed, on second thoughts, it decided to ensure the League to continue to remain toothless. As luck would have it, however, when the UN Charter was being drafted in 1945, the ideas embodied in the draft Geneva Protocol were dusted out and incorporated, mutatis mutandis, in what was to become Chapter VII of the Charter today, so critical to our discussion on humanitarian intervention. The League of Nations prompted two more seminal normative developments, both in 1928. One was the adoption of the General Act of Peaceful Settlement of International Disputes, which endeavoured to link the obligation to settle disputes through peaceful means more firmly with the League Council and the new Permanent Court of International Justice. However, this became a dead letter, at least politically 352, upon the fall of the League in 1946, and an attempt by the UN General Assembly to revive it in 1949 did not attract the fascination of the nations of the post-Second World War. The second
351. Ian Brownlie, Principles of Public International Law, 6th ed., Oxford University Press, Oxford, New York, 1st Indian ed., 2004, at p. 697. Brownlies seminal work in this field remains his International Law and the Use of Force by States, Oxford, 1963 : many of the conclusions of this highly perceptive study on use of force in the realm of modern international law remain untainted of the subsequent developments in international relations. 352. The issue whether the 1928 General Act is a dead letter legally has been raised before the International Court of Justice at least in four cases so far : the case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Nuclear Tests cases (Australia v. France and New Zealand v. France) ICJ Pleadings, Nuclear Tests cases, Vol. II, p. 348, the Trial of Pakistani Prisoners of War case (Pakistan v. India), ICJ Pleadings, at p. 143, the Aegean Sea Continental Shelf case (Greece v. Turkey) ICJ Reports 1978, p. 17. The Court decided in the Aegean Sea case that it should not pronounce on this point, because of the possible implications for the relations of other States. On this issue, see V. S. Mani, The Atlantique Case between Pakistan and India before the ICJ, Journal of the Indian Law Institute, Vol. 42, 2000, pp. 56-73.

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development, far more significant to the evolution of modern international law, was the conclusion of the Treaty of Paris. Bearing a long and imposing title, A Treaty for the Renunciation of War as an Instrument of State Policy, the treaty was first negotiated between France and the United States, and then kept open for wider participation. The treaty for the first time in any international instrument adopted by States embodies twin principles of unexceptional character the principle of outlawry of war 353 and the principle of peaceful settlement of disputes 354. Soon after its conclusion between France and the United States, it was almost universally participated in by the then international community 355. Some of the parties to the Pact made reservations in respect of their right of self-defence. The contribution of the Pact to the normative order of the United Nations has been extremely critical. The first principle of the Pact heralded the norm of prohibition of force now embodied in Article 2 (4) of the UN Charter, the second the norm of peaceful settlement of disputes in Article 2 (3). The United Nations Conference on International Organization (UNCIO) met during the last days of the Second World War and immediately thereafter at San Francisco at the initiative of the Big Four. Although the Charter was thrashed out principally on the basis of the Dumbarton Oaks proposals by the Big Four, the few small powers that participated in the conference mainly the Latin American States, often backed by Canada and Australia ensured very close examination of the normative and the institutional order for the new international organization that they were giving shape to. Indeed, the UN Charter was an immediate international community response to the war. It represented an attempt to prevent future wars, and also an attempt to resurrect and place on a high pedestal all that the war stood for on the side of the Allied and Associated Forces hence the highlights on human rights, and self-determination. Simultaneously, however, the small countries, particularly of Latin America,
353. Article I : The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. 354. Article II : The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means. 355. Brownlie, Principles, footnote 351, supra, p. 698.

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insisted on the incorporation in the Charter of the principles of non-use of force (including a definition of aggression) and non-intervention, and also sought to ensure inviolability of their territorial integrity and political independence even as the international community as a whole set on course to provide some teeth to the new organization, largely on the basis of the draft Geneva Protocol of the League era. Evidently, the UNCIO had to contend with a variety of overlapping and at times conflicting claims to normative legitimacy to be embodied in the new Charter. The UN Charter, thus approved by the 50 States members of the immediate post-Second World War international community, came to embody the following principal features : the normative aspects of the Charter are embodied in Articles 1 and 2 and the institutional aspects in the rest of the Charter. Although the Charter labels Article 1 provisions as the Purposes of the United Nations and Article 2 provisions as the Principles, in the practice of the Organization, the provisions of Article 1 have been liberally relied on for giving shape to some of the basic principles of modern international law, e.g. human rights, self-determination and international co-operation 356. The normative structure of the United Nations is thus governed by these Purposes and Principles. Many of these Principles have received formulation through the practice of the United Nations. The 1970 Friendly Relations Declaration came to embody the consensual formulations of seven basic principles of modern international law, namely, non-use of force, non-intervention, peaceful settlement of international disputes, sovereign equality, good faith, equal rights and self-determination and international co-operation. The last paragraph of the Declaration refers them to be the basic principles of international law. To these the broad range of human rights law has been added thanks mainly to the Universal Declaration of Human Rights and other subsequent Declarations and treaties on human rights for whose adoption the UN General Assembly has been singularly instrumental. In the context of humanitarian intervention, we shall now identify a few perspectives on the international concern for human
356. See, e.g., Friendly Relations Declaration : resolution 2625 (XXV) of 24 October 1970, and the preambular paragraphs of the Universal Declaration of Human Rights, and those of the Human Rights Covenants of 1966.

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rights as well as the legal order governing the resort to use of force, including intervention. 3.1.4.2. Evolution of human rights law The organic bond between the individual and the State is perhaps as old as the State system itself. Indeed, the emergence of the United Nations in 1945 manifests, inter alia, the high point of concern of the post-Second World War international community for promotion and protection of human rights the world over. The history of international relations reveals a slow emergence of an international focus on human rights, particularly since the mid-nineteenth century. This focus eventually sharpened and the agenda of human rights came to the fore towards the end of the Second World War, culminating in the provisions of the UN Charter on human rights. The Charter embodies promotion and protection of human rights in Articles 1, 13 and 55-56 as one of the prime objectives of the Organization. However, the makers of the Charter never intended to establish an international jurisdiction (in contradistinction to international concern) for the purpose, either in total replacement or in supersession of the primary objective and preoccupation of State as a political and social institution. They never intended to abdicate their inane responsibility towards their individual constituents. Given the decentralized nature of the contemporary international system of sovereign States, the enforcement/implementation of international human rights norms, like all other international norms, is largely left to individual States, which are the units of the international community. This state of things has its rationale stemming from a number of factors. First and foremost, most human welfarecentric theories of the origin of State, such as those of Locke, Rousseau, Laski and Gandhi, which at the same time underscore values of democracy and participatory government, entrust and mandate the State system with the task of constantly seeking and securing the condition of human welfare within the society. This task is best pursued at the level of and within each national society and by the instrumentalities evolved by the genius of that society, whose functioning is made accountable to that society by its own methods of social audit or rules of legitimacy. Pursuit of human welfare is, in the ultimate analysis, primarily and predominantly the function of the members of each national society and the institutions they establish to that end. The legitimacy of the institutions of State is thus a

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function of the degree of fulfilment of their mandate, i.e., the pursuit of human welfare by these institutions and the manner in which it is achieved. The myth of sovereignty is created to permit, insulate (from external interference), and encourage each national society to develop itself the way it would like, harnessing to that end the resources available to it the best way it deems fit. It seeks to protect and promote the right of the people of each State to self-determination, political, economic, social and cultural. It brooks no interference from other national societies. No national society however powerful it may be can arrogate itself to claim a divine right to impose its will on another society. Hence the famous Gandhian dictum : Good government is no substitute for self-government. This is self-determination in action. Additionally, human welfare is also a function of the cultural institutions in a society. And societies differ from one another in their perception of the cultural content of human welfare. Many ancient societies, such as the Oriental, as a general rule, perceive human rights as the product of intra-societal socio-cultural relations, which are primarily based on a web of mutuality of duties woven into these relations at various levels inter-individual, intra-family, inter-family, intra-clan and inter-clan, and finally societal. The son owes duties to his father and the rest of his family, the father owes duties to him and the rest of the family, and thus each member of a family owes duties to others in the family and the resultant totality of family relations seek to protect the welfare of the individual as they promote the welfare of the whole family. There should be no need for anyone to assert his/her rights ; they are there for individual and collective enjoyment, without even demanding them. In sharp contrast, in the Oxidental societies individuals probably have to assert their rights all the time as there is less emphasis on duties. In other words, universality of human rights concepts must be understood, taking into account certain divergencies of perception inane in each national society. Even as the international instruments on human rights began taking shape since the Universal Declaration, there have been divergencies of views at different levels. First was the divergence concerning the issue of priority between civil and political rights on the one hand and economic, social and cultural rights on the other. Second was the issue of emphasis between individual rights and group rights. Third is the issue of human rights universalism versus cultural relativity in conprehension and imple-

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mentation of human rights. In the contemporary international community, therefore, barring certain irreducible minimum of core rights emanating from the right to life and personal liberty (as recognized by Article 4 (2) of the International Covenant on Civil and Political Rights, 1966) 357, it will be difficult to seek universality of acceptance and application of the entire gamut of specific human rights worldwide. While genuine international co-operation to promote human welfare is welcome, and is, indeed, mandated pursuant to Article 1 (3), and Articles 55 and 56 of the UN Charter, dictatorial interference in the way in which a State should seek to achieve these objectives within its national society is not. Compliance of human rights then is at its core an issue of availability of resources, something that the developing countries lack, and for that reason it is iniquitous to claim universal standards of application of all human rights, without contributing substantially to the international transfers of such essential resources on which to build on a human rights compliant society. Thus, international concern for the human rights situation in a country does not automatically confer on any State or a group of States, or even on an international organization such as the United Nations, international jurisdiction to take coercive action in respect of that situation, as the provisions of the Charter took shape. Very soon, however, a number of international instruments on human rights came into existence, beginning with the Universal Declaration of Human Rights. Also, following the jurisprudence of the Nuremberg and Tokyo International Military Tribunals, concepts like the crime of genocide and the crimes against humanity came into existence. While the crime of genocide is indeed one of the crimes against humanity, it came to be treated on a separate plane, being perhaps the most heinous of such crimes. This explains why the international community came up with a separate convention for the prevention and punishment of the crime of genocide in 1948, even as it adopted the Universal Declaration of Human Rights, almost simultaneously. The Genocide Convention has been of farreaching significance. Although it did not apply to some of the most
357. This provision prohibits a State party to make any derogation from Articles 6 (right to life), 7 (right against torture), 8 (right against slavery), 11 (right against imprisonment for contractual debts), 15 (right against ex post facto criminal law), 16 (right to recognition as a person), and 18 (right to freedom of thought, conscience and religion).

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serious wars of the post-war world, including the Vietnam War (for reasons of the Cold War that paralysed the functioning of the Security Council), it began to be applied with much vigour to some of the situations of genocide that arose since 1990s, and also now provides jurisdiction for the new International Criminal Court 358. A claim to legality of humanitarian intervention in some of the recent instances of interventions has been based on Article 1 of the Genocide Convention, which states : The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. The argument is that this provision casts on States parties a legal obligation to prevent and punish the crime of genocide anywhere in the world. Such an argument, it would seem, would be far-fetched, as the original intention of the draftsmen of the convention was to impose such an obligation on States parties within their respective national jurisdictions. Hence the provision in Article V requiring States parties to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the convention, and, in particular, to provide effective penalties for persons guilty of genocide or any other acts enumerated in Article III. Indeed, such legislation must provide for persons charged with genocide or any other acts enumerated in Article III to be tried by a competent tribunal of the State in the territory of which the act was committed . . . 359. 3.1.4.3. Legal order governing use of force In the practice of States in their relations with one another the normative distinctions among these functions are difficult to maintain, as more often than not individual State interests eclipse these distinctions and inhibit their performance. Yet the existence of an international community with certain community objectives such as minimization, if not elimination, violence, and maximization of social and economic welfare, through certain evolving, generally
358. See Article 5 (1) (a) read with Article 6 of the Rome Statute, 1998. 359. See Article VI of the Genocide Convention.

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accepted, basic precepts of international behaviour such as the principles of non-use of force, non-international, peaceful settlement of disputes, sovereignty, good faith fulfilment of international obligations, self-determination and human rights, and international cooperation 360, is equally a reality. That there are gaps between this normative order of things and State conduct does not readily diminish either the social or the jural value of the normative order ; the existence of gaps between the norm and the conduct of the subject is not peculiar to international system, but pervades every system of law. The problem is compounded by the overlapping claims to compliance as well. While the concepts of sovereignty and sovereign equality came to be recognized as norms of traditional international law, the consensual recognition of the norms of non-use of force and non-intervention has been a rather recent development, despite the Latin American contribution to their evolution even before the adoption of the Covenant of the League of Nations. The Latin American strife to assert these norms even against the big powers of the nineteenth and early twentieth centuries has been legendary. This notwithstanding, the traditional international law at least at the normative level upheld sovereignty and sovereign equality, but in the same breath also recognized the Clausewitz doctrine that war was the continuation of policy through other means. The concept of self-preservation was handy indeed, which was in fact an extension of the principle of sovereignty. Self-preservation also extended to the preservation values the big powers believed in this was indeed the Metternich system in continuum. When these values changed, as change took place from despotic monarchy to representative government, the rationale for intervention in the affairs of small yet sovereign States also underwent a qualitative change. At any rate, protection of nationals abroad, if necessary with force, could be justified either under self-preservation (nationals being an organic extension of a State) or under humanitarian intervention. And mercifully, the traditional law did not recognize the concept of abuse of rights, despite the jurisprudential logic that rights are correlative of duties, and that rights must be enjoyed in due regard to the rights of other States.

360. See UN General Assembly Declaration on Friendly Relations, resolution 2625 (XXV), 24 October 1970.

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In the traditional Eurocentric international system, the dividing line between use of force and an act of intervention was almost nonexistent, as almost every instance of intervention was backed by the threat or use of force. The Drago doctrine raised by Argentina in the first decade of the twentieth century represented the first assertion of the principle of non-use of force, even if it was confined to addressing the question of redemption of contractual debts from the debt-ridden countries by the great powers. This doctrine was a precursor of the modern-day principle of non-use of force. However, it would appear that Arti-cles 15 and 16 of the Pact of Bogot have had a more direct impact on the UN Charter in the formulation of the principle of non-use of force and the principle of domestic jurisdiction which indirectly gives effect to the non-intervention principle. As States have accepted the principle of non-use of force, the use of force against a recalcitrant State being an international community function, is centralized, to be presided over by the Security Council. Yet the lack of political will and mutual suspicions on the part of the big powers which dictated the course of the drafting of the UN Charter at San Francisco in 1945 have not allowed this normative order to be foolproof. The veto provision and the requirement of Article 43 agreements have been the principal villains of the piece. The veto provision in Article 27 ensures that (1) no action can be taken in the face of opposition of a permanent member of the Council (a great power), and (2) none can indeed be taken against a great power itself or any other State enjoying the protection of a great power. This then has been the extent to which a marriage between the Westphalian system representing sovereign equality of all States and the Concert of Europe system ensuring the great powers enjoy a status unequal with the small powers. Yet, in terms of the international normative order, four peremptory norms are widely recognized to govern State conduct, namely, sovereign equality, non-use of force, non-intervention, and good faith, each complementing and strengthening each other. More particularly, the principle of non-intervention is sought to be rendered effective by the other three principles. 3.1.4.3.1. Sovereign equality The principle of non-intervention has not been explicitly formulated in the Charter of the United Nations. However, it is

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generally recognized that the principle flows from the provisions of Article 2 (7) on domestic jurisdiction, further strengthened by the principle of sovereign equality under Article 2 (1). The 1945 San Francisco Conference on International Organization understood the principle of sovereign equality to contain the following elements : (1) that States are juridically equal ; (2) that each State enjoys the rights inherent in full sovereignty ; (3) that the personality of the State is respected, as well as its territorial integrity and political independence ; and (4) that the State should, under international order, comply faithfully with its duties and obligations 361. These have not been further expanded by the UN General Assembly through its 1970 Friendly Relations Declaration 362 (whereby the Assembly proclaimed sovereign equality, non-use of force, nonintervention and good faith, along with three other principles of the Charter to constitute basic principles of international law 363). The Declaration states that : States are juridically equal ; each State enjoys the rights inherent in full sovereignty ; each State has the duty to respect the personality of other States ; the territorial integrity and political independence of the State are inviolable ; (e) each State has that the right freely to choose and develop its political, social, economic and cultural systems ; (f) each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States 364. (a) (b) (c) (d) Provisions of (b), (c), (d) and (e) above have a clear bearing on the principle of non-intervention, as these are the basic values that the non-intervention principle seeks to espouse.
361. UNCIO, Documents, Vol. VI, p. 457. 362. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. Resolution 2625 (XXV), 24 October 1970 was adopted by acclamation. 363. See operative paragraph 3 (the concluding paragraph) of the Declaration on Friendly Relations. 364. Resolution 2625 (XXV), 6th principle, second paragraph. For study of this principle, see R. P. Anand, Sovereign Equality of States in International Law, Recueil des cours, Vol. 197, 1986, pp. 9-228.

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The principle of non-use of force has also received elaboration in the Friendly Relations Declaration 365. While leaving out the question whether the term force is limited to armed force or whether it encompasses other forms of coercion as well, the Friendly Relations formulation of the principle of non-use of force identifies not only the principal prohibited acts of direct threat or use of force, but also indirect use of force. Yet, the ninth preambular paragraph of the Declaration recalls the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State 366. In accordance with the rules of interpretation contained in Article 31 (2) of the Vienna Convention on the Law of treaties, 1969, this preambular paragraph indicates that the Declaration recognizes the principle of non-use of force encompassing not only acts involving armed force but all other forms of coercion as well. This is the position adopted by an overwhelming number of States, chiefly the developing countries. The normative order of non-use of force enshrined in the UN Charter comprises the general, yet absolute, prohibition of the threat or use of force the jus cogens on use of armed force and two sets of permissible rules authorizing/allowing unilateral resort to force. Article 2 (4) of the Charter proclaims : All Members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the Purposes of the United Nations. (b) Enforcement action by the Security Council Both categories of permissible situations of resort to force are provided for in Chapter VII, namely Article 42 and Article 51.
365. Ibid., 1st principle. 366. This provision has been inserted in addition to the non-intervention paragraph immediately preceding it.

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Article 42 is central to the Security Councils powers of authorizing enforcement action, i.e., a Security Council action with respect to threats to the peace, breaches of the peace and acts of act of aggression. Indeed, the Councils authority to take action for preservation of international peace and security is the very purpose of the prohibition of force postulated in Article 2 (4), and therefore it is not an exception to the norm, but integral to its effectiveness. Unilateral resort to force is forbidden because the most powerful organ of the international community, the Security Council, is empowered and mandated to use force on behalf of the community. The Dumbarton Oaks Proposals included among the principles of the new organization, the principle that All members of the organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization. 367 According to Goodrich, Hambro and Simons : The phraseology was intended to achieve not only a maximum commitment of members, but also and more particularly to give the Security Council guidance combined with wide discretion in the interpretation and application of its responsibilities for the maintenance of international peace and security. At San Francisco, the Sponsoring States agreed to include against the territorial integrity or political independence of any state in Article 2 (4), in response to the demand of the smaller states that there should be some assurance that force would not be used by the more powerful states at the expense of the weaker ones 368. A later issue that cropped up in this regard was whether territorial integrity encompassed territorial inviolability 369. However, this came to be settled in the formulation of prohibition of force in the Friendly Relations Declaration 1970, which now provides : Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State . . . 370
367. Dumbarton Oaks Proposals, Chap. II, para. 4, cited in Leland M. Goodrich, Edvard Hambro and Anne Patricia Simons, Charter of the United Nations : Commentary and Documents, Columbia University Press, New York and London, 3rd and rev. ed., p. 44. 368. Goodrich, Hambro and Simons, op. cit., pp. 44-45, citing UNCIO, Documents, Vol. VI, pp. 342-346. 369. Ibid., p. 51. 370. General Assembly resolution 2625 (XXV) 24 October 1970, first principle, 4th paragraph.

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On the other hand, it has been pointed out, the term international relations does not automatically insulate domestic use of force from international concern. The Security Council by its decisions strongly implied that it found a threat to, or breach of, international peace to exist. It thereby took the view that even a domestic use of force might have such international consequences as to justify appropriate measures of restraint. 371 Under Article 2 (4) threat or use of force cannot be employed in any other manner inconsistent with the Purposes of the United Nations. Can force then be unilaterally resorted to if it were consistent with the Purposes of the United Nations ? Goodrich, Hambro and Simons find : Consistency with the Purposes of the United Nations is a requirement that lends itself to a wide range of possible interpretations, depending upon whether one adopts a generous or restrictive view of what these purposes are. 372 Thus, could a State mount a humanitarian intervention, justifying it on ground of its pursuit of human rights, one of the Purposes of the United Nations ? A State cannot on its own, unilaterally, determine what constitutes a purpose of the United Nations and mount a forcible action to rectify a situation in another State, without the authorization of the Security Council, which has the sole competence to decide on mounting a use of force on behalf of the international community. According to Goodrich, Hambro and Simons : There is general agreement [emerging from the UN practice] that the use of force is legitimate provided it is authorized by a competent United Nations organ. 373
371. Goodrich, Hambro and Simons, op. cit., p. 51. Goodrich et al. refer to UN doc. S/459, 1 August 1947 in which the Council called upon parties (Netherlands, and Indonesian liberation movement) to cease hostilities forthwith. Similarly, in resolution 1514 (XV), 14 December 1960, the famous Declaration on Decolonization, the General Assembly sought to apply the same restraint to the use of force for putting down revolutionary disturbances in colonial areas that Article 2 (4) places on the use of force in international relations. 372. Goodrich, Hambro and Simons, op. cit., pp. 50-51. 373. Ibid., p. 52. Thus in the Korean situation, the Council, by its resolution (adopted in the absence of the USSR), recommended that members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area (UN doc. S/1511, 27 June 1950). The competence of the General Assem-

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The learned commentators, however, point out : In a number of instances, claims have been made that the use of force is justified by the legitimate nature of the objectives sought. The argument is, in effect, that no other means are available for achieving desirable purposes. The plea of selfhelp is a somewhat legalistic statement of the same argument. In the Suez Canal case in 1956, the United Kingdom sought to justify its military intervention on the ground that the fighting between Israel and Egypt threatened freedom of navigation through the Canal, on which British economic life was dependent. 374 Members of the United Nations have been overwhelmingly of the opinion, however, that the appropriate procedure to use is the peaceful means provided by the Charter, and that the use of force or armed intervention to secure rights, even lawful rights, has been strictly prohibited unless order by the Security Council. . . . No country may take the law into its own hands. 375 The organizational action under Chapter VII is also expected to be assisted by regional organizations in appropriate cases. Thus, Article 53 under Chapter VIII mandates a complementary role for regional organizations in the area of enforcement action. It authorizes the Security Council to utilize regional arrangements or agencies for enforcement action under its authority. But, it warns, no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council . . . (c) Right of self-defence The other permissive situation other than action authorized by the Security Council is in recognition of the need to permit unibly to legitimize use of force by member States came up sharply for the first time in the context of Uniting for Peace resolution 377 (1950) when, countries like the United Kingdom and Colombia argued that the Assembly in exercise of its residual responsibility could recommend military measures that members can in any event take in the exercise of the right of self-defense under Article 51 (ref. statements of Younger (United Kingdom), and Urrutia (Colombia), GAOR, 5th sess, 1st cmtee, 360th mtg., 12 October 1950, paras 4, 71-73). 374. Ibid., p. 54. Reference is to UN doc. SCOR, 11yr, 749th mtg., 30 October 1956, p. 3 and 7512st mtg., 31 October 1956, p. 7. 375. Ibid., pp. 54-55, quoting Delegate of Columbia, GAOR, 1st Emergency Special Sess., 562nd Plen. mtg., 1 November 1956, p. 15.

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lateral use of force by States in case of emergencies, against an armed attack this must have arisen from the common criminal law concept of exclusion of criminal liability in case of actions taken in private defence or in self-defence, should an individual be left to protect himself, his family members or property, from any imminent danger, without any opportunity to await the protection of the State to arrive 376. Indeed, once the State authorities appear on the scene to restore law and order, this right of private defence ceases. Also, the quantum or nature of force used to ward of the danger should be proportionate to be determined in terms of the actual context in which the force was used in private defence. As an exception to the general principle of prohibition of force, it must be restrictively interpreted, so as not to render ineffective the absoluteness of the prohibition and the institutional action in consequence of it. Article 51 the sole exception to the general and absolute prohibition of force contained in Article 2 (4) 377 provides as follows : Nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by the Members in the exercise of this right of self-defence shall be immediately reported to the Security council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. This provision highlights two elements, namely, the inherent right of self-defence (individual or collective), and the role of the Security Council. The right of self-defence as recognized in Article 51 has three aspects : (1) the right of self-defence is inherent in every State ; (2) it encompasses both individual and
376. E.g., Section 96 of the Indian Penal Code, 1860 : Nothing is an offence which is done in exercise of the right of private defence. Section 97 provides for the right of private defence of body and property. 377. The ICJ in the case of Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226, at p. 244, p. 263, emphasized the lawfulness of the use of force in self-defence.

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collective self-defence ; and (3) it is available only against an armed attack. (i) Scope of self-defence The implication of the right of self-defence being inherent was explained by the International Court in the Nicaragua case (1986) : The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a natural or inherent right of self-defence, it is hard to see how this can be other than of a customary nature . . . 378 However, lawfulness of a defensive response to an armed attack would depend upon the observance of the criteria of the necessity and proportionality of the measures taken in self-defence 379. The celebrated customary law authority in this regard is the Caroline incident, 1837, between the United States and Britain. In his letter in reply to the then British Ambassador Henry Fox (who defended the incursion of British forces into the US territory as a pre-emptive act of self-defence), US Secretary of State Daniel Webster made the following classic statement : It will be for that Government [the British Government] to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show also, that the local authorities in Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all did nothing unreasonable or excessive ; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing ; it must be shown that daylight could not be waited for ; that there could be no attempt at discrimination between the innocent and the guilty ; that it would not have been enough to seize and detain the vessel ; but that there a necessity, present and inevitable, for attacking her in the darkness of night, while moored to the shore, and while unarmed men were asleep on board, killing some and
378. ICJ Reports 1986, p. 14, at p. 94. 379. Ibid., p. 103.

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wound[ing] others, and then drawing her into the current above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with he dead, committing her to a fate which fills the imagination with horror. A necessity for all this the government of the United States cannot believe to have existed. 380 The first two sentences remain oft-quoted as an authority for legitimate invocation of the right of self-defence against imminent danger under international customary law. The International Court has in its jurisprudence also highlighted the need for compliance with the rules of international humanitarian law as an additional criterion. In the Legality of the Threat or Use of Nuclear Weapons case, it held that the principles of international humanitarian law permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future 381. The right of self-defence encompasses both individual and collective rights. An attack against one is an attack against all members of the Club. Collective self-defence is now recognized under the UN Charter. The Security Council took note of it in its resolution 661 (1990) by making explicit reference to the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, even if in a preambular paragraph. In the Nicaragua case, the International Court observed : Since the existence of the right of collective self-defence is established in customary international law, the Court must define the specific conditions which may have to be met for its exercise, in addition to the conditions of necessity and proportionality to which the Parties have referred. 382 Searching for these additional conditions, the Court said : In the case of individual self-defence, the exercise of this
380. Websters letter of 24 April 1841, in reply to Foxs letter of 12 March 1941, in Kenneth E. Shewmaker, ed., The Papers of Daniel Webser : Diplomatic Papers, Volume 1, 1841-1843, University Press of New England, 1983, pp. 62, 67-68, quoted by Neta C. Crawford, The Best Defense, Boston Review : A Political and Literary Forum, available at http://www.bostonreview.net/BR28.1/ Crawford.html, pp. 1-16. See also, the Caroline case in John Bassette Moore, A Digest of International Law, Washington, DC, Vol. 2, pp. 409, 412. 381. ICJ Reports 1996, p. 226, para. 86. 382. ICJ Reports 1986, p. 14, at p. 103.

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V. S. Mani right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need for this . . . There is no rule of customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack. 383

Further on, the Court concluded on a survey of the law, that the requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked 384. In other words, the exercise of the right of individual self-defence is conditioned by (1) the necessity armed attack, (2) the rule of proportionality, and (3) observance of the international humanitarian law. The exercise of the right of collective self-defence has two other additional requirements to comply with : (1) a state victim of an armed attack, and (2) a request from that state for assistance. What constitutes an armed attack ? There was some discussion on this question in the Nicaragua case. The Court observed : There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein. (Refer to Article 3 (g) of the Definition of Aggression, UN General Assembly resolution 3314 (XXIX).) 385 But the Court does not believe that the concept of armed attack includes not only acts by armed bands where such acts
383. Ibid., at pp. 103-104. 384. Ibid., at p. 105. 385. Ibid., p. 103.

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occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. 386 Further, It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. 387 Article 51 right of self-defence is, however, narrower than the right under customary law. It is confined to an armed attack under Article 51, whereas in the Webster Note, it need not be so. (ii) Role of the Security Council The linkage between self-defence and Chapter VII of the UN Charter is three-fold. One, a State invoking the right of self-defence is required to report to the Security Council immediately. Two, the right stays in place until the Security Council has taken measures necessary to maintain international peace and security. Three, Measures taken by Members in exercise of this right of self-defence . . . shall not in any way affect the authority and responsibility of the security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 3.1.4.3.3. Non-intervention Endeavouring to strengthen Article 2 (4) prohibition, Mexico pushed for an addition to that provision at the San Francisco Conference in 1945 : No State has the right to intervene, directly or indirectly, and whatever be the reason, in the domestic or foreign affairs of another. 388 Mexico further stated that it would condemn any State acting on its own authority to intervene in the internal affairs of another State. It would not preclude action taken on behalf of the Community of States and with the mandate of a competent agency of the Community of
386. Ibid., pp. 103-104. 387. Ibid., p. 104. 388. Opinion of the Department of Foreign Relations of Mexico concerning the Dumbarton Oaks Proposals for the Creation of a General International Organization, UNCIO, Vol. 3, Restricted doc. 2, G/7(c), 23 April 1945, p. 66.

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V. S. Mani States, in the event that conditions prevailing in a States territory should be found to menace international peace and order.

This evidently led to the formulation of the principle of nonintervention now embodied in Article 2 (7). Lord Halifax of Britain later commented on the effect of Article 2 (7) as follows : When a situation threatened the peace it would cease to be essentially within the domestic jurisdiction and all powers would revert to the Security Council. 389 Although Article 2 (7) of the UN Charter specifically applies to the relation between member States and the United Nations and not to inter-State relations, what is prohibited for an organization of States is, a fortiori, prohibited for States themselves. This logic was accepted by the General Assembly when it formulated the principle of non-intervention in the Friendly Relations Declaration. The Friendly Relations Declaration, following the 1965 Declaration on Inadmissibility of Intervention 390, and before it, Articles 15 and 16 of the Pact of Bogota, 1948, embodies the following general formulation of the principle : No state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any state. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements, are in violation of international law. No state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the advantages any kind. Also, no state shall organise, assist, foment, finance, invite or tolerate, subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state or interfere in civil strife in another state. The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention.
389. Minutes of the 16th Five-Power Informal Consultative Meeting on Proposed Amendments, San Francisco, 6 June 1945, Foreign Relations of the United States, Washington, DC, Vol. 1, 1945, p. 1176, at p. 1187. 390. This Declaration was recognized to embody only a political, not legal, principle of non-intervention, by some of the Western countries, such as the United Kingdom and the United States.

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Every state has an inalienable right to choose the political, economic, social and cultural systems, without interference in any form from another state. Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security. 391 The importance of the principle of non-intervention and close linkages between the principles of sovereign equality, non-use of force and non-intervention have received international judicial recognition. In the Corfu Channel case, a case that arose against the backdrop of the Cold War, the International Court of Justice, while chastising Great Britain for forcible use of minesweepers to clean up the Corfu Channel, remarked significantly : The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in International Law. Intervention is perhaps less admissible in the particular form it would take here, for from the nature of things, it would be reserved for the most powerful States and might easily lead to preventing the administration of international justice. 392 The case concerning Military and Paramilitary Activities in and against Nicaragua, involved, inter alia, the Nicaraguan claim that the United States, in breach of its obligations under general and customary international law, has intervened and is intervening in the internal affairs of Nicaragua 393. There were also claims by Nicaragua that the United States violated and was violating the principle of non-use of force and the sovereignty, territorial integrity or political independence of Nicaragua, including all intervention, direct or indirect, in the internal affairs of Nicaragua 394. While evaluating these claims, the International Court recognized the customary law basis of the principles of non-use of force and non391. Resolution 2625 (XXV), 3rd principle. 392. ICJ Reports 1949, p. 35. See also Ian Brownlie, International Law and the Use of Force by States, Oxford, 1963, pp. 288-289. 393. ICJ Reports 1986, p. 14, at p. 19. 394. Ibid. See also ibid., pp. 22.

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intervention as evidenced by both State practice and opinio juris. And the Court said : This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) . . . The effect of consent to the text of such resolutions cannot be understood as merely that of a reiteration or elucidation of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. 395 Thus the Court relied on the Friendly Relations Declaration as a proof of acceptance by States of the principles of non-use of force and non-intervention and extended its application to the particular aspects of these principles. On non-intervention, the Court said : The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference ; though examples of trespass against these principles are not infrequent, the Court considers that it is part and parcel of customary international law. As the Court has observed : Between independent States, respect for territorial sovereignty is an essential foundation of international relations (ICJ Reports 1949, p. 35) and international law requires political integrity also to be respected. 396 Speaking in the context of the Nicaraguan claims, the Court declared : A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices which must remain free ones. 397 The Court recognized that where the element of coercion also
395. Ibid., pp. 99-100. 396. Ibid., p. 106. 397. Ibid., p. 108.

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involved a threat or use of force, it might violate simultaneously both non-intervention and non-use of force. Again in the context of non-intervention, the Court in the same case dealt with the following specific operational issues which have a direct bearing on our discussion of humanitarian intervention : 10(1) Does a State have a general right to intervene, directly or indirectly, with or without armed force, in support of an international opposition in another state whose cause appeared particularly worthy by reason of the political and moral values with which it was identified ? 398 10(2) Can a State claim a right to use force, as part of the right of self-defence against another State in response to the latters wrongful action, which did not constitute an armed attack ? 10(3) When does humanitarian aid become intervention ? 10(4) Do actions of economic nature, such as cessation of economic aid to the target State, reduction of import quota of a commodity imported from that State, or a trade embargo against that State, amount to violations of the rules of non-intervention ? 10(5) Can a State intervene in the affairs of another State at the request of a group opposing the Government in that State ? 10(6) Can there be collective counter-measures against a State in response to its wrongful acts ? 10(7) Does a State have a right to intervene in the affairs of another State on the ground that the latter has established a government of different ideology, a totalitarian (Communist) dictatorship ? 10(8) Or on the ground that the target government committed breaches of its solemn commitments to its people ? 10(9) Or on the ground that the government of the latter violated human rights ? 1(10) Or on the ground of excessive militarization by the latter State ? The Courts answers to these questions, again in the context of the Nicaraguan claims were as follows : 11. The court . . . finds that no such general right of intervention in support of an opposition within another State, exists in contemporary international law. 399
398. Ibid. 399. Ibid., p. 109.

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12. [T]he lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. In the view of the Court, under international law in force today whether customary international law or that of the United Nations system States do not have a right of collective armed response to acts which do not constitute an armed attack. 400 13. There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. 401 An essential feature of truly humanitarian aid is that it is given without discrimination of any kind. In the view of the Court, if the provision of humanitarian assistance is to escape condemnation as an intervention in the international affairs of a State, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely to prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being ; it must also, and above all be given without discrimination to all in need in the air-receiving State, not merely to a certain faction or group 402. 14. The actions of economic nature such as the cessation of economic and aid, reduction of import quota and unilateral trade embargo may not as such constitute a breach of customaryprinciple of non-intervention 403, unless it is shown that they directly bear upon matters in which each State is permitted, by the principle of State sovereignty, to decide freely ; and that the element of coercion is involved therein 404. 15. The principle of non-intervention would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another state . . . Indeed, it is difficult to see what would remain of the principle of non-intervention in international if intervention, which is already allowable at the request of the government
400. 401. 402. 403. 404. Ibid., Ibid., Ibid., Ibid., Ibid., p. 110. p. 124. p. 125. p 126. p. 108.

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16.

17.

18.

19.

of a State, were also to be allowed at the request of the opposition. 405 While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree cannot . . . produce any entitlement to take collective counter-measures involving he use of force. Wrongful acts not amounting to an armed attack, could only have justified proportionate countermeasures on the part of the State which has been the victim of these acts . . . They could not justify counter-measures taken by a third state . . . 406 [A]dherence by a State to any particular doctrine does not constitute a violation of customary international law ; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State . . . The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. 407 The so-called solemn commitments in question undertaken by the Nicaraguan Government in this case are questions of domestic policy . . . A States domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems. 408 While a State might form its own appraisal of the situation as to respect for human rights in another State, the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken [in this case], the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining ports, the destruction of oil installations, or again with the train, arming and equipping of the armed bands in the State accused of human rights violations. 409
Ibid., Ibid., Ibid., Ibid., Ibid., p. p. p. p. p. 126. 127. 133. 131. 135.

405. 406. 407. 408. 409.

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10. [I]n international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception. 410 Thus the level of militarization in a country does not per se justify intervention by another. Evidently, most judges of the Court in the Nicaragua case in 1986 have not diverged from the above statements of the law in any significant respects 411. It would appear from the above that the International Court has in the Nicaragua case supported the following postulates of international customary law in respect of the alleged right of humanitarian intervention : (1) All exceptions to the principles of non-use of force and nonintervention must be restrictively interpreted. (2) Intervention in the form of self-defence is permissible as a counter-measure to an armed attack, provided it conforms to the customary law requirements such as proportionality, promptness and absence of alternative choice of means besides respect for international humanitarian law. (3) In all other situations coercive intervention, not involving use of armed force, as a counter-measure to a wrongful act which does not amount to an armed attack, is only permissible in conformity with the principles of proportionality and reasonableness. Yet it cannot be resorted to by third States not victims of the wrongful act. International law permits rendering of humanitarian assistance provided it is in conformity with the ICRC principles of alleviation of human suffering and protection of life, and the test of nondiscrimination in the distribution of the relief measures to the needy. (The question of permissibility of coercion, whether or not amounting to armed force, to back up the humanitarian assistance was not discussed by the Court. But it would seem that the objectives of the humanitarian assistance could not be fully achieved without the co410. Ibid. 411. Even the dissenting judges, namely Judges Sir Robert Jennings, Shigeru Oda and Stephen Schwebel chiefly argued either that the Court had no jurisdiction to deal with the case in view of the US Declaration under the optional Clause, or its conclusions were wrong on facts.

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operation of the target State. More importantly, the burden of the Court rulings in this case is to prohibit all unilateral resort to force whatever be its objectives.) The State practice of even those few powerful States who have often resorted to humanitarian intervention does not amount to a general legal recognition of a of a unilateral right of humanitarian intervention as an exception to the principle of non-intervention. 3.1.4.3.4. Good faith Article 2 (2) of the UN Charter embodies the principle of good faith fulfilment of Charter obligations by member States. Good faith has been one of the bedrock principles of international law, strengthening the concept of international obligations. The principle of good faith is, as the International Court has observed, one of the basis principles governing the creation and performance of legal obligations. 412 But it is a secondary obligation to strengthen a primary obligation : it is not in itself a source of obligation where none would otherwise exist 413. Arbitrariness is not so much something opposed to a rule of law, as something opposed to the rule of law. This idea was expressed by the Court in the Asylum case, when it spoke of arbitrary action being substituted for the rule of law 414. It is a wilful disregard of the due process of law, an act, which shocks, or at least surprises, a sense of juridical propriety 415. Good faith means first, objectivity in the self-interpretation by States of accepted obligations, and secondly, self-restraint by States in the application of rules which, although not positively accepted by individual States, [flow] from custom and reason. 416 Thus, good faith is the hallmark of exercise of rights under the
412. Nuclear Tests, ICJ Reports 1974, p. 268, para. 46 ; p. 473, para. 49. 413. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p. 69, at p. 105. 414. Asylum case, Judgment, ICJ Reports 1950, p. 284. 415. Electronica Sicula S.p.A. (ELSI), Judgment of 20 July 1989, ICJ Reports 1989, p. 15, at pp. 76-77. The Court in this case examined the context in which a government functionary exercised his powers in an attempt to do something about a difficult and distressing situation. 416. Tammes (Netherlands) : GAOR, 20th sess, 6th cmtee, 874th mtg., 12 November 1965, para. 12, cited in Goodrich, Hambro and Simons, footnote 367, supra, p. 41.

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law. It requires a subject to give due regard to the rights of others and recognize reasonable limits in the exercise of its rights. Indeed, exceeding these limits is likely to bring the subject to face the claim of abuse of rights from others. There seems to be a marked hesitation on the part of many international lawyers to recognize a rule against abuse of rights as such. Brownlie quotes Sir Hersch Lauterpacht who says : There is no legal right, however well established, which could not, in some circumstances be refused recognition on the ground that it has been abused. The doctrine of abuse of rights is therefore an instrument which . . . must be wielded with studied restraint. 417 Hence, Brownlie : In conclusion it may be said that the doctrine is a useful agent in the progressive development of the law, but that, as a general principle, it does not exist in positive law. Indeed it is doubtful if it could be safely recognised as an ambulatory doctrine, since it would encourage doctrines as to the relativity of rights and result, outside the judicial forum, in instability. 418 Such views, however, tend to recognize the doctrine of absolutism of rights and run against the due regard to the rights of others rule. All rights are, indeed, relative, both jurisprudentially as well as operationally. Nor do these views take into account the impact of the jus cogens of good faith on the conduct of subjects of international law in general and in particular contexts. It is therefore submitted that there is, indeed, a doctrine against abuse of rights under international law : that is direct consequence of recognition of the jus cogens of good faith. 3.1.4.4. Institutional mechanism at the United Nations The institutional mechanism available under the Charter to seek implementation of the above principles encompasses essentially the
417. Sir Hersch Lauterpacht, The Development of International Law through the International Court, London, 1958, p. 164, quoted in Ian Browlie, Principles of Public International Law, Oxford, 6th ed., 2003, 1st Indian ed., 2004, at p. 430. 418. Brownlie, op. cit., p. 430.

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General Assembly and the Security Council. But the respective roles of these organs need to be appreciated against the backdrop of the legal nature of the United Nations as an international organization in terms of its capacity to fulfil the tasks that its founding fathers mandated it. 3.1.4.4.1. International personality of the United Nations Soon after the United Nations began functioning, the International Court of Justice had little difficulty in attributing to the United Nations, as an international organization, an international personality distinct from its members. It ruled, rather famously, as follows in the Reparation case in 1949 : The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirement of international life, and the progressive increase in he collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. The Charter has not been content to make the Organization created by it merely a centre for harmonizing the actions of nations in the attainment of these common ends (Article 1, para. 4). It has equipped that centre with organs, and has given it special tasks. It had defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the security Council, by authorizing the General Assembly to make recommendations to the Members, by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members, and providing for the conclusion of agreements between the organization and its Members. . . . It must be added that the Organization is a political body, charged with political tasks of an important character, covering a wide field,

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V. S. Mani namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article 1) ; and in dealing with its Members it employs political means. . . . In the opinion of the Court, the Organization was intended to exercise and enjoy, and in fact exercising and enjoying, functions and rights which can only be explained on the basis of possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainty is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a super-State, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. 419 :

This legal status of the United Nations, important though it is for our consideration of humanitarian intervention, must be posited against (1) the perceptions of the Organization at its infancy, (2) plurality of interests in the international community, and the problem of autonomy of the Organization, and (3) issues of legality and legitimacy of organizational actors.
419. Advisory Opinion in the Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p. 174, at pp. 178-179.

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Indeed, the General Assembly played a role during the Cold War period, beginning with the Korean Crisis in 1950-1951, when it assumed the power to determine that in a particular context the Security Council had failed to perform its responsibilities under the Charter and, therefore, to make recommendations to member States to take collective measures, including use of force, to restore international peace and security 420. Thus began the practice of UN peacekeeping operations. Somewhere along the line, however, the Security Council too began resorting to this technique. In certain cases, it even referred matters to the General Assembly to deal with under the Uniting for Peace resolution. The legality of the Uniting for Peace procedure has always been in doubt a State unhappy with such UN intervention could always question it. This is so in spite of the ruling by the International Court of Justice in the Certain Expenses Advisory Opinion. The Court in that case held that the expenses incurred by the Organization peacekeeping operations were legitimate expenses of the Organization, as they were incurred in furtherance of operations that were intended to carry out the Purposes of the United Nations 421. The Court held : The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition. These purposes are broad indeed, but neither they, nor the powers conferred to effectuate them, are unlimited. Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action. But when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization. 422 Dealing with the objections based on the alleged lack of competence of the General Assembly to authorize action for peacekeeping operations, the Court said, this argument took one to the internal plane of the Organization. It observed :
420. The famous Uniting for Peace resolution, resolution 377 (V). 421. ICJ Reports 1962, p. 151, at p. 158. 422. Ibid., p. 168.

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V. S. Mani If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by ultra vires act of an agent. 423 2.1.4.4.3. The Security Council

Issues of use of force, or forcible intervention in the affairs of other States attract the role of the Security Council, most naturally. The Council, the executive organ of the Organization, manifests the Concert of Europe strand of the contemporary international relations. For this reason, it has been politically natural for the UN Charter to ascribe to the Security Council the central role in the maintenance of international peace and security. In order to ensure prompt and effective action by the United Nations, the Member States have conferred upon the Council primary responsibility for the maintenance of international peace and security 424, which it shall carry out in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII of the Charter. 425 Article 24 thus lays down the general duties, powers and specific frame of their exercise under the Charter. To give effect to this framework of these organizational powers, duties and responsibility, the Charter embodies an undertaking of the Member States to accept and carry out the decisions of the Security Council in accordance with the present Charter 426. Chapter VI is generally on Pacific Settlement of Disputes recognizing, on the one hand, the freedom of parties to settle their disputes through peaceful means, but at the same time granting a role for the Council, when it deems necessary to call upon the parties to settle their disputes by such means 427. Evidently, this applies to a dispute the continuance of which is likely to endanger the maintenance of international peace and security 428, and not to all dis423. 424. 425. 426. 427. 428. Ibid. Article Article Article Article Article 24 24 25 33 33 (1) of the UN Charter. (2) of the UN Charter. of the Charter. (2) of the Charter. (1) of the Charter.

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putes. The role of the Council under this Chapter also encompasses, (1) taking cognizance of any dispute or a situation, when brought in by any State, whether a member or a non-member of the United Nations 429, (2) enquiring into a dispute or a situation which might lead to international friction or give rise to a dispute endangering the maintenance of international peace and security 430, (3) recommending (to the parties) appropriate procedures and methods of adjustment, at any stage of the dispute or situation 431, and (4) taking up a dispute compulsorily referred to the Council by parties on failure on their part to settle it under Article 33 432. All this, however, shall not inhibit the freedom of the Council to make recommendations to the parties with a view to a pacific settlement of the dispute, if all the parties so request 433. Does the Council, under Chapter VI, have power to force either a dispute settlement means or a solution of a dispute upon parties without their consent ? It is submitted that the Council does not have that power under Chapter VI, nor does it have an unqualified mandate to interfere with any procedures for the settlement of a dispute, which has already been adopted by the parties to it 434. The travaux prparatoires of the UN Charter at UNCIO reveal that during discussion on what came to be Article 36 (2) of the Charter 435, Turkey had proposed the following provision : Nevertheless, recommendations made by the Security Council must not interfere with legal procedures in the case of a dispute which has already been submitted for legal settlement. At the 10th meeting of Committee III/2, the delegate of Turkey explained that the purpose of his amendment was to ensure that the Security Council would not intervene in a case, which was being heard by the International Court of Justice. If the dispute developed into a threat to the peace in the meantime, then the Council could intervene, but otherwise there should be no interference in the judicial proceedings. Peru supported Turkeys pro429. Article 35 of the Charter. 430. Article 34 of the Charter. 431. Article 36 of the Charter. 432. Article 37 of the Charter. 433. Article 38 of the Charter. 434. For more on this, see V. S. Mani, The Role of Law and Legal Considerations in the Functioning of the United Nations, Indian Journal of International Law, Vol. 35, 1995, pp. 91-118, at pp.106-107. 435. Article 36 (2) of the Charter : The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

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posal. South Africa, the United Kingdom and the United States took the position that the Security Council would only interfere, if the dispute amounted to a threat to the peace, or was likely to endanger international peace and security. The US delegate added that the Turkish amendment did not purport to place any restriction on the action of the Council in such a case, but that it meant that if a dispute were being satisfactorily handled by the Court and there was no threat to peace, then there should be no interference by the Council. The Turkish delegate agreed with this interpretation. The result was Article 36 (2) of the Charter. Explaining this provision, the Summary Report of the Committee III/2 stated : According to this article, the Security Council, in making recommendations in accordance with the first sentence, must determine whether or not the parties had already adopted pacific procedures. If so, the Council would not ordinarily call upon them to adopt such procedures or make recommendations for employment of other designated procedures. 436 Evidently, the founders of the Charter wanted to ensure great respect for the autonomy of parties underscored in Article 33 of the Charter and stressed that this should be a healthy inhibiting factor on the Security Councils freedom of action under Chapter VI. Chapter VII enables the Security Council to take enforcement action, i.e. action with respect to threats to the peace, breaches of the peace, and acts of aggression. It confers upon the Security Council a very wide discretion (a) to determine whether a situation amounts to a threat to the peace, breach of the peace or an act of aggression 437, (b) to call upon parties to observe provisional measures, pending resolution of the situation 438, (c) to decide on employment of sanctions short of use of armed force 439, and (d) to take action involving use of armed force 440. In order to enable the Security Council to perform its functions under this chapter, member States have undertaken to make available to the Council, on its call and in accordance with a special agreement or agreements, armed
436. Hans Kelsen, The Law of the United Nations, New York, 5th print, 1966, pp. 405-407, footnote 1, citing UNCIO documents. 437. Article 39 of the Charter. 438. Article 40 of the Charter. 439. Article 41 of the Charter. 440. Article 42 of the Charter.

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forces, assistance, and facilities, including rights of passage 441. Under Article 53, the Council may even call upon a regional organization to assist it in this regard, although the latter cannot mean an enforcement action without the prior authorization of the former. Goodrich, Hambro and Simons rightly point out that the question remains whether the United Nations organ that purports to authorize the use of force has acted in accordance with the Charter, and whether [a] member state is acting in conformity with a United Nations decision 442. Yet this discretion has to be judiciously exercised for at least four reasons : First, the Council has only primary, not exclusive, responsibility for maintenance of international peace and security 443. There are other organs of the United Nations, such as the General Assembly and the International Court of Justice, which may play a complementary role. Second, it must carry out its responsibility in accordance with the purposes and principles of the United Nations (included in these is the requirement of compliance with international law and justice) 444. Third, the obligation of member States to comply with the Security Councils decisions is not unqualified, but
441. Article 43 of the Charter. 442. Goodrich, Hambro and Simons, footnote 367, supra, p. 52. 443. See Nicaragua (Preliminary Objections), ICJ Reports 1984, p. 433. See also Lockerbie (Preliminary Objections), ICJ Reports 1992, pp. 22 and 134 (Judge Ni), 26 and 138 (Judge Lachs), 139 and 140-141 (Judge Shahabuddeen), 33 and 35 and 143 and 145 (Judge Bedjaoui), 53-66 and 163-176 (Judge Weeramantry), 73-74 (Judge Ranjeva), 100-106 and 205-211 (Judge ad hoc ElKosheri). 444. In the words of Judge Weeramantry in the Lockerbie cases (Provisional Measures), The duty is imperative and the limits are categorically stated. See ICJ Reports 1992, pp. 61 and 171. As Bentwich and Martin, two early commentators of the Charter, point out, The Security Council must act in accordance with the Purposes and Principles laid down in Articles 1 and 2. It has wide discretion, but no arbitrary powers. It must respect the sovereignty of Member States, especially in matters which are domestic. It must respect the principle of equal rights and self-determination of peoples . . . When force is used, the Council must see that the territorial integrity and political independence of States do not suffer. But within the limits of these and the other fundamental Purposes and Principles, the Security Council is a free agent. Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations, London, 1950, p. 62. In the Namibia case, Judge Fitzmaurice said in his dissenting opinion that The Security Council is as much subject to it [international law] (for the United Nations is itself a subject of international law) as any of its individual member States are. ICJ Reports 1971, p. 294.

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stays in place if the decisions in question are in accordance with the present Charter. Finally, the obligation to comply with the use of force decisions under Article 42 does not concretize as against a State, which has not concluded an Article 43 special agreement with the Council. In the absence of such an agreement, participation in any enforcement action involving use of armed force is merely voluntary. An additional, yet cardinal, factor that must inhibit the Security Councils discretion under Chapter VII of the Charter is the following principle embodied in Article 2 (7) : 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 ; but this principle shall not prejudice the application of enforcement measures under Chapter VII. Article 2 (7) seeks to ensure simultaneous and effective observance of two goal values, namely the principle of non-intervention, and the peace enforcement in appropriate cases by the Organization. The cumulative effect of Article 2 (7) is that the principle of nonintervention must be respected not only in inter-State relations but also in the relations between States and the organs of the United Nations, provided that it would be no bar to an enforcement action by the Security Council under Chapter VII. The proviso rendering permissible an enforcement action under Chapter VII even affecting a matter which is essentially within the domestic jurisdiction of a State, is an exception to the general principle of non-intervention, and as an exception it must be restrictively interpreted. This indeed was the intention of the draftsmen at San Francisco, as borne out by both the wording of Article 2 (7) as well as its travaux prparatoires. In the first place, it must be noted that Article 2 (7) commences with the words : Nothing contained in the present Charter shall . . .. This clearly indicates that one of the guiding principles of the interpretation and application of the entire Charter by any organ of the United Nations is the principle of non-intervention 445. Secondly, the drafting history of
445. It is well known that this provision was shifted from among the original Dumbarton Oaks Proposals on the peaceful settlement of disputes by the Security Council, to Article 2 on principles of the Charter : see Goodrich, Hambro and Simons, footnote 367, supra, p. 61.

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the Charter shows that the San Francisco Conference was sensitive to the concern expressed by States for preservation of their domestic jurisdiction even as they were launching an international organization with coercive powers to maintain and restore international peace and security. At least two illustrations of this may be cited from the drafting records. During discussion of the conditions for admission of new Members, a question arose as to the eligibility for membership of States whose regimes had been established with the help of military forces of countries that waged war against the United Nations : The Committee1/2 [of the San Francisco Conference] considered the difficulties which would arise in evaluating the political institutions of States and feared that the mention in the Charter of a study of such a nature would be a breach of the principle of nonintervention, or if preferred, of non-interference. 446 More importantly, the discussion of Article 2 (7) itself highlighted the concern of States for balancing the coercive powers of the Security Council with domestic jurisdiction of states. As Committee 1/1 reported, Nearly all speakers agreed in recognizing that the object of he paragraph was to uphold two principles : (1) Explicit recognition of the rule that there should not be undue interference with the domestic jurisdiction of the several states ; and (2) that the performance by the Security Council of its functions for the maintenance of peace and security should be assured. 447 The draftsmen of the Charter were aware that the formulation the application of enforcement measures under Chapter VII referred to in Article 2 (7) was narrower than the term the application of Chapter VII. In other words, only the enforcement measures, and not recommended measures, of the Security Council under Chapter VII enjoy the immunity from the bar of domestic jurisdiction 448. As Goodrich,
446. UNCIO, document 1074, 1/2/76, p. 3. 447. UNCIO, document 976, 1/1/40, p. 1. 448. Kelsen notes : According to the amendment suggested by the sponsoring governments of San Francisco Conference the second sentence of Article 2, paragraph 7, should read as follows : but this principle shall not prejudice the application of Chapter VIII, Section B (of the Dumbarton oaks Proposals, now Chapter VII of the Charter). Under this provision recommendations under Article 39 were possible. In order to exclude such recommendations, upon

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Hambro and Simons clarify, the Councils actions under Articles 41 and 42 are exempt from the domestic jurisdiction clause, but this exception does not extend to all actions by the Council under Chapter VII 449. 3.2. Peremptory Norms of International Law and Obligations erga omnes In the S.S. Wimbledon case, one of its first cases, the Permanent Court of International Justice held : The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain to perform a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction on the exercise of sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. 450 The Court was examining the German argument that the Treaty of Versailles 1919 placed restrictions on Germanys international obligations relating to its neutrality in respect of a contemporaneous war in Poland. The Court held that Germany must give effect to its treaty obligations as against such customary law obligations. Since then, the emergence of the concept of jus cogens or the peremptory norms of international law has been the one important normative development that would contribute to the further evolution of a truly global legal framework. A valuable contribution of the International Law Commission, the concept now embodied in Article 53 of the Vienna Convention on the Law of Treaties envisions a framework of international law presided over by a set of peremptory norms, whose validity derives from the bedrock of the general acceptance of their special higher status by the international community of States. Although Article 53 limits their applicability only
a motion of the Australian Delegation, the words application of Chapter VIII, Section B were replaced by the words : enforcement measures under Chapter VIII, Section B. Hans Kelsen, footnote 436, supra, p. 787, fn. 2, referring to UNCIO doc. 969, 1/1/39. Kelsen also notes that the Report to the President on the Results of the San Francisco Conference by the Secretary of State of the United States, p. 44, contains the statement that the provision prohibiting the intervention of the Organisation is so phrased as to exclude the interference that the Security Council might make a recommendation to a state concerning the way in which a domestic question should be settled. Kelsen, op. cit. 449. Goodrich, Hambro and Simons, footnote 367, supra, p. 292. 450. S.S. Wimbledon, Judgment, 1923, PCIJ, Series A, No. 1, p. 25.

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to determine the validity or nullity of treaty provisions militating against these peremptory norms, it can a priori be argued that since treaties represent joint or co-ordinate acts of States, by the underlying logic of Article 53, jus cogens shall determine the validity or otherwise of all acts of States, whether collective, or unilateral. They shall equally determine the validity of the conduct of all subjects of international law the international organizations, non-governmental organizations and transnational corporations. Perhaps, jus cogens are the first stepping-stones of international constitutionalism. To say this is not to ignore the formidably gigantic boulders that lie along the path. To Judge Manfred Lachs, the concept of jus cogens has been one of the most fascinating chapters of contemporary international law one which, more than any other, reflects the relationship between the freedom of action of States and the limitations imposed upon them by the law 451. An important achievement it is, and a serious challenge to the positivist approach to contemporary international law. 452 There are many questions that remain to be answered by the international community in a definitive manner, questions that the International Law Commission shunned to answer, or did not gather enough courage even to attempt to answer. How does one identify jus cogens ? How are they different from lesser principles, and still lesser rules should their birth tend to give us a feeling of rearrangement of the various rules and principles into a pyramidal structure ? What are the jus cogens of each branch of international law, such as the human rights law, the humanitarian law, the law of international organization, the law of international transport, the international trade law, the international economic law, the law of disputes settlement, the international space law, the international environmental law, and so on ? To what extent do the UN Charter principles, the principles of Friendly Relations 453, contribute to the making of jus cogens, and of international constitutionalism ? Are jus cogens any different from principles and rules imposing on subjects of international law, obligations erga omnes ? As one of the commentators observes, there is a well-recognized trend to apply it [jus cogens] beyond the law of treaties, in
451. Manfred Lachs, Development and General Trends of International Law in Our Time, Recueil des cours, Vol. 169, 1980, pp. 9-377, at p. 201. 452. Ibid., at p. 211. 453. See UN General Assembly resolution 2625 (XXV) of 24 October 1970.

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V. S. Mani particular in the law of state responsibility. . . . The growing acceptance of the jus cogens doctrine is also reflected in the increased reliance on specific peremptory rules in the official argumentation of governments 454.

The International Court of Justice regarded the principle of non-use of force as being a conspicuous example of a rule of international law having the character of jus cogens 455. It is of interest to note the considerations that shaped the International Law Commissions decision to formulate what is now Article 53 of the Vienna Convention on the Law of Treaties, 1969. The draft Article 50 of the ILC final draft articles on the Law of Treaties 1966, entitled the Treaties conflicting with a peremptory norm of general international law (jus cogens) provided as follows : A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The Commissions Commentary on this provision said : The view that in the last analysis there is no rule of international law from which States cannot at their own free will contract out has become increasingly difficult to sustain, although some jurists deny the existence of any rules of jus cogens in international law, since in their view even the most general rules still fall short of being universal. The Commission pointed out that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens. 456 The Commission also noted that only one Government 457 had denied the existence of the norms, while a few others had questioned the advisability of the provision without a proper adjudicatory mechanism. Thus it concluded that to-day there are certain rules from
454. Gennady M. Danilenko, International Jus Cogens : Issues of LawMaking, European Journal of International Law, Vol. 2, No. 1, http://www.ejil. org/journal/Vol2/No1/art3.html. 455. Nicaragua case, ICJ Reports 1986, p. 14, at p. 100. 456. Yearbook of the ILC, 1966, Vol. II, p. 247. 457. Ibid., Vol. I, pp. 20-21, observations of the Government of Luxemburg.

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which States are not competent to derogate at all by a treaty arrangement, and which may be changed only by another rule of the same character 458. Yet, as Oppenheim observes : The content of the category of ius cogens remains to be worked out in the practice of states and in the jurisprudence of international tribunals. In this connection it is important that Article 66 of the Vienna Convention on the Law of Treaties provides for the judicial settlement of disputes concerning the application and interpretation of Articles 53 and 64. 459 Some of the views of the developing countries at the Commission have been of special relevance. In the view of the United Arab Republic of Egypt delegation, the recognition of the notion of jus cogens by the Commission marks the transition from the classical international law to the modern law of the United Nations 460. The Uruguayan delegation noted that up to that date, Article 103 constitutes the most far-reaching legal text applicable to the question, and that it establishes a hierarchy of norms in international law and now, the provision on jus cogens represented a substantial advance over Article 103 of the Charter, in that it not only recognizes the existence of peremptory norms, but also provides a penalty for derogation from them in the form of the nullity of a treaty 461. As the International Law Commissions Commentary notes, the debates in the Commission threw up a number of examples of treaties violating jus cogens a treaty contemplating unlawful use of force contrary to the Charter, or contemplating performance of any other act criminal under international law, or contemplating or conniving at commission of acts such as slave trade, piracy or genocide, in suppression of which every State is called upon to co-operate, or violating human rights, equality of States, or the principle of self-determination 462. However, the Commission thought it inadvis458. Footnote 456, supra. 459. Sir Robert Jennings and Sir Arthur Watts, eds., Oppenheims International Law, Longman : London, 9th ed., 1992, Vol. I, Part I, p. 8. 460. Footnote 456, supra, p. 23. 461. Ibid. 462. Footnote 456, supra, p. 248, para. 3, of the Commentary. ICJ regarded the principle of non-use of force as being a conspicuous example of a rule of international law having the character of jus cogens (Nicaragua case, ICJ Reports 1986, p. 14, at p. 100).

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able to engage in an examination of such treaties in extenso or even enumeration of principles that qualify for the status of jus cogens : The Commission decided against including any examples of rules of jus cogens in the article for two reasons. First, the mention of some cases of treaties void for conflict with a rule of jus cogens might, even with the most careful drafting, lead to misunderstanding as to the position concerning other cases not mentioned in the article. Second, if the Commission were to attempt to draw up, even on a selective basis, a list of the rules of international law which are to regarded as having the character of jus cogens, it might find itself engaged in a prolonged study of matters which fall outside the scope of the present articles. 463 Yet, the ILC debates have revealed a number of norms qualifying to be recognized as jus cogens. They include non-use of force, prohibition of criminal acts under international law, prohibition of acts such as trade in slaves, piracy and genocide, obligation to observe human rights, sovereign equality of States and the principle of selfdetermination 464. In the Nicaragua case, Judge Sette-Camara (of Brazil) observed : I firmly believe that the non-use of force as well as nonintervention the latter as a corollary of equality of States and self-determination are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on all States 465. Despite their reservation on the clarity of the application and effect of rules of ius cogens in areas other than that of treaties, the current editors of Oppenheim tend to take the view that the consequences of jus cogens, logically, encompass the following : Presumably no act done contrary to such a rule can be legitimated by means of consent, acquiescence or recognition ; nor is a protest necessary to preserve rights affected by such an act ;
463. Ibid. 464. Ibid., pp. 247-249. 465. Nicaragua (Merits), ICJ Reports 1986, p. 14, at pp. 199-200 : separate opinion.

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nor can such an act be justified as a reprisal against a prior illegal act ; nor can a rule of customary international law which conflicts with a rule of ius cogens continue to exist or subsequently be created (unless it has the character of ius cogens, a possibility which raises questions to which no firm answer can yet be given of the relationship between rules of ius cogens, and of the legitimacy of an act done in reliance on one rule of ius cogens but resulting in a violation of another such rule). 466 Equally, jus cogens has implications for determination of the validity of acts of international organizations as well. As Judge ad hoc Elihu Lauterpacht has put it, The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot as a matter of simple hierarchy of norms extend to a conflict between a Security Council resolution and jus cogens. 467 Evidently, every jus cogens principle, by virtue its being a peremptory norm, carries with it a broad range of concomitant obligations (dos and donts) for States and other subjects of international law, some readily discernible, some concretizing only in terms of a context, and some others evolving as the norm evolves. At any rate, these are obligations in rem, valid in favour of the international community. As the International Court explained in the Barcelona Traction 468 case, 33. When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn
466. Oppenheim, footnote 459, supra, p. 8. 467. Separate opinion in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325, pp. 439-441. 468. Barcelona Traction case, ICJ Reports 1970, p. 32, paras. 33, 34, 35.

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V. S. Mani between the obligations of a State towards the international community as a whole and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection ; they are obligations erga omnes. 34. Such obligations arise, for example, in contemporary international law, from the outlawing of acts of aggression and of genocide, as also from the principles and rules concerning the basic rights of a human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23) ; others are conferred by international instruments of a universal or quasi-universal character.

Do violations of erga omnes obligations, such as those relating to respect for human rights, legally authorize every State to resort to use of force, on its own, on behalf of the international community ? According to Ian Sinclair, a former legal advisor to the British Government, The recognition of obligations erga omnes did not in itself present any problem, the real question concerned the consequences which follow from recognition of these obligations. It was clear that the obligations were incumbent on every State, but did this mean that every State had a right to act upon any violation ? He had some doubts about this. 469 The reason, indeed, is that unilateral use of force is circumscribed by the modern international law (including the UN Charter) even while it recognizes and holds aloft the principles of the jus cogens category. This circumscription is justified particularly because the international community has established an international organization to monitor and evolve procedures for dealing with such violations on its own terms.
469. Institute of International Law, Yearbook, Editions A. Pedone, 1989, Vol. 63, Part II, Session of Santiago de Compostela, 1989, Deliberations of the Institute during Plenary Meetings on Protection of Human Rights and the Principle of Non-intervention in the Domestic Concerns [les affaires intrieures] of States, at p. 257.

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While the International Court in its Barcelona Traction ruling recognized the existence of obligations erga omnes, Judge Lachs warns us : there is a long way from the dictum of the Court and to actio popularis 470. No wonder, in the East Timor case the International Court ruled : In the Courts view, Portugals assertion that the right of peoples to self-determination, as it evolved from the Charter and from United nations practice has an erga omnes character, is irreproachable. . . . It [the principle of self-determination of peoples] is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. 471 If the erga omnes obligations do not permit actio popularis by individual or a group of States on behalf of the international community, a legal right to resort to unilateral use of force to enforce these obligations on behalf of that community is a far cry. It may be of interest that the International Court in the Barcelona Traction case itself remarked with specific reference to obligations erga omnes in respect of human rights : With regard more particularly to human rights, to which reference has already been made in paragraph 34 of this Judgment, it should be noted that these also include protection against denial of justice. However, on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. 472
470. Judge Lachs, footnote 451, supra, p. 341, fn. 796. 471. East Timor (Portugal v. Australia), ICJ Reports 1995, p. 90, at p. 102. For an argument in favour of the Courts jurisdiction on the basis of individualization of erga omnes obligations, see the dissenting opinion by Judge Weeramantry : An erga omnes right is, needless to say, a series of separate rights erga singulum, including inter alia, a separate right erga singulum against Australia, and a separate right erga singulum against Indonesia. These rights are in no way dependent one upon the other. With the violation by any State of the obligation so lying upon it, the rights enjoyed erga omnes become opposable erga singulum to the State so acting. Ibid., pp. 172-173. Yet, one is sure, the eminent judge would not use the same argument in support of a legal right or obligation to humanitarian unilateralism. 472. See footnote 468, supra, para. 91.

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The obvious implication is that where there exists international monitoring mechanisms over an erga omnes obligation, there is no role for individual States to act as international policemen. So much for the legal claim of humanitarian intervention as a special right of unilateralism for enforcement of a jus cogens or an orga omnes obligation. Georges Scelle, while participating in the International Law Commissions debates on its future work programme, had in fact suggested that the regulation of the employment of an international police force should be one of the chief preoccupations of the Commission, that specific rules should be established for that most dangerous executive function . . . 473. On the basis of the Report of its 8th Commission on the Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States, the Institut de droit international adopted the following resolution in 1989, when the world was just on the brink of transition into a new world order dominated by a single superpower : The Institute of International Law, Recalling its Declarations of New York (1929) on International Human Rights and of Lausanne (1947) on The Fundamental Human Rights as a Basis for Restoring International Law as well as its Resolutions of Oslo (1932) and Aix-enProvence (1954) on The Determination of the Reserved Domain and its Effects ; Considering, That the protection of human rights as a guarantee of the physical and moral integrity and of the fundamental freedom of every person has been given expression in both the constitutional systems of States and in the international legal system, especially in the charters and constituent instruments of international organizations ; That the members of the United Nations have undertaken to ensure, in co-operation with the Organization, universal respect for and observance of human rights and fundamental freedoms, and standing of these rights and freedoms is of the highest
473. Yearbook of ILC, 1949, Vol. 1, p. 51.

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importance for the full realization of this undertaking, has adopted and proclaimed the Universal Declaration of Human Rights on 10 December 1948. That frequent gross violations of human rights, including those affecting ethnic, religious and linguistic minorities, cause legitimate and increasing outrage to public opinion and impel many States and international organizations to have recourse to various measures to ensure that human rights are respected ; That these reactions, as well as international doctrine and jurisprudence, bear witness that human rights, having been given international protection, are no longer matters essentially within the domestic jurisdiction of States ; That it is nonetheless important, in the interest of maintaining peace and friendly relations between sovereign States as well as in the interest of protecting human rights, to define more precisely the conditions and limitations imposed by international law on the measures that may be taken by States and international organizations in response to violations of human rights, Adopts the following Resolution : Article 1 Human rights are a direct expression of the dignity of the human persons. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights. This international obligation, as expressed by the International Court of Justice, is erga omnes ; it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of Human rights throughout the world. Article 2 A State acting in breach of its obligations in the sphere of human rights cannot evade its international responsibility by claiming that such matters are essentially within its domestic jurisdiction.

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V. S. Mani Without prejudice to the functions and powers which the Charter attributes to the organs of the United Nations in case of violation of the obligations assumed by the members of the Organization, States, acting individually or collectively, are entitled to take diplomatic, economic and other measures towards any other State which has violated the obligation set forth in Article 1, provided such measures are permitted under international law and do not involve the use of armed force in violation of the Charter of the United Nations. These measures cannot be considered an unlawful intervention in the internal affairs of that State. Violations justifying recourse to the measures referred to above shall be viewed in the light of their gravity and of all the relevant circumstances. Measures designed to ensure the collective protection of human rights are particularly justified when taken in response to especially grave violations of these rights, notably large-scale or systematic violations, as well as those infringing rights that cannot be derogated from in any circumstances. Article 3 Diplomatic representations as well as purely verbal expressions of concern or disapproval regarding any violations of human rights are lawful in all circumstances. Article 4 All measures, individual or collective, designed to ensure the protection of human rights shall meet the following conditions : (1) except in case of extreme urgency, the State perpetrating the violation shall be formally requested to desist before the measures are taken ; (2) measures taken shall be proportionate to the gravity of the violation ; (3) measures taken shall be limited to the State perpetuating the violation ; (4) the States having recourse to measures shall take into account the interests of individuals and of third States, as well as he effect of such measures on he standard of living of the population concerned.

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An offer by a State, a group of States, an international organization or an impartial humanitarian body such as International Committee of the Red Cross, of food or medical supplies to another State in whose territory the life or health of the population is seriously threatened cannot be considered an unlawful intervention in the internal affairs of that State. However, such offers of assistance shall not, particularly by virtue of the means used to implement them, take a form suggestive of a threat of armed intervention or any other measure of intimidation ; assistance shall be granted and distributed without discrimination. States in whose territories these emergency situations exist should not arbitrarily reject such offers of humanitarian assistance. Article 6 The provisions of this Resolution apply without prejudice to the procedures prescribed in matters of human rights by terms of or pursuant to the constitutive instruments and the conventions of the United Nations and of specialized agencies or regional organizations. Article 7 It is highly desirable to strengthen international methods and procedures, in particular methods and procedures of international organizations, intended to prevent, punish and eliminate violations of human rights. 474 It is important to note that the Institute has not changed its basic stand on the issue, even after the so-called morally legitimate NATO intervention in the former Yugoslavia. 3.3. Rights and Duties of States A traditional, yet still acceptable, concept of a State as a subject of international law is that it is an entity capable of possession international rights and duties and having the capacity to maintain its
474. Footnote 469, supra, resolution adopted on 13 September 1989.

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rights by bringing international claims 475. While there are diverse entities claiming international personality on this test, it is generally agreed that States are the primary subjects of international law. Brownlie 476 approvingly quotes Friedmanns oft-quoted statement : The basic reason for his position is, of course, that the world is to-day organised on the basis of the co-existence of States, and that fundamental changes will take place only through State action, whether affirmative or negative 477. The States are the repositories of legitimated authority over peoples and territories. It is only in terms of State powers, prerogatives, jurisdictional limits and law-making capabilities, that territorial limits and jurisdiction, responsibility for official actions, and a host of other questions of co-existence between nations can be determined. . . . This basic primacy of the State as a subject of international relations and law would be substantially affected, and eventually superseded, only if national entities, as political and legal systems, were absorbed into a world state. 478 Following the municipal jurisprudence, a traditional way of looking at international law has been in terms of rights and obligations of States. Notwithstanding the diverse inaccuracies attendant on this perception of law, it does focus on issues of relativity of rights and duties as well as issues of State responsibility and liability upon breach of duties. Quite possibly this was the rationale for the ILC to have taken up a study of the Rights and Duties of States in the very first year of its existence alongside State responsibility. Recardo J. Alfaro (later Judge Alfaro) was appointed Rapporteur by the Commission for this study. Indeed, he brought with him to the Commission his rich ideas on the subject. Subsequently, Judge Alfaro has had occasion to elaborate on his perception of the rights and duties of States in international law in his Hague lectures of 1959 479. According to him, there are
475. Reparation for Injuries case, ICJ Reports 1949, p. 179. 476. Ian Brownlie, Principles of Public International Law, Oxford University Press, Oxford, 6th ed., 2003, Indian ed., 2004, p. 58. 477. Friedmann was quoting Philip C. Jessup, A Modern Law of Nations, 1948, p. 17. 478. Wolfgang Friedmann, Changing Structure of International Law, 1964, p. 213. 479. Ricardo J. Alfaro, The Rights and Duties of States, Recueil des cours, Vol. 93, 1959, pp. 91-201.

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four essential attributes inherent in and inseparable from the conception of the State, namely : sovereignty, independence, equality and self-preservation. It is from these attributes that emanate all the rights and competencies that the State can exercise. Because the State is independent, it has the right to live free from external control and to have its independence respected by the other States. Because it is equal to all other States it is entitled to be treated in every respect upon a footing of equality and to perform all the acts and do all the things other States legally perform and do within the international community. Finally, because the State exists it possesses the right to preserve, protect and develop its existence. 480 From the above four essential attributes of a State, all its rights and obligations under international law flow. From the attribute of sovereignty emanates the right to respect, which is correlative with the duty of each State to respect the sovereignty of all the other States. From that same attribute flows the right of jurisdiction in all its multifarious aspects : jurisdiction over the territory and all things within it ; jurisdiction over citizens and aliens alike ; the power to legislate, to administer justice, to enforce the law, to maintain public order. So close is the connection between the jurisdictional power and its source that it is not infrequent to see sovereignty confused or identified with jurisdiction, whereas the latter is in reality the offspring of the former. Jurisdiction strikes the mind as the most tangible manifestation of sovereignty, but the State exercises jurisdiction because it is sovereign. 481 Judge Alfaro then quotes a passage from Oppenheim in support of his view that jurisdiction is a direct and immediate emanation of sovereignty : As all persons and things within the territory of a State fall under its territorial supremacy, each State has jurisdiction over them. 482 Judge Alfaro stresses the attribute of independence, because it implies the fundamental principle of non-intervention. For if
480. Ibid., p. 98. 481. Ibid. 482. Lassa Oppenheim, International Law, Vol. I, 8th ed., by Sir Hersch Lauterpacht, Cambridge, 1955, para. 143, p. 325.

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V. S. Mani independence consists in the competency of the State to govern itself without subjection to or interference by any other State, it is self-evident that the State possesses the right to have its independence respected by all other States and hence not to permit intervention in its government by any one of them. This right is correlative with the basic duty of every State not to interfere in the affairs of any other State. In other words, non-intervention is restricted or suspended in the same measure as intervention occurs and endures. 483

Judge Alfaro does not deny that sovereignty, independence equality and self-preservation are also rights. But they are basically attributes of a State, as they are inherent in or consubstantial with the State, and . . ., consequently they are the supreme, original, primary, premordial, basic, innate, essential, permanent, necessary and fundamental rights of the State. This last term fundamental is understood to incorporate all the acceptations of the preceding adjectives, as in fact, it is the one generally used to qualify those rights without which it is impossible for the State to exist or for the mind to conceive it. 484 In fact, Judge Alfaro considers the four attributes of a State to be at once the four fundamental Rights of the State. He finds himself unable to conceive [of] a State divested of the four rights of independence, sovereignty, equality and self-preservation or of any one of them 485. A typical Latin American jurist, Judge Alfaro quotes Carlos Calvo : One of the essential rights inherent in the sovereignty and
483. Alfaro, footnote 479, supra, p. 102. 484. Ibid., p. 103. 485. Ibid., p. 104. According to Judge Alfaro, in Gilbert Gidels (Droits et devoirs des nations : La thorie classique des droits fondamentaux des Etats, Recueil des cours, Vol. 1925, pp. 537-599) view, among the European jurists, Christian Wolff was the first author who gave us a complete system of the rights and duties of States. Ibid., p. 123. In his work of 1787-1789, first published in French in 1802 (finally published in English in 1843), a proposal made by Jeremy Bentham was that the International Code [he was proposing to codify the existing the customary law] would be a collection of the duties and rights of the Sovereign toward every other Sovereign. Ibid., p. 133.

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the independence of States is that of self-preservation. This right is the first of all absolute or permanent rights and serves as the fundamental foundation for a great number of accessory, secondary or occasional rights. 486 But, Judge Alfaro warns : The right of self-preservation must not be confounded with the so-called right of necessity, repudiated by world public opinion, legal as well as popular. The right of self-preservation must be understood in the light of Article I of the Declaration of the Rights and Duties of Nations adopted by the American Institute of International Law : Every nation has the right to exist, and to protect and to conserve its existence ; but this right neither implies the right nor justifies the act of the State to protect itself or to conserve its existence by the commission of unlawful acts against innocent and unoffending States. 487 There were intense debates at the International Law Commission on Judge Alfaros Report. No doubt, much of the discussion focused on the duty of non-intervention. Participating in the debates over draft Article 5 (duty of non-intervention) of the Draft Declaration on Rights and Duties of States, Georges Scelle of France emphasized the difference between an intervention by one State and a collective intervention by an international organization. The right of intervention by one State was a negation of independence and as such should be excluded. If, however, all interventions were excluded, the result would be anarchy. In an international community it was impossible to let one State go beyond its own rights and violate international law. Every State must be able to denounce before the competent international organization the illegal acts of other States. The principle of intervention by an international organization was extremely important to the organization of international government. Article 5 neglected that most important aspect of the question. A State should have the right to ask the United Nations to
486. Alfaro, ibid., p. 97, quoting Carlos Calvo, Le droit International theorique et pratique, 5th ed., 1896, Vol. I, para. 208, p. 352. 487. Ibid., p. 103.

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V. S. Mani consider the opportunity of a collective intervention in a given case. That was the purpose of international organisation. 488

Scelle further emphasized : If any real progress was to be made in international law, the idea of legitimate intervention must be given up and replaced by the taking of steps to initiate collective intervention by the international organization concerned. The State which formerly would have intervened should denounce to the competent international organization the failure of another State to comply with its obligations. The idea that a State could make itself the judge of another State should be abandoned and it should be agreed that it would leave the decision to the international organisation. If some such formula were not adopted international anarchy would result. 489 Koretsky of the Soviet Union pointed out : The action envisaged in Chapter VII of the Charter was not intervention. He demanded an unconditional declaration of the principle of non-intervention 490. Roberto Cordova (Mexico) remarked : The actions of the United Nations which derived from the Charter should not be called intervention but punitive action or some similar phrase, as the word intervention had a very restricted and confined connotation. 491 The difference between self-preservation and self-defence was also highlighted : The right of self-preservation engenders the right of selfdefence with which it is frequently identified. The identity, however, does not exist [between the two concepts]. The difference between the two concepts is clear ; self-preservation is the abstract, objective, permanent right of the State to maintain and to develop itself within the international community. Selfdefence, derived from the former, is the concrete, subjective,
488. 489. 490. 491. Yearbook of ILC, 1949, Vol. I, p. 89. Ibid., p. 97. Ibid., p. 91. Ibid., p. 90.

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eventual and transitory right of the State to use force in order to repel an attack against its integrity and its sovereignty. 492 There was, however, no agreement among the members of the International Law Commission on whether any useful purpose would be served by drafting an instrument codifying rights and duties of States. Koretsky on his part vehemently objected to proceeding with the codification because he felt that the draft Declaration really contemplated the problems of the Western hemisphere and could not be applied to the whole of the globe. It was an attempt to extend American interrelationships to the rest of the world. He also remarked : Non-interventionist principles had always been supported by the smaller countries. Nevertheless, some sixty years earlier in the 1890s Burgess had contended that it was the duty of Anglo-Saxons to establish law and order wherever the people native to an area were unable to do so. In the interests of civilization it was therefore the duty of the Anglo-Saxon to intervene in the international affairs of a nation or a people so that law and order would reign supreme ; intervention and the use of force were therefore completely justified. 493 Finally, the Commission adopted a Draft Declaration on Rights and Duties of States 494, and disposed off the item from its agenda. The Draft Declaration proclaimed in the first preambular paragraph : Whereas the States of the world form a community governed by international law. And in the third,
492. Ibid., pp. 102-103. Calvo : One of the essential rights inherent in the sovereignty and the independence of States is that of self-preservation. This right is the first of all absolute or permanent rights and serves as the fundamental foundation for a great number of accessory, secondary or occasional rights. To him, it constitutes the supreme law of nations from which flows the constituent duty of nations to protect its citizens, and its society not only from external aggression, but in performance of its moral obligations towards its members which constitute the very objective of its institution. Calvo, footnote 486, supra, para. 208, pp. 352-353. Evidently, Calvos self-preservation [the right of conservation] is similar to the modern day national self-determination. 493. Footnote 488, supra, pp. 70-71. 494. Yearbook of ILC, 1949, Vol. II, pp. 286-290.

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V. S. Mani Whereas a great majority of the States of the world have accordingly established a new international order under the Charter of the United Nations, and most of the other States of the world have declared their desire to live within this order.

The draft then formulated the following rights and duties of States : right to independence (Art. 1) ; right to jurisdiction (Art. 2) ; duty of non-intervention (Art. 3) ; duty not to foment civil strife in the territory of another State (Art. 4) ; right to equality in law (Art. 5) ; duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion (Art. 6) ; duty to ensure that conditions prevailing in its territory do no menace international peace and order (Art. 7) ; duty to settle disputes peacefully (Art. 8) ; duty to refrain from resorting to war as an instrument of national policy, and to refrain from the threat or use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order (Art. 9) ; duty to refrain from giving assistance to any State which is acting in violation of Art. 9, or against which the United Nations is taking preventive or enforcement action (Art. 10) ; duty to refrain from recognizing any territorial acquisition by another State acting in violation of Art. 9 (Art. 11) ; right of individual or collective self-defence against armed attack (Art. 12) ; duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty (Art. 13) ; duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law (Art. 14).

In the Guiding Considerations the International Law Commission

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observed, The articles of the draft Declaration enunciate general principles of international law. 495 3.4. New Humanitarian Doctrines : Towards a New Higher Law of Human Rights ? This section considers (1) the western discourse on contemporary international law in terms of exceptions overshadowing the rule, (2) Schermers anti-sovereignty thesis and (3) Tesns pseudoKantian philosophy of international law. 3.4.1. Western discourse on contemporary international law A brief analysis of some of the post-war Western doctrine reveals a dangerous tendency to legitimize humanitarian intervention. Discussion of international law doctrine is usually based on references to State practice to prove or disprove the existence and extent of a rule of international customary law in terms of Article 38, paragraph (1), of the Statute of the International Court of Justice, which defines international customary law as evidence of a general practice accepted as law. The current editors of Oppenheim, start with this statement : That intervention is, as a rule, forbidden there is no doubt. Its prohibition is the corollary of every states right to sovereignty, territorial integrity and political independence. 496 To the learned editors, the term intervention has a stricter meaning than understood in ordinary parlance. According to this meaning, intervention is forcible or dictatorial interference by a state in the affairs of another state calculated to impose certain conduct or consequences on that other state 497. It must be emphasised that to constitute intervention the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against control over the matter in question. 498 This indeed, is the test to determine whether an act of a State directed against another is intervention.
495. 496. 497. 498. Ibid., at p. 290. Oppenheim, footnote 456, supra, p. 428. Ibid., p. 430. Ibid., p. 432.

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Since intervention to be prohibited has to be coercive or dictatorial, rendering of assistance by a State on a request by another is excluded from the prohibition. The examples cited in Oppenheim of such legal rendering of assistance upon request are the following : British armed assistance for Muscat and Oman in 1957, British and American armed assistance (respectively) to Jordan and Lebanon in 1958, British armed assistance to Uganda, Kenya and Tanganyika in 1964 and Zambia in 1965, American armed assistance to the Republic of Vietnam during the Vietnam conflict, French armed assistance to Chad in 1968, 1969 and 1983, and to Zaire in 1978, German commando action against a hijacked aircraft at Mogadishu Airport in 1977 with the consent of Somalian authorities, landing of American, French and Italian forces in Beirut in 1982, Indian armed assistance to Sri Lanka under an agreement of 1987 and to the Maldives in 1988. In these instances no unlawful intervention was involved, say the editors of Oppenheim 499. Yet they guardedly note the possibility of abuse, by fabrication of requests for assistance or by a request being made by an alleged Government having only limited, temporary and precarious authority, being real. Whether a request is to be regarded as genuine can only be determined in the light of the particular circumstances. 500 Such questions have been raised in respect of the Soviet interventions in Hungary in 1956, in Czechoslovakia in 1966 and in Afghanistan in 1979, and the United States intervention in Grenada in 1983 and in Panama in 1989 (to arrest General Noriega). In fact the legitimacy of some of the instances of lawful assistance such as the United States intervention in Vietnam cited above by Oppenheim are open to serious question on the basis of the existence of a genuine request or consent on the part of the host State, or the legitimacy of the State authority to make such request or to give such consent, or else the coercion that produced such request or consent. Oppenheim recognizes the validity of a treaty-based consent, but there have been situations in which such a treaty-based right of intervention has been questioned 501. Thus participating in the
499. Ibid., p. 435. 500. Ibid., p. 436. 501. This is in addition to the preliminary question whether action permissible under a treaty can at all be classified as treaty-based intervention, as it is based on an agreement under which both parties agree that one of them could take armed action in the territory of another.

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Friendly Relations debates in the context of the principle of nonintervention, Cyprus argued that intervention sought to be justified in accordance with treaty rights was one of the most sinister forms, concealed under a cloak of supposed legality 502. Such treaties are often imposed on a newly independent State during independence negotiations. The validity of such treaties could, therefore, be open to question whether on the basis of Article 2 (4) of the UN Charter or any jus cogens such as self-determination and sovereignty. The danger looming large over such treaties or arrangements of prior consent is that one of the parties relying on the rule of pacta sunt servanda may be encouraged to commit acts of intervention by force, thereby creating situations threatening peace 503. Dealing with circumstances, which may justify intervention, Oppenheim says : Exceptionally, a state may be justified in intervening in the affairs of another state. 504 Apart from the rule of restrictive application of this exception to the general principle of non-intervention, Oppenheim cites three specific limitations on this exceptional resort to intervention : (a) compliance with the non-use of force principle, (b) the rule of proportionality, and (c) exhaustion of other peaceful means/remedies. According to Oppenheim, The practice of states does not yet permit the conclusion that intervention in strictly limited cases and in a manner not inconsistent with the Charter of the United Nations is necessarily excluded. It is a practice which is open to abuse, and it is important that the use of force raises issues that are justiciable before international tribunals. 505 Oppenheim in this respect takes note of the following reasons given by states justifying their acts of intervention in the affairs of other states : A States right to protect its citizens abroad 506.
502. Rossides (Cyprus), CAOR, 20th sess. I Cmtee., 1404th mtg., p. 309. 503. Ibid. See further V. S. Mani, footnote 1, supra, Chap. II, Part IV. 504. Oppenheim, footnote 459, supra, p. 439. 505. Ibid. 506. Although Oppenheim warns that this right is likely to be abused, he cites, inter alia, the following interventions in this respect : the UK and French landing of forces in Egypt in 1956, US landing of forces in Lebanon in 1958, landing of Belgian forces in the Congo in 1960, landing of Belgian and US forces at Stanleyville in the Congo in 1964 to rescue persons being held by rebels as hostages, US intervention in the Dominican Republic in 1965, landing

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V. S. Mani The right of humanitarian intervention. The right of self-defence. The right to assist a colonial people. As a treaty right.

While an act of intervention for protection of nationals abroad may have some humanitarian elements to buttress its claim for legitimacy, the question of a general right of humanitarian intervention must arrest our attention here. The argument is that if violations by a State of human rights of its own nationals should shock the conscience of mankind, the matter ceases to be the sole concern to that state and even intervention in the interest of humanity might be legally permissible 507. Oppenheim notes that a substantial body of opinion and of practice supports this position 508. Apparently, only one author, Brownlie, is identified to hold the opposite view 509. Oppenheim is, however, careful in recognizing that the fact that, when resorted to by individual states, it may be and has been abused for selfish purposes tended to weaken its standing as a lawful practice. 510 But it quickly adds : That objection does not apply to collective intervention. The growing involvement of the international community in this regard, Oppenheim feels, diminishes any need for states to retain or exercise an individual right of humanitarian intervention 511. Reiterating its counsel of caution, Oppenheim stresses time and again : If humanitarian intervention is ever to be justified, it will only be in extreme and very particular circumstances. 512 The crucial considerations are likely to include whether there is a compelling and urgent situation of extreme and large-scale humanitarian distress demanding immediate relief ; the incapability or
of Israeli commandos at Entebbe Airport in Uganda in 1976 to free passengers (mostly of Israeli nationality) from a hijacked aircraft, and the US intervention in Grenada in 1983. See, ibid., pp. 440-441. To this list could be added the Tanzanian support for the overthrow of Idi Amin of Uganda in 979 : although Tanzania itself did not specifically invoke such a right, its action has been interpreted as such by many. 507. Ibid., p. 442. 508. Ibid. 509. Ibid., footnote 17. Brownlie, footnote 392, supra, pp. 338-342, comes to the conclusion that it is extremely doubtful whether a right of humanitarian intervention still survives. 510. See footnote 459, supra, p. 443. 511. Ibid., pp. 443-444. 512. Ibid., p. 443, fn. 18.

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unwillingness of the territorial State to meet the situation ; the inability of the competent organs of the international community (international organizations) to respond effectively and quickly enough ; the absence of practical alternatives to intervention ; the likelihood of active resistance by the territorial State, and the limited nature of the action taken. In short, it would have to be a peaceful action (which need not exclude it being carried out by military personnel) in a compelling emergency, where the transgression upon a states territory is demonstrably outweighed by overwhelming and immediate considerations of humanity and has the general support of international community. 513 The manner of treatment of the subject by such an eminent authority as Oppenheim clearly assumes that the statements of law contained therein are based on the tests laid down for recognition of international customary law rules. Under Article 38 (1) (b) of the Statute of the International Court of Justice, for a rule to constitute part of international customary law it must be based on not only State practice but also opinio juris. As already noted, according to the International Court, the formulations of the principles of non-use of force and non-intervention embodied in the Friendly Relations Declaration, 1970, reflect at once a codification of the modern State practice as well as opinio juris, the subjective element of the State practice indicating the jural recognition by States of the binding character of those principles. In this respect, the Courts endeavour to distinguish between mere State practice and State practice accompanied by opinio juris is very relevant. Noting that there have been in recent years a number of instances of foreign intervention for the benefit of forces opposed to the government of another State (which was an aspect of the case before the Court), the International Court of Justice observed in the Nicaragua case : It [the Court] has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or with513. Ibid. But immediately following this statement, Oppenheim quotes the G-7s London Declaration of 1991 to illustrate that the coercive actions taken by a few nations led by the United States against the alleged Iraqi treatment of the Kurds had the stamp of legitimacy of the international community. But does it so illustrate ? Is G-7 the international community ?

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V. S. Mani out armed force, in support of an international opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. 514

Relying on its previous exposition of the tests to determine customary law based on state practice in the North Sea Continental Shelf cases 515, the Court stated that : The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. 516 Many of the instances cited in Oppenheim and other publicists involving a claim of a legal, unilateral right of intervention are indeed of doubtful validity for this reason alone. It is not necessary to look for consistency of practice, as that virtue is hard to come by with humans and human institutions such as a State. But what is relevant is the evidence of generality of practice in support of a rule backed by opinio juris. All other instances of State practice are either mere aberrations or clear violations of the law. Among the recent instances of unilateral right of intervention, the Tanzanian use of force against the Idi Amin regime of Uganda alone appears to have been acquiesced in by the international community without
514. ICJ Reports 1986, p. 108. 515. ICJ Reports 1969, p. 44. 516. Ibid., p. 109, emphasis added.

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protest. Yet that it amounted to intervention not permitted under the principle of non-intervention as formulated in the Friendly Relations Declaration, there is no doubt whatever. All this notwithstanding, it must be said that Oppenheims statement of exception to the rule is fairly restrictive, circumspect, and sensitive to the possibility of abuse by States. The cumulative effect of the Oppenheim restatement, however, is that it is slanted in favour of the few powerful States (and their satellites) which will with impunity exploit such an exception to the rule to their advantage, and to that extent it frustrates the objectives of the general principle of non-intervention. 3.4.2. A New Higher Law of Human Rights : Towards an Obligation to Intervene We consider two modern publicists here representing this view. Both wrote towards the end of the Cold War, Henty Schermers and Fernando Tesn. 3.4.2.1. Henry G. Schermers Speaking from the vantage point of the new world order, Henry G. Schermers calls for a change in regard to the principle of nonintervention in the context of humanitarian law 517. Schermers starts with the statement that one of the challenges of humanitarian law in the years to come is the problem of enforcement 518. And should enforcement of international humanitarian law be made obligatory on the part of States, he says, there would be a conflict of obligations, in view of the principle of non-intervention. Non-intervention principle emerged from the theory of unlimited national sovereignty which in fact meant uncontrolled power for the domestic government governments. The historical developments by early twentieth century made it clear that it was no longer possible to regard states as completely sovereign 519. Slowly a process of internationalization came to affect the external aspects of State sovereignty, although its effect on internal aspects of sovereignty
517. Henry G. Schemers, The Obligation to Intervene in the Domestic Affairs of States, in Astrid J. M. Delissen and Gerard J. Tanja, eds., Humanitarian Law of Armed Conflict : Challenges Ahead : Essays in Honour of Frits Kalshoven, Dordrecht, 1991, pp. 583-594. 518. Ibid., p. 583. 519. Ibid., p. 584.

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was small. The internal sovereignty was carefully protected, under the garb of domestic jurisdiction as illustrated by Article 15 (8) of the Covenant of the League of Nations and Article 2 (7) of the Charter of the United Nations except for the recognition of a limitation to it, namely the competence of the UN Security Council to adopt enforcement measures under Chapter VII of the Charter. Also, after the admission of the newly independent states, the United Nations underlined the full sovereignty of states to act within their domestic affairs as they pleased. 520 See, for example, the General Assembly resolutions 2131 (XX) of 21 December 1965 and 2625 (XXV) of 24 October 1970, Schermers points out. In fact, according to Schemers, the general principle of non-intervention along with the inalienable right of a State to choose its political, economic, social and cultural systems, without interference in any form by another State recognized in the General assembly resolutions 2131 (XX) and 2625 (XXV), protects the Governments of States and their right to stay in power. Schermers interprets the inalienable right referred to in these resolutions to mean : Every Government which has full control over a state has the right to stay in power, however bad its activities may be. 521 This rule of selfpreservation made by Governments, not by courts or parliaments of peoples, must be questioned, he says. Schermers recognizes that the principle of non-intervention is strongly embedded in international law, but asks : should that remain so ? 522 The principle must be reviewed, as its theoretical basis, i.e., absolute sovereignty no longer exists, and States are no longer fully sovereign and international law is no longer a legal system applicable only to the relations between states 523. Non-intervention and the right of a Government to stay in power are outdated, according to Schermers. The obligations under modern international law must be corrected. In particular situations there may be an international obligation to intervene. 524 Schermers does not underestimate the problems of application of such an obligation, in view of the possibilities of abuse. Hence his three rules :
520. 521. 522. 523. 524. Ibid., p. 585 ; emphasis added. Ibid., p. 588. Ibid. Ibid. Ibid., 590.

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Hegemonial intervention within a power bloc to undo a change of government in a State that no longer conforms to the accepted ideology should not be permitted. No intervention serving the power politics of another State should be permitted. [I]t should be objectively established that the domestic situation in the country concerned is contrary to the rules of international law. 525 But Schermers is confident that though still weak and undeveloped, or present society has the institutions which can overcome these obstacles 526. The institutions that he has in mind are the Security Council, the General Assembly and the International Court of Justice. The approval from these institutions is necessarily time taking. Speedy intervention is dangerous intervention. 527 Yet, Effective intervention in particular in urgent cases, may well mean military intervention. 528 In other cases, other methods of intervention such as international sanctions should be pressed into service as appropriate. Finally, Schermers conclusions : The protection of fundamental human rights is no longer a matter solely within the jurisdiction of each individual State. The international community bears responsibility. The international responsibility entails a right, in extreme cases even a duty, to intervene when States severely infringe human rights. As any intervention has long been prohibited under international law, the necessary legal rules on intervention are underdeveloped. Governments being the natural enemy of intervention, such rules must be developed in non-governmental fora. There is a task for the academic community. 529 As a long-time Member of the European Commission of Human Rights, Schemerss views deserve most serious consideration, as his
525. 526. 527. 528. 529. Ibid. Ibid. Ibid., p. 591. Ibid. Ibid., pp. 592-593.

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concern for human rights is beyond reproach. It must also be noted that he recognizes the principle of non-intervention to be part of lex lata : but the substance of his proposal de lege ferenda is that the international community must have a right, and in extreme cases, a duty to intervene in the domestic affairs of a State for protection and enforcement of human rights. Such justifiable intervention may most appropriately be resorted to by international organization, although he does not unequivocally rule out the possibility of unilateral intervention by States. However, Schemerss views must be most strongly questioned in so far as they relate to a right and duty of intervention for protection of human rights. A scrutiny of his views must bear upon his understanding of the evolution of the principle of non-intervention, the problems of enforcement of human rights, and the reliability of States and State institutions in implementation of human rights. His statement that the concept of non-intervention arose from the theory of absolute sovereignty of States is historically correct, in view of the Eurocentric origins of international law. But the fact remains that the big powers violated it repeatedly with gay abandon whether driven by the considerations of balance of power or the Metternich system of legitimacy, or else preservation and expansion of colonialism, to such an extent that even a few of the socalled eminent European international jurists took the view that intervention as a subject lay outside the scope of international law 530. Indeed, the traditional concept of sovereignty is being increasingly eroded in view of the expanding international concern for matters which were until recently solely within the domestic jurisdiction of States. But it is important to note that State sovereignty in the post-Second World War world has received a new meaning, chiefly thanks to the fact of co-existence of States with diverse social, political and economic systems, many of whom emerged independent from European colonialism, in many cases after a sustained struggle against the administering power. To the new States, sovereignty means more than a chastity belt, but a shield to protect themselves, their right of self-determination and political independence, their socio-economic systems (which have been so ruthlessly exploited until recently), and their national identity and personality. Further, that the very expansion of international
530. See supra, pp. 112-129, Sections 2.2.1, 2.2.2 and 2.2.3.

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communitys concern for things which had been insulated from traditional international law, has taken place by deliberate exercise of sovereignty by the members of the international community, seems to have been overlooked by Schermers and other internationalists. This expansion has taken place in order to stress the need for international co-operation and harmonization of national action, within the meaning of Article 1 (4) of the UN Charter. Where co-operation is envisaged, dictatorial intervention is not morally and legally justifiable. What has expanded is international concern and not international jurisdiction in respect of implementation of human rights. The argument that sovereignty and non-intervention merely help the Governments to stabilize their power base and do not serve the international concern for human rights is, therefore, wide off the mark. Respect for sovereignty and non-intervention are two cornerstones of international peace in the contemporary world. Schermerss point about enforceability being cardinal to the effectiveness of humanitarian law must be answered in terms of the fundamental distinction between the jural character of the law and its enforceability which is more a sociological, rather than a legal problem. And the law enforcement mechanism must correspond to the level of integration of community values. It has been the experience of domestic communities that the mere existence of a formal law enforcement mechanism does not necessarily ensure satisfactory implementation of the law. Has the international community achieved an adequate level of integration of values to warrant an international human rights enforcement mechanism even in the shape of a right or a duty to intervene ? The answer must be in the negative. A few conceptual points about the international human rights law would be relevant here. First, while there are certain non-derogable fundamental human rights setting a minimum international standard of conduct for States, beyond this irreducible minimum the levels of implementation of human rights by States vary greatly. Second, this and the conceptual distinction made between the civil and political rights, and economic, social and cultural rights allow States to pursue their own priorities and evolve their own methods of human rights implementation, taking into account their respective economic capabilities and cultural genius of their peoples. Third, the critical problem of human rights implementation is that the State is the most notorious violator of human rights. Therefore, in the ultimate analysis the State system

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is by definition ill suited to be entrusted with the responsibility of human rights implementation. This equally holds true of any of the existing alternatives on the international place, as all of them reflect and is masterminded by the state system and the goal values it represents. This explains the politics of human rights, and of intervention. Beyond the promotion of normative development of human rights, the existing inter-governmental institutions cannot be expected, impartially effectively and without discrimination, to enforce human rights. 3.4.2.2. Fernando R. Tesn Tesn is another humanitarian scholar of the 1980s 531. By then human rights had become firmly entrenched in the foreign policy language of the great powers trained against the specifically targeted small States. Tesns theory is based on three what may be called elements, namely : (1) need for a philosophy of international law, (2) custom and moral theory, (3) moral argument for humanitarian intervention and a moral framework for humanitarian intervention He begins with the statement : It is almost commonplace to say that international legal discourse suffers from a congenital tension between the concern for human rights and the notion of state sovereignty two of the pillars of international law. A most pressing challenge of our times is to solve that tension. Nowhere is the tension between principles more dramatic than where governments abuse their power and mistreat persons to such an extent that our normal intuitive moral reaction is to come to the rescue of the victims. 532 Tesn posits two horns of the dilemma that confront the international community : May states unilaterally intervene by force in order to put an end to serious human rights violations ? Or should states instead absolutely abide by the prohibition of the force
531. Fernando R. Tesn, Humanitarian Intervention : An Inquiry into Law and Morality, Transnational Publishers, Inc., Irvington-on Hudson, New York, 2nd ed., 1996, first ed., 1988. 532. Ibid., p. 3.

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embodied in article 2 (4) of the United Nations Charter, and thus refrain from intervening in such cases ? This is the first horn of his dilemma that opens the door for unpredictable and serious undermining of world order. The second horn of the dilemma entails the seemingly morally intolerable proposition that the international community, in the name of the non-intervention principle, is impotent to combat massacres, acts of genocide, mass murder and widespread torture. 533 Tesns thesis is that forcible action to stop serious human rights deprivations is permitted by international law, properly understood. This he attempts to establish by showing that the best interpretation of relevant treaty materials and state practice is that humanitarian intervention is consistent with the present international legal order 534. He defines humanitarian intervention as the proportionate transboundary help, including forcible help, provided by governments to individuals in another state who are being denied basic human rights and who themselves would be rationally willing to revolt against their oppressive government. He argues, a recognition of the right of humanitarian intervention is mandated by an appropriate normative theory of international relations 535. He examines in detail current doctrinal analysis of the United Nations Charter (Chapter 7) ; post-1945 State practice (Chapter 8) ; and the recent Nicaragua decision by the International Court of Justice (Chapter 10). His purpose, in his own words, is to suggest, once all the pieces are put together, that the best interpretation of the available materials commands the conclusion that states possess a right to intervene to help victims of serious human rights deprivations 536. While moral philosophy is now routinely part of the debates in other areas of the law, Tesns complaint is that
533. 534. 535. 536. Ibid., p. 4. Ibid., p. 5. Ibid. Ibid.

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V. S. Mani International law writing, however, remains well behind the times. It appears to be immersed in a theoretical framework informed by a mixture of realism and old-fashioned positivism that unjustifiably excludes independent moral analysis. The participants in the legal debate put almost no moral arguments forward for or against humanitarian intervention. This seems to focus exclusively on the issue of whether state practice of the UN Charter permits or forbids humanitarian intervention. International lawyers have confined themselves to arguing within narrow theories of law-finding and legal interpretation. . . . As a result, the controversy has been articulated as one between two competing principles of positive international law the principle that states should refrain from the use of force and the principle that individuals are entitled to fundamental human rights. 537

Tesn adopts three methodological assumptions suggested by modern rights philosophers. First, an ethical inquiry is aimed at finding moral principles to which all rational agents would give allegiance. Second, we cannot be completely sure that a particular moral principle or intuition which we have on reflection accepted is correct, and so we must be ready to revise the principle or intuition in case of disharmony. Third, moral reasoning is a necessary ingredient of legal reasoning. 538 In Tesns scheme of things, a discussion of humanitarian intervention is particularly apt to illustrate the philosophical underpinnings of international law : [B]ecause the legal principles and rules that deal with human rights and the use of military force are not just technical, or morally neutral precepts. Instead, they speak to some of our most basic moral principles, convictions and intuitions. On the one hand, the legal norms in question are inextricably linked with our notions about the justice or injustice of war. On the other hand, our interpretation of those norms reflects the place we are willing to accord to basic human rights in interna537. Ibid., pp. 7-8. 538. Ibid., pp. 9-10

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tional relations. The way we think about those issues is also closely linked to, and dependent upon, our notions about the conditions of moral legitimacy of states and governments. Consequently, unless we can make a plausible case for the existence of a moral right of nations to wage war in defense of human rights, no purposive interpretation of article 2 (4) of the United Nations Charter will be convincing or indeed possible. Purposive interpretation is interpretation in the light of values, and so no display of state practice will be sufficient to prove the case for humanitarian intervention unless we can show that such instances are not to be regarded simply as violations of international law, and that can only be done by articulating the values that inform the purpose of the applicable rule or principle. There are strong philosophical reasons for regarding instances of humanitarian intervention as justified. 539 To sum up : I suggest that, at least in the areas of use of force and human rights, the determination of custom in international law presupposes a value judgment, Tesn proclaims 540. Tesns main attack seems to be on a value-based (i.e., based on his preferred values) interpretation of the bases of international law treaties and the corpus of international customary law : State practice thus remains a central touchstone of international legal reasoning. But international lawyers and international courts cannot solve the dilemma posed by humanitarian intervention by a purported value-free analysis of state practice and treaty texts. State practice and treaty texts must be interpreted. And that can only be done by confronting the moral problems prescribed by the uneasy relationship between human rights and state sovereignty. 541 In Chapter 5 of his study (Utility, Rights, and Humanitarian Intervention), Tesn deals with possible philosophical arguments against humanitarian intervention 542. He deals with (1) utilitarianism of rights, (2) the danger of abuse, and (3) foreigners lack of
539. 540. 541. 542. Ibid., Ibid., Ibid., Ibid., pp. 12-13. p. 14. p. 15. pp. 101-115.

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knowledge. On the first objection, the argument, according to him, is that humanitarian intervention will result in loss of life and deprivation of human rights to many innocent people. Tesns reply is that that is unintentional, but necessary to ensure the human rights of the larger community. He cites in support of his point analogies of political violence of a revolution against an oppressive government, and the war against the Nazis 543. Tesns response to the second, danger of abuse objection is : this is an empirical rather than a principled claim 544, i.e., this is based on an assessment of past practice rather than on the principle as such. Also, commenting on Schachters fear of possibility of abuse 545, Tesn contends : But the right of humanitarian intervention is no more unlimited than, say, the right to self-defense. Both of course can be abused, but legally and morally both rights are articulated as capable of exercise under certain conditions. States that do not respect the constraints of humanitarian intervention are guilty of aggression, just as are those states that do not respect the constraints of article 51 of the UN Charter. 546 Against the argument that accusation of abuse results if intervention has a collateral or hidden agenda, Tesns reply is : If we are concerned with human rights we should look most primarily at whether the intervention has rescued the victims of oppression, and whether human rights have subsequently been restored. The intervenor must also employ means that are consistent with the humanitarian purpose. 547 The true test is whether the intervention has put an end to human rights deprivations. That is sufficient to meet the requirement of disinterestedness, even if there are other, nonhumanitarian reasons behind the intervention. . . . Humanitarian intervention is thus justified not because the motives of the intervening government are pure, but because its various motives
543. Ibid., pp. 102-108. 544. Ibid., p. 109. 545. Oscar Schachter, Legality of Pro-democratic Invasion, American Journal of International Law, Vol. 78, 1984, pp. 645-650, at p. 649. 546. Tesn, footnote 531, supra, p. 109, footnote 21. 547. Ibid., p. 113.

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converge . . . on a single course of action that [is] also the course of action called for by [the victims of oppression]. 548 On the third objection, namely, foreigners lack of knowledge, Tesn says the assumption is unwarranted. Often cases of human rights suppression are better known outside a country than inside. For example, during the first two years of the military dictatorship in Argentina (1976-1983), the people inside the country knew very little about the murders, kidnappings, disappearances, imprisonments and tortures meted out to the political opponents of the ruling regime. But many outside the country knew of them 549. In Chapter 6 of his book 550, Tesn lays down four ground-rules for a moral framework for humanitarian intervention : (1) From an ethical standpoint, governments are, internationally and domestically, mere agents of the people. Consequently, their international rights derive from the rights of the individuals who inhabit and constitute the state. (2) A justifiable intervention must be aimed at dictators for the purpose of putting an end to human rights violations. (3) Humanitarian intervention is governed by the interplay of the principles of proportionality and restoration of human rights. 551 Military intervention, as a remedy against human rights violations, should only be resorted to when all peaceful means have failed or are likely to fail. . . . By the same token, the intervention should be as surgical as possible : to be morally acceptable it must be narrowly aimed at the delinquent government and its military supporters, and not at the general population. 552 Also the human rights violations must be serious enough to justify foreign intervention. They should correspond to two dimensions : Quantitatively, human rights deprivations must be extensive, although they need not reach genocidal proportions. Qualitatively, only the violation of basic civil and political rights

548. Ibid., Tesn quotes from Michel Walzer, Just and Unjust Wars : A Moral Argument with Historical Illustrations, Basic Books, New York, 1977, p. 105, who, dealing with the Bangladesh war, describes it as a humanitarian intervention. 549. Ibid., pp. 114-115. 550. Ibid., pp. 117-129. 551. Ibid., p. 121. 552. Ibid., p. 122.

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warrants humanitarian intervention. But where the violation of human rights is not systematic, force should not be used. Violations of human rights may occur even in democratic societies. The test, however, is whether human rights violations are sufficiently widespread and pervasive as to justify classifying that society as a repressive state. 553 (Tesn is not willing to confine humanitarian intervention to cases of genocide, enslavement and mass deportation, however. Why only those cases and not others ? Why should self-determination have priority over freedom from terror, torture, or suppressed speech ? 554 Tesn feels that foreign intervention to protect socio-economic rights in states where civil and political rights are observed violates the territorial integrity and political independence of those states. The only exception, more apparent than real, is where the government wilfully fails to take action to prevent the starvation or death by disease of the population. Intervention then is justified. But this can best be described as a case of violation of the right to life. In most cases . . . it is the safeguarding of civil and political rights, and not of a particular pattern of wealth distribution, that legitimises governments. 555) (4) The victims of oppression must welcome the intervention. 556 Summing up, Put it simply, noninterventionism is a doctrine that strongly supports the international status quo ; it is, therefore, blind to the moral dimension of politics. Such a view cannot possibly have a place in an ethical theory of international law rooted in human rights. 557 Tesn, in our view, is the most aggressive of current generation of theorists who propound a general theory of international law justifying humanitarian intervention. Tesns basic thesis, that Kant perceives the fundamental connectivity between international justice and domestic justice, is probably a correct understanding of Kant. That does not, however, validate the philosophic superstructure that Tesn builds thereon. In an erudite critique of Tesns analysis,
553. 554. 555. 556. 557. Ibid., Ibid., Ibid., Ibid., Ibid., p. 123. p. 124. pp. 125-126. p. 126. p. 129.

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Patrick Capps observes that at two particular points Tesns work is problematic 558 ! The first argument concerns the methodological point : Tesn does not, in sufficient detail, engage in a discussion of Kants method. Without doing this, it is difficult to stake a claim for the validity of the Kantian thesis in the face of scepticism. The second argument is substantive. Tesn grossly neglects the critical move in Kants philosophy from international morality to international law, and hence advances a skewed and idiosyncratic view of Kantian jurisprudence. 559 To Capps, to consider the validity of a particular method, we need to address two questions : (a) how are we to gauge the validity of a particular a priori concept of international law (b) how should a particular concept of international law be related to empirical reality ? Tesn, according to Capps, does not attempt to justify the theoretical basis of his claims which are based on the validity of Kants supreme moral principle the categorical imperative and this leaves his theory open to attack . . .. Secondly, regarding (b), the relationship between Tesns conception of international law and empirical reality is ambiguous 560. Tesn assumes, and does not explain why, the Kantian categorical imperative should be considered the non-arbitrary viewpoint upon which to premise a concept of international law 561. Capps emphasizes that empirical reality is something that cannot be neutrally apprehended, and that a priori judgments of significance are presupposed by accounts of it 562. On the second aspect of his critique of Tesn (relativity of international law to Kantian empirical reality), Capps highlights two basic judgments underlying a theorist in relating to reality : one, a judgment of relevance and the other a judgment of importance, of empirical facts explaining the reality 563. (Indeed, identification of what constitutes an empirical fact can itself be problematic, and often subjective). Thus for instance, Tesn has not been able to
558. Patrick Capps, The Kantian Project in Modern International Legal Theory, European Journal of International Law, 2001, Vol. 12, pp. 1003-1025, at p. 1006. 559. Ibid., p. 1007. 560. Ibid. 561. Ibid., p. 1010. 562. Ibid. 563. Ibid., p. 1013.

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explain, why exactly the categorical imperative (the supreme moral principle) should be considered the non-arbitrary viewpoint upon which to premise a concept of international law 564. A more devastating criticism of Tesn, however, is that Tesn trivializes and leaves highly underdeveloped a key if not the central move in Kants philosophy of law and international law. This is the move from the unilateral moral reason to omnilateral reason. If this argument follows, it is questionable whether Tesn, in the vast majority of his book, is referring to Kants conception of international law at all. This argument is made by reference to Tesns argument in favour of intervention by states to secure humanitarian objectives. 565 Capps in conclusion recapitulates his two main criticisms of Tesn : First, it needs to consider the validity of the categorical imperative as a moral principle. Without this, the validity of his approach to international law, which is based upon this principle, lacks foundations. Secondly, Tesn appears to side step or trivialize the central core of Kants legal philosophy, which concerns the move from the state of nature to international legal order. Without this, Tesn appears at times to be an apologist for the unilateral activities of states and this is something that Kant would firmly reject. 566 Capps thus feels that, while Tesns work is a worthwhile analysis of Kants ideas about the moral standing of states in a state of nature, it does not represent a developed account of Kants conception of international law. It should move towards a theory of institutions rooted in legitimate constitutional principles and procedures which will permit the effective application of the categorical imperative in the relations between states 567. One may add a few more criticisms of Tesn : First, Tesn justifies unilateral use of force by a State on two grounds : (1) just cause and (2) legitimacy of government taking action. Just cause encom564. 565. 566. 567. Ibid., 1010. Ibid., p. 1014. Ibid., p. 1025. Ibid.

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passes two kinds of situations : one, a situation when a State has to protect its own citizens against foreign aggression (self-defence), and the other, when it has to protect the citizens of a target State against human rights violations by that State (humanitarian intervention). Evidently, critical to this argument is the legitimacy of the State taking action. The main condition attached to determination of legitimacy is respect for human and democratic rights. A State, according to Tesn is illegitimate if the government is a dictatorship, or if the State is rife with civil war. These situations allow unrestrained unilateralism. Second, his focus for intervention is violation of civil and political rights. When it comes to violations of economic, social and cultural rights, he would justify intervention only in cases of systematic starvation deaths (closest to his civil and political preoccupations), and not in others. He ignores the point that situations for intervention arise because the basic socio-economic conditions congenial for lack of good government exist leading to such gross violations of human rights. While the UN Charter mandates the developed States to promote human rights by joint and separate action, this can only be done through substantial transfers of resources to potential targets of intervention, to ensure international distributive justice takes place. The so-called right or duty to intervene fails to answer this obligation to be carried out in good faith. Recognition of this right/duty to intervene amounts to delayed justice and it prescribes a wait for gross violations of human rights occur in a target country and then to strike. In this sense such a right /duty to intervene makes a mockery of the Charter-based principles of international co-operation. And, how come promotion of economic and social rights is a matter of territorial integrity and political independence of states, but that of civil and political rights is not ? Third, Tesns reading and interpretation of State practice permit eclectic application of humanitarian intervention. All that he says is that if the effect of a given intervention is good for human rights, notwithstanding the collateral motives of the intervenor, the intervention must be legitimate. The pro-sugar lobby in the United States patterned the US attitude towards the liberation of Cuba in 1898, and a pro-agriculture lobby patterned it to the decision to hold on to the Philippines post-liberation. The need to avenge the attempt on a current Presidents fathers life, control over petroleum and profiteering by Haliburton patterned the US attitude towards Saddam

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Hussein. How come no action against Saudi Arabia, and other friendly yet undemocratic regimes ? While both Schermers and Tesn have taken such a high moralist stand in support of humanitarian intervention, neither has raised his voice when in every actual political context in which a big power has claimed a right or duty to humanitarian intervention since 1990, but has violated every norm of humanitarian law of armed conflict. Is it that the end justifies the means ? How can an intervention that engages in an ugly, indiscriminate, and often sustained exhibition of brutal force upon an alien people be humanitarian simply because the intervenor claims so ? And how many honest humanitarian interventions have we had since that date in which the people in the target country have welcomed the interventionist forces with open arms and showers of rose petals ? The truth has always been (through the past centuries) and still is that no intervenor has ever been so downright selfless to be a kind-hearted gunman as Brownlie may describe him in his characteristically biting satire as to be restrained in his conduct by moral persuasions of international humanitarian law, once he is so deeply moved by his intense sense of pseudo-Kantian categorical imperative (whatever be the original dictates of a true Kantian empirical reasoning). Schachters warning of abuse of such rights/duties of intervention is borne out by the attitudes of the powerful States. In an era of international organization, there has to be someone to determine the legitimacy of things, someone other than the interventionist gunman no one can be a judge of his own cause : that is against the basic tenets of natural justice. Perhaps Kant would have said so, were he alive today. The final criticism one would like to make of Tesn is that he mixes Kants is and ought together, and his prescription of transition from one to the other, of which Kant is so intensely conscious. Perhaps, it is always a clever-by-half contention that what I think is the law, State practice and international public opinion notwithstanding, that I interpret State practice according as what I think the law should be. Thus, by a stroke of his pen, Tesn seems to say that the law has already changed, that the sovereign State does not exist any longer, the great powers (whose immense sovereignty is inherently philanthropic : and we know how much of resources that they have so generously and voluntarily transferred to the developing countries for the cause of nurturing human rights, even according to

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their own ever-revisable promised targets !) shall decide who breaks the law of human rights, having decided what that law is/should be, and that then they may decide according to their momentary whims and fancies when and how to bombard which country and at what time, and that whatever they decide must be in accord with the modern just war doctrine, as they have a divine right and a duty to decide so. In this pursuit of the ultimate, categorical moral imperative of freedom and humanity, they are above the current state-centric, decentralized system of international law and organization (that includes the International Court, should it stand in the way), but in perfect accord with the new, real and purposive interpretation of rules of international law that gives a licence to them to transcend that system at will on their own individual judgments of the immorality of situations obtaining in the target State. This is what Tesn grants to the great powers almost as a divine right/duty divine because the great powers have been divinely chosen for the task, endowed as they are with enormous economic and military resources , with his pseudo-Kantian faade unveiled. It is a task specially carved out for the great powers, because small powers (without their support, open or tacit) are physically incapable of exercising this right/duty. Furthermore, the exercise of this right/duty itself is a secular categorical imperative as it is above all criticisms, whether domestic or international, whether from the Pope 568
568. Speaking against the background of Bosnia and Herzegovina and Kosovo, Pope John Paul II in Message of His Holiness Pope John Paul II for the Celebration of the World Day of Peace 1 January 200 (even while arguing in favour of a renewal of international law and international institutions, a renewal whose starting-point and basic organising principle should be the primacy of the good of humanity and of the human person over every other consideration : para. 12), said : 11. Clearly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor. These measures however must be limited in time and precise in their aims. They must be carried out in full respect for international law, guaranteed by an authority that is internationally recognised and, in any event, never left to the outcome of armed intervention alone. The fullest and the best use must therefore be made of all the provisions of the United Nations Charter, further defining effective instruments and modes of intervention within the framework of international law. In this regard, the United Nations Organisation itself must offer all its Members States an equal opportunity to be part of the decision-making process, eliminating privileges and discriminations which weaken its role and credibility. The papal messages available on the Vatican websites ; emphasis added.

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or from any other spiritual pontiff recognized by millions over the globe as the United States-United Kingdom invasion of Iraq has revealed. In this chapter we have sought to examine the response of the contemporary international law to the continued challenge of humanitarian intervention. This we have pursued in terms of portraying the normative order of the United Nations and the modern international law, the peremptory norms of international law and erga omnes obligations, the relevance of traditional vantage point of Rights and Duties of States in the light of the modern law, and the new humanitarian re-statements of the non-intervention principle. The last is a mix of both a legal and a moral claim of legitimacy for unilaterlism in sheeps clothing. It encompasses the current voice of the much-edited old master, Oppenheim, and two humanitarian theorists. An attempt has been made to respond to these new claims of humanitarian interventionists to legitimacy of such a right or a duty. The next chapter endeavours to look at some of the issues thrown upon by recent interventions, in terms of the contemporary international law based on the UN Charter. Are there limits to unilateral use of force by States ?

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CHAPTER IV

UNILATERALISM OF HUMANITARIAN INTERVENTION The phenomenon of unilateral humanitarian intervention by States is examined in this chapter in terms of the issues of burden of proof of legality of unilateral action in international law, and legality and objectives of unilateral humanitarian intervention. The latter set of issues is looked at from the perspectives of two of the most recent interventions, namely the invasion of Afghanistan 2001 and the invasion of Iraq 2003. 4.1. Issues of Burden of Proof of Legality of Unilateral Resort to Humanitarian Intervention Unilateral acts of States have a unique place in international law. On the one hand, cumulation of a general pattern of unilateral acts may evidence the existence or a change of a rule of international customary law, provided they display the objective element of generality of practice of States and the subjective element of acceptance by those States the requirement of such practice as law tests laid down by Article 38 (1) (b) of the Statute of the International Court of Justice while describing international customary law. On the other, all other acts of State are either permissible or prohibited under international law. In so far as they prohibited under international law, they constitute violations of the law. Issues of burden of proof arise in contexts, namely, general burden of proof of legality of a unilateral act, and burden of proof of legality vis--vis jus cogens. 4.1.1. General burden of proof of legality of a unilateral act Permissibility and the prohibited character of a unilateral act is usually determined in terms of its context and the State concerned has the obligation to ensure that its acts are permissible under international law. The International Court of Justice has ruled in the Asylum case in 1950 :

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V. S. Mani The party which relies on a custom . . . must prove that this custom is established in such a manner that it has become binding on the other party . . . that the rule invoked . . . is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state. This follows from Article 38 of the Statute of the Court which refers to international custom as evidence of general practice accepted as law. 569

In the Anglo-Norwegian Fisheries case, the Court held the very next year on the validity of a typically unilateral act with international dimensions : The delimitation of sea areas has always an international aspect ; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. 570 Would the absence of precise technical rules in international law imply non-amenability of a unilateral act of a State to critical assessment under international law ? The Court ruled in the immediately preceding sentence : It does not at all follow that, in the absence of rules have the technically precise character . . ., the delimitation undertaken by the Norwegian Government in 1935 is not subject to certain principles which make it possible to judge as to its validity under international law. 571 These rulings in the Fisheries case establish that : (1) Every state has a duty to ensure that its unilateral act in question is permitted under a relevant rule of international law, and has a burden, vis--vis the international community, to establish the legal permissibility of the act ;
569. ICJ Reports 1950, pp. 276-277. 570. ICJ Reports 1951, p. 116, at p. 132. 571. Ibid.

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(2) Absence of precise technical rules to determine the permissibility of an act does not provide an escape route for the state concerned from this obligation. It is not widely appreciated that the Courts above rulings have a significant effect in terms of the contemporary international law : they have tilted the scales decisively away from the positivistic predispositions in which the traditional, pre-Charter, international law has been embedded. These rulings have in effect upset the blindly pro-sovereignty emphasis of the traditional international law, so typically symbolized by the famous Lotus ruling of the Permanent Court of Justice, the illustrious predecessor of the present Court : Restrictions on independence of States cannot be presumed. 572 This statement has generally been interpreted 573 to mean that States have unfettered freedom to do anything until and unless it is proved that its freedom is somehow curtailed by some rule of international law that it has itself accepted. Under the Lotus rule there is a presumption of validity of unilateral acts and anyone who dares to challenge the validity has the burden to prove invalidity of the act concerned. The Fisheries case has now turned the burden of proof around it now demands of every unilateral actor to ensure that its act is indeed not contrary to the law and prove to the international community that its act is permitted under international law. No longer has the international community a burden to prove that a unilateral act was in fact violative of a rule of international law. The subsequent trend in the international jurisprudence has been fairly clear. In the Nationality Decrees in Morocco and Tunis case, the Permanent Court upheld the domestic jurisdiction claim in
572. S.S. Lotus, PCIJ, Series A, No. 10, 1927, p. 67. 573. In fact, in terms of the facts and circumstances of the Lotus case, the PCIJ was merely stressing the need for evidence of both permissive and prohibitive rules to determine the international validity of an act of a State, rather than emphasizing the absolutist interpretation of freedom of action on the part of a State. This is evident from the Courts emphasis on the territorial limitation of a States jurisdiction. See, ibid., pp. 18-19. The Court in that case examined the evidence adduced by both France and Turkey, before finally accepting Turkeys contention that there were no prohibitive rules of international law invalidating the unilateral assumption of criminal jurisdiction by Turkey over French officials of a French vessel accused of criminal negligence. In view of this, it is possible argue that the ruling quoted above was an obiter dictum, without which the Courts decision in that could have stood the ground. With that statement, the Court perhaps over-generalized the rule relating to validity of unilateral acts.

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respect of determination nationality of an individual, even while holding that : The question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question : it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain. 574 On the other hand, in the Nottebohm case, the International Court demanded of a State espousing a private claim to show that its grant of nationality to the private claimant, though essentially a domestic sovereign matter for the State to determine, was based on some genuine link between it (i.e., the State granting the nationality) and the individual who was thus conferred the nationality, for the purpose of jus standi before the Court 575. 4.1.2. Burden of proof of validity of unilateralism and jus cogens The burden of proof of a unilateral actor is doubly heavy now, in view of the existence of jus cogens presiding over the relevant branch of the law, since logical and contextually operative rules could readily be deduced from the peremptory general principle, without waiting for citations of evidence of specific consent of the actor to be bound by a rule. This has been made still heavier, when the impugned act directly goes against a jus cogens itself. This even denies the weight of a deviant act to be considered to give rise to a new rule. On the implications of a deviant unilateral act on a rule of law, the International Court held in the Nicaragua case : 186. It is not to be expected that in the practice of States the application of the rules in question [emanating from the principles of non-use of force and non-intervention] should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each others internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of cus574. PCIJ, Series B, No. 4, 1923, p. 24. 575. (Liechtenstein v. Guatemala), ICJ Reports 1955, pp. 20-21.

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tomary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the states conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. 576 Dealing with the issue of whether intervention in support of an opposition within a target State is permissible in support of a good political and moral cause, the Court examined the state of international law. It said : It has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. 577 In considering the instances of the conduct above described [the Court said] the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. (ICJ Reports 1969, p. 44, para. 77). 578
576. (Nicaragua v. United States), ICJ Reports 1986, p. 14, at p. 98. 577. Ibid., p. 108 ; emphasis added. 578. Ibid., pp. 108-109.

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Explaining its approach to interpreting State practice apparently inconsistent with a rule of international law, the Court observed : The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. 579 In the result, the Court found that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law 580. It is evident from the above that when a principle of international law is identified, the legality of any deviation from it must meet the objective and subject tests of establishment of a rule of international customary law. 4.2. Legality and Objectives of Intervention The post-1990 world has witnessed a number of humanitarian interventions in which the intervenors usually great powers have sought to justify their intervention on a heady combination of a variety of objectives with some humanitarian objectives liberally thrown in (it is well known that there has been no known case of humanitarian intervention that pursued purely and exclusively humanitarian objectives). These objectives include the following : 1. Individual and collective self-defence often made elastic to

579. Ibid., p. 109. 580. Ibid.

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2. 3. 4.

5. 6.

include threats to national security (present, imminent, or in the foreseeable future), and action against terrorism. Enforcing international institutional sanctions the role of a self-appointed policeman. Response to violation of erga omnes obligations. General human rights objectives the phantom phrase that encompasses anything from protection or forcible installation of Western-style democracy, protection of human rights, and protection of the intervenors nationals Brownlies Kind-hearted Gunman. Prevention of proliferation of weapons of mass destruction. Regime change, when the current regime, according to the intervenors judgment, presents any one or more of the above causes belli.

What follow here are two cases of intervention that occurred at the dawn of the third millennium, namely, invasions of Afghanistan and Iraq. There are two reasons why these were picked up rather than getting into the entire chronological instances of humanitarian intervention. First, these were the two prominent interventions that took place at the dawn of the third millennium AD. Second, others that occurred chiefly during the Cold War era have been overresearched (even if often misinterpreted) 581. Both these cases present unwieldy bundles of causes and justifications for use of force by forces of collective unilateralism cloaked by multiple layers of ostensible claims of humanitarianism.
581. One case of misinterpretation has been Indias action in Bangladesh. It is widely claimed in the West that this was pre-eminently an instance of humanitarian intervention. While everyone has a right to have his own perception of things, we in India do know that the dynamics of Indias relationship with Pakistan were at the core of Indias action, not the gross violations of human rights then prevalent in the erstwhile East Pakistan. And Pakistan gave India the causus bellum it formally declared war on India and bombarded its many cities near the border. India did use the issues of human rights violations and the large-scale movement of refugees into its territory, chiefly as jury points, never as legal points. In law it was a war of self-defence on the part of India, and it remained so in origin as well as in its prosecution. If the end of the war produced a free Bangladesh, that was incidental and coincided with Indias defence interests : yet it is arguable that this result could be justified in terms of the principle of proportionality. On Bangladesh war, see generally, V. S. Mani, The 1971 War on the Indian Sub-Continent and International Law, Indian Journal of International Law, Vol. 12, 1972, pp. 83-99. In this article the author did argue that Indias action could be justified, among other grounds, on the ground of support for a national liberation movement but that is under the principle self-determination, and no recognition of a right of humanitarian intervention. Self-determination is indeed a facet of human rights, but it has a distinct identity of its own.

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4.3.1. Introduction 582 The Afghans, despite the diversity of their racial roots, are a proud people, and historically, no foreign power has been able to subjugate them for a long time. This was true of Alexander the Great, Akbar the Great, the British (having fought and won three 583 Afghan Wars), and, indeed, the Soviets. None of these invaders were ever successful in establishing their total control over the entire country whose rugged topography itself makes it nearly impossible to be controlled from one power centre. The war against international terrorism made the already discredited Taliban regime of Afghanistan a ready target of the United States ire. The result was the US-UK joint attack on Afghanistan with the overwhelming air power of the new invaders all but pulverized anything it targeted, whether deliberately or by mistake. In the aftermath of a series of carpet bombings, this awesome show of air power gave way to an International Security Assistance Force (ISAF) and the return of a number of UN agencies to nurse the country back to normalcy. While at the outset one could easily say that the process of nursing the country back to normalcy is more of a moral rather than a legal question, it is important to look at the legality of the process and of the entire circumstances that led to it. For, legitimacy is cumulation of both legal as well as moral considerations. Indeed, the presence of foreigners in a country dictating the course of events in that country must have some legality in their support, so that the new regime set up by them becomes a legitimate and acceptable regime. 4.3.2. 9/11 and aftermath On the morning of 11 September 2001, three hijacked civilian aircraft on US domestic flights were diverted ; two of them rammed
582. See generally, V. S. Mani ISAF in Afghanistan : A Study in Nursing after a Humanitarian Surgery, Indian Journal of International Law, Vol. 45, 2005, at pp. 17-41. 583. Starting with the nineteenth century, the 2001 war was the Fifth Afghan War being fought by foreign powers for the control of Afghan affairs counting the three Anglo-Afghan Wars (1839-1842, 1878-1880 and 1921-1923) and the Soviet occupation of Afghanistan (1979-1989).

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against the World Trade Center twin towers in New York and the third against the Pentagon building. The WTC towers imploded and went down in a huge fire and a cloud of debris, piles of mangled metal and mortar, and dust, killing in the process thousands of innocent human beings, not only American nationals, but also nationals of some 60 nations. A fourth hijacked aircraft crashed in Pennsylvania, killing all the passengers and crew. This was one of the most heinous terrorist attacks on innocent human lives. Evidently, considerable meticulous advance planning had preceded these incidents. And that makes the mass killings a crime against humanity. The entire humanity sincerely commiserated with the United States. The expression of sympathy of the international community at the United Statess hour of agony was instantaneous, outpouring, intense, overwhelming and unanimous. There was a universal consensus that 9/11 represented a heinous attack on humanity at large. (Indeed, this was not the first time that a country has been attacked by such a heartless face of terrorism India lost some 30,000 innocent men, women and children at the altar of terrorism in the 1990s when the majority of the countries of the world did not care to take note, let alone commiserate. But then it was now different as the superpower itself was hit, and commiserations had to be special, not only that the sad occasion demanded it, but the United States itself would have expected it remember President Bushs you are either with us or against us speech.) With the 11 September attacks began the Fifth War on Afghanistan. President George Bush most unfortunately called it a crusade. On 12 September, both the General Assembly and the Security Council of the United Nations adopted resolutions which strongly condemned the acts of terrorism, and asked the member States urgently to co-operate to bring to justice the perpetrators, organizers and sponsors of the outrages of 11 September 2001, and in combating terrorism worldwide. They stressed that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable. Additionally, the Security Council resolution expressed its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations 584.
584. Resolution 1368 (2001), 12 September 2001.

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NATO promptly declared that the 11 September attacks amounted to an armed attack against a member of the Alliance within the ambit of Article 5 of the Treaty of Washington, 1949, its basic constitution, and that, therefore, all other members of the Alliance were entitled/ obliged to respond as the Alliance might deem fit. The European nations responded through many of their common regional institutional mechanisms, initially accepting the possibility of a military action, provided that any such action was approved by the UN Security Council, that it clearly defined its objectives, and that it avoided targeting civilians, and was generally conducted in conformity with international law 585. But they were subsequently brought in line with NATO. This was of course to be expected because most of the prominent European States were members of the Alliance, and at any rate the United Kingdom had already committed itself to any action that the United States might consider appropriate to meet the situation. The contemporaneous debates at the United Nations generally supported action through the United Nations against the 11 September terrorists and those who harboured them. Countries like France, China and many others aired views to this effect. The United States was understandably quite shaken by the terrorist attacks, and decided to respond, predictably, with a heavy hand. It probably least expected that Osama bin Laden, one of its own original creations, would now turn around and do a Bhasmasura 586 to the Creator Himself. Given this psyche of the United States in respect of al-Qaeda at least since the attacks on its African embassies in 1998, one is not sure whether there were any prior consultations with other countries, outside the NATO Alliance, or, if there were, how wide and how much, before the United States set the agenda of the war, and initiated each step in pursuit of the agenda, leaving others merely to fall in line behind the leader.
585. See Lord Russell-Johnston, President of the Parliamentary Assembly, published in the Frankfurter Allegemeine, 10 October 2001, http://stars.coe.fr/ President/Russell/Speeches/FrankfurterAllegemeine_ October 3002_E.htm. 586. Bhasmasura was a demon in the Indian mythology who practized severe penance to please Lord Shiva, who, immensely pleased with him, granted a boon that whomever, or whatever, Bhasmasura touched on the head, would instantly turned into ashes. But, at long last, Bhasmasura decided to turn towards Shiva himself !

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4.3.3. Economic and other sanctions and US demands on the Taliban At his first presidential address to the nation, President Bush declared war on the 11 September terrorists and those who harboured them. On 20 September, in his address to the joint sitting of Congress he said that investigations implicated Osama bin Laden and his al-Qaeda organization, which had also been responsible for attacks on American embassies in Tanzania and Kenya and for bombing of the USS Cole in the recent past. He declared that The American response to terrorism is being fought at home and abroad through multiple operations including : diplomatic, military, financial, investigative, homeland security and humanitarian actions. He then proclaimed : Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. Towards the end of his speech, the President put to the Taliban five demands (which were not open to negotiation) : (1) deliver to the US authorities all al-Qaeda leaders, (2) release all foreign nationals held hostage, (3) protect journalists, diplomats and aid workers, (4) close immediately and permanently every terrorist training camp, and (5) give the United States full access to training camps to make sure that they have ceased to operate. On 23 September, President Bush signed Executive Order 13244, pursuant to the US laws including the law on terrorism, blocking the assets of the terrorist organizations and others who support them, and prohibiting transactions by Americans with terrorists and those who support them. The Order annexed a list of 27 terrorist organizations, including al-Qaeda (besides Harakat-ul Mujahidin and Jaish-IMohammed) targeted by it. The Security Council adopted a resolution on 28 September asking all States to (a) prevent and suppress the financing of terrorist acts ; (b) criminalize the wilful provision or collection, by any means, of funds by their nationals or in their territories to be used for commission of terrorist acts ; (c) freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of such acts ; and (d) prohibit any persons within their territories from making any resources or services for the benefit of

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terrorists or those who abet them 587. The resolution also asked all States to refrain from giving any support to terrorist acts, to take necessary steps to prevent the commission of terrorist acts against other States ; to deny safe haven to terrorists or their supporters and to ensure them to be brought to justice. It further provided for the constitution of a Council Committee to monitor implementation of the resolution, calling upon all States to make reports within 90 days. Finally, the Council expressed its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with its responsibilities under the Charter 588 and decided, to remain seized of this issue. It must be emphasized that the resolution was adopted by the Council acting under Chapter VII of the UN Charter (which empowers the Security Council to take enforcement action against a threat to the peace, breach of the peace or act of aggression). The Charter provides, vide Article 25 read with Article 48, that decisions of the Council of this nature, taken in accordance with the Charter, shall be binding on all member states of the United Nations. 4.3.4. US military response Not having received any compliance report from the Taliban on its 20 September demands, the United States supported by the United Kingdom, began nocturnal bombing of Afghanistan on 7 October. A number of other countries, including the NATO Allies, provided logistical support and other facilities for the US-led military action. The bombing has been heavy and relentless, and it still continued in the southern parts of Afghanistan, even after the defeat and withdrawal of the Taliban-al-Qaeda regime from most parts of the country. How much has been the civilian damage/injury/casualty caused by the high intensity carpet-bombing or other force used in Afghanistan by the United States and how much of it has been collateral within permissible limits (or mistakes committed inadvertently) or has exceeded the limits set by the principles of international humanitarian law (IHL), will depend on objective evi587. Resolution 1373 (2001), 28 September 2001. 588. The Security Council was merely reiterating its constitutional responsibilities including its powers to take enforcement action. This it has done on the general issue of combating international terrorism as well see paragraph 6 of the Council resolution 1269 (1999) of 19 October 1999.

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dence to be evaluated at the end of the war, and not on the basis of the type of claims the belligerents make against each other in every war. It would appear, however, that a large International Red Cross storage facility well stocked with medicines and other humanitarian aid materials was among the civilian targets destroyed by the bombing. Also, the role played by a CIA operative in the killing of some 300 Taliban PoWs in Mazar-e-Sharif raised a question mark over the US claim of compliance with IHL principles. The day after the American bombing began, UN SecretaryGeneral Kofi Annan made a gratuitous Press statement to the effect that the American action must be seen in the context of the Security Councils determination to combat, by all means, the threats to international peace and security caused by terrorist acts, and that the Council also had reaffirmed the inherent right of individual or collective self-defence in accordance with the UN Charter 589. The same day the Security Council met at the request of the representatives of the United States and the United Kingdom. The Council took note of their letters whereby they claimed that the military action was taken in accordance with the inherent right of individual and collective self-defence, pursuant to Article 51 of the UN Charter 590. From the legal viewpoint, however, nothing much can be read into the Council Presidential statement, either in support of or in opposition to the claim of self-defence absence of opposition to the claim was clearly due to the voting politics in the Council. For the same reason, the presidential statement cannot be seen as the Councils acquiescence into the validity of the claim. Thus the Councils position did not constitute a clear, explicit endorsement of the legality of selfdefence action by the US-UK forces. 4.3.5. The United Nations role in forging transitional arrangements for Afghanistan As the Taliban was fast losing control of most part of Afghanistan and the Northern Alliance was moving in to take its place, the UN Security Council decided to play a role in bringing about normalcy and governance in Afghanistan. Thus the heads of delegations of the
589. See SG/SM/7985 of 8 October 2001. 590. Press statement by the President of the Security Council vide UN doc. AFG/152, SC/7167, of 8 October 2001.

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six immediate geographical neighbours of Afghanistan (Pakistan, China, Tajikistan, Uzbekistan, Turkmenistan, and Iran) along with those of the United States and Russia (i.e. six plus two) met at the United Nations Headquarters, at the instance of the UN SecretaryGeneral and adopted a declaration on 12 November. Following this Six plus Two declaration, the Security Council adopted a resolution on 14 November welcoming the declaration and expressing its support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government, that should be broad-based, multi-ethnic and fully representative of all the Afghan people, based on respect for human rights of all Afghan people regardless of gender, ethnicity or religion, and for Afghanistans international obligations (including those relating to combating of terrorism and illicit drug trafficking), and that should facilitate the urgent humanitarian assistance and the return of refugees and internationally displaced persons. It called on all Afghan forces to refrain from acts of reprisal and to adhere strictly to human rights and International Humanitarian Law (IHL) obligations. The resolution also asserted that the United Nations should play a central role in supporting the efforts of the Afghan people to establish urgently such a new transitional administration 591. Subsequently, week-long negotiations were held at Bonn among 23 representatives of four Afghan groups excluding the Taliban and a few others. It goes to the credit of the tenacity and diplomatic skill displayed by Lakhdar Brahimi, the elderly and widely respected Special Representative of the UN Secretary-General, that he could persuade this heterogeneous group of Afghans, with centuries of factional fights and civil wars behind them, into accepting an Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions. All the Afghan representatives participating in the conference, with Brahimi as a witness, signed the Agreement on 5 December 592. The Security Council endorsed the Bonn Agreement on 6 December. Council resolution 1383 (2001) called upon all Afghan groups to implement the Agreement in full and co-operate with the Interim Authority, which is due to take office on 22 December 2001.
591. Resolution 1378 (2001), 14 November 2001. 592. UN doc. S/2001/1154.

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Four principal groups of legal issues thrown up by the current Afghan war are addressed here. They are : (1) the existing legal framework for combating international terrorism, (2) legality of unilateral use of force by the United States backed by some other States, (3) the role of the UN Security Council in respect of the US action, and (4) the machinery to bring the terrorists and their collaborators to justice. 4.3.6.1. Existing framework terrorism 593 on control of international

4.3.6.1.1. General international law Under general international law there are enough principles rendering international terrorism illegal and States swear by them, in spite of the reality that most of them have telltale skeletons in their cupboards. In the Corfu Channel (Merits) case (1949) the International Court of Justice spoke of every States obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States 594. In its efforts at codification of international law, the UN General Assembly adopted by consensus at least four important resolutions, namely, the 1970 Friendly Relations Declaration 595, the 1974 Declaration on Definition of Aggression 596, the 1987 Declaration on the Enhancement of the Effectiveness of the Principle of Non-use of Force 597, and the Declaration on Measures to Eliminate International Terrorism 598, all of which proscribe all acts of international terrorism. The Friendly Relations Declaration stated the principle as follows : Every State has the duty to refrain from organising, instigating, assisting or participating in . . . terrorist acts in another
593. See, generally, V. S. Mani, International Terrorism : A Quest for International Legal Controls, International Studies, New Delhi, Vol. 40, No. 1, January 2003, pp. 41-67. See also V. S. Mani, Future Strategies in the War against Terrorism and Proliferation of Weapons of Mass Destruction : An Indian Perception, Indian Journal of International Law, Vol. 44, 2004, pp. 221-259. 594. ICJ Reports 1949, p. 4, at p. 22. 595. Resolution 2625 (XXV), 1970. 596. Resolution 3314 (XXIX), 1974. 597. Resolution 42/22, 1987. 598. Resolution 49/60, 1994.

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V. S. Mani State or acquiescing in organised activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force. 599

Through many such declarations and other resolutions, the international community of States recognizes a clear legal ban on international terrorism, and an obligation on the part of States to criminalize, in their respective internal laws, all terrorist acts, direct and indirect participation in them, and support for them. 4.3.6.1.2. Treaty framework The treaty framework for combating terrorism is quite broadbased. There are at least twelve global treaties 600, seven regional treaties 601, and three related global treaties 602. Both Afghanistan and the United States are parties to the aviation terrorism treaties of 1963, 1970 and 1971. The latter is a party to the first ten of the twelve global treaties on terrorism referred to above, but not to the 1998 Convention on Terrorist Bombing and the 1999 Convention on Terrorist Financing (negotiated at the initiative of the United States).
599. UN General Assembly Resolution 2625 (XXV), 1970, formulation of the principle of non-use of force, ninth paragraph confirmed by the ICJ as part of general international law in the Nicaragua case, ICJ Reports 1986, p. 14, at p. 101. 600. Tokyo Convention on Offences and Others Acts Committed on Board Aircraft 1963, the Hague Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1970, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971, Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation 1988, Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, Rome Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988, Montreal Convention on the Marking of Plastic Explosives for the Purpose of Detection 1991, UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973, UN Convention against the Taking of Hostages 1979, IAEA Vienna Convention on the Physical Protection of Nuclear Material 1980, UN Convention for the Suppression of Terrorist Bombings 1998, and UN Convention for the Suppression of the Financing of Terrorism 1999. 601. Arab Convention 1998, OIC Convention 1999, European Convention 1977, OAS Convention 1987, SAARC Convention 1987, and CIS Convention 1999. 602. UN Convention on Mercenaries 1989, UN Convention and Supplementary Convention on Illicit Trafficking in Narcotic Drugs and Psychotropic Substances 1988-1990, and Palermo Convention on Transnational Organized Crime 2000.

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There are two major problems with this treaty framework. One, they do not address the totality of terrorist acts with any comprehensive normative or institutional framework. Each of them focuses on a specific category of terrorist acts or devices. As a result none of them specifically covers the type of 11 September attacks (save the aircraft hijacking part of them). Second, the role of most of these treaties is limited. They mainly seek to achieve five things. First, they identify the specific category of terrorist acts in its focus and make them offences. Second, they require each State party to incorporate them into its national criminal laws. Third, they recognize States or categories of States that are entitled to exercise their respective national criminal jurisdictions to apprehend the alleged offender and to prosecute him 603. Fourth, they seek to impose an obligation on the State in custody of the alleged offender either to extradite him to another State requesting his extradition or itself submit the case to its competent national authorities for the purpose of prosecution. (Indeed, this is a little short of a watertight straightforward obligation to extradite or prosecute.) Fifth, they impose a clear obligation on a State party to render all possible assistance to the prosecuting State, including delivery of any evidence or other information in its possession. Some of these treaties, however, stand violated or are rendered ineffective by States, including those which pretend to uphold them and use them in support of their unilateral action 604. On the other hand, bilateral extradition treaties can only be effective in a co-operative atmosphere between the parties to them.
603. This is done basically following the principles of exercise of State jurisdiction, namely, territoriality (where the offence was committed), nationality (the State of nationality of the offender), protective principle (the State whose political, or economic system, or security needs to be protected), passive personality (the State whose national or property was the target of the crime), and universality (where the offence is an international crime such as crimes against humanity, genocide, and war crimes.). 604. For instance, in the Lockerbie case both the United States and the United Kingdom refused to hand over to Libya the evidence they claimed they had in their possession, when Libya expressed its readiness to prosecute the two Libyan suspects. They manipulated the Security Council to issue sanctions against it and then armtwisted Libya into submitting the suspects to be tried by a Scottish court, which sat in the Netherlands. The rights of Libya under the 1971 Montreal Convention were clearly compromised. So was the treaty-ordained role of the International Civil Aviation Organization, the supervisory body for treaty compliance. On the other hand, Pakistan either refused to prosecute/extradite hijackers of Indian aircraft over the years or prosecuted them but imposed on them token sentences.

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Between Afghanistan and the United States, however, there has been no extradition treaty in force. Further, the Taliban regime was not exactly friendly with the United States to oblige it voluntarily with handing over Osama bin Laden to it. 4.3.6.2. Legality of unilateral force Evidently, the situation arising from the 11 September attacks called for use of armed force, in view of the Talibans obdurate recalcitrance (assuming that the United States was in possession of evidence that would stand judicial scrutiny). Does it justify unilateralism on the part of the United States and its NATO Allies ? Under the UN Charter all threat or use force is prohibited in international relations against the territorial integrity or political independence of any State. As seen already, the Charter recognizes only two permissible uses of force : one, use of force by the Organization (Security Council) on behalf of the international community, and two, the right of each State to individual and collective self-defence. Under the scheme of the Charter the Security Council alone can preside over the UN collective security system. Decisions on a threat to the peace, a breach of the peace or an act of aggression, identification of the recalcitrant party, evaluation of evidence against that party, the nature and intensity of coercive response to be applied and so on are expected to be made impartially and on the basis of impartial, non-eclectic criteria. They cannot be allowed to be made unilaterally by any one State or a few States. But, on the contrary, this is precisely what the Security Council has done in this case. In the process, both the Council as well as the United States lost a chance of impartial verification of the evidence against Osama bin Laden and the Taliban, a necessary element in the imputation of responsibility for the 11 September attacks. The right of self-defence under Article 51 of the Charter is available against an armed attack. It is subject to the principle of proportionality of response and observance of the principles of international humanitarian law. It is also subject to an obligation to report to the Security Council. Upon receipt of such a report, it is for the Council to decide on further measures (including enforcement action) to restore international peace and security. In the present case, it is submitted that the justification of selfdefence was not available to the United States and its allies, not

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because there was no armed attack within the meaning of Article 51 we have no difficulty in construing 9/11 attacks as amounting to an armed attack, for that was what they were contextually , but because it could not be invoked in a situation when the Security Council was already in the picture. Indeed, the Afghan situation has been before the Council since 1993. So is the issue of international terrorism being a threat to international peace and security. In every resolution on either of these issues, the Council has as of habit decided, to remain seized of the matter. Further, specifically in respect of the 11 September attacks, its resolutions repeatedly expressed the Councils readiness to fulfil its Charter responsibilities, and its decision to remain seised of the issue. If that were so, the only legitimate course open for the United States was to ask the Council to fulfil its Charter responsibilities. Indeed, the Council could have invoked its awesome powers of use of force on its own, or even at the initiative of the Secretary-General under Article 99. The United States and its allies started the carpet bombing of Afghanistan a good three weeks after the 12 September resolution of the Council, and a week after its 28 September earthshaking resolution (falling in line with President Bushs Executive Order on terrorist funds and support systems). This they did despite the worldwide up-welling of sympathy for the United States, and a clear possibility of mustering a strong consensus for a Security Council action exactly the way the United States would have wanted. They may have chosen unilateralism to stay clear of any obligation of international accountability, and also to foreclose their freedom of military action from being inhibited by the constitutional requirements of the United Nations. If the United States could not in law resort to the right of selfdefence, then NATOS original claim for legitimacy of collective self-defence under Article 5 of the Washington Treaty 1949 would automatically fall through. Added to this, NATO congenitally suffers from a dubious legality of status. It cannot at once be both a collective defence organization as well as a regional organization under the supervision of the Security Council. This is an old criticism that the former non-aligned countries used to raise consistently during the days of the Cold War 605. For, a regional organization is not
605. See for instance Jawaharlal Nehrus inaugural address at the establishment of the Indian Society of International Law on 29 August 1959, reprinted in Indian Journal of International Law, Vol. 1, 1960-1961, p. 7.

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legally competent to resort to force except with the approval of the Security Council vide Article 53 of the Charter. The Taliban regime has been largely discredited in the eyes of the world community for the gross violations of human rights that it perpetrated on its own citizens, especially women. But what triggered the invasion was not these violations, but 9/11 and the subjective judgment of the intervenors on the basis of evidence they claimed they had in their possession attributing responsibility for 9/11 to Talibans. The International Security Assistance Force is left with the most unenviable task of bringing the security situation in Afghanistan under control, yet leaving the United States-led forces operate independently as their own masters, often rendering the ISAFs mission difficult, if not impossible, to achieve. One of the reasons why the security situation in Afghanistan has not discernibly improved is because Washingtons single-minded focus on the fight against al Quaeda and Taliban remnants while neglecting broader Afghan security issues . . . US military forces are as involved in local politics and civil affairs as ever, and the short-term re-equipment of certain militias could destabilise an already tenuous process and prolong US deployment in the region. For its own sake and that of the international community at large, Afghanistan merits more than the scant attention it receives today. 606 4.3.6.3. Bringing the terrorists and their collaborators to justice The Security Council has proclaimed time and again that as part of nursing a humanitarian situation back to normalcy, there is a need to provide for a mechanism for redressal of past grievances and for a justice delivery system for the purpose. If the Yugoslavian case were to be taken as a precedent, one expected the Security Council to create yet another UN War Crimes Tribunal. That was not to be. Instead, the humanitarian invaders decided to go it alone. On 13 November, President Bush signed a Military Order for the detention, treatment and trial of non-citizens in the war on terrorism.
606. Anja Manuel and P. W. Singer, Arming Kabul, Disarming Cabals, foreignaffairs.org author update, 22 September 2004.

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This order would establish Military Commissions to try and punish any person who was not a citizen of the United States, if the US President determined that there is reason to believe that such individual, at relevant times is or was a member of al-Qaeda, engaged in or abetted terrorist acts that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy, or has harboured such a person. The Secretary of Defence has been given full authority to any action, as he may think necessary to give effect to the Order, including appointment of military commissions and setting down their rules of procedure. Any individual subject to this order shall, when tried, be tried by military commission for any and all offences triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. Rules of evidence before the military commission were to be determined by the commission itself by applying a reasonable mans test. The Order prohibits disclosure of State secrets except to authorized persons and provides for in camera trials. It reserves to the military tribunals exclusive jurisdiction with respect to offences by the individual subject to the Order who shall not be privileged to seek any remedy or maintain any proceeding in any court of he United States, or state court, or any foreign court, or any international tribunal. The Military Order was based on a finding of the existence of an extraordinary [national] emergency, and President Bush signed it in his capacity as the Commander in Chief of the US armed forces. The issuance of the order raised considerable controversy in the United States. The major criticism was that the order aimed to set up kangaroo courts for non-citizens with no civilized rules of evidence, no right of appeal, and no recourse to ordinary courts under the protection of the US Constitution. Another criticism was that the President had no power to create military courts, as all constitutional power to create courts, civil or military, are exclusively vested in Congress. It has also been argued that the American war in Afghanistan was unconstitutional, as US Congress had not formally ratified it within 70 days of initiation.

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The Military Order would not apply to American nationals, even if they had worked for al-Qaeda or any other terrorist outfit, as they would have a constitutional right to be tried by US courts according to due process of law. Discrimination has been writ large in the entire process. The recent intervention of the US Supreme Court appears to have had some salutary effect, but not much. Critics have also pointed out the double standard implicit in the institution of these military commissions by the US President. When it came to employment of similar tribunals in other countries, the US State Department would readily express its unhappiness with them 607. Internationally most acceptable way would have been for States to establish an ad hoc international tribunal to try everyone who participated in the perpetration of 11 September attacks and who violated the laws and customs of war. The trial should be according to the international standards of fair trial as embodied in the 1998 Rome Statue for the International Criminal Court. An acceptable redressal mechanism capable of dispensing justice to past deprivations of justice by the Taliban regime, is a sine qua non of empowerment of the new United Nations-sponsored regime in Afghanistan with claims to legitimacy. This is not the first time, however, that the United States has resorted to unilateral use of force in combating terrorism, invoking a right of self-defence spiced with humanitarian arguments. It has done so even for much smaller terrorist incidents. On the night of 10-11 October 1985, the United States forcibly intercepted over the east Mediterranean an Egyptian aircraft, which was ferrying the hijackers of the Archille Lauro and diverted it to a NATO base in Sicily. Defending the US action the then US Secretary of State George Schultz said at the National Defence College on 15 January 1986 : It is absurd to argue that international law prohibits from capturing terrorists in international waters or airspace, from
607. See Rick Montgomery, Call for military tribunals raises more than a few good questions, Kansas City Star, 1 December 2001, http:/www.kcstar. com/item/pages/home.pat,local/ 3acd2d7a.co1.html. He refers to the State Departments most recent report on human rights abuses, in which the department condemned tribunals in Peru because they lacked openness, fairness and due process. According to the department, Sudans military courts do not provide effective appeal from a death sentence. And Egypt deprived hundreds of civilian defendants of their right to be tried by a civilian judge.

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attacking them on the soil of other nations, even for the purpose of rescuing hostages ; or from using force against states that support, train, and harbor terrorists or guerrillas. Similarly, the United States launched a bombing raid on Libya on 15 April 1986, alleging the involved of Libya in an attack on members of the US armed forces in a West Berlin nightclub, and justifying it on grounds of self-defence. Needless to say that the US action was grossly disproportionate to terrorist damage caused in West Berlin in which only one US serviceman had died and some 50 had been injured 608. Combating terrorism, the way it is being done in Afghanistan and elsewhere by countries like the United States and Israel, is indeed a sure way to perpetuate the cycle of spawning terrorists. The seeds of terrorism, like those of war, are sown in the minds of men, and that is where sustained efforts at combating terrorism must begin and remain focused that calls for a humanitarian intervention of a different sort, not of Patriots and Tomahawks. In a late 2001 issue of the United Nations Chronicle, two distinguished authors remarked : In looking for underlying causes [of terrorism], Americans should ask why they rouse such fanatic hatred in would be terrorists. Is all of it the price they have to pay for being the worlds most successful, powerful and wealthy nation ? Or can some of it at least be muted by adopting policies that are more measured and tempered in dispensing justice more evenly ? Fanaticism feeds on grievance and grievance is nurtured by deeply felt injustice. Terror is the weapon of choice of those who harbour the sense of having been wronged, who are too weak to do anything about it through conventional means, and who are motivated to seek vengeance by other means. Hence the wise counsel : Anger is a bad guide to policy, for governments as for terrorists : revenge is indeed a dish best served cold. 609 Additionally, the humanitarian invaders and other foreigners
608. Quite possibly, the ulterior motive for the bombing of Libya was to eliminate Colonel Gaddaffi. 609. Hans van Ginkel and Ramesh Thakur, An International Perspective on Global Terrorism, UN Chronicle Online Edition, Vol. XXXVIII, No. 3, 2001.

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now in Afghanistan (whether UN workers or NGOs) have to come face to face with one formidable task on the ground namely, confidence building with the common Afghan citizens. For, until recently, these hapless beings were bombarded with anti-United Nations propaganda. The Taliban had for a decade mounted a sustained and active public information campaign within Afghanistan against the United Nations sanctions regime. They condemned the measures and blamed them for the deterioration in the prevailing human rights situation. That campaign involved Taliban-controlled radio, newspapers and mosques 610. The issues of legality of use of force matter, because they bear upon the legality and legitimacy of presence of foreign troops in Afghanistan, in the Afghan eyes. 4.4. Invasion of Iraq 2003 611 The stage was being set for the United States to take unilateral military action against Saddam Hussein, soon after the 9/11 tragedy just half way through the Afghan invasion. The US Defence Secretary, Donald Rumsfeld, alleged that fleeing al-Qaeda terrorists from Afghanistan had found refuge in Iraq. He was of the opinion that President Saddam Hussein of Iraq was possibly aware of this. He was reported to have said : In a vicious, repressive dictatorship that exercises near-total control of its population, it is very hard to imagine that the Government is not aware of what is taking place in the country. (He would not, of course, extend the same logic to other, friendly military dictatorships !) Addressing a National Convention of the American Veterans of Foreign Wars on 26 August 2002 the US Vice-President, Dick Cheney, conceded : Intelligence is an uncertain business, even in the best of circumstances. Yet, he was convinced that,
610. UN Secretary-Generals Report on the Humanitarian Implications of Measures adopted by the Security Council resolutions 1267 (1999) and 1333 (2000) on the territory of Afghanistan under Taliban control UN doc. S/2001/1215 of 18 December 2001, para. 8. 611. See, generally, V. S. Mani, Is an attack on Iraq legal ?, The Hindu, New Delhi, 4 September 2002, Edit-page 10 : http://www.thehindu.com/2002/ 09/04/stories/2002090400041000.htm ; V. S. Mani, A War to Enforce Disarmament ?, The Hindu, New Delhi, 20 March 2003, Edit-page 10 : http://www. thehindu.com/2003/ 03/20/stories/2003032000381000.htm 20/03/2003.

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simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt he is amassing them to use against our friends, against our allies, and against us. And there is no doubt that his aggressive regional ambitions will lead him into future confrontations with his neighbours confrontations that will involve both the weapons he has today, and the ones he will continue to develop with his oil wealth. The risks of inaction are far greater than the risk of action, he thundered to the enthusiastic applause of the war veterans. President, George W. Bush, in a televised address to his nation on 17 March 2002 declared : Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commencing at a time of our choosing. This ultimatum was the US response to its failure to get a United States-United Kingdom-Spanish draft resolution through the UN Security Council. According to the United States and the United Kingdom, the previous Council resolutions on Iraq, including resolutions 661 and 678 (1990) and 687 (1991), already embodied adequate legal basis for any use of force against Iraq. Evidently, they did not want to give the Council an opportunity to specify what action it would take, as that would have deprived them of their so-called right to unilateral military action. The Bush ultimatum specifically invoked resolutions 678 and 687. 4.1.1. Issues of legality of unilateral use of force against Iraq The numerous statements emanating from the US Government since late 2002 and in particular in the first few weeks of 2003 as also the Bush ultimatum have thrown up a wide range of justifications for unilateral use of force. They include the right of individual and collective self-defence, the right of individual self-defence, the right or the duty to enforce international sanctions, the right of action to prevent and punish international terrorism, and the right to humanitarian intervention and the duty to liberate the people of Iraq from the clutches of a ruthless dictatorship. 4.1.1.1. Right of collective self-defence The right of collective self-defence of Kuwait was specifically recognized by the Security Council resolution 661. The resolution

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reaffirmed the inherent right of individual or collective selfdefence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter and asked all States to take appropriate measures to protect assets of the legitimate Government of Kuwait. Resolution 678 (1990) authorized Member States co-operating with the Government of Kuwait a euphemism for the then United States-led 28-nation multinational force to use all necessary means to uphold and implement Security Council resolutions and to restore international peace and security in the area. But this authorization cannot continue to be operational 12 years hence, merely on the basis of the alleged violations by Iraq of the obligations imposed on it by the Council through its various subsequent resolutions. Under Article 51 of the Charter, the right of collective self-defence had long ceased to have its legal basis, once the Security Council stepped in and authorized the forcible push back of the Iraqi invasion of Kuwait that took place in March-April 1991. Both resolutions 661 and 678 of 1990 were adopted by the Security Council specifically for the purpose of securing Iraqs withdrawal from Kuwait and upon withdrawal, the use of force authorization ceased to exist. The Council did not issue and constitutionally could not have issued any such authorization for all time to come, to be unilaterally activated by one or a group of a few States at will 612. Resolution 687 of 1991, adopted after the Iraqi withdrawal, imposed on Iraq a broad range of devastating disarmament obligations, with the Council opting to remain seized of the matter and to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area. 4.1.1.2. Individual self-defence A second basis for unilateral resort force by the United States and the United Kingdom against Iraq was self-defence. But under Article 51 of the UN Charter, military action in self-defence must respond to an armed attack. As many as four grounds were on different occasions claimed in support of the legality and legitimacy unilateral action by the United States.
612. Also, there is a view that the initial authorization itself was of doubtful legality. See, e.g., V. S. Mani, Six Decades of the United Nations An Indian Perception, Indian Journal of International Law, Vol. 44, 2004, pp. 1-73, at pp. 63-64.

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One, Iraq had been shooting at US and British aircraft over the two no-fly zones over Iraq and hence the several retaliatory air strikes by the United States and the United Kingdom over the years since March 1991 when these zones were established. The legal basis of these no-fly zones was claimed to be the Council resolution 688 of 5 April 1991. This resolution, adopted not under Chapter VII, condemned the repression by the Iraqi Government of its Kurdish population, which amounted to a threat to international peace and security. In fact, the establishment of these zones was a unilateral act by the United States-United Kingdom, a clear violation of Iraqi sovereignty, and no specific authority flowed from the Council resolution or general international law, but now justified by the intervenors on the basis of the need for protection of the Kurds in the north of Iraq and the Shias in the south who were found by the Council to have been persecuted by the Saddam Hussein regime. It was, indeed, open to the Council, in appropriate cases, to authorize the establishment of such demilitarized zones and to authorize the use of force, should such zones be violated by the territorial State. In other words, the establishment of the no-fly zones was illegal per se and no right of self-defence would arise in defence of an originally illegal situation, or illegal occupation of a foreign territory. Two, the attempted attack on Bush Senior justified armed response. But the right of self-defence is only available against an armed attack and the response has to be sufficiently immediate, leaving no choice of other means and as short a time as the context allows for deliberation. Was the attack on a former president an armed attack inviting a defensive invasion ? The United States could not have waited for a decade to elapse before it decided to mount an armed response to an incident that took place so long ago. And, indeed, the armed response was grossly and overwhelmingly disproportionate to the attack on the former president. A third ground was the suspected linkages of Iraq with al-Qaeda, the international terrorist organization that was behind the 11 September terrorist attacks on the United States. This ground of selfdefence against Iraq could only be tenable on verifiable proofs not just allegations and innuendos, as the subsequent events proved of definite, clearly attributable, connection between Iraq and alQaeda in relation to the 11 September attacks that many al-Qaeda operatives, driven out of Afghanistan, had now found safe havens in Iraq illustrating Saddam Husseins complicity in promoting inter-

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national terrorism. The subsequent revelations of intelligence bungling, if anything, roundly disproved this allegation. A fourth justification of self-defence offered was the so-called right of pre-emptive attack. The American argument was that Iraq, under Saddam Hussein, had amassed over time stockpiles of deadly weapons of mass destruction, delivery systems, and subsystems, that these would surely be deployed against the United States and that therefore the United States had a right to take pre-emptive action to prevent this eventuality. The Dick Cheney argument ran thus : the history of Saddam Husseins conduct did not give any scope for hope of reversion to good demeanour. The United States should not repeat the mistake it had made during the second World War in ignoring the magnitude of the danger that it had faced from a growing militaristic Japan, until it received, unexpectedly, a devastating blow, when suddenly Japan carried the war to the Pacific by attacking Pearl Harbour, a stronghold of the United States, even though the United States had not become a party to the war. What we must not do in the face of a mortal threat is give in to wishful thinking or wilful blindness, said Cheney. So, do not wait until the monster hits you with nuclear weapons or other weapons of mass destruction, the US Vice-President seemed to say. Thus, immediate military action and a regime change in Iraq were in order. This argument was legally flawed in two respects. First, the use of force in self-defence was justified only in case of an armed attack, not in case of a perceived security threat, which did not even amount to imminent danger. Second, effecting a regime change was not the function of an outside power ; it is inane in the Iraqi peoples inherent right to self-determination. The issue of WMD had been central to the work of the UN inspectors led by Hans Blix and Mohammed El-Baradei and tangible results were being achieved and regularly reported to the Council. At any rate, the argument of a possible Pearl Harbour does not fit in with the scenario of a right of self-defence against an armed attack, or even a pre-emptive right against an imminent attack. On the contrary, the invasion of Iraq by the United States-United Kingdom established the clear possibility of wanton abuse of the so-called right of pre-emptive attack as a free licence for unrestrained and whimsical unilateral use of force by the mighty against the weak, and did violence to the UN Charter scheme of international community action through the instrumentality of the Security Council.

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How does a grossly subjective threat perception as part of pursuit of foreign policy objectives amount to an actual threat the imminence of which should prompt defensive invasion and regime change ? Subsequent official revelations from both the United States and the United Kingdom showed with ample clarity to the entire world that there was not a shred of hard evidence of WMD stockpiles with the Saddam Hussein regime and that these stockpiles, if they had existed, were destroyed as long ago as 1998. Forcible intervention to effect a regime change was roundly condemned by the International Court of Justice in the Nicaragua case 613. 4.1.1.3. Unilateralism in enforcement of international obligations arising from Security Council decisions The Security Council had, acting both in camera and in open sittings, adopted wide-ranging resolutions pursuant to its broad powers of enforcement action under Chapter VII of the UN Charter. Resolution 678 of 30 November 1990, inter alia, authorized member States cooperating with the Government of Kuwait, i.e., the 28member multinational group led by the United States that had mounted the offensive against Iraq in response to its invasion of Kuwait, to use all necessary means to implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area. It was well known that necessary means included the use of military force by the United States-led multinational group as and when determinable by that group (which the Cuban representative had promptly characterized as a virtual declaration of war). Could this resolution have been used as the basis for further military action against Iraq ? Obviously not. Its purpose was to vacate the Iraqi invasion of Kuwait and resolve related issues. As already stated above, while one may have serious legal reservations about the Security Councils constitutional power to delegate unconditionally its plenary powers (to employ armed forces on behalf of the organization) to a selected group of States to be exercised without any accountability to the Council, this authorization expired when the objectives of vacating the Iraqi aggression were achieved by April 1991. Hence, the all-pervasive Council resolution 687 of
613. ICJ Reports 1986, p. 14, paras. 255, 258.

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5 April 1991, which laid down the framework for shearing Iraq of all potential for weapons of mass destruction, chemical and biological weapons, and delivery systems, under international supervision. Violations, if any, of the obligations imposed on Iraq by this and other subsequent resolutions would call for remedial action solely by the Council acting under Chapter VII. Furthermore, attempts were made by the United States, the United Kingdom and Spain to persuade the Council in February-March 2003 to authorize forcible action against Iraq, in recognition of the overwhelming legal view that the previous resolutions of the Council required a specific determination by it of the need to authorize use of force for the enforcement of the obligations flowing from these resolutions. The objective of the draft joint three-power resolution was precisely to obtain such a determination and authorization from the Council. However, the draft resolution was withdrawn in the face of staunch opposition. Tabled ten days in advance of President Bushs arbitrary deadline of 17 March, the draft resolution sought the Council to decide that Iraq will have failed to take the final opportunity afforded by resolution 1441 (2002). Such a decision was in fact anticipated by resolution 1441 which called for a variety of reports from Iraq, the UN inspectors, and the UN Secretary-General within various time limits and anticipated decision(s) by the Council on the need for compliance with all of the relevant Council resolutions in order to secure international peace and security. But the United States-United Kingdom-Spanish efforts proved futile particularly in view of the insistence by the majority of the P-5s of the Council on requirement of completion of investigations by the Hans Blix-led UN inspection team, as a precondition for authorization of use of force. The other members of the Council thus decided to await the logical conclusion of the teams efforts at monitoring the existence or non-existence of the alleged stocks of weapons of mass destruction in Iraq. The constitutional prerogative to enforce the obligations imposed on a State by its previous resolutions remains exclusively with the Council. In view of all this, the unilateral action by the United States-United Kingdom outside the framework of the Charter was both premature and illegal. No legitimate authority had authorized the United States and its allies to sit in judgment over such violations to the exclusion of the Council, and enforce the obligations imposed by the Council, on its behalf, when the Council itself refused to seek such enforcement.

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Organizational interposition has a dual advantage. One, a claim of gross violations of international obligations erga omnes could, and should, be subject to multilateral appraisal. Two, responses to them would have better chances of international legitimacy and accountability at the hands of the organs of the international community, unless the intervenor is individually and directly affected by the breach of such obligations (in which case the retaliatory action must be generally proportionate to the adverse effects of the breach). The international community institutions must deal with breach of obligations imposed by the international community, and if they are not well equipped for the task, the members of the international community should pool their resources to enable these institutions to act in each case. The ban on unilateral use of force in international relations under Article 2 (4) of the Charter is absolute and near total, except in case of self-defence. 4.1.1.4. Obligation to prevent and punish international terrorism By now the contemporary international law seems to impose an obligation on every State to prevent and punish acts of international terrorism. But would it imply a right to unilateral resort to military force ? The obligations in respect of preventing and punishing criminal acts of terrorism are obligations to be implemented within the territorial jurisdiction of a State. The aviation-related antiterrorism conventions have designated the Council of the International Civil Aviation Organization as the monitoring organ in respect of those conventions. The maritime transport-related treaties on terrorism have designated the International Maritime Organization to be the monitoring body. Ever since the UN Security Council recognized international terrorism as a threat to international peace and security, evidently within the meaning of Article 39 of the UN Charter, logically it should be for the Council to determine violations of terrorism-related obligations and authorize appropriate enforcement measures. In other words, there is an international organizational regime put in place in respect of international terrorism. Therefore, by no stretch of the imagination could a duty to prevent terrorism imply a duty to take unilateral military action against another State under the faade of enforcement of international terrorism-related international obligations. At any rate, since the adoption by the Security Council of resolu-

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tion 1373 on 28 September 2001 614, the Council alone is competent to authorize military action under its direct control against a recalcitrant State. No State can claim a unilateral right to use force against another State on the pretext of combating terrorism, unless it acts in self-defence, in which case the conditions of the right of self-defence apply. 4.1.1.5. Humanitarian intervention And then was a bunch of justifications of humanitarian character. These were of two categories. One bore upon the oppressive nature of the Saddam Husseins regime to the people of Iraq : that the regime had the worst record of protection of human rights, that the Kurds in the north of Iraq and the Shias in the south were oppressed and subjugated, that the Baath party spread and sustained a reign of terror, and the mass graves unearthed after the US-UK invasion of Iraq proved all this. The second sought to justify everything else on humanitarian grounds. The defence of American people from certain future WMD and terrorist attacks should America be a sitting duck until such attacks occurred ? , evil designs of Suddam Hussein for the people of Israel, possible future use of WMDs against other peoples, and so on. Obviously these could not be serious, humanitarian arguments. The above claims ignore both certain relevant facts that contributed to the human rights situation in Saddam Husseins Iraq as well as the applicable international law in respect of human rights violations. For one thing, they ignore the negative contribution made by the Security Council sanctions against the people of Iraq, and it was well recognized that these sanctions affected the health of the entire generation of Iraqi children who were deprived of essential needs of life including life-saving drugs during the period of sanctions one single precedent that will for ever continue to stare the
614. The resolution, adopted by the Security Council in the wake of 9/11, Acting under Chapter VII of the Charter of the United Nations asks States to take a number of measures to prevent and suppress the financing of terrorist acts, imposes on them a wide range of obligations : not to foment or abet such acts, to take necessary steps to prevent their commission, to forewarn, to deny safe havens, to afford one another greatest measure of assistance, to put in place necessary border controls, to exchange information, etc. It also establishes an anti-terrorism committee of the Council to monitor compliance with the resolution. Finally, the Security Council, Decides to remain seized of this matter see S/RES/1373 (2001).

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United Nations in its face whenever it seeks to claim humanitarianism in support of its actions. For another, it has been pointed out above, the International Court, even while identifying some of the basic erga omnes obligations of States vis--vis international community in the Barcelona Traction case, it simultaneously held : However, on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of human rights irrespective of their nationality. 615 In other words, where the international community has put in place a monitoring mechanism for protection of human rights, no State can claim a divine right to humanitarian intervention. Finally, the Bush statement of 17 March 2003 claimed with impunity : The United States of America has the sovereign authority to use force in assuring its own national security. The sovereignty argument is the hallmark of total bankruptcy of international legality and legitimacy. Anything can be justified on ground of sovereignty, unless one recognizes and the United States does not that national sovereignty is subject to law. And this is not the first time the United States has raised it on the international plane. The second Bush war, like the first in Afghanistan, was neither based on the rule of law nor had any sanction of international legitimacy, but driven by pure greed and caprice over the natural resources of a developing country. In a world of today, there can never be purely humanitarian intervention by States. Unilateralism or collective unilateralism in discretionary use of force by powerful States or States backed by them would only result in situations that perpetuate gross violations of human rights in target territories, unless the intervenor is prepared to transfer in a sustained manner adequate resources to the target society after the surgical operation. Both Afghanistan and Iraq highlight the worst-case scenarios, should the international community permit such wanton use of humanitarian intervention, by the great powers, leaving international organizations, the organs of the community, powerless, hapless onlookers and with a considerably eroded claim to international legitimacy and effectiveness.
615. ICJ Reports 1970, p. 32, para. 91.

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HUMANITARIAN ACTION BY THE UNITED NATIONS 5.1. Institutional Mechanism for Use of Force under the UN Charter The institutional mechanism for community authorization of use of force under the UN Charter comprises the Security Council and the General Assembly. 5.1.1. The Security Council (and whatever little left of the General Assembly) 5.1.1.1. Charter framework As already briefly referred to above, the essential institutional mechanism authorizing use of force on behalf of the international community is found in Chapter VII, since the Security Council has the primary responsibility for maintenance of international peace and security. Under it, Article 39 empowers the Security Council to identify a situation endangering international peace and security as a threat to the peace, a breach of the peace or an act of aggression. Indeed, it is often difficult to distinguish between a threat to the peace and a breach of the peace. This factor and the international politics conditioning its decision in each case have prevented the Council so far from making a specific judgment under Article 39 616, and it would rather make a general invocation of Chapter VII in its mandatory resolutions : Acting under Chapter VII. Such general invocation of Chapter VII, however, does not clarify the nature of obligations that a Security Council resolution encompasses. Because not every Council resolution gives rise to obligations on the part of member States. Article 39 contemplates both recommendations as well as decisions by the Council. Under Article 40, the Council may call upon States to comply with provisional measures,
616. Article 39 : 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 accordance with Article 41 and 42, to maintain or restore international peace and security.

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whereas under Article 41 the Council may decide on sanctions to be imposed to give effect to its decisions and may call upon the Members of the United Nations to apply such measures. Use of force authorized by the Security Council is a decision of the Council under Article 42 617. But under Articles 25 618 and 48 619 only decisions of the Council are binding on member States. It is well known that there have been two major problems that prevented the Security Council from exercising its constitutional mandate under Chapter VII. One is the veto provision in Article 27 of the Charter. An enforcement action by the organization is, by definition, a substantive matter that requires the concurrence of all the five permanent members of the Security Council. As noted already, this requirement has been watered down by the subsequent UN practice to absence of objection by any permanent member. Yet each of the permanent members retains the power to block an organizational enforcement action any time it desires to. The second is the absence of Article 63 special agreements. Article 43 subjects the obligation of member States to participate in the Security Council authorized enforcement (armed) action to obligations specifically undertaken by each of them in respect of their contribution to the UN force so authorized. In other words, in the absence of any Article 43 special agreement, there is no obligation to participate in the UN enforcement action. A basic conceptual as well as operational problem with the UN system of enforcement action under Chapter VII is that it is not mandated to perform the functions of a true sanctioning process. In an

617. Although Article 42 talks only of the Council taking action in employing use of force, Article 44 clarifies that it is a decision, but that participation in it is voluntary in the absence of an Article 43 special agreement undertaking special obligations to contribute to the use of force on behalf of the United Nations. 618. Article 25 : Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. 619. Article 48 : 1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

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ideal system, the community authorizes the process, through a community organ, against a deviant member. Chapter VII of the Charter does not go so far. It only empowers the Security Council to take action with respect to threats to the peace, breaches of the peace and acts of aggression, that, too, for restoration or maintenance of international peace and security. The Council is not constitutionally empowered to determine if some State or other entity has violated international law, and if so what punishment to mete out. An ideal international sanctioning process must be so constitutionally empowered and mandated. An international sanctioning system ought to function exactly the way the sanctioning system functions under the national legal order, where the sanctioning process is institutionalized and the organs of government, including the judiciary, give effect to it, acting on behalf of the society. Alas ! The Chapter VII sanctioning process evidently falls too short of the situation. Furthermore, the institutional responses to field situations are often guided by the United Nations appreciation of its constitutional mandates. But how critical should be the role of the Purposes and Principles of the UN Charter in triggering, guiding and legitimizing a UN action, including a humanitarian action ? As seen already, in the Certain Expenses case, the International Court was called upon to determine whether expenses incurred in certain peacekeeping operations were expenses of the Organization within the meaning of Article 17 (2) of the Charter. In order to determine this, the Court said, [S]uch expenditures must be tested by their relationship to the purposes of the United Nations. 620 It further laid down a rule of presumption in favour of an organizational action : when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization 621. The dissenting opinion of Judge Winiarski in that case, however, pointed to the limitation of that approach : The Charter has set forth the purposes of the United Nations in very wide . . . terms. But . . . it does not follow, far
620. ICJ Reports 1962, p. 167. 621. Ibid., p. 168.

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from it, that the Organization is entitled to seek to achieve those purposes by no matter what means. The fact that an organ of the United Nations is seeking to achieve one of those purposes does not suffice to render its action lawful. The Charter, a multilateral treaty that was the result of prolonged and laborious negotiations, carefully created organs and determined their competence and means of actions. The intention of those who drafted it was clearly to abandon the possibility of useful action rather than to sacrifice the balance of carefully established fields of competence, as can be seen, for example, in the case of the voting in the Security Council. It is only by such procedures, which were clearly defined, that the United Nations can seek to achieve its purposes. 622 Judge Winiarskis caveat could not apply to the issue of peacekeeping operations because the Security Council was not the only means prescribed by the Charter, as its responsibility in respect of international peace and security is primary, but not exclusive. Therefore the prescribed means would include the General Assembly as well. Yet, Judge Winiarskis caveat has, often, expressed itself as an impediment to prompt international action to a humanitarian situation. Goodrich, Hambro and Simons point to another area that gives rise to difficulties in organizational action, in respect of eliciting State support. For example, they point to the differences in the phraseology used in different provisions of the Charter on the use of force by the organization. Article 1 (1) speaks of effective collective measures to describe the measures to be taken for the prevention and removal of threats to the peace, and of suppression of acts of aggression. Articles 39, 41 and 42 speak of measures to be taken by the Security Council. Article 2 (7) refers to enforcement measures under Chapter VII, Article 50 preventive or enforcement measures, and Article 5 preventive or enforcement action 623. Another example : Article 1 (2) employs the phrase based on respect for the principle of equal rights and self-determination of peoples was proposed by the Sponsoring Powers at San Francisco
622. Ibid., p. 230. 623. Goodrich, Hambro and Simons, footnote 367, supra, p. 28.

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at the suggestion of the Soviet Union. In recommending the draft, the report of the technical committee had conveyed its understanding that the principle of equal rights of peoples and that of self-determination are two complementary parts of one standard of conduct : that the respect of that principle is a basis for the development of friendly relations and is one of the measures to strengthen universal peace ; that an essential element of the principle in question is a free and genuine expression of the will of the people 624. But in the final analysis, the meaning of the term self-determination was left unresolved. The General Assembly in 1950 recognized self-determination as a fundamental human right 625. It is now part of the common Article 1 of the human rights covenants. Later, in 1958, the General Assembly recognized that the right of peoples and nations to self-determination includes permanent sovereignty over natural resources 626. This led to the adoption of the Declaration on the Permanent Sovereignty over Natural Resources in 1962 627. Goodrich, Hambro and Simons further reveal that the doctrinal controversy over human rights and domestic jurisdiction existed at San Francisco, with the provisions of the Charter carrying it forward, without resolving it. With specific reference to Article 1 (3) on promotion of human rights being one of the organizational objectives, there have been two sharp views. One, that the provision commits the Organization only to promote co-operation between members, and does not obligate a member to recognize one or the other of human rights, as the members freedom of choice is protected under Article 2 (7). Two, notwithstanding Article 2 (7), Article 1 (3) read with Articles 55 and 56, places an obligation on members to respect human rights and fundamental freedoms, that the Assembly may consider alleged violations of rights, and that members are required to co-operate with the General Assembly in carrying our its recommendations by the terms of Article 56 628.
624. 625. 626. 627. 628. Ibid., p. 30, citing UNCIO, Documents, VI, p. 455. Resolution 421 (V) of 4 December 1950. Resolution 1341 (XIII), 12 December 1958 Resolution 1803 (XVII). Goodrich, Hambro and Simons, footnote 367, supra, p. 35.

Humanitarian Intervention Today 5.1.1.2. Some UN practice : an interpretation 629

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All State practice, including the practice of the international organization which reflects the collective State attitude at any relevant time has evolved ad hoc, over time. When a State acts it responds to a situation ad hoc. Indeed, a range of factors conditions its decisions, but one doubts whether these factors include the fear of building up a kind of a practice by some States in aggressive pursuit of their respective foreign policy goals that should be detrimental to the core values of humankind. States have voted for organizational action with a clear intent not to create any precedent. At UNCIO 1945, there was some perception of the relationship between the internal developments within a country and international peace and security. Andre Gromyko of Russia, for instance, felt : there might be such an internal transformation in a State as to involve a danger to the maintenance of international peace and security [and] the Security Council should be free to take the necessary measures 630. Arthur Evatt, Australian Foreign Minister, even pointedly raised the question to US Secretary Stettinius, Chairman of UNCIO : whether it was not proper for the Organization to interfere in the domestic concerns of any state in a case where that state might be persecuting its Jewish population, for example 631. According to Thomas Franck, the UN practice of uncoupling Article 42 from Article 43 began with the Korean case in 1950 632. He observes: the adaptive capacity of the Charter has functioned dramatically and controversially to fill the vacuum created by Article 43s nonimplementation. This is no small feat. The gradual emancipation of Article 42 as a free-standing authority for deploying collective force, ad hoc, has prevented the collapse of the Charter system in the absence of the standby militia envisioned by Article 43. 633
629. The examination here generally follows the landscape, but not necessarily, the conclusions, of Thomas Franck. See Thomas Franck, Recourse to Force : State Action against Threats and Armed Attacks, Cambridge University Press, Cambridge, United Kingdom, 2002). 630. Minutes of the16th Five Power Informal Consultative Meting on Proposed Amendments, San Francisco, 6 June 1945, Foreign Relations of the United States, Vol. 1, 1945, p. 1176, at pp. 1186-1187. 631. Minutes of the 63rd Meeting of the United States Delegation, San Francisco, 4 June 1945, Foreign Relations of the United States, Vol. 1, 1945, p. 1137, at p. 1142. 632. Franck, footnote 629, supra, pp. 24-31. 633. Ibid., p. 23.

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The instances, Franck cites, where the Security Council authorized use of force under Article 42, without bothering about Article 43, are 634 : 11. Resolution 82 of 25 June 1950 Korean war : ground forces by 10 States, naval units by 8, and air units by 5. 12. Resolution 143 of 13 July 1960 Congo : to facilitate the withdrawal of Belgian troops from Katanga. 13. Resolution 221 of 9 April 1966 Southern Rhodesia : authorized the British navy to enforce UN sanctions against the Ian Smith regime. 14. S/RES.660, 678 of 1990 Iraq-Kuwait : 678 requesting member States to use all necessary means to vacate Iraqi aggression from Kuwait. 15. Resolution 794 of 3 December 1992 Somalia : use all necessary means (unanimous) ; UNOSOM I had 37,000 and II had 30,000 military personnel. UNOSOM II under the control of the UN Secretary-General. (When the 1992 resolution was adopted, there was a clear understanding amongst Council members that it would not be regarded as a precedent.) 16. Resolution 940 of 31 July 1994 Haiti : use all necessary means. 17. Resolution 743 of 21 February 1992 Yugoslavia : UNOROFOR. 18. Resolution 836 of 4 June 1993 Extension to Bosnia. 19. Resolution 958 of 19 November 1994 Extension to Croatia. 10. Resolution 929 of 22 June 1994 Rwanda : authorizing France to use all necessary means. 11. Resolution 1101 of 28 March 1997 and Resolution 1114 of 19 June 1997. Hence Franck concludes : The drafters of the Charter, as we have seen, did not envisage such Council-mandated use of force in the absence of an Article 43-based military capability. There is no reason, however, why the Councils responses to aggression cannot be understood as a creative use of Article 42, severed from and unencumbered by the failed Article 43. . . . Textually, Article 42 can stand on its own feet and it now may be said
634. Ibid., p. 25.

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to do so as a result of Council practice. This practice, moreover, while not anticipated by the drafters, does no violence to their architecture. 635 On the right of self-defence under Article 51 of the Charter, Franck has this to say : Nevertheless, Article 51 as drafted does not sanction continuation of the use of force by states in self-defence after the Council has taken measures. It is only by subsequent practice that the potential coexistence of collective measures with the continued measures in self-defence has become accepted practice. 636 One may, however, disagree with Franck on this reading of the UN practice. For one thing, there is no Security Council pronouncement to justify this conclusion. For another, such practice, if in existence, is a clear violation of Article 51, whereby the right of self-defence ceases from the moment the Security Council takes measures. Franck notes from the UN practice 637 : Five kinds of justifications stand out, each based on [what he regards as] a creative interpretation of Article 51 : 1. the claim that a State may resort to armed self-defence in response to attacks by terrorists, insurgents or surrogates operating from another State ; 2. the claim that self-defence may be exercised against the source of ideological subversion from abroad ; 3. the claim that a State may act in self-defence to rescue or protect its citizens abroad ; 4. the claim that a State may act in self-defence to anticipate and pre-empt an imminent armed attack ; 5. the claim that the right of self-defence is available to abate an egregious, generally recognized, yet persistently unredressed wrong, including the claim to exercise a right of humanitarian intervention.

635. Ibid., p. 26. However, Article 43 is capable of encompassing ad hoc agreements as well. 636. Ibid., p. 50. 637. Ibid., p. 52.

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For claim (1), Franck cites (1) Israel-Egypt 1956 (Israel arguing self-defence against decade-long cross-border provocations by Palestinian Fedayeen), (2) OAS-Dominican Republic 1960 (Venezuelas complaint against Trujillo dictatorship of the Dominican Republic of trying to assassinate its president and overthrow the Government ; OAS condemned the Dominican intervention and aggression and applied countermeasures ; the Security Council noted the OAS action), (3) Israel-Lebanon 1980 (Israel : to protect its citizens against terrorist attacks ; General Assembly condemned its aggression), (4) United States-Nicaragua 1980-1986, (5) Turkey-Iraq 1995 (Turks pursuing Kurdish insurgents into Iraq) 638. On claim (2), Franck concludes : The practice makes clear that there has been no support for interpreting Article 51 to permit a right to use force in selfdefence against states exporting ideologies through militant but non-military means. 639 On claim (3), Franck begins with a reference to Durand v. Hollins in which the US Circuit Court of Appeal held : Under our system of government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of government is the protection of the lives, liberty and property of the people comprising it, whether abroad or at home ; and any government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving. 640 The issue was the US Presidents constitutional authority, without obtaining a Congressional declaration of war, to order a naval bombardment of San Juan del Norte (Greytown) in Nicaragua, as reprisal against those of its inhabitants who had perpetrated acts of violence against the US nationals and their property. US interventions in the Dominican Republic 1965, Grenada 1983, and Panama in 1989, claimed objective was to protect the US nationals, but ended in change of regime. Each has been an illegal intervention.
638. Ibid., pp. 53-68. 639. Ibid., p. 75. 640. 4 Blatch. 451 (1860), p. 454, quoted in Franck, op. cit., p. 76.

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Franck deals with Belgium interventions in the Congo in 1960 and 1964, Turkeys in Cyprus in 1964, United States in the Dominican Republic in 1965, Israel in Uganda in 1976 641, United States in Grenada in 1983 (roundly criticized as it was political rather than humanitarian ; there was no danger to US nationals), United States in Egypt in 1985-1986 (when Palestinian terrorists hijacked an Italian cruise liner, the Achille Lauro, and murdered an American passenger. Egyptian authorities later negotiated the release of the ship and its passengers in return for allowing the hijackers to fly to Tunis on an Egyptian aircraft. US planes intercepted that flight forcing it to land at a NATO base in Italy and apprehended the terrorists), United States in Libya in 1986 (US air and naval force entered the Gulf of Sidra in the Mediterranean in defiance of Libyas claim of closed sea, Libya responded with surface-to-air missiles and the despatch of an armed patrol boat. The United States bombed the missile sites and sank the boat. On 4 April, a bomb attributed to Libyan agents exploded in a Berlin night club frequented by US soldiers, killing three including two US and injuring 229 including 79 US. Ten days later, the United States in self-defence mounted attacks on various Libyan military targets causing civilian and military casualties.), United States in Panama in 1989, US attack on Iraqi intelligence headquarters in 1993 (after the alleged assassination attempt on President George Bush by Iraqi agents in Kuwait, United States fired missiles at Iraqi headquarters, and reported to the Security Council as an exercise of self-defence under Article 51. Washington claimed that the attack had been made only after having concluded that there was no reasonable prospect that new diplomatic initiatives or eco pressure could influence the Iraqi Government), United States in Afghanistan and Sudan in 1998 (7 August 1998 terrorists attacks on US embassies in Nairobi, Kenya and Dar-es-Salaam, Tanzania. On 21 August, the United States, using cruise missiles, attacked a pharmaceutical plant in the Sudan and bombed a base in Afghanistan allegedly used as a training camp by Osama bin-Laden, and reported
641. In this case, Franck notes, Israel quoted D. P. OConnell saying Article 2 (4) . . . should be interpreted as prohibiting acts force against the territorial integrity and political independence of nations, and not to prohibit use of force which is limited in intention and effect to the protection of a States own integrity and its nationals vital interests, when the machinery envisaged by the United Nations Charter is ineffective in the situation. International Law, 2nd ed., 1970, p. 304.

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to the Security Council under Article 51. Evidence adduced against Osama was, according to Franck, credible, that against pharmaceutical was not) 642. Franck also refers to the use of force by Egypt in 1978, when, after the assassination of an Egyptian cabinet minister in Nicosia by Arab gunmen suspected to belong to the Abu Nidal group and the capture of a number of hostages in the Nicosia Hilton Hotel, Egyptian commandos entered Cyprus without permission and even engaged the Cypriot security men in a gun battle. Ultimately the guerrillas surrendered to Cypriot authorities and were placed on trial. Egypt claimed self-defence of its citizens abroad. On claim (4), Francks finding is : When the facts and their political context are widely seen to warrant a pre-emptive or deterrent intervention on behalf of credibly endangered citizens abroad, and if the UN itself, for political reasons, is incapable of acting, then some use of force by a state may be accepted as legitimate self-defence within the meaning of Article 51. 643 It is needless to say, we totally disagree with Franck on this interpretation of Article 51. On claim (5), Franck deals with 644 India in Bangladesh in 1971, Tanzania in Uganda in 1978, Vietnam in Kampuchea in 1978-1979, France in the Central African Empire in 1979, France, the United Kingdom and the United States in Iraq (Kurds) in 1991, ECOWAS in Liberia and Sierra Leone in 1989-1999, NATO in Yugoslavia (Kosovo) in 1999. Indeed, arraigning of some of the instances such as India and Tanzania and the legality of others are disputable. Examining the recent United Nations practice of tolerating a kind of freedom of action on the part of the regional organizations, Franck thinks that the ancient monopoly of the Security Council to be the sole presiding deity in respect of use of force on behalf of the international community seems to be lately thinning down. Thus, he says : The ECOWAS intervention in Liberia and Sierra Leone can be said to have demonstrated the reticent UN systems increas642. Franck, footnote 629, supra, p. 96. 643. Ibid., p. 76. 644. Ibid., pp. 134-173.

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ing propensity to let regional organizations use force, even absent specific prior Security Council authorization, when that seemed the only way to respond to impending humanitarian disasters. While both interventions were eventually ratified and adopted by the Council first in the form of resolutions commending them, and then by decisions making the United Nations a partner in those operations such ex post facto approval effectively reinterprets the text of Article 53. 645 And this is so, says Franck, notwithstanding the fact that some of the developing countries, like India, once in a while make noisy objections to such UN-tolerated regional action 646. The entire thrust of the Franck argument seems to be that the contemporary events under international law and organization tends to open up slowly towards recognizing a right of humanitarian intervention. Much of this thesis results from organizational decisions made possible by the political arm-twisting of the members of the Security Council at the instance of the great powers and the resultant violations of the Charter provisions and the basic principles of natural justice by the Council impartiality, fair play, non-selectivity and uniformity in application of standards. This has also resulted from non-availability of necessary resources in the hands of the Council. Further, many of Francks instances of unilateral resort to force are, to say the least, controversial. 5.1.2. Problems of Security Council-sponsored UN peace actions 647 It is well known that the collective security system under the Charter assumes unanimity among great powers to function effectively, and that it will not operate against a great power. More often than not, unanimity among great powers has been a myth 648. The post645. Ibid., p. 162. 646. On Nato strikes in Kosovo in 1999, India said in the UNSC : The attacks against the Federal Republic of Yugoslavia . . . are in clear violation of Article 53 of the Charter . . . Among the barrage of justifications we have heard, we have been told that the attacks are meant to prevent violations of human rights. Even if that were to be so, it does not justify unprovoked military aggression. Two wrongs do not make a right. See SCOR, 54, 3988th mtg., 24 March 1999, p. 16. 647. See generally V. S. Mani, footnote 612, supra, at pp. 58-70. 648. M. S. Rajan notes that A. Appadorai, an eminent Indian commentator of his time (during the drafting of the UN Charter), made the acutely perceptive

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Charter practice of the United Nations has further watered down the requirement of concurrence of the P-5 to mean absence of a negative vote (not including abstention and absence) of one of or more of them. Almost throughout the Cold War, the Security Council remained paralysed because of the veto by one or other of the P-5s. Throughout the Cold War, the great powers followed their political agendas mostly outside the United Nations. Thus the Vietnam War that raged for two decades never figured on the agenda of the United Nations. The Security Council, understandably, failed to deal with many a great power intervention (usually known as hegemonic or ghetto interventions), thanks to its congenital disability. In this state of affairs, the original Charter framework of collective security transformed itself into one for collective measures reminiscent of the League days and led to the emergence of the concept of UN peacekeeping operations authorized first by the General Assembly in 1950, with the Security Council subsequently joining in. In 1950 the concept was to reflect the essential elements of a collective security system, namely, the means of determining aggression, an organism to put collective measures into operation, military forces in readiness to carry out those measures, and some apparatus to perfect the methods for coordinating collective action 649. This was the basis of the Uniting for Peace Resolution adopted in the context of the Korean situation 650. It also provided
point that the assumption of continuing harmony among the great powers is too insecure a foundation for such a great experiment in history as Dumbarton Oaks really is. See Rajan, India and the Making of the UN Charter, International Studies, New Delhi, Vol. 12, 1973, pp. 430-461, at pp. 432-433. 649. Harding F. Bancroft, Can the UN Become a Collective Security Organization ?, Department of State Bulletin, Vol. XXIV, No. 619, 14 May 1951, p. 772, cited in Goodrich, Hambro and Simons, footnote 367, supra, at p. 122. For a critical Indian study of UN collective security mechanism in concept and in operation during the Cold War period, see K. P. Saksena, The United Nations and Collective Security, DK Publishers, Delhi, New York, 1974. 650. Resolution 377 (V) of 3 November 1950. The resolution stipulated, inter alia : if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.

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the basis for many subsequent UN peacekeeping operations, the principal ones during the Cold War period being the Suez crisis in 1956, Lebanon 1958, and the Congo 1960. Conceptualizing peacekeeping operations authorized by the General Assembly in the late 1950s, Secretary-General Dag Hammaskjld argued that the organization existed more for the small countries than for the great powers, and that it was important to insulate crises occurring among these countries from the great power politics and de-escalate them so that peace could be restored with ease 651. The Congo crisis exposed the fragility of the basic premise of his concept that it was possible to isolate or insulate a situation from the clash of big power interests. These early peacekeeping operations had evolved some special features of their own 652. They were launched on the basis of the voluntary co-operation of the troop-contributing countries ; they were participated in by countries mostly neutral or non-aligned, in any case to the exclusion of great powers ; they operated with the consent of the host countries ; they were to keep the peace, and not to use force except in self-defence, and so on. The last principle gave way in the Congo situation. Soon, the United Nations learnt the hard way that it was not advisable to mount a peacekeeping operation unless adequate funding was forthcoming. In 1962, the International Court upheld the constitutionality of peacekeeping operations and ruled that expenses incurred in respect of the peacekeeping operations were legitimate expenses of the Organization within the meaning of Article 17 (2) of the Charter 653. Even while the General Assembly endorsed the Courts opinion, it was clear that there was a significant minority which differed with it, and that even among the protagonists there was a diversity of interpretations of the Courts ruling 654. Many members of the Assembly insisted on the ability to pay as a principle, some on the principle of voluntarism, and the Soviets on
651. For a conceptual exposition of this, see his Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 16 June 196015 June 1961, GAOR, 16th Session, Supplement 1A, reproduced as Dag Hammarskjld, Two Differing Concepts of United Nations Assayed, International Organization, Vol. 15, 1961, pp. 549-565. As for the Charter basis for peacekeeping operations, he is reported to have said that between Chapter VI and Chapter VII there was an invisible Chapter VI-A, or Chapter VI . 652. For a widely recognized study of some of these operations, see Rosalyn Higgins, United Nations Peacekeeping 1946-1967 : Documents and Commentary, Oxford University Press, London. 653. Certain Expenses case, ICJ Reports 1962, p. 151. 654. General Assembly resolution 1854-A (XVII) of 19 December 1962.

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the principle that the cost of repressing aggression must be borne by the aggressor 655. Thus the problem of financing the peacekeeping operations always inhibited one crisis after another ever since. In the post-Cold War era, the Security Council was expected to play its constitutional role to the hilt, as it took over the peacekeeping functions, almost to the exclusion of the General Assembly. There have been some successes for the UN peacekeeping operations, but failures seem to be more apparent on record. In fact, since 1990 the Council has been playing its constitutional role in restoration and maintenance of international peace and security rather haphazardly in certain cases (both in terms of mandating a peacekeeping operation as well as handling its progress on the ground), and failing to perform in certain others 656. Reasons for this unattractive balance sheet are not difficult to discern. Since 1990, the scope and nature of peacekeeping operations have considerably changed 657. The UN Secretary-Generals 1998 Report on The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa 658 clearly points to the formidable nature of problems faced by peacekeeping operations in Africa. The report identifies among the sources of conflict, the Cold War support to undemocratic and oppressive regimes, internal factors such as the serious problems of good governance including absence of peaceful means of change of national leadership, lack of respect for human rights, and the multi-ethnic character of most
655. More on this see Goodrich, Hambro and Simons, footnote 367, supra, pp. 157-165. 656. For incisive critiques of the post-1990 peacekeeping, see C. S. R. Murthy, United Nations Peacekeeping in Intra-state Conflicts : Emerging Trends, International Studies, New Delhi, Vol. 38, 2001, pp. 207-227 (see also his Change and Continuity in the Functioning of the Security Council Since the End of the Cold War, International Studies, Vol. 32, 1995, pp. 423-439) ; an interview with Lt. Genl. (retd.) Satish Nambiar, Warriors of Peace : Should the Indian Soldier Shed His Blood for the UN ?, at website http://www.rediff.com/ news/2000/jun/29un.htm ; Rosalyn Higgins, Peace and Security : Achievements and Failures, European Journal of International Law, Vol. 6, 1995, pp. 445460, and her The UN Security Council and Use of Force, in Hazel Fox, ed., The Changing Constitution of the United Nations, BIICL, London, 1997, pp. 4354. 657. On many of these changes, see Rahmatullah Khan, United Nations Peace-keeping in International Conflicts Problems and Perspectives, Max Planck Yearbook of United Nations Law, Vol. 4, 2000, pp. 543-581 ; Jasjit Singh, United Nations Peace-Keeping Operations : The Challenge of Change, Indian Journal of International Law, Vol. 35, 1995, pp. 77-89 ; K. P. Saksena, Reforming the United Nations : The Challenges of Relevance, Sage, New Delhi, 1993. 658. Available at website file :///Pl/word/UNSGReportonAfrica1998.htm.

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States. Many of these factors, whether cumulatively or individually, arising in a given political context, raise greater problems today than those faced by traditional peacekeeping 659. And hence the additional labels for a UN action conflict prevention, peace making, and peace building. We have even dropped keeping for UN peacekeeping operations it is just UN peace operations. It is understandable that each of such different mandates needs to be pursued, often simultaneously, in response to a given context. The challenges of peacekeeping since the 1990s have prompted a number of endeavours within the United Nations seeking to clarify or redefine the nature and objectives of a UN action, and study its logistical and management implications for the Organization and its members. The exercise probably began since the early 1990s, in the contexts of the Charter Reform and the United Nations Reform, and was given a push by the first issue of the Secretary-Generals Agenda for Peace 660. A number of points of criticism may be made on the recent peacekeeping operations under the newfound stewardship of the Security Council 661. First, most situations that demanded international coercive action involved internal conflicts. In certain cases, there was a total breakdown of internal mechanism of governance, leaving the field open for bloody conflicts between diverse warring groups. In many of these situations, there was no peace to keep ; the peace had to be forcibly restored at the outset. This, indeed, blurred the earlier distinction between collective measures to keep peace and
659. Security Council resolution 1343 (2001) of 7 March 2001 on LiberiaSierra Leone evidences the Councils intense awareness of some of the formidable problems a peacekeeping operation faces in Africa. The resolution sought to deal with the flow of rebel-controlled diamonds from Sierra Leone through Liberia with the support of the Liberian Government, armaments flowing through Liberia to the rebels in Sierra Leone, movement of funds or financial assets between Liberia and Sierra Leone for the benefit of rebels, use of Liberian-registered aircraft, and the movement of senior army or government officials or their spouses visiting other countries to facilitate such movements of funds, etc. Resolution 1478 (2003) of 6 May 2003 adds to the embargoes on trade in and international movement of diamonds, armaments and financial assets, an embargo on logs and timber products from Liberia, and calls upon all parties to conflict in the region to include disarmament, demobilization and reintegration provisions in peace agreements. Indeed, many peacekeeping operations are now additionally mandated to achieve the trinity of disarmament, demobilization and reintegration. The first two may be far easier to seek than the third. 660. UN doc. A/47/277-S/24111 (1992). 661. See generally Murthy, Lt. Genl. Nambiar and Rosalyn Higgins, footnote 656, supra.

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enforcement action. In most cases, the Council routinely adopted resolutions acting under Chapter VII and mostly addressed/targeted diverse internal elements in a given situation. Often this clearly gave the impression on the ground that the UN operation is partial to one party and against the other, thereby aggravating the crisis in hand. In the case of Afghanistan, despite the general control of the country by the Taliban regime, there were continuing internal conflicts which were first refuelled by the outside powers and then came the US-UK invasion of October 2001. Although the external powers succeeded in dislodging the Taliban regime from Kabul, they did not totally succeed it getting the country rid of the Taliban elements. The reason, indeed, was the lack of co-ordination of military objectives of the UN International Security Assistance Force (ISAF) and UN agencies operating in Afghanistan and the Operation Freedom Coalition forces that tend to set the military agenda. Second, the Council responses to such situations were often without adequate preparatory work. The post-October 2001 Afghan situation was further complicated by the fact of big power invasion under a claim of self-defence. The role of the Security Council has largely been to endorse the 6 + 2 and the Bonn Agreements. In such a situation, the Council had to change/expand/diversify UN operations in response to developing situations, without relating the change either to the past or to likely future evolution of the crisis, but often conditioned (or restricted ?) by the presence of the ISAF alongside a multinational force (continuing self-defence ?). In a sense, the establishment of ISAF itself was a fait accomplis for the Council itself. One, however, feels uneasy that NATO, having invoked its collective defence mandate in the immediate aftermath of 9/11, has since turned itself into a Security Council mandated operation under the label ISAF 662 that too, a long way away from its traditional geographical meeting ground, for whatever reason. Third, a pattern of authorizing the participating nations in a peacekeeping operation to use or take all necessary means a habit that began to form with the first war with Iraq in 1991 663, and then slipped into the peacekeeping arena in Somalia (decidedly not to set
662. Security Council resolution 1510 (2003) of 13 October 2003. Nato took over the command and co-ordination of ISAF in August 2003. See Nato handouts. 663. Council resolution 678 (1990) of 29 November 1990.

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a precedent) 664 is by now well entrenched in the Council practice on peacekeeping operations 665. One finds the pattern continuing in the case of ISAF as well 666. While it is true that in the absence of Article 63 special agreements, participation in Security Council authorized operations, including enforcement actions, is voluntary, this does not necessarily imply that the Council should abdicate its constitutional responsibility to preside over the operation it authorizes 667. Nor does the Charter empower the Council to issue a blank cheque to use or take all the necessary measures to the participating nations, regional organizations or regional arrangements in an operation under Chapter VII of the Charter. It is arguable that the Council has no power to authorize any nation or a group to exercise the discretion to decide, without any reference to the Council, if, when, where and how force should be used and forces deployed.
664. Council resolution 794 (1992) of 4 December 1992, para. 10. 665. See, e.g., three Bosnia-related resolutions ((a) paragraph 4 of resolution 816 (1993) of 31 March 1993 authorized member States acting nationally or through regional organizations or arrangements to take . . . all necessary measures in the airspace . . ., (2) paragraph 9 of resolution 836 (1993) of 4 June 1993 authorized UNPROFOR to take the necessary measures, including the use of force in response to attacks on safe areas and paragraph 10 of the same resolution authorized member States acting nationally or through regional organizations or arrangements to take all necessary measures, through use of air power, in around the safe areas and (3) resolution 908 (1994) of 31 March 1994 extending the mandate of the UNPROFOR in the former Yugoslavia, paragraph 8 authorizing member States acting nationally or through regional organizations or arrangements, may take, . . ., all necessary measures to extend close air support to the territory of the Republic of Croatia, in defence of UNPROFOR personnel), resolution 929 (1994) of 22 June 1994 on Rwanda (paragraph 3, but paragraph 4 stipulates that this authorization would terminate once an expanded UNAMIR is able to carry out its mandate), resolution 940 (1994) of 31 July 1994 on Haiti (paragraph 4, but paragraph 5 envisages sending of an advance team to facilitate the multinational force and paragraph 8 provided for the termination of both when UNMIH has adequate force and a secure and stable environment has been established), resolution 958 (1994) of 19 November 1994 on Croatia (the only decisional paragraph), resolution 1264 (1999) of 15 September 1999 on East Timor (but paragraph 10 of this resolution stipulates that the multinational force would be in place, until replaced by UN peacekeeping operations), resolution 1289 (2000) of 7 February 2000 on Sierra Leone (paragraph 10 authorized, pursuant to Chapter VII, UNAMSIL to take the necessary action to protect its personnel, facilities and equipment, and as far as possible the civilians), resolution 1291 (2000) of 24 February 2000 on Democratic Republic of Congo (paragraph 8 authorized, pursuant to Chapter VII, the expanded MONUC to take the necessary action to protect the UN personnel, their freedom of movement, facilities and equipment), resolution 1305 (2000) of 21 June 2000 on peace agreement for Bosnia and Herzegovina (paragraph 11). 666. Security Council resolution 1563 (2004), 17 September 2004, Security Council resolution 1510 (2003), 13 October 2003, both authorizing Member States participating in ISAF to take all necessary measures to fulfil its mandate. 667. See Articles 48 and 49 of the Charter.

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This is so, because the Council itself functions, and is expected to function, on the authority delegated to it by States parties to the Charter. Authority once delegated, cannot be redelegated 668. The blank cheques even with the stipulation that they be used in coordination with the Secretary-General have not worked well they have left the Secretary-General a hapless spectator to great power politics. They have resulted in total decisional and operational autonomy snatched away by the so-called coalitions of the willing in the course of which neither the Secretary-General nor the Council had any control and had to accept the resultant situations as faits accomplis. Fourth, this has also led to a blurring of a clear distinction between peacekeeping and enforcement action. The Council quite liberally acts under Chapter VII of the Charter and very often the mandate for an operation mixes the elements of both. This leads to lopsided operational priorities, often weaker, inefficient performance or non-performance of peacekeeping. Fifth, closely following or overlapping the above trends, is the trend on the part of the Council in permitting or acquiescing in regional organizations to mount operations within their region, or even outside the region as is the case with ISAF , either on their own or alongside the UN presence. When a regional organization mounts a coercive operation on its own, without authorization from the Council as postulated under Article 53 (1) of the Charter, it could easily argue that Council authorization was necessary only for an enforcement action and not for a peacekeeping operation 669. But when a hybrid organization like NATO that claims one foot on Article 51 of the UN Charter and the other on Article 53, the relation668. See V. S. Mani, Role of Law and Legal Considerations in the Functioning of the United Nations, in Nigel D. White, ed., Collective Security Law, Aldershot, United Kingdom, 2003, pp. 65-94, being a reprint of the article from IJIL, Vol. 35, 1955, pp. 91-128. This was the reason why Secretary-General Perz de Cullar is reported to have said that the use of force by the United States-led multinational forces against Iraq in 1991 was not UNs war. On the general issue of validity of the Security Councils decisions, see Mohammed Bedjaoui, The New World Order and the Security Council : Testing the Legality of Its Acts, Martinus Nijhoff, Dordrecht, 1994, Derek Bowett, The Impact of Security Council Decisions on Dispute Settlement Procedures, European Journal of International Law, Vol. 5, 1994, pp. 89-101. 669. Goodrich, Hambro and Simons cite the example of action taken by OAS in respect of the Dominican Republic in 1965, in respect of which the United States argued that the OAS action was akin to UN action in Cyprus, Congo or the Middle East. See Goodrich, Hambro and Simons, footnote 367, supra, at p. 366.

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ship between the Security Council and the organization becomes rather tenuous an issue of total freedom of action/autonomy of a collective defence mechanism versus command-control set-up of the Security Council. Sixth, the decentralization or the sub-contracting in favour of the coalition of the willing usually organized by one or more of dominant powers the direct result of the above trends tends to give these powers in a multinational force or in a regional force a decisive say in the formulation of the objectives of an operation as well as its execution on the ground. Strangely, in Afghanistan, two coalitions coexist the NATO-led coalition in the form of ISAF and the United States-led Operation Freedom Coalition. Is privatization of peacekeeping operations, then, the next logical step 670 ? To be fair to the Organization, both the Security Council and the
670. A Memorandum of Kevin A. OBrien of Rand Europe, examining a UK Foreign and Commonwealth Office Green Paper on Private Military Companies : Options for Regulation, concludes that As long as governments and commercial companies require armed protection or, indeed, armed military support against a rebel insurgency, PMCs (Private Military Companies) will find a willing market for their skills and capabilities. . . . Given the current regional instability and chaos, this continued privatisation of peacekeeping may become the best option for a Developed World unwilling or unable to intervene in the increasing chaos of regional conflict. See also his extensive footnote references. UK Parliament, select Committee on Foreign Affairs Minutes of Evidence, Appendix 3, Memorandum from Dr. Devin A. OBrien, pp. 1-19, available at website http://www.parliament.thestation...2/cmselect/cmfaff/022/2061315.htm. OBrien notes the various categorizations and definitions of private army companies in terms of their evolution mercenaries, private armies/militias/warlords, private (commercial) security companies, private intelligence brokers, and now specialized military companies (operating from South Africa, United Kingdom, United States and Israel), some of whom were even hired by the World Bank, the United Nations and various humanitarian NGOs for protection in regional conflict. For a report on the FCO Green Paper, see BBC News online, 13 February 2002, Peacekeeping role for mercenaries, at http://www.bbc.co.uk/2/hi/uk_news/politics/1817495.stm. In a Foreword to the Green Paper, says the BBC News, UK Foreign Secretary states that a strong and reputable private military sector might have a role in enabling the UN to respond more rapidly and effectively to crises. Responding to this consultation paper Menzies Campbell, Liberal Democrat, raised issues of allegiance and the chain of command if the United Nations could contract peacekeeping operations to the private sector. The paper itself is reported to raise important concerns about human rights, sovereignty and accountability. The Green Paper was a response to the Arms-to-Africa affair four years ago, which led to claims that the UK Government had connived with the British private military company Sandline International in the illegal export of arms to Sierra Leone, explains BBC, ibid.

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General Assembly are aware of the complexities of the post-Cold War challenges to peacekeeping, including the fact that most new situations involve essentially civil conflict with transborder dimensions. Attempts have been made to examine the underlying issues as comprehensively as possible. The General Assembly has been at this exercise, particularly since 1965 when the Special Committee on Peacekeeping Operations was set up. Now charged with a comprehensive review of peacekeeping operations in all its aspects, it provides an active forum for States to exchange views freely on peacekeeping operations. Both the Assembly and the Council have had occasions in 1990s to deal with a number of ideas thrown up by the Secretary-General through his 1993 and 1995 reports the Agenda for Peace 671 and its Supplement 672. As part of the Millennium celebrations, the UN Secretary-General appointed in March 2000 a 10-member high-level expert panel, headed by Lakhdar Brahimi, a former Algerian Foreign Minister. The panel submitted its report (the famous Brahimi Report) on 17 August 2000 673. The panel was mandated to assess the shortcomings of the existing system and to make frank, specific and realistic recommendations for change. According to its report, some of the missions of the past decade would be particularly hard to accomplish. No homework had been done to distinguish between peacekeeping and peace-building activities. United Nations operations . . . did not deploy into postconflict situations but tried to create them. In such complex operations, peacekeepers work to maintain a secure local environment while peace-builders work to make that environment self-sustaining. Only such an environment offers a ready exit to peace-keeping forces, making peace-keepers and peace-builders inseparable partners. 674 The report reaffirmed that the consent of the local parties, impartiality and use of force only in self-defence should remain the bedrock principles of peacekeeping. However, the experience showed that consent could be manipulated, or otherwise unstable or
671. Footnote 660, supra. 672. UN doc. A/50/60-S1995/1 (1995). 673. UN docs. A/55/305 (General Assembly), S/2000/809 (Security Council) of 21 August 2000. 674. Ibid., pp. x-xi.

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unreliable. Thus impartiality not to be equated with neutrality or equality of all parties irrespective of their unacceptable actions must remain the hallmark of an operation, said the report 675. The report made a wide range of recommendations including those for preventive action, peace-building strategy, peacekeeping doctrine and strategy, including clear, credible and achievable mandates, determining deployment timelines, logistical support and expenditure management, integrated mission planning and support, and UN Secretariat reform consequent on these recommendations 676. Both the Assembly 677 and the Council 678 quickly noted the report and promised to consider its recommendations expeditiously. On its part, the Security Council has, reminiscent of the League of Nations days, started the practice of despatching its own special missions for on-the-spot enquiry and discussions with regional leaders. Its recent missions to Central Africa and West Africa have been purposeful and commendable. The Council has also looked at the issues at a macro-level as well, evidently prompted by its diverse experiences. Meeting at the level of heads of State and Government in 2000 in the company of the Millennium Assembly, it adopted a Declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa 679. The declaration embodies, inter alia, a reaffirmation of the determination of all heads of State and Government of the world, to give equal priority to the maintenance of peace and security in every region of the world, and in view of the particular needs of Africa, to give special attention to that region 680. It recognizes the need to strengthen the UN peacekeeping operations by adopting clearly defined, credible, achievable and appropriate mandates, measures for the security and safety of UN personnel and for protection of the civilian population, taking steps to obtain trained and properly equipped personnel for the operations, strengthening consultations with troop-contributing countries when deciding such operations, and upgrading the UN capacity for planning, establish675. Ibid., pp. 9-10. 676. Ibid., Annex III, at pp. 54-58 677. United Nations Millennium Declaration resolution 55/2 of 8 September 2000, para. 9, second bullet point. 678. Council declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa, resolution 1318 (2000) of 7 September 2000, Annex, para. IV. 679. Council resolution 1318 (2000) of 7 September 2000. 680. Ibid., para. II.

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ing, deploying and conducting peacekeeping operations as also provision of a more up-to-date and sounder foundation for financing peace-keeping operations 681. It calls for international action to prevent the illegal flow of small arms into areas of conflict and decides to take resolute action in areas where the illegal exploitation and trafficking of high-value commodities contributes to the escalation or continuation of conflict 682. Responding to an open debate on Peace-building : towards a comprehensive approach, the Council recognized that peacemaking, peacekeeping and peace-building are often closely interrelated and this interrelationship requires a comprehensive approach in order to preserve the results achieved and prevent the recurrence of conflicts. Hence the need for including peace-building elements in the mandates of peacekeeping operations 683. It stressed the need for constant contact between the United Nations and regional organization ; indeed, this has been a theme in several of the Council decisions 684. In one such decision, the Council clarified that the relationship between the United Nations and regional organizations and arrangements in the prevention of armed conflict should be in accordance with Chapter VIII of the Charter 685. The Council also noted that in some instances the integration of humanitarian components into peacekeeping operations would contribute effectively to their carrying out their mandate and stressed on adequate training of the personnel 686. Yet with all this doctrinal excursus, when it comes to setting up a peacekeeping operation in a given political context, the Council tends to give in to the dominant powers which dictate how an operation should be planned and mandated and put into operation on the ground and who should head the forces and control their mission and for how long. That is how the so-called coalitions of the willing work. The 2003 Kuala Lumpur Summit of the Non-Aligned countries makes quite a few pertinent comments on UN peacekeeping opera681. Ibid., para. III. 682. Ibid., para. VI. 683. Presidential Statement doc. S/PRST/2001/5, 20 February 2001. On the need to integrate post-conflict peace-building elements, see docs., S/PRST/ 1999/21 of 8 July 1999, S/PRST/2001/10, of 23 March 2000. 684. See, for instance, Presidential Statements doc. S/PRST/2001/38, of 19 December 2001, doc. S/PRST/2002/31 of 31 October 2002. 685. Presidential Statement doc. S/PRST/2000/25, of 20 July 2000. 686. Presidential Statement doc. S/PRST/2000/7 of 13 March 2000.

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tions 687. One, the primary responsibility for maintenance of international peace and security resides with the United Nations and the role of regional arrangements, in that regard, should be in accordance with Chapter VII of the Charter. They should not in any way substitute the role of the United Nations, or circumvent the full application of the guiding principles of the United Nations peacekeeping. Two, the Organization must avoid selectivity and double standards in establishing United Nations peacekeeping operations, especially in Africa. Three, peacekeeping operations should not be used as a substitute for addressing the root causes of conflict, which should be addressed in a coherent, well-planned, coordinated and comprehensive manner, with other political, social and developmental instruments. Such efforts should continue post-peacekeeping, without interruption. Four, there is a need to plan and manage operations effectively, taking fully into account their individual complexities ; where necessary, they should be mounted as rapidly as possible. Five, the voluntary nature of funding of peacekeeping operations should not influence United Nations Security Council decisions to establish peacekeeping operations or affect their mandates. Six, consultations between the troops-contributing countries and the Council should be institutionalized, and the Council should ascertain the views of their countries before and during the formulation of mandates for the operations. While authorizing use of force, the Council should adhere to the provisions of Articles 43 688 and 44 of the Charter. Seven, planning of an operation to be more and effective 689, the troops contributing countries should be consulted at all stages of a mission. Eight, the United Nations should help many troops-contributing NonAligned countries in overcoming any difficulties they may face logis687. The Final Document of the XIII Conference of Heads of State or Government of the Non-Aligned Movement (NAM), Kuala Lumpur, 24-25 February 2003, available at website http://www.nam.gov.za/media/030227e.htm. The document deals with peacekeeping operations in paragraphs 41 to 51. 688. The words, on its call and in accordance with a special agreement or agreements are wide enough to include an ad hoc agreement on each call. 689. The NAM summit, footnote 687, supra, paragraph 49, makes it a point to underscore NAMs concern that NAM countries are insufficiently represented, particularly at professional levels at the UN Secretariats Department of Peacekeeping Operations.

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tically or equipment-wise. Finally, the Non-Aligned Movement emphasizes the critical importance of timely, efficient, transparent and cost-effective procurement of goods and services in support of peace-keeping operations. It also stresses the need to ensure greater United Nations procurement from developing countries through a principle of preferential treatment. 5.1.3. Towards a concept of UN humanitarian action ? The role of the international organization in enforcement of human rights deserves separate consideration, particularly in view of the increasing involvement of the United Nations in civil strife (Somalia, Yugoslavia, Rwanda). The UN Secretary-General, Kofi A. Annan has dwelt on the issue in two of his recent reports. The Introduction to the 1999 Annual Report of the Secretary-General on the Work of the Organization 690 addresses itself to unprecedented humanitarian challenges. The Secretary-Generals main complaint is that The humanitarian challenge is heightened by the fact that the international community does not respond in a consistent way to humanitarian emergencies 691. While emphasizing the role of preventive measures in diffusing potential conflict situations, the Secretary-General recognizes that even the best of prevention strategies cannot completely eliminate the chances of war. Hence his view : It follows that, for the foreseeable future, the international community must remain prepared to engage politically and if necessary militarily to contain, manage and ultimately resolve conflicts that have got out of hand. This will require a better functioning collective security system than exists at the moment. It will require, above all, a greater willingness to intervene to prevent gross violations of human rights. 692 Demonstrable willingness to act in such circumstances will in turn serve the goal of prevention by enhancing deterrence. Even the most repressive leaders watch to see what they can get away with, how far they can tear the fabric of human conscience before triggering an outraged external response. 693
690. United Nations, Preventing War and Disaster : A Growing Global Challenge, United Nations, 1999. 691. Ibid., para. 8, at p. 3. 692. Ibid., para. 56, at p. 17. 693. Ibid., para. 57, at p. 17.

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While expressing his disapproval to unilateral resort to force without the authority of the UN Security Council, the Secretary-General is also aware of the limitations of organizational action : Differences within the Council [on the question of UN intervention in the Kosovo crisis in 1999] reflected the lack of consensus in the wider international community. Defenders of traditional interpretations of international law stressed the inviolability of State sovereignty ; others stressed the moral imperative to act forcefully in the face of gross violations of human rights. The moral rights and wrongs of this complex and contentious issue will be the subject of debate for years to come, but what is clear is that enforcement actions without Security Council authorization threaten the very core of the international collective security system founded on the Charter of the United Nations. Only the Charter provides a universally accepted legal basis for the use of force. 694 Besides sovereignty, the Secretary-General also notes other impediments to Security Council action in the face of complex humanitarian emergencies. He observes : Confronted by gross violations of human rights in Rwanda and elsewhere the failure to intervene was driven more by the reluctance of Member States to pay the human and other costs of intervention, and by doubts that the use of force would be successful, than by concerns about sovereignty 695. The Secretary-Generals observations in the Introduction to his 1999 Report to the General Assembly predictably generated considerable heat in the debates at the United Nations. His complaint, however, is that Although I emphasized that intervention embraced a wide continuum of responses, from diplomacy to armed action, it was the latter option that generated most controversy in the debate that followed. 696 He notes three principal objections that emanated from the debates to the concept of humanitarian intervention by the United Nations : (1) it could become a cover for gratuitous
694. Ibid., para. 66, at p. 20. 695. Ibid., para. 67, at p. 21. 696. The Secretary-Generals Report to the Millennium Assembly entitled We the Peoples : The Role of the United Nations in the Twenty-First Century UN doc. A/54/2000, 27 March 2000, para. 215, at p.34.

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interference in the internal affairs of sovereign States ; (2) it might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions ; and (3) there is little consistency in the practice of intervention, owing to its inherent difficulties and costs as well as perceived national interests except that weak states are far more likely to be subjected to it than strong ones 697. The Secretary-General recognizes that the principles of sovereignty and non-interference offer vital protection to small and weak States. But to the critics he poses this question : [I]f 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 offend every precept of our common humanity ? 698 We confront a real dilemma, emphasizes the Secretary-General. Few would disagree that both the defence of humanity and the defence of sovereignty are principles that must be supported. Alas, that does not tell us which principle should prevail when they are in conflict. 699 The Secretary-General recognizes that humanitarian intervention remains a sensitive issue, fraught with political difficulty and not susceptible to easy answers. His conviction, however, is that But surely no legal principle not even sovereignty can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community. . . . Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished. 700 In an article published in The Economist in September 1999, Kofi Annan, referred to the experiences of East Timor, and Kosovo, and
697. 698. 699. 700. Ibid., Ibid., Ibid., Ibid., para. para. para. para. 216, 217, 218, 219, at at at at p. p. p. p. 34. 34. 34. 34.

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remarked : As in Rwanda five years ago, the international community stands accused for doing too little, too late. He said : Neither of these precedents is satisfactory as a model for the new millennium. Just as we have learnt that the world cannot stand aside when gross and systematic violations of human rights are taking place, we have also learnt that, if it is to enjoy the sustained support of the worlds peoples, intervention must be based on legitimate and universal principles. We need to adapt our international system better to a world with new actors, new responsibilities, and new possibilities for peace and progress. 701 In his view, State sovereignty, in its most basic sense, is being redefined not the least by the forces of globalisation an international co-operation. 702 He identifies two major changes taking place in redefining sovereignty. One is the changed perception about States now as instruments of the service to their peoples. The other is a renewed and spreading consciousness of individual rights. To avoid repeating tragedies of the above nature, I believe it is essential that the international community reach consensus not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom. Annan suggests four aspects of intervention, which need to be considered with special care : First, intervention should not be understood as referring only to the use of force. A tragic irony of many of the crises that go unnoticed or unchallenged in the world today is that they could be dealt with by far less perilous acts of intervention than the one we say this year [1999] in Yugoslavia. . . . Second, it is clear that traditional notions of sovereignty alone are not the only obstacle to effective action in humanitarian crises. No less significant are the ways in which states define their national interests. . . . In the context of many of the
701. Kofi A. Annan, Two Concepts of Sovereignty, The Economist, London, 18 September 1999. 702. Ibid.

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V. S. Mani challenges facing humanity today, the collective interest is [or should be] the national interest. Third, in cases where forceful intervention does become necessary, the Security Council the body charged with authorising the use of force under international law must be able to arise to the challenge. Fourth, when fighting stops, the international commitment to peace must be just as strong as was the commitment to war. In this situation, too, consistency is essential. 703

One greatly appreciates the high moral concerns of the SecretaryGeneral of the United Nations. Ideally, when gross violations of human rights take place with impunity in one State, the international community should step in, promptly take even coercive action, if need be, and bring the culprits to book. Alas, such an ideal state of affairs does not exist even within a national society. The practical problems of apprehending and bringing to book criminals remain unravelled in domestic law in a democratic society, with all the might and majesty of the State and its institutions ! Yet the clarion call of the Secretary-General must stir the conscience of humankind for a long time to come. But is that enough to instil the necessary political will in States that matter ? 5.1.4. The so-called responsibility to protect In response to the conceptual and institutional challenges thrown up by the UN Secretary-General Kofi Annan at the General Assembly sessions of 1999 and 2000 provoking constructive responses from the international community, the Canadian Government established in 2000 an International Commission on Intervention and State Sovereignty. The Commission was asked to wrestle with the whole range of questions legal, moral, operational and political . . . 704. Having covered a very wide field in terms of both research as well as collection of world public opinion, the Report of the Com703. Ibid. 704. ICISS, The Responsibility to Protect, Report of the International Commission on Intervention and state Sovereignty, Ottawa, December 2001, p. vii. Co-chaired by Gareth Evans and Mohamed Sahnoun, the other ten members of the Commission were : Gisele Cote-Harper, Lee Hamilton, Michael Ignatieff, Vladimir Lukin, Klaus Naumann, Cyril Ramaphosa, Fidel Ramos, Cornelio Sommaruga, Eduardo Stein, and Ramesh Thakur.

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mission makes a valuable contribution to the international debate portrayed by the Secretary-Generals above interventions. The Synopsis of the report is as follows 705 : The Responsibility to Protect : Core Principles (1) Basic principles A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect. (2) Foundations The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in : A. obligations inherent in the concept of sovereignty ; B. the responsibility of the Security Council, under Article 4 of the UN Charter, for the maintenance of international peace and security ; C. specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law ; D. the developing practice of states, regional organisations and the Security Council itself. (3) Elements The responsibility to protect embraces three specific responsibilities : A. The responsibility to prevent : to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. B. The responsibility to react : to respond to situations of
705. Ibid., pp. xi-xiii.

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V. S. Mani compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. C. The responsibility to rebuild : to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. (4) Priorities A. Prevention is the single most important dimension of the responsibility to protect : prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it. B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied. The Responsibility to Protect : Principles for Military Intervention (1) The just cause threshold Military intervention for human protection purposes is an exceptional and extraordinary measure. To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind : A. large scale loss of life, actual or apprehended, with genocidal intent or not which is the product either of deliberate state action, or state neglect or inability to act or a failed state situation ; or B. large scale ethnic cleansing, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. (2) The precautionary principles A. Right intention : The primary purpose of the intervention, whatever other motives intervening states may

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have, must be to halt or aver 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 he prevention or peaceful resolution of he 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. (3) Right authority A. There is no better or more appropriate body than the United Nations Security Council to authorise military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has. B. Security Council authorisation should in all cases be sought prior to any military intervention action being carried out. Those calling for an intervention should formally request such authorisation, or have the Council raise the matter on its own initiative, or have the Secretary-General raise it under Article 99 of the UN Charter. C. The Security Council should deal promptly with any request for authority to intervene where there are allegations of large-scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions on the ground that might support a military intervention. D. Permanent Five members of the Security Council

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V. S. Mani should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is otherwise majority support. E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are : II. consideration of the matter by the General Assembly in Emergency Special Session under the Uniting for Peace procedure ; and II. action within area of jurisdiction by regional or subregional organisations under Chapter VIII of the Charter, subject to their seeking subsequent authorisation from the Security Council. F. The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation and that the stature and credibility of the United Nations may suffer thereby. (4) Operational principles A. Clear objectives : clear and unambiguous mandate at all times, and resources to match. B. Common military approach among involved partners ; unity of command ; clear and unequivocal communications and chain of command. C. Acceptance of limitations, incrementalism and gradualism in the application of force, the objective being protection of a population, not defeat or a state. D. Rules of engagement, which fit the operational concept : are precise ; reflect the principle of proportionality ; and involve total adherence to international humanitarian law. E. Acceptance that force protection cannot become the principal objective. F. Maximum possible coordination with humanitarian organisations.

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A number of comments are called for by this important Report. The very first aspect of this Synopsis of the Report on the Responsibility to Protect is that it indicates the doctrinal orientation of the Report a typical intellectual thesis produced in the din of and through the looking glass of the so-called just war traditions. On a closer look, one can easily understand why this doctrinal bias has been preferred. The reason is that it seeks to legitimize the madness of Yugoslavia, and elsewhere, after the declaration by US President Bush of a crusade against (Islamic) terrorism, it seeks to reinstate the just war justification for future actions of individual States or groups of them hence references to humanitarian objective, not being the sole objective of a humanitarian intervention. Indeed, the Commission was itself dominated by the Western thinking on regularizing unilateralism, if cloaked by humanitarian objective. Second and this closely follows the first , it legitimizes unilateralism outside the framework of the UN Charter system. Indeed, protagonists of unilateralism have argued in gay abandon, that the UN Charter system has long been archaic, not in tune with the time the time meaning, the New Order that President Bush the Senior heralded in 1990, a world order dominated and dictated by the single superpower. This recognition of unilateralism readily legitimizes action by the superpower outside the constraints of the Charter system in other words, the great power can legitimately choose the venue for action/authorization, depending on the political or military exigency or convenience. Third, mark the statement : an intervention to be qualified as a humanitarian intervention requires only one of the many objectives of the intervenor to be humanitarian. This, indeed, lets the cat out of the bag. By this standard, the Afghan invasion was of course a humanitarian intervention par excellence because the Taliban regime had a track record of violation of human rights, particularly womens rights. So was the Iraqi invasion, as Saddam Husseins regime has had a devastating record of systematic human rights violations. But then, there are also dozens of similar oppressive regimes, some so friendly to the great powers. What about humanitarian intervention in those countries ? No, indeed. They are our friends. Fourth, the Report pays lip service to the obligation of the wealthy nations of the international community to assist countries of the South well in time and quantity that should help the latter from

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slipping into a Somalia, a Rwanda, a Sierra Leone or a Liberia. Where have all the concrete promises of international resource transfers gone ? Fifth, the so-called Responsibility to Protect advocates that each State has the primary responsibility to protect its people, that, if it fails, then the Security Council has it, that, if the Council fails, a regional organization has it, and that, if that too fails, other individual States have it. Two questions arise here. One, is there such a hierarchy meant to exist in terms of the Report ? One doubts very much, for the simple reason that if such a hierarchy is to be followed strictly, the projected humanitarian intervention is likely to be ineffective by delay and dilly-dallying by the various organizations involved. Could unilateral action be resorted to according to the exigencies of the situation, irrespective of initiatives likely to be taken by an organization ? Two, why is it that this responsibility to protect is cast upon the Security Council, which plays and is constitutionally mandated to play no role at all in economic and social development ? What kind of protection can the Council accord to the country concerned after the surgical operation ? How would resources be harnessed for the purpose, transcending the formidable obstacle of making the principle of international co-operation into reality a task that Articles 55 and 56 of the Charter have failed to accomplish to date ? Sixth, the Report prescribes very little to ensure compliance with the basis principles of natural justice basic principles of the rule of law in world affairs impartiality, non-selectivity, fair play, and uniform application of standards. Finally, is the great issue of moral and legal legitimacy of action authorized by an international body such as the Security Council, that grossly ill represents the world community of We the Peoples that excludes by design multitudes of peoples, populous countries like India from its membership and thus from its decisional processes. While the Report, at some innocuous corner, murmurs its approval to UN General Assembly authorized action, its thrust appears to be in favour of the Security Council. Until this issue is resolved it will remain premature and even partisan to talk about a Responsibility to Protect in favour of a UN organ that has lost its representative character to act for protection of peoples. The Sermon on the Mount such as the Report on the Responsibility to Protect does not take into account why the Charter system has

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failed to be effective. In fact the problem is not exactly the need for a search for new legitimacy for unilateralism or even collective unilateralism. In a case where there are serious and systematic violations of human rights taking place, the Security Council is constitutionally empowered to consider it as one amounting to a threat to the peace or breach of the peace, and initiate an organizational enforcement action. However, the past record of the Council leaves much to be desired. It has been heavily tainted by selectivity, bias, acquiescence with big power interventionism, and near-total marginalization of the international community outside the 15 members of the Council. A study of the past peace operations as portrayed above brings home these points. Here is a small example from the Afghanistan case : Mr. Bassiouni identified a number of priority issues for immediate action, mostly concerning conditions of detention (especially with regard to women and children) ; the illegal nature of the detention of 725 detainees transferred from Shibergan to Kabul a few months ago (and subsequently resealed) ; the lack of transparency in and the question of the legality of the detention of Afghan civilians by the coalition forces ; the abduction and trafficking of children ; and the need to address the continuing impunity of human rights violators, particularly local commanders. 706 This is Afghanistan after a humanitarian intervention. Any help from the Commissioners of the Responsibility to Protect when they are called upon to face the rough world of humanitarian intervention, such as this ? 5.1.5. UN humanitarian action and issues of illegality and illegitimacy Is an international organization, then, competent to resort to humanitarian intervention on behalf of the international community ? This question must be examined at both conceptual and juridical levels. Conceptually, as submitted already, neither the State system nor any international manifestation of that system controlled by States can fully be trusted for impartial, non-discriminatory and effective implementation of human rights. Every State has skeletons
706. UN doc. A/59/581-S/2004/925, 26 November 2004, pp. 10-11.

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in its cupboard. Nor can it be an impartial judge of the situation obtaining in another. Historically, morally justifiable humanitarian interventions have been extremely rare, and more often than not they have been tainted by ulterior motives, if not downright mala fides, of the intervening States. It is a wishful dream that on the international plane, State-controlled international organizations will police human rights violations, when the State system itself has been unable to contain its own misuses and abuses of power resulting in such violations. At the outset, there is the disagreement among the member States on when a situation constitutes a gross violation of human rights, or one that shocks the conscience of mankind, or when it crosses the threshold point of the territorial States responsibility to protect. Those days mention used to be made of two terrible examples, namely, Uganda under Idi Amin and Romania under Ceaucescu two situations which were universally recognized to have shocked the conscience of mankind. Yet no international organization gathered its wits and guts to resort to forcible removal of the dictator and restore human rights. Now the United Nations has decided to take strong action against the military government of a small country such as Haiti but it has had no intention of doing the same against other dictatorships some of which have so far thrived in this world since 1945. The practice of international action by the United Nations in this regard reveals that the UN decisions have been vitiated by the maladies of selectivity, if not mala fides, discrimination, excess of coercion, and disregard for the views and sensitivities of the people to be assisted. Having performed commendably in the field of decolonization, both the General Assembly and the Security Council failed to uphold the right of self-determination of Bangladesh in 1971. The Organization, though pushed to accept the seriousness of the situation in Namibia and South Africa, chose not to resort to military action, which would have long ago put an end to the gross violations of human rights in these countries. It was compelled to watch helplessly a number of hegemonial interventions committed by or with the blessings of either of the two superpowers. For the same reasons, it could not take action in Romania or Afghanistan. But why on earth did it not take action in Uganda ? It did not even condemn the human rights atrocities there, which even a little-more-thanamorphous organization such as the Commonwealth could. It

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blessed the installation of General Mobutu as the President of the Republic of Congo, who sowed the seeds of all the trouble and turmoil that the country is currently reeling with. Since the Security Council imposed a Carthaginian Peace upon Iraq for its illegal annexation of Kuwait in 1990, it had no compunctions in conniving at coercive, unilateral, humanitarian assistance to Kurds in Iraq, but not to other Iraqi nationals who have also been reeling under the UN sanctions. So much for the principle of non-discrimination, the hallmark Red Cross principle of humanitarian assistance. For the first time, the UN soldiers, formerly described as the soldiers without enemies, went to Somalia to fight a battle of attrition and killed civilians, much to the shock of the common Somali people. With this record of the United Nations, one hesitates to trust that Organization to ensure good governance everywhere in the world impartially and without discrimination. Impartiality and domination of the interests of a few powerful States cannot go together. For the same reason, the role of the International Court will be very minimal in respect of implementation of human rights. The Court is indeed fairly impartial, but it is not equipped to deal with human rights violations per se, outside its consent-based jurisdiction over States. On the juridical plane, the competence of international organization to resort to humanitarian intervention on behalf of the international community bears upon the constituent legal instrument within the four corners of which the organization is required to function. The crucial provisions in the UN Charter in this regard are to be Chapter VII, Articles 24 and 25 and Article 2 (7). It must be emphasized, it would be wrong to interpret the discretion of the Security Council under Chapter VII to be tantamount to a licence. The Councils decisions and actions must be based on facts and circumstances material for the invocation of Article 39 of the Charter. In other words, when there is no shred of material on record in the form of objective evidence, providing at least a prima facie justification for action under Chapter VII, exercise of extraordinary powers by the Council thereunder can be legally challenged as lexces de pouvoirs or abuse of powers. Judge Gros in his dissent in the Namibia case criticized the Security Council for treating the Namibian situation under the head of the maintenance of international peace and security, and stated :

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V. S. Mani That is another attempt to modify the principles of the Charter as regards the powers vested by States in the organs they instituted. To assert that a matter may have a distant repercussion on the maintenance of peace is not enough to turn the Security Council into a world government. 707

Referring to Article 24 specifically, Judge Sir Gerald Fitzmaurice said in his dissent : [The article] does not limit the occasions on which the Security Council can act in the preservation of peace and security, provided the threat said to be involved is not a mere figment or pretext. 708 On the powers of the Security Council, Judge Fitzmaurice asserted that : [certain] limitations on the powers of the Security Council are necessary because of the all too great ease with any acutely controversial international situation can be represented as involving a latent threat to peace and security, even where it is really too remote genuinely to constitute one. Without these limitations, the functions of the Security Council could be used for purposes never originally intended . . . 709 It is important to note that the above observations of Judges Gros and Fitzmaurice were recalled by Judge Bedjaoui in his dissent in the Lockerbie cases (Provisional Measures) in the context of the controversial Security Council resolutions under Chapter VII, when no small number of people may find it disconcerting that the horrific Lockerbie bombing should be seen today as an urgent threat to international peace when it took place over three years ago 710. Specifically referring to Article 25 in the context of the Lockerbie cases, Bowett, an eminent authority on UN peace operations, remarks : The [Security] Councils decisions are binding only insofar as they are in accordance with the Charter. They may spell out,
707. ICJ Reports 1971, p. 340. 708. Ibid., p. 293. 709. Ibid., p. 294. Sir Gerald even went as far as envisaging a situation where the Security Council exceeds its competence. Ibid., p. 295. 710. ICJ Reports 1992, pp. 43 and 153.

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or particularise, the obligations of Members that arise from the Charter. But they may not create totally new obligations that have no basis in the Charter, for the Council is an executive organ, not a legislature. In short, the Council does not have a blank cheque [from the member States]. 711 Hence Bowetts advice to judicial tribunals including the International Court of Justice : the Court or for that matter any other competent judicial body should not regard itself as precluded from questioning the validity of a Council resolution insofar as it affects the legal rights of States 712. Bowett even identifies three grounds of review to be excluded : (1) differences in political judgment, (2) evidence of bias, and (3) procedural irregularities. He suggests three grounds on which review should be based 713 : (1) ultra vires, [The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. The International Court said in Conditions of Admission to the United Nations, ICJ Reports 1948, p. 64] (2) denial of a right to a hearing, and (3) the decision manifestly defective. Judge Rosalyn Higgins, an equally eminent authority on UN peace actions, observes : By reason of its illegal conduct, interventions upon the wrongdoing States sovereignty are authorised by the Security Council, as we saw in the establishment of safe havens in north Iraq. 714
711. D. W. Bowett, Judicial and Political Functions of the Security Council and the International Court of Justice, in Hazel Fox, ed., The Changing Constitution of the United Nations, British Institute of International and Comparative Law, London, 1997, pp. 73-90. Bowett quotes the ICJ ruling in the Expenses case : The Court said : when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization ICJ Reports 1962, at p. 168. In that case, the Court also said : In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of he United Nations. 712. Ibid. 713. Ibid., pp. 83-87. 714. Rosalyn Higgins, The UN Security Council and the Individual State, ibid., pp. 43-54, at p. 50.

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While the UN Charter provides all States are sovereign and equal, the reality is that some have obtained more protection against unlawful uses of force than have others. 715 Beyond the issues of illegality of the United Nations organs in terms of Charter provisions, there are also issues of illegality in terms of jus cogens. It would be interesting to examine such issues in diverse situations, say if thrown up in implementation of the Report on the Responsibility to Protect. The International Court in the Nicaragua case held that both international customary law and the Charter law may coexist, even with similar content, as they are parallel regimes. What if action approved by a Charter rule runs against a jus cogens ? In other words, until there is sufficient matching change effected to jus cogens, the Responsibility may not be much of jural value. Inconsistency with a jus cogens cannot be cured by Article 102 of the Charter, which cannot legitimize what is illegal under international law.

715. Ibid., p. 51.

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CONCLUSIONS Judge Alvarez, an early proponent of the developing countries perspective, put it in 1950, the new international law is the result and outcome of the great transformations in the life of nations which have taken place since the first world war, and mostly after the 1939 cataclysm 716. It is new for three reasons : it includes new questions in addition to traditional questions in a new form ; it rests on the basic reconstruction of fundamental principles of classical international law, and brings them into harmony with the new conditions of the life of peoples ; finally, it is based on the social regime which has appeared, the regime of interdependence, which is taking the place of the individualistic regime which has, up to now, provided the basis of both national and international life. This new regime has given to what may be called social interdependence which is taking the place of traditional individualism. 717 The judge asserted : The purposes of the new international law, based on social interdependence, differ from those of classical international law : they are to harmonize the rights of States, to promote cooperation between them and to give ample room to common interests ; its purpose is also to favour cultural and social progress. In short, its purpose is to bring about what may be called international social justice. To achieve these purposes this law must lay stress on the notion of obligation of States, not only between themselves, but also toward the international community. It must limit abso716. See Judge A. Alvarezs dissent in the Status of South-West Africa case, ICJ Reports 1950, p. 128, at pp. 174-185, at p. 175. 717. Ibid. (original emphasis).

306

V. S. Mani lute international sovereignty of States according to the new requirements of the life of peoples, and must yield to the changing necessities of that life. 718

The small countries well realize that the modern concept of sovereignty is issue-based. Hence their dependence on international law and organization, not just for their own security, but more importantly because they need them as instruments conditioning and catalysing their development through international co-operation. In fact, the relevance of or dependence on international law and organization are inversely proportionate to the military and economic might of a State. The less powerful a State is, the more is its reliance on international law and organization. As Dag Hammarskjld said in 1960, it is the small powers which need the United Nations, not the great ones. In an interface between multilateralism and unilateralism, the unilateralism of the great powers holds sway, unless of course they decide to pursue a course of moderation, or enlightened unilateralism. Some of the small countries may have failed to live up to the standards of good governance and realization of human rights, both of which require considerable resources. However, the more fortunate members of the international community have on their part grossly failed to live up to their commitments of international co-operation made within the framework of the international organization (Articles 55 and 56 of the UN Charter) or outside it. As already pointed out, the role of the United Nations may be identified in terms of the coincidence of interests of States at any given point in time on a given issue. The result would of course mean that one seeks to describe an organization in terms of Now you see, now you dont. But then that is the reality. Yet, the emergence of international organization is inextricably related to the dynamics of international law. While the international organization is a creature of international law and governed by it, it in its turn provides a world forum for the development of the international normative order on which modern international law builds itself. It provides a forum facilitating interactions of States, big and small, with a view to achieving agreements on what the normative framework should be and how the operative rules should be construed. One danger of such deliberate law making is that States that have
718. Ibid., p. 176 (original emphasis).

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participated in these agreements are expected to accept the law as they have been instrumental in evolving and comply with it. To change such law, we need a fresh agreement. Until a fresh agreement is reached, the old law persists and any deviation from it constitutes a violation of international law. Also, the rule of rebus sic stantibus applies to legal norms at the instance of a few countries that find them vexatious or too restrictive. A re-examination of legality and validity of humanitarian intervention in the context of the post-Soviet era of international relations is quite timely. Traditionally, the claim that humanitarian intervention was either permissible under International law or above and beyond the concern of international law has been frequently made by the big powers whenever they intervened coercively in the affairs of lesser powers. Instances of intervention on humanitarian grounds pure and simple have been extremely rare. Most instances involving claims of humanitarian intervention have been tainted by political motives and power-political considerations. And the lack of an effective international enforcement mechanism to ensure observance of international obligations by States is often exploited to justify resort to intervention as a sanction applied allegedly on behalf of the international community. A cursory look at the history of international relations is enough to reveal that the facility of intervention has been repeatedly utilized by big powers against small powers. The traditional principle of non-intervention based on the absolute sovereignty theory in fact protected the big powers in their dealings with one another, but was not applied in respect of small powers, particularly those of them not belonging to Europe. In contrast, the modern concept of non-intervention is based on the twentieth-century principles of sovereign equality, non-use of force and equal rights and self-determination of nations. The upsurge of nationalism that swept the post-Second World War international relations led to the highlighting of the inequalities and inequities of the traditional international relations and law, and helped to reorient the goal values of modern international law. This is amply reflected in the Friendly Relations Declaration 1970 which embodies consensual formulations of seven basic principles of [modern] international law, including those of non-use of force, sovereign equality and non-intervention. The International Court of Justice has attributed opinio juris to the formulations contained in this Declaration.

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Accordingly, under modern international law, there is no place for humanitarian intervention and contrary views in the Western doctrine are untenable in terms of State practice and the rulings of the International Court. Some Western jurists have also begun contending that there should be a right, and even a duty, to intervene in another State to ensure good governance or to enforce human rights. This is an ominous trend that must be checked. States are the principal violators of human rights and every State has its own skeletons in its cupboard. Thus they are unworthy of trust to be the guardians of human rights in other States. Added to this are the complexities of implementation of diverse human rights, recognizing the varying economic capabilities and divergent cultural traditions of each national society. While the United Nations is a premier international institution representing nearly the entire international community, yet being an inter-governmental rather that an international organization, it is ill suited as well as ill equipped, morally and politically, to launch humanitarian interventions to ensure good governance, or protection of human rights everywhere. Nor does it have constitutional powers to undertake such a responsibility on behalf of the international community. Moreover, the record of the United Nations, beyond the realm of norm-creation or international policy setting in the field of human rights, is hardly encouraging. Many of its recent actions and decisions have been flawed by selectivity, unjust discrimination, authorization of unwarranted and excessive degree of coercion, and indeed, violation of its constitutional parameters. The reason for this is that powerful States are prone to use the organization as an instrument of their foreign policies with little respect for moral, constitutional or legal niceties. Prospects of impartial international enforcement of human rights are bleak so long as this task is entrusted to the State-controlled international institutions. A streak of silver lining in the otherwise overcast international horizon is the presence of the International Court to arbiter situations arising between States. The Court has shown a considerable degree of maturity and impartiality, without compromising its judicial role even when faced with the mightiest power on earth. However, in view of its constitutional limitations and contemporary State attitudes in respect of its jurisdiction, the Court will continue to have only a marginal role to play in the adjudication of situations involving human rights violations. Indeed, the enforcement of its judg-

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ments is yet another matter it is left to the good sense of the Security Council : in other words, we are back to square one. There are quite a few fundamental questions to answer before the international community as represented by the United Nations can legitimately claim the right to humanitarian intervention. First, the international community we are talking of is an international system of States, and its organ, the United Nations, is a creature of this State system. Human rights are primarily claimable against the State, and groups or individuals who man the State. If a people cannot make their State institutions deliver human rights, how can they expect an external agency to get this done ? Second, gross violations of human rights do not occur overnight. The conditions that lead to them must be identified on time and eliminated. More often than not, this task calls for mobilization and utilization considerable resources. And, to be sure, it may not be a one-time affair. Consider this against the background of the abject failure of international development decades and international financial organizations to root out poverty from the developing countries. Third, very often the root cause of a human rights situation in a country might lie deep in history, for example Yugoslavia and Rwanda (in cases like Rwanda it is often contributed to by former colonial powers). This calls for intervention at the emotional level (remember the Preamble to the constitution of Unesco : Seeds of war are sown in the minds of men.) In other words, humanitarian intervention as a one-time surgical operation cannot eliminate the causes of human rights violations. The Kosovo crisis presents a telling example of this in Kosovo, the external intervention failed to prevent counter-violations of human rights of the Serbs by the Kosovar militants, while it claimed to have succeeded in stopping the Serbian atrocities over Kosovars. Fourth, the contemporary State system does not, as yet, recognize any international mechanism empowered, and capable, to intervene in the affairs of a State without its consent, however badly that State might be conducting its affairs internally. This has been the situation ever since the emergence of the modern State system. It may not be a satisfactory state of affairs, but it remains so. The situation can be tackled in two ways. One, action should be taken to encourage home-grown human rights institutions in each State and strengthen them by mobilizing adequate resources through international cooperation. Two, international responses to emergency humanitarian situations should be based on consensus, and in compliance with the

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principles of impartiality, fair play, and uniformity of application of standards. Does the UN Security Council fill in the bill against all this ? It is submitted that it does not readily, but it should be readied for this mandate, for the Council is the only nearest available international organ which can be made capable of preventing a future Rwanda, even if it failed to handle the past one. It has had a history of selectivity, partiality, and gross violations of even the time-honoured principles of natural justice (right of all parties to a situation to be heard, right to an impartial judgment after being heard). The record of the Council, particularly since 1990, has been dismal. The reason is not far to seek it is that the Council is often manipulated to serve the foreign policy goals of some big powers. Indeed, the Council is powerless in respect of any human rights situation involving any one of them (e.g., Chechnya). In other words, constitutionally, the Council can only authorize humanitarian intervention against a small power, never against a big power. Yet, the Council can be made to respond to humanitarian situations, provided it is reformed as follows : 11. The Council should be representative of the We the Peoples of the United Nations. Expand the Council membership to reflect this need for international legitimacy. 12. The Council should have access to information as far as possible independently of its current mechanism totally dependent of State mechanisms. 13. The Council should be effectively supported in its decisional processes, by the UN human rights agencies, including the International Committee of the Red Cross, as also by the Economic and Social Council. 14. The Secretary-General must report each humanitarian case to the Council. 15. Such cases must follow a special emergency procedure, on the basis of the reports from UN human rights bodies and ECOSOC. 16. The permanent members of the Council must not use their veto power, should two-thirds of the Council express in favour of action on behalf of the UN. 17. Decisions must be based on consensus of the members of the Council as well as the members of the region affected, and other nations participating in the UN operation. 18. The Council procedure and decisions must conform to principles

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19. 10. 11. 12. 13.

of impartiality, non-selectivity, non-discrimination, fair play, proportionality, and uniform application of standards in each case. The humanitarian action, involving use of force on behalf of the international community, must be organized by or under the direct authority of the Security Council. The Military Staff Committee must be put in charge of the operation. It must function by including its decision-making process all States participating in the operation. The operation must be a blue beret operation in every sense. Where regional organizations are involved, they shall not use force without the authority of the Council. No fait accompli shall be imposed on the international community. Co-ordinate action for post surgical and longer-term recuperation and rehabilitation must also include the economic agencies of the UN along with the Security Council.

We already seen how doctrinally futile and mindlessly dangerous it is to rely on archaic doctrines and concepts like the just war, that would only promote the clash of civilizations where none exists. What we need is a fresh commitment to benign multilateralism not the collective unilateralism that seeks to claim a faade of legitimacy in use of force. Article 2 (4) should be held sacrosanct, and members of the United Nations must live up to their commitments by supporting UN action against gross violations of human rights, everywhere, by adopting decisions and procedures in conformity with the lofty principles of impartiality, non-selectivity, fair play and uniform application of standards. A Security Council founded on international legitimacy would be well suited for this role. But the Council as it stands today lacks international legitimacy ; it remains to be reformed to be a truly representative community organ. Finally, Laskis warning is more relevant today than ever before : The sovereignty of the great state today is a technique for the protection of its imperialism. That imperialism is the outcome of its own internal relations which, given the distribution of effective demand within its boundaries, is driven to the competitive search for markets abroad in order to realise profit. Its sovereignty is the protective armament of that adventure. The international law it can recognise is, therefore, always hampered and frustrated by the logical requirements of imperialism.

312

V. S. Mani It cannot part with the control of any vital function, the scale of its armament, the right to make war, its hold on colonies and spheres of influence, its power over tariffs, currency, migration, labour conditions, because to do so is to threaten, internally, the relations of production its sovereignty exists to maintain. 719

Against this mighty Leviathan of sovereignty, the sovereignty of small States will continue to struggle to exist, let alone to assert itself. So will be the autonomy of international organization. Thus, interventions there will be regardless of their labels.

719. Harold J. Laski, A Grammar of Politics, 3rd ed., 1934, London, p. xxi.

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