LEGAL ISUES ON BURMA JOURNAL No. 7, DECEMBER 2000
BURMA LAWYERS' COUNCIL
HUMANITARIAN INTERVENTION ?
The Case for Humanitarian Intervention
Mr. B K Sen*
"Count up the results of fifty years of human rights mechanisms, this is a failure of implementation in a scale that shames us all. "1 Mary Robinson, UNHRC, 10 December 1998
As the twenty first century begins, the argument that the human rights movement should become more assertive becomes more compelling. As one esteemed jurist put it “the past has been a matter of pleading with tyrants, writing letters and sending missions to beg them not to act cruelly. That will not be necessary of there is a possibility that they can be deterred by threats of humanitarian or United Nations intervention or with nemesis in the form of the International Criminal Court…”2 Burma provides an excellent case study for testing the viability of such an approach.
The subject of global humanitarian intervention has evoked several warm responses from commentators concerned with human rights situations across the globe. The Canadian initiative has brought this matter to the fore for consideration and debate within the international community. The Canadian initiative has opened up the debate about the establishment of an International Commission that would be charged with broad ranging responsibilities including undertaking a study of rules for global humanitarian intervention to protect civilians from atrocities or any grave violation of human rights, and to make recommendations regarding forms of intervention in the internal politics of countries to restore peace and protect fundamental human rights.
In South East Asia, the idea of armed intervention to save civilians is viewed with great suspicion, however there is also great utility to hold a set of agreed guidelines or principles that will be applied in the event the intervention is required yet not sanctioned, for various political or other reasons, by the United Nations' Security Council. The question that arises is what rules can be framed and how they are to be implemented? To answer that question another question must also be answered - how does international law deal with intervention?
Article 2 (4) of the United Nations (UN) Charter prohibits any armed attacks which are inconsistent with the Charter's purpose. Article 2 (7) states that in matters which are essentially within the domestic jurisdiction of any state, the UN cannot intervene nor require the nation in question to submit such matters to settlement. But this restriction does not apply to all circumstances. Intervention on grounds of self-preservation, enforcement of Treaty rights, and protection of persons and property abroad have all been justified and legitmised. Another justification of intervention is based on grounds of humanity. Great Britain, France and Russia jointly intervened in the war between revolutionary Greece and Turkey to put a stop to abominable atrocities by Turks. The bloody tyrants of Uganda Idi Amin was removed by Tanzania and the US invasion of Grenada in 1983 got rid of the insurgents who murdered their elected Prime Minister. All such courses of action were on their face, apparently unlawful , however they were clearly morally justified in the face of the Security Council's failure to take action. Ostensibly the basis for action was to vindicate under international law the right to participate in democratic government as articulated in Article 21 (1) and (3) of the Universal Declaration of Human Rights.
In the nineteenth century, the British Navy assumed something of an enforcement role across the seas. It intercepted slave ships, freed the victims and even established schools to promote their education. This could possibly be categorized as the first example of a humanitarian enforcement mission. Later, the notion of the " right of humanitarian intervention in the internal affairs of a state" evolved, to deal with situations where it was deemed that domestic state's or government's rule over some or all of its citizens was perceived as barbaric. In the current situation of Burma, the application of these principles and that of international law is best summarized by one international jurist: "On any sensible reading, Article (2) of the Universal Declaration and the Charter principle of self-determination of people, invalidates all military regimes run by savage soldiers in places like Burma, where the patient courage of Aung San Suu Kyi, an elected leader detained by military despots, has elicited much sympathy but not much action."3
Looking back at the development of the principles underpinning intervention, one gains an interesting insight into the types of situations where action is taken and, where it is not. By way of background, in 1898, the United States declared war on Spain on the basis that its oppressive role in Cuba shocked the moral sense of the people of the United States. In this circumstance, it was the conduct of the domestic government that shocked the conscience of those who chose to act, that formed the basis to legitimize action, not through any legal obligation.
Theodore Roosevelt's 1904 State of the Union message expressed a similar sentiment, when he said
" …there are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavour at least to show our disapproval of the deed and our sympathy with those who have suffered by it -in extreme cases action may be justifiable and proper. What form the action shall take must depend on the circumstances of the case; that is, upon the degree of the atrocity and upon our power to remedy it. "
After some time of apparent procrastination, in 1976, the Security Council declared that apartheid was a " grave threat to the peace " and urged the member states of the United Nations to support the African National Congress. The formula " never tolerate interference in internal affairs " has become frayed. The protective shield of state sovereignty is wearing thin, in the face of systematic crimes against humanity, often splashed across television and computer screens, newspapers and via the internet, into every corner of the globe. Human rights abuses has gradually become a legitimate subject of international concern and falls within the realm of defence of international law. The Charter permits Security Council intervention under Chapter VII in the event of human rights violations on a scale which threatens world peace. In other words, Article 2 (7) of the Charter can be overridden by Chapter VIII Article 55 of the Charter which expressly makes observance of human rights a condition necessary for peaceful relations. Hence, in the case of non-observance, there is a threat to peace and therefore grounds for intervention will arise. Human rights have become over time a matter of global concern, and a mechanism for international intervention as a last resort in the affairs of states has finally evolved. This legal mechanism can be triggered to challenge the sovereign right of the States to oppress groups of their own people.
In recognizing the promotion and respect of human rights and fundamental freedoms as one of its principal objects, the Charter marks a further step in the direction of elevating the principle of humanitarian intervention. The right to be free from genocide, racial discrimination, slavery, forced labour, torture, coercion, forced displacement, child labour, disappearances, vindictive prison sentences, etc all come within the concept of the paramount dignity of human rights. The breach of these principles, for example by condoning torture as a tool of the State, despite its prohibition under international law, elevates such conduct from an 'internal affair' to an affront to the broader global conscience -that being, an international matter which may be considered to warrant intervention. Of course, this broad principle operates within the confines of the principle of jus cogens4 ( principles which have been accepted by the international community as a whole ). The recent Pinochet case exemplifies this shift as has been commented, " The way in which a state treats its own citizens within its own borders has become a matter of legitimate concern to the international community…" it is now true that in some circumstances such crimes will in reality attract a universal jurisdiction.
Another recent illustration of this shift away from the narrow confines of United Nations politics and international law, is the recent intervention in Kosovo. The UN Charter did not 'cover the field' in terms of expressly allowing for the NATO bombings. The initiative was taken pursuant to a rule under international customary law and through a political alliance of significance, crystallizing the independence of other regional -based organization from that of the UN Charter. As stated by the International Court of Justice in their hearing of the Nicaragua matter "The UN Charter ---- by no means corners the whole area of the regulation of the use of force in International relations ".
Furthermore, Havel in relation to NATO's intervention updated the definition of intervention. This new approach incorporated the evolving principle of humanitarian necessity, whereby force of a proportionate kind may be used to prevent a humanitarian catastrophe. In the circumstances, NATO had to act without a Security Council mandate because any resolution to that effect would have been vetoed by Russia and China.
Yet again, on the other side of the globe, when Indonesian militias were killing East Timorese after their official and sanctioned Referendum in August-September 1999, the UN's dubious stand, illuminating its preoccupation with China's power of veto in the Security Council, was overcome by an innovative and fresh strategy. This new initiative, involving action without forcing the matter to veto is of great interest. Australia and New Zealand called for an ad hoc " coalition of the willing " to go into East Timor. Indonesia announced it would not permit foreign troops. President Clinton finally acted and threatened Indonesia with sanctions against loans and aid unless a UN Peacekeeping Force was allowed entry. The matter came within Chapter VII and China's veto was immobilized. In the case of Burma, like East Timor, there is no constitutionally confusing situation. Nation building begins for these people when the 1990 Election mandate and crucial right to self-determination is acknowledged by the international community - if intervention is required to restore democratic rule, it must be explored.
The examples of Kosovo and East Timor herald a new age where enforcement should be adopted, on the basic principles of humanity and human rights rather than the observation of political and 'black letter legal' constraints. It should no longer be necessary for people to fight and die for their basic international legal rights. These examples indicate a step towards a world where an enforcement system which will do this for them.
However, one superpower cannot be given the prerogative to determine the humanitarian necessity for any intervention. The United Nations body, with its Charter was founded half a century ago and its rules cannot continue to remain rigid notwithstanding the changing climate.
States rather than individuals have been the subjects of international law. However, due to modern developments and new circumstances, international law has appeared to have yielded to the needs of people residing in such a globalized system. In accordance with this, in some circumstances, individuals have become subjects of international law also. Whilst the UN is specifically pledged to promote universal respect for human rights and fundamental freedoms, the individual lacks procedural capacity under international law. Hence, there is a need to set out the ground rules of engagement. In this context, Burma is an interesting case study.
The UN Secretary-General has made a proposal to the current Chairman of the Association of South East Asian Nations (ASEAN) Standing Committee that an ASEAN Troika be set up to help resolve the political deadlock in Burma. The aim of such an initiative would be to ultimately bring about dialogue between the ruling junta and the opposition movement, the National League for Democracy (NLD), headed by leader Daw Aung San Suu Kyi. The concept of an ASEAN Troika was agreed upon by the 10 member countries in July 2000 at their ministerial meeting, in Bangkok.
The US President has warned the junta that "those who rule Burma should know --- all of us are watching carefully what happens." Burma's junta's Foreign Minister's rather predictable response was that Rangoon would not bow to any outside pressure. It is undoubtable that the proposed ASEAN Troika will not receive the requisite support to ensure its adoption, due to the various political alliances across this complex region. This will be yet another grave disappointment, in the face of many such as attempts to achieve constructive engagement, the economic sanctions adopted by big powers, quiet diplomacy and Australia's unprincipled engagement - all of which have failed to bring about the restoration of democracy within Burma.
It is clear that any initiative proposed at the Security Council level will be aborted by China's veto. The international community seems to have been hamstrung by such regional politics being played out in the United Nations forum, regarding Burma. It is a challenge to address these barriers which must be taken up by the international community not solely for the sake of Burma but for the larger cause of establishing an international mechanism to enforce measures against violations of human rights by a state against its people. Developments afoot should be analysed and, where possible, supported. The case of Burma is an eminently suitable one as a case study. The arguments for international humanitarian intervention both on facts and law are both compelling and vast.
The junta's systematic violations of human rights, their flagrant disregard of the 1990 democratic election results and their failure to adopt a Constitution all demonstrate clear and unambiguous breaches of the UN Charter.
The time has come for a major initiative, formed by a ‘coalition of the willing’ a peaceful and responsible approach that costs nothing in terms of lives or capital. Such an approach should not require the consent of the military junta. The matter is seemingly simple – civilians under military rule subjected to brutal and inhuman suppression are entitled to immediate protection.
For the past nine years the UN has adopted resolutions condemning the violations of human rights and seeking some kind of political settlement. On 8 November 2000 it passed the strongest resolution so far and condemns the regime’s persecution of democratic opposition. This is yet another step nearer to intervention, providing another cogent ground for the establishment ad hoc body to intervene on the principle of international customary law.
The immediate need is to have UN presence inside Burma, to monitor abuses and prevent an outbreak of Civil War. The junta's ongoing suppression and attempts to undermine and abolish the NLD and general pro-democracy movement, is leading the country towards an uprising of volcanic proportions. There will be no sense in sending a peacekeeping force after widespread bloodshed. Action is required, and it is required immediately. The international community and an ad hock " like-minded coalition " of regional interests, must engage the military junta to prevent further catastrophe. Calling for dialogue has reached its practical zenith or limitations. Burma has become a test case for ascertaining the sovereignty of people in contradistinction to sovereignty of State.
Endnotes
* Mr B.K Sen is a Senior Legal Officer with the Burma Lawyers' Council. He is an experienced advocate in the Burmese legal system and was a member of the Bar Council and High Court Bar library. The author wishes to thank the Hon. Janelle Saffin for her comments and advice in preparation of this article.
1. Geoffrey Robertson, Crimes Against Humanity, 1999, page 35.
2. Robertson, ibid page 453
3. Robertson, ibid page 165
4. Jus cogens refers a principle of international law which cannot be set aside by agreement or acquiescence; a peremptory norm of general international law. It is also fundamental substantive rules of international law.