Lebanese University

Faculty of Law and political and administrative Sciences Section Two

Humanitarian Intervention: the need for legitimacy

Prepared by: Leila Nicolas Rahbany

May 2007

Index Introduction 1) Human values change traditional concept of sovereignty a- The concept of humanitarian intervention: problems of definition b- Approaches to humanitarian intervention: Solidarism vs. Pluralism c- From sovereign impunity to national and international accountability 2) From the “right to intervene” to “responsibility to protect” a- The responsibility to prevent b- The responsibility to react c- The responsibility to rebuild 3) - UN Human rights council: practice and the need of effectivenessSuggestions Conclusion

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Introduction:
The decade and a half since the end of the Cold War has witnessed the rise, albeit at first ever so tentatively, of the idea of the “humanitarian intervention,” followed by an extensive and rather sophisticated debate concerning its legality and ethics. A dilemma was raised between the concept of humanitarian intervention and the classic Westphalian concept of state sovereignty, canonized in the UN Charter, in which the autonomy in the domestic sphere of each independent state was absolute—a modern version of the late medieval maxim of “rex imperator in regno suo” which means “each king is an emperor in his own kingdom, he recognized no superior authority”.(1) In many states, the result of the end of the Cold War has been a new emphasis on democratization, respect for human rights and good governance. But in too many others, the result has been internal war or civil conflict – more often than not with political and humanitarian repercussions. Humanitarian intervention poses the hardest test for an international society built on principles of sovereignty, non-intervention, and non use of force. Sovereign states are expected to act as guardians of their citizens’ security and rights, but what happens if these states act as gangsters towards their people, treating sovereignty as a license to kill? Should the international community intervene to help save people from their dictators, or the state sovereignty concept prohibits this intervention for it is considered as pure domestic jurisdiction? This became the subject of controversy of local and international levels as on the theoretical and practical level. Humanitarian intervention has been controversial in international relations both when it happens, and when it has failed to happen. For example, the case of Rwanda in 1994 exposed the full horror of inaction. Reports said that
“The United Nations Secretariat and some permanent members of the Security Council has knew that officials connected to the government were planning genocide; UN forces were present, though not in sufficient number at the outset; and credible strategies were available to prevent, or at least greatly mitigate, the slaughter which followed. But the Security Council refused to take the necessary action. That was a failure of international will at the highest level. Its consequence was not merely a humanitarian catastrophe for Rwanda; however, the genocide destabilized the entire Great Lakes region(2).
(1)

C. A. J. Coady, The Ethics of Armed Humanitarian Intervention, United States Institute of Peace, Peace work No. 45, July 2002,p.20 (2) The Responsibility to Protect, Report of the International Commission on Intervention & State Sovereignty, Dec. 2001,p.1

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In the aftermath, many African people concluded that, despite of all speeches that talk about the universality of human rights, some human lives are of great deal to the international community than others, and others considered that lack of action was an indication of Great powers’ policies to cut down the increasing population of poor countries. Another intervention did take place in Kosovo in 1999. In an article entitled “The Short, Unhappy Life of Humanitarian War,” Charles Krauthammer writes in scathing terms about humanitarian military intervention and concludes by remarking the “successful” Kosovo intervention, “This is what happens when you win”.(3)However, this operation raised major questions about the legitimacy of military intervention in a sovereign state. Was the cause just? Were the human rights abuses committed severe enough to deserve outside involvement or did the media- or what is considered as “CNN effect”play the major role in creating a public opinion keen on intervention? Did those seeking secession manipulate external intervention to advance their political purposes? Were all peaceful means of resolving the conflict fully explored and exhausted? If the NATO has not intervened, would Kosovo have been at best the site of an ongoing, bloody and destabilizing civil war? This debate raised an important question regarding the effectiveness of the use of force in promoting respect for humanitarian values and long term reconstruction in murderous and failed states. Then there was also the issue whether states can be trusted with the responsibility to act as agents of common humanity, and to what extent can the international community hold the states responsible for the lack of respect of human rights. Do these sanctions solve the problem or add to peoples’ suffering like the case of Iraq? Who is really punished: the victim or the criminal? Some argued the international community is not intervening enough; for others it is intervening much too often. For some, the only real issue is in ensuring that coercive interventions are effective; for others, questions about legality, process and the possible misuse of precedent loom much larger. For some, the new interventions herald a new world in which human rights trumps state sovereignty; for others, it ushers in a world in which big powers ride over the smaller ones, manipulating the rhetoric of humanitarianism and human rights. The controversy has laid bare basic divisions within the international community. In the interest of all those victims who suffer and die when leadership and institutions fail, it is crucial that these divisions be resolved. Discussing of these issue constitute the core concern of this paper. The first part will set up the definition, theories, and changes in concepts of humanitarian intervention, human security and state sovereignty. The
(3)

Charles Krauthammer, “The Short, Unhappy Life of Humanitarian War,” in National Interest, no. 57, fall 1999, p. 8.

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second will discuss the change in terminology from “right to intervene” to responsibility to protect” and all its effects. The final part will review the practice of the Human Rights Council and make some suggestions for increasing its effectiveness and try to find mechanisms for legitimizing humanitarian intervention.

1) Human values change traditional concept of sovereignty
A - The concept of humanitarian intervention: problems of definition In his classical definition of intervention R.J. Vincent suggests that it is:
”an activity undertaken by state, a group within a state, a group of states or an international organization which interferes coercively in the domestic affairs of another state. It is a discrete event having a beginning and an end, and it is aimed at the authority structure of the target state. It is not necessarily lawful or unlawful, but it does break a conventional pattern of international relations”(1).

Vincent was not writing specifically of humanitarian intervention but his definition sums up the traditional view. The phrase “humanitarian intervention” is usually used as a term to focus attention on one particular category of interventions – namely, those undertaken for the purpose of protecting or assisting people at risk. As Murphy describes it: “the use of military force by one state or a group of states against another state
not for the purpose of self defense but rather for the purpose of preventing the widespread deprivation of human rights(2).

However, the militarization of the word “humanitarian” was strongly opposed expressed by humanitarian agencies, humanitarian organizations and humanitarian workers. Those organizations had a great desire to separate the aid and help they were offering to people from the military intervention by states, even it was carried out necessary for saving human lives. They regarded that whatever the motives of those states engaging in the intervention, it is anathema for the humanitarian relief and assistance to describe any kind of military action by “humanitarian”. Also some political authors suggested that the use of the word “humanitarian” in this context tends to prejudge the issue in question– that is, whether the intervention is in fact defensible. For all these reasons, many authors besides the “International Commission on Intervention and State Sovereignty” found it appropriate to use the term “military intervention,” for human protection purposes instead of “humanitarian intervention”(1). Conventionally, humanitarian intervention is defined in terms of military intervention motivated by humanitarian considerations, but
(1) (2)

John Bailys, the Globalization of World Politics, Oxford University press, New York, 2001, p472. Sean Murphy, Sovereignty and Intervention: Are International legal Norms Changing? , George Washington University, 2000, p.1. (1) The Responsibility to Protect, Report of the International Commission on Intervention & State Sovereignty, op. cit, p9.

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this raises the question as to what counts as humanitarian? The Red Cross defines humanitarian acts as “those that prevent and alleviate human suffering”. This definition assumes that humanitarian acts are the same across time and space, denying the fact that there is controversy over the universalism or relativism of human rights and humanitarianism. It implies that a capacity for humanitarianism is naturally inherent in all humans by virtue of a common human nature. Critics of this position argue that what counts human suffering changes from one historical epoch to another. There is nothing natural or inevitable about who gets defined as human\ inhuman. Thus, slavery was regarded as perfectly natural in one century and identified as a scourge against humanity in the next(2). This illustrates that the concept of humanitarianism is culturally specific and it is differently stated and accepted according to culture, religion, time, region, political interests.. and has its own biases. b- Approaches to humanitarian intervention: Solidarism vs. Pluralism In 1859 John Stuart Mill suggested that there are ‘assuredly cases in which it is allowable to go to war, without having been ourselves attacked or threatened with attack’.(3) Some political philosophers, regarded as cosmopolitans, say that nations should not intervene for national welfare reasons, they should not intervene in preemptive self-defense, or for any other national welfare enhancement reason except when acting in self-defense from an actual (or perhaps imminent) armed attack. Interventions for humanitarian reasons, by contrast, are sometimes justified. Interventions that are genuinely motivated by other factors-regarding humanitarian concerns may be technically illegal, but are nonetheless legitimate when done to halt massive human rights abuses. Some cosmopolitan theorists go further and claim that nations sometimes have a duty, not just a right, to intervene to stop such abuses. Some authors referring to cosmopolitan tradition in international relations argue that militaries in a globalized world have a new role in what has been variously described as ‘cosmopolitan law enforcement’ or the ‘new military humanism’(4). They point to the fact that military forces are already being employed less and less in the defense of the state and more and more on broader regional and international security and humanitarian tasks. They ask for the consecration of a new norm in international relations which recognizes and sanctions a right to intervene in the internal
(2)

John Baylis, op cit, p.472. Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order, University of Pennsylvania Press, Philadelphia, 1996, p. xix. (4) Ulrich Beck in Noam Chomsky, The New Military Humanism: Lessons from Kosovo, Pluto Press, London, 1999, p. 4.
(3)

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affairs of states. More specifically and with a more direct focus on the human security interests of people, it has been considered as a ‘right to secure the delivery of humanitarian assistance by force(1)’. This involves more than new coercive missions or new justifications for intervention. It shows how ‘solidarity with strangers … can be made possible(2)’. The solidarist theory moral argument rests on the assumption that an order based on individual rights, rather than state sovereignty, would endorse humanitarian intervention. These contemporary accounts suggest that in the twentieth century, many people were killed by their own governments or died in international and civil wars in the same period. It is therefore legitimate to ask not just how we should respond to what Axel Honneth calls ‘morally uncurbed aggression’(3) but also to ask upon what ethical basis we do so as well as how best and in what ways to intervene, and this refers specifically to the old concept of” just war” theory that deals with the justification of why (The Jus Ad Bellem) and how (The Principles Of Jus In Bello) wars are fought. This “just war” theory was first raised by Augustine, St.Thomas Aquinas and developed by Kant in his “Perpetual Peace”, was raised again by the academics after the terrorist attacks on the USA on 9/11 in order to reveal how just was the war on Afghanistan and the invasion of Iraq. The arguments of cosmopolitan writers known also as solidarists, elaborated in a range of literatures can be summarized as follows: First, humankind is ultimately bound together as a single moral community (a community of fate) with shared and equally-valued rights and obligations which ‘transcend the morally parochial world of the sovereign state(4)’. The consequence of such a morally unified world is (as Immanuel Kant avowed) “that a right violated anywhere is felt everywhere. We therefore have a moral commitment to those who are not our co-nationals”. Richard Falk refers to this as an ‘ethos of responsibility and solidarity(5)’ which is fundamental to a contemporary cosmopolitan ethic. Second, this compassion to ‘outsiders’ goes beyond Kant’s cosmopolitan right of hospitality to include a powerful normative
(

1 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press, Oxford, 2000. (2) Ulrich Beck, ‘the Cosmopolitan Perspective: Sociology of the Second Age of Modernity’, in British Journal of Sociology, London 2000, pp. 79–105. (3) Axel Honneth, ‘Is Universalism a Moral trap? The Presuppositions and Limits of Human Rights’, in James Bohman and Matthias Lutz-Bachmann, eds, Perpetual peace: Essays on Kant’s cosmopolitanism, The MIT Press, Cambridge,1997, p. 159. ( 4)Andrew Linklater, ‘Cosmopolitan Citizenship’, Citizenship Studies, USA, 1998, pp. 23–41. (5) Lorraine Elliott& Graeme Chessman, Cosmopolitan theory, militaries and the deployment of force , Canberra, November 2002, p.3.

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commitment to the creation of democratic or humane forms of global governance. This cosmopolitan democratic imperative requires new forms of global political community based on the principles of dialogue and consent rather than power and force, and on the construction of universal frameworks of communication(6). This ensures that those who are most vulnerable, powerless and marginalized are empowered to refuse, renegotiate and contest. This is not simply an intellectual account of the good political community. Rather, as Anthony McGrew points out, it ‘identifies the political possibilities inherent in the present’(7) and, as Graeme Chessman observes ‘seeks to put in place the means to translate these into future actualities(8)’. Third, these political arrangements are embedded in a growing body of international law which embodies both democratic and humanitarian principles including those of international humanitarian law, the related laws of warfare and international human rights law. Among other things, this cosmopolitan law is argued to permit and facilitate (and perhaps require) intervention ‘in the internal affairs of each state in order to protect certain basic rights(1)’. However, objections that have been advanced by scholars and international lawyers to this cosmopolitan theory and to forcible humanitarian intervention are five. These objections are not mutually exclusive, but rather can be found in many scholars’ publications: (2) First: states don’t intervene for only humanitarian reasons: Realists tell us that states only pursue their national interests. As Goldsmith explains: “Liberal democracies rarely if ever engage in humanitarian interventions to stop human rights abuses that lack a local-welfare-enhancing justification”(3). Second: States are not allowed to risk their soldiers’ lives on humanitarian crusades: Realists argue that leaders don’t have the moral right to shed blood on behalf of suffering humanity, and voters in democratic states do not generally support humanitarian interventions. Even when opinion polls
Andrew Linklater, The Transformation of Political Community: Ethical Foundations of the postWestphalian Era, Polity Press, Cambridge, 1998. (7) Anthony McGrew, ‘Democracy Beyond Borders? Globalization and the Reconstruction of Democratic Theory and Practice’, in Anthony McGrew, ed., the transformation of democracy? The Open University Press, Milton Keynes, 1997, p. 252 (8) Graeme Chessman, ‘Defending the “Other”: Military Force(s) and the Cosmopolitan Project’, paper presented to the Chief of Army Land Warfare Conference 2001, Australian Defense Force Academy, 2001: www.google.com. (1) Danielle Archibugi, ‘Immanuel Kant, Cosmopolitan Law and Peace’, in European Journal of International Relations, 1995, pp. 429–56. (2) John Baylis, op.cit, pp472-474. (3) Jack Goldsmith, “Democracy prudence and intervention”. In www.google.com.
(6)

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show support for some types of humanitarian intervention, voter preferences for intervention are not intense. They are conditioned on guarantees of success, and do not extend to humanitarian interventions that are costly in terms of blood and treasure, this explains the rise of public demands for the withdrawal from Iraq after the death of more than 3500 American soldiers in Iraq. Third: the problem of abuse: Realists argue that in the absence of an impartial mechanism for deciding when humanitarian intervention is permissible, states may espouse humanitarian motives as a pretext to cover pursuit of national self- interest. Leaders always premise international acts on an instrumental cost-benefit analysis, and the cost-benefit analysis focuses primarily on whether the international act will enhance or protect national welfare. Such a calculus obviously does not preclude other-regarding actions, but it tends to limit such other-regarding actions to those that also enhance national welfare. “This problem of abuse leads some to say that humanitarian intervention will always be a weapon that the strong will use against the weak”.(4). Fourth: selectivity of response: Because states will be governed by what they judge to be their national interest, they will intervene only when they deem this to be at stake. The problem of selectivity arises when an agreed moral principle is at stake in more than one situation, but national interests dictate a divergence of responses(5).This explains the West’s long delay in intervening to stop the atrocities in Bosnia, and why the United States pulled out of Somalia when Americans began to suffer casualties, and why the West declined to intervene in Rwanda or Sudan. And it is also the lesson of the Kosovo intervention where humanitarian concerns were present- of course- and important there, but preservation of NATO’s credibility, the prevention of broader conflicts in central Europe, the domination of ex- Eastern Europe, and the settlement of American bases in Europe… were equally important public justifications. The Kosovo example shows that democracies intervene to prevent atrocities when there is a coincident national welfare enhancement rationale. Fifth: disagreement on what principles should govern a right of humanitarian intervention: Hudley Bull defined this conception as “one in which states are capable of agreement only for certain minimum purposes, the most crucial being reciprocal recognition of sovereignty and the norm of nonintervention. He was worried that in the absence of a consensus on what principles should govern the right of individual or collective
(4) (5)

John Baylis, op.cit, pp.472-474. ibid.

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humanitarian intervention; such a right would undermine international order. And as suggested by Chris Brown: “the general problem here is that humanitarian intervention is always going to be based on the cultural predilections of those with the power to carry it out”(1). Scholars, philosophers and politicians are still divided and have not reached a consensus yet about legitimizing the humanitarian intervention which made it controversial and debated. c -from sovereign impunity to national and international accountability In this new world which is marked by inequalities of power, wealth and resources, sovereignty is regarded for many states their best – and sometimes seemingly their only – line of defense. But sovereignty is more than just a functional principle of international relations, it is also recognition of equal worth and dignity for many states and peoples, a protection of their unique identities and their national freedom, and an affirmation of their right to shape and determine their own destiny. In recognition of this, the principle that all states are equally sovereign under international law was established as a cornerstone of the UN Charter and the basis of international relations for many decades since the treaty of Westphalia. However, the conditions under which sovereignty is exercised – and intervention is practiced – have changed dramatically since 1945. Evolving international law has set many constraints on what states can do and not do, and this was not limited to the realm of human rights. The defense of state sovereignty, by even its strongest supporters, does not include any claim to the unlimited power of a state to do what it wants either to its own people or to others. Sovereignty as responsibility implies: Externally – it is a corresponding obligation that the state should respect other state’s sovereignty, and refrain from intervening in domestic affairs of other states (Article 2.7 of the UN Charter), Internally, it exercises exclusive and total jurisdiction within its territorial borders and must respect the dignity and basic rights of all the people within the state. In international human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood as embracing this dual responsibility. Sovereignty as responsibility has become the minimum content of good governance as well as international citizenship(2). The Ex UN Secretary-General kofi Anan has discussed the dilemma in the conceptual language of the two notions of sovereignty, one vested in the state, the second in the people and individuals. His approach reflects the ever-increasing commitment around the world to democratic government (of, by and for the people) and greater freedoms and human rights. The second notion of sovereignty to which
(1)

(2

ibid. ) H.spruyt, the Sovereign States and its Competitors, Princeton university press, Princeton, 1994,p.324.

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he refers should not be seen as any kind of challenge to the traditional notion of state sovereignty, rather it is a way of saying that the more traditional notion of state sovereignty should be able to embrace comfortably the goal of greater self-empowerment and freedom for people, both individually and collectively. Thinking of sovereignty as responsibility, in a way that is being increasingly recognized in state practice, has three major implications:
First, it implies that the state authorities are responsible for protecting the safety and lives of citizens and promotion of their welfare. Second, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the UN. And third, it means that the agents of state are liable for their actions; that is to say, they are accountable for their acts of commission and omission. The case for thinking of sovereignty in these terms is strengthened by the everincreasing impact of international human rights norms, and the increasing impact in international discourse of the concept of “human security”.(1).

The traditional, narrow perception of security leaves out the most elementary and legitimate concerns of ordinary people regarding security in their daily lives. It made states divert enormous amounts of national wealth and resources into armaments and armed forces, while countries fail to protect their citizens from chronic insecurities of hunger, disease, inadequate shelter, crime, unemployment… this was the case of many states in the Middle East as well as in many regions. The awareness of today’s challenges and when rape is used as an instrument of war and ethnic cleansing, when thousands are killed by floods resulting from a ravaged countryside and when citizens are killed by their own security forces, it is just insufficient to think of security in “traditional” terms. “This implies that states will not enjoy development without security, will not enjoy security without development, and will not enjoy either without respect for human rights”(2). The meaning and scope of security have become much broader since the UN Charter was signed in 1945 where the main concern of its founders was with “State security” in the traditional military sense. They wanted to build a system of collective security in which states join together and pledge that aggression against one is aggression against all, and commit themselves in that event to react collectively. In the opening words of the Charter, the United Nations was created “to reaffirm faith in fundamental human rights” and “to promote social progress and better standards of life in larger freedom”. This meant that the founders of the UN understood well, long before the idea of human security gained currency, the indivisibility of security, economic development and human freedom and this was the direct cause of establishing the ECOSOC.
(1)

A more secure world: Our shared responsibility Report of the High-level Panel on Threats, Challenges and Change, United Nations, 2004. (2) ibid.

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The new approach of Human security means the security of people – their physical safety, their economic and social well-being, respect for their dignity and worth as human beings, and the protection of their human rights and fundamental freedoms(3). Secretary-General Kofi Annan put this issue of human security at the centre of the current debate, in his statement to the 54th session of the General Assembly to “address the prospects for human security and intervention in the next century.” The central challenge for the twenty-first century is to fashion a new and broader understanding, of what human security means and of all its responsibilities, commitments, strategies and institutions. This concept of human security has become an increasingly important element in international law and international relations, providing a conceptual framework for international action, and is now recognized to extend to people as well as to states. If there is to be a new security consensus, it must start with the understanding that the front-line actors in dealing with all the threats we face, new and old, continue to be individual sovereign States, whose role and responsibilities, and right to be respected, are fully recognized in the Charter of the United Nations. But in the twenty-first century, where challenges are more than ever before and where no State, no international organization, can stand wholly alone against these challenges, collective strategies, collective institutions and a sense of collective responsibility are indispensable. The essence of that consensus is simple “we all share responsibility for the welfare of human race”(1).

2 - From the “right to intervene” to “responsibility to protect”
Despite of all technological and economic progress, millions of human beings remain at the mercy of civil wars, abuses of human rights, discrimination, state repression and state collapse. Millions of ordinary people need protection because their states are unwilling or unable to protect them. However, there are continuing fears at the international level about the “right to intervene” issue. The international community has been concerned how to develop consistent, credible and enforceable standards to guide state and intergovernmental practice in order to legitimize military intervention for humanitarian purposes. The experience and aftermath of Somalia, Rwanda, Srebrenica and Kosovo, Afghanistan and Iraq as well as interventions and noninterventions in a number of other places, have provided a clear indication that the tools, devices and thinking of international relations
(3) (1)

ibid. C.Thomas, Global governance: Development and human security, Pluto, London, 2000.

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need to be reassessed, in order to meet the foreseeable needs of the 21st century. The “International Commission on Intervention & State Sovereignty” stated in its report that any approach to intervention on human protection grounds needs to meet at least four basic objectives:
1. “To establish clearer rules, procedures and criteria for determining whether, when and how to intervene; 2. To establish the legitimacy of military intervention when necessary and after all other approaches have failed; 3. To ensure that military intervention, when it occurs, is carried out only for the purposes proposed, is effective, and is undertaken with proper concern to minimize the human costs and institutional damage that will result; and 4. To help eliminate, where possible, the causes of conflict while enhancing the prospects for durable and sustainable peace”.(2)

The commission recommended changing the language of past debates arguing for or against a “right to intervene” by one state on the territory of another state, and suggested changing this “right to intervene” to a concept of a “responsibility to protect. It stated that the “traditional language of the sovereignty–intervention debate – in terms of “the right of humanitarian intervention” or the “right to intervene” – is unhelpful in at least three key respects:
“First, it necessarily focuses attention on the claims, rights and prerogatives of the potentially intervening states much more so than on the urgent needs of the potential beneficiaries of the action. Second, by focusing narrowly on the act of intervention, the traditional language does not adequately take into account the need for either prior preventive effort or subsequent follow-up assistance, both of which have been too often neglected in practice. And third, the familiar language does effectively operate to trump sovereignty with intervention at the outset of the debate: it loads the dice in favor of intervention before the argument has even begun, by tending to label and delegitimize dissent as anti-humanitarian”(3).

The key issue in the term “the responsibility to protect” is that it focuses attention on the human needs of those seeking protection or assistance. It directs the attention to the costs and results of action versus no action, and provides conceptual, normative and operational linkages between assistance, intervention and reconstruction. “The proposed change in terminology is also a change in perspective, reversing the perceptions inherent in the traditional language, and adding some additional ones:
First, the responsibility to protect implies an evaluation of the issues from the point of view of those seeking or needing support, rather than those who may be considering intervention. It refocuses the international searchlight back where it should always be: on the duty to protect communities from mass killing, women from systematic rape and children from starvation

(2) (3)

The responsibility to protect report, op.cit,pp.11-17 .ibid.

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Second, the responsibility to protect acknowledges that the primary responsibility in this regard rests with the state concerned, and that it is only if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place.

In many cases, the state will seek to acquit its responsibility in full and active partnership with representatives of the international community. Thus the “responsibility to protect” is more of a linking concept that bridges the divide between intervention and sovereignty; the language of the “right or duty to intervene” is intrinsically more confrontational.
(1)

Third, the substance of the responsibility to protect is the provision of lifesupporting protection and assistance to populations at risk. This responsibility has three integral and essential components: not just the responsibility to react to an actual or apprehended human catastrophe, but the responsibility to prevent it, and the responsibility to rebuild after the event(2).

A - The responsibility to prevent Prevention of deadly conflicts, genocides, and human sufferings is considered first and foremost the responsibility of sovereign states and their institutions. The failure of prevention can have wide international consequences and costs. As such support from the international community is recommended. Such support may take different forms. It may come in the form of economic and social development assistance and as support for local initiatives to advance good governance, representative authorities, and respect of human rights, or as good offices missions, mediators…. Thus, the essential conditions have been suggested to ensure effective prevention of conflict, and dealing with related sources of human misery, three essential conditions have to be met:
First, there has to be knowledge of the fragility of the situation and the risks associated with it – so called “early warning.”… Second, there has to be understanding of the policy measures available that are capable of making a difference – the so-called “preventive toolbox.”.. And third, there has to be, the willingness to apply those measures – the issue of “political will(3).”

B - The responsibility to react: The “responsibility to protect” implies above all else a responsibility to react to the situations of compelling need for human protection. When preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. Similarly, and as it is stated in the UN
(1) (2)

www.diana.law.yale.edu. The responsibility to protect report ,op cit,p.18 (3) ibid.pp19-27

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charter, coercive measures must be proportional to the wrongful act and ascending from political, economic or judicial measures, and in extreme cases, they may reach military action. As a matter of first principles, in the case of reaction just as with prevention, less intrusive and coercive measures should always be considered before more coercive and intrusive ones are applied.
“Tough threshold conditions should be satisfied before military intervention is contemplated. For political, economic and judicial measures the barrier can be set lower, but for military intervention it must be high: for military action ever to be defensible the circumstances must be grave indeed. But the threshold or “trigger” conditions are not the end of the matter. There are a series of additional precautionary principles which must be satisfied, to ensure that the intervention remains both defensible in principle and workable and acceptable in practice(1).

C -The responsibility to rebuild: The responsibility to protect implies the responsibility not just to prevent and react, but to follow through and rebuild. This means that if military intervention action is taken, there should be a genuine commitment to help build a durable peace, and promoting good governance and sustainable development. Conditions of public safety and order have to be reconstituted by international agents acting in partnership with local authorities, with the goal of progressively transferring to them authority and responsibility to rebuild. Lessons from earlier cases of intervention show that, the exit of the interveners has been poorly managed, that the commitment to help with reconstruction has been inadequate, and inhabitants have found themselves in humanitarian catastrophes much more than the original ones that required intervention or worse resulted from it. As such scholars and advocates of human rights suggest that one of the essential functions of an intervention force must be providing security and protection for all members of a population, regardless of ethnic origin or relation to the previous source of power in the territory. The question on how to achieve this in the light of the conflict between different national, ethnic, political, economic interests remain to be answered. Iraq’s case remains the recent example of dealing with such issues. The cost of rebuilding is usually very high. This raises important questions as the donor’s expectations from the short and long run, and with the fear that this may be a new recipe for domestic and international conflicts always looming. The same issue is raised now in Iraq. In addition to security, the durable peace needs disarmament of armed groups, demobilization and reintegration of local security forces. Reintegration will usually take the longest time to achieve, but the whole process cannot be judged to have been successful until it is complete. It is also a necessary element of returning a country to law
(1)

ibid. p.29.

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and order since a demobilized soldier, unless properly reintegrated into society, with sustainable income, will probably turn to armed crime or armed political opposition. Another element of the same problem is the rebuilding of new national armed forces and police, integrating as far as possible elements of the formerly competing armed factions or military forces. Meanwhile, Ensuring sustainable reconstruction and rehabilitation will involve the commitment of sufficient funds and resources and close cooperation with local people, and may mean staying in the country for some period of time after the initial purposes of the intervention have been accomplished. (2)

3 - UN Human rights council: practice and the need of effectiveness:
Since the very birth of the United Nations, promoting and protecting fundamental human rights has been one of the primary objectives of the organization. The drafters of the Charter of the United Nations included a pledge by member states “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.”(1) Yet the U.N.’s record in promoting fundamental human rights in recent times has not been sufficient enough. The work of the United Nations in the field of human rights has been traditionally grounded in a combination of genuine concern for the need to protect the dignity of the individual as well as reserving “national interests” of states, and reserving the interests of big powers especially the permanent Five.

Suggestions:
If a compromise is to be reached to maintain the sovereignty of states and at the same time guarantee the human security, we suggest the UN organization should be given major role in this aspect. The UN commission of human rights was replaced lately (2006) by the Human Rights Council which is thought to be far better than the old Commission, yet it is not perfect. The human rights council can be given a major role in determining when, where and how to apply the “responsibility to protect” and can legitimize military intervention for humanitarian purposes.
(2) (1)

ibid., p.39 www.un.org.

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A) The right authority to intervene: - We suggest that the right authority to intervene or to have the responsibility to protect must be the security council of UN. “No doubt that there is no better or more appropriate body than the Security Council to deal with military intervention issues for human protection purposes. It is the Security Council which should be making the hard decisions in the hard cases about overriding state sovereignty. And it is the Security Council which should be making the often even harder decisions to mobilize effective resources, including military resources, to rescue populations at risk when there is no serious opposition on sovereignty grounds. If international consensus is ever to be reached about when, where, how and by whom military intervention should happen, it is very clear that the central role of the Security Council will have to be at the heart of that consensus. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has”(2). - We suggest that all callings for interventions must be formally requested and addressed only to human rights council (HRC), which raises a report informing the Security Council. - We suggest that any intervention outside the authority of Security Council should be considered as an act of “aggression”. -In order to do such work we suggest some amendments to the chapter VII of the UN charter, to add this statement “in cases of severe human rights abuses” to the title of chapter VII. so the title will be” action with respect to threats to the peace, breaches of the peace , acts of aggression, and severe human rights abuses”. -We suggest that HRC be given much more capability and authority to request of Security Council reports to intervene when there are great abuses of human rights which were identified and recognized by the international commission for intervention and state sovereignty as:
1- “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; 2. Large scale “ethnic cleansing,” actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. If either or both of these conditions are satisfied, the “just cause” component of the decision to intervene is amply satisfied”(1).

– An issue remains to be addressed, however, that is the veto power enjoyed by the present Permanent Five. As it has been said, it is that one veto can override the rest of humanity on matters of grave humanitarian concern. We suggest an agreement done by the Permanent Five that they shall refrain from using the veto with respect to actions that are needed to
(2) (1)

The responsibility to protect report, op. cit.,p.52 ibid.

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stop or avert a significant humanitarian catastrophes. The expression “constructive abstention” can be used in this context. B) The right authority to decide whether to intervene or not: - Ideally there must be a report, from a universally respected and impartial non-government source which we suggest that the UN HRC; be the only and exclusive authority to determine whether to intervene or not. However, a report legitimizing the military intervention for human purposes should have two thirds of affirmative votes in the council. – We see that it will be necessary, in each case, the HRC determine whether events on the ground do in fact meet the criteria “actual or threatened large scale loss of human life or ethnic cleansing”. The primary purpose of the intervention must be to halt or avert human suffering not to overthrow regimes and replace it by authorities’ supported by big powers. - In many cases, competing “facts” and versions of events will be produced – often for the specific purpose of leading or misleading external opinion. Obtaining fair and accurate information should be done by the “independent observers of HRC”. - Moreover, where existence of the conditions that might warrant an intervention for human protection purposes is in question, and time allows, an “independent special fact-finding mission” could be sent by HRC for the purpose of obtaining accurate information and a fair assessment of a particular situation. - Another job of HRC is to look at whether, and to what extent, the intervention is actually supported by the people for whose benefit the intervention is intended. And to look at whether, and to what extent, the opinion of other countries in the region has been taken into account and is supportive so as not to constitute a basis for destabilizing the region. - Before military intervention, the HRC should explore that every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must be explored. The responsibility to react – with military coercion – can only be justified when the responsibility to prevent has been fully discharged. - The HRC should monitor the proportionality of the “responsibility to react” and that “The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the humanitarian objective in question. The means have to be commensurate with the ends, and in line with the magnitude of the original provocation. The effect on the political system of the country targeted should be limited, again, to what is strictly necessary to accomplish the purpose of the intervention(1).
(1)

ibid.

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- The HRC must monitor that all the rules of international humanitarian law should be strictly observed in these situations. C) Changes in the mechanisms of HRC We suggest also some changes in the mechanisms of HRC to improve its effectiveness and impartiality; - it is needed to create an “early warning system” to enhance HRC capacity in providing timely and accurate information to Security Council about human rights abuses. - To seek assistance and cooperation from INGOs. It must have some extra mechanisms to receive and analyze data information from INGOs and to report it directly to the Security Council. - To be able to include an issue on the Security Council agenda. D) Suggestions for more effectiveness of HRC From the short practice of the council we notice that it was hindered by many obstacles: - The Council has no criteria for membership other than geographical representation: This can be solved by adopting strong criteria (the candidate’s human rights record) to prevent human rights abusers from sitting on the new Council. - Members of the Council are elected by an absolute majority of the General Assembly: A two-thirds requirement would have set a higher hurdle for membership and made it harder for countries with dubious human rights records to win seats on the Council with the intention of undermining the new body from within. - While the Council is charged with conducting a universal periodic review, the conclusions of the review would not prevent those countries found complicit in human rights violations from participating in the Council. Even if the review finds numerous and serious human rights abuses, neither the Council nor the General Assembly is required to take action, this actually must be changed. - The Council has a large membership: The Council is only marginally smaller than the previous Commission of human rights, from 53 members to 47. - In order for the HRC to do the core job in protecting human rights and avert human suffering, it must be an independent small body where the staffs are nominated based on their reputation and their record in the service of human rights, and then they must represent the council not their governments. It must be totally independent of the states, and from the influence of big powers. The staff must represent the organization not their states. - The names of the staff can be given by the states at regional basis and by the INGOs, to make “bank of names” and then can be picked by “lottery” process. 19

Conclusion:
The United Nations was created in 1945 above all else “to save succeeding generations from the scourge of war” - to ensure that the horrors of the World Wars were never repeated. Sixty two years later, we know all too well that the biggest security threats we face now, and in the decades ahead, go far beyond States waging aggressive war. They extend to poverty, infectious disease and environmental degradation; the spread and possible use of nuclear, radiological, chemical and biological weapons; terrorism; and transnational organized crime and above all war and violence within states and abuses of human rights. We notice increased threats from non-State actors as well as States, to human security as well as State security. Globalization has affected the response to human rights abuses, and the INGOs have succeeded to include many new issues to the international relations like development, environment, women’s rights and human rights in general which lead to many military interventions. However, the first question that comes to mind about "humanitarian intervention" is whether the category exists. Are states moral agents? Or the case just as Machiavelli, Adam Smith, and a host of others concluded “states commonly act with concern and respect of interests of their domestic power”. A second obvious question has to do with those who are to be in charge of global humanity, and of the respect and progress of human race: what do their institutions and record leads us to expect? The record of states and international organizations based on states was full of abuses and selectivity of response to human rights catastrophes. In fact, the media effect had the major influence on interventions because of the increase awareness human rights abuses it made. Television, internet, and all media pictures of starving people, or human rights abuses done by dictators play a major role in interventions, but once the people see the consequences of this intervention in terms of human and soldiers’ losses, the public opinion will force for the withdrawal of troops. This demonstrates that “CNN factor” is double edged sword: it can pressurize governments into humanitarian interventions, yet with equal rapidity, pictures of casualties arriving home can lead to public disillusionment and calls for

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withdrawal and this is the major problem that faces Bush administration in case of Iraq. However, the “loud emergencies” of genocide, ethnic cleansing, and famine receive media attention and command limited resources of the international donor community. This conception of humanitarianism is not rooted in objective facts; instead, it is the product of globally dominant beliefs and values which privilege the “loud emergencies” and exclude the silent emergency of slow death through poverty and malnutrition. An important question can be raised for the future is: why the eradication of global poverty is not as urgent a subject for humanitarian intervention as deaths of those killed by men in uniform with machine guns? Lots of action must be done for saving humanity. States, international organizations, INGOs, public society…. All must take into consideration that saving lives and the respect of human rights is the main issue for development and security all over the world.

List of references
Books: - Bailys John, the globalization of world politics, oxford university press, New York, 2001, - Beck Urich, The new military humanism: Lessons from Kosovo, in - Noam Chomsky Ed, Pluto Press, London, 1999. - Coady C. A. J., The Ethics of Armed Humanitarian Intervention, United States Institute of Peace, Peace works No. 45, July 2002. - Elliott Lorraine & Graeme Chessman, Cosmopolitan theory, militaries and the deployment of force, Canberra, November 2002. - Honneth Axel, ‘Is universalism a moral trap? The presuppositions and limits of human rights’, in James Bohman and Matthias Lutz-Bachmann, eds, Perpetual peace: Essays on Kant’s cosmopolitanism, The MIT Press, Cambridge, 1997. - Krauthammer Charles, “The Short, Unhappy Life of Humanitarian War,” in National Interest, no. 57, Fall 1999.

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- Linklater Andrew, The transformation of political community: Ethical foundations of the post-Westphalian era, Polity Press, Cambridge, 1998. - Linklater Andrew, ‘Cosmopolitan citizenship’, Citizenship Studies, USA, 1998. - Murphy Sean, Sovereignty and intervention: Are International legal norms changing, George Washington University, 2000. - McGrew Anthony, ‘Democracy beyond borders? Globalization and the reconstruction of democratic theory and practice’, in Anthony McGrew, ed., the transformation of democracy? The Open University Press, Milton Keynes, 1997. - Murphy Sean D., Humanitarian intervention: The United Nations in an evolving world order, University of Pennsylvania Press, Philadelphia, 1996. - Spruyt H., the sovereign states and its competitors, Princeton University press, Princeton, 1994. - Thomas C., Global governance: Development and human security, Pluto, London, 2000. - Wheeler Nicholas, Saving strangers: Humanitarian intervention in international society, Oxford University Press, Oxford, 2000. Periodicals: - Archibugi Daniele, ‘Immanuel Kant, cosmopolitan law and peace’, in European Journal of International Relations, 1995. - Beck Ulrich, ‘the cosmopolitan perspective: Sociology of the second age of modernity’, in British Journal of Sociology, London 2000. Reports and internet Sites: - The responsibility to protect, report of the international commission on intervention & state sovereignty Dec. 2001. - A more secure world: Our shared responsibility Report of the Highlevel Panel on Threats, Challenges and Change, United Nations, 2004. - www.diana.law.yale.edu. - Chessman Graeme, ‘Defending the “other”: Military force(s) and the cosmopolitan project’, paper presented to the Chief of Army Land Warfare Conference 2001, in (www. Google.com) - Jack Goldsmith, “Democracy prudence and intervention. In www.google.com.

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