Despite the core values of aiming to protect human rights, still Human Rights has been seriously violated in many parts of the world, such as the situation in Sudan, Rohingya, Rwanda. These serious violations have been the major concern for the world also the most famous Intergovernmental Organization like the United Nations to step in and protect the people’s rights and the world order. Therefore, the collective humanitarian intervention need to be brought to eradicate those serious violation of Human Rights because every country has the obligations to protect Human Rights when one state fails to. This research paper will firstly address about the state sovereignty and its limitation. Then, we will get to discuss about Collective intervention, in which we would look at the Human Rights protection under the UN, the Definition and Types of Humanitarian Intervention, the difference between Peacekeeping mission and Humanitarian Intervention, and Duty to intervene: Responsibility to protect doctrine. The next points will talk about the legality and legitimacy of collective humanitarian intervention focusing on the Humanitarian intervention with and without a Security Council mandate. Then, we will cover up with a case study and conclusion.
II. State Sovereignty and its limits
One of the fundamental principles on which international law and relations rest on is the principle of state sovereignty. Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations. A sovereign state is one which is independent in its affairs and territory and is complete in it. A sovereign state may conduct its own affairs without hindrance or interference. To be a sovereignty state, there are five required characteristics: defined territory, permanent population, thirdly while people living in a defined space are the basis of statehood, independence forms the basis of sovereignty; and lastly, the ability to enter freely into relations with other governments without the approval of any other power. In spite of these claims of sovereignty as an absolute power of state, some limitations on state sovereignty are widely accepted. Limitations are imposed upon it both by customary law and treaty rules. Such limitations on state sovereignty particularly relates to immunity of foreign states and treatment of individuals. Indeed, the principle of state sovereignty is recognized in the UN Charter as one of the main principles of the organization. According to the charter, sovereignty is not a barrier to the application of enforcement measures under Chapter VII of the Charter12, in particular, actions by the Security Council when taking measures with respect to a threat to the peace, a breach of the peace or acts of aggression. Furthermore, according to Responsibility to Protect document, a state lost its sovereignty under the circumstances of mass atrocities to its citizens or a state is unable to protect its citizens from systemically intended harm.
III. Collective Humanitarian Intervention
1. The Human Rights Protection under the UN
Human Rights Council: was established on 15 March 2006 by the General Assembly and reporting directly to it, replaced the 60-year-old UN Commission on Human Rights as the key UN intergovernmental body responsible for human rights. It is made up of 47 State representatives and is tasked with strengthening the promotion and protection of human rights around the globe by addressing situations of human rights violations and making recommendations on them, including responding to human rights emergencies. The most innovative feature of the Human Rights Council is the Universal Periodic Review. This unique mechanism involves a review of the human rights records of all 192 UN member states once every four years.UN High Commissioner for Human Rights: exercises principal responsibility for UN human rights activities. It is mandated to respond to serious violations of human rights and to undertake preventive action. The Office of the High Commissioner for Human Rights (OHCHR) is the focal point for UN human rights activities. It serves as the secretariat for the Human Rights Council, the treaty bodies (expert committees that monitor treaty compliance) and other UN human rights organs. It also undertakes human rights field activities.
2. Definition and Types of Humanitarian Intervention (Humanitarian intervention: Unilateral intervention, multilateral (collective) intervention)
Humanitarian intervention “Uninvited intervention by external actors into the domestic affairs of a state with the primary motive of ending or preventing violations of human rights.” It is also known as the use of military force against or to take over in order to help the place, states, or nations. However sometimes it’s also known as the helps from the international organizations that help to provide the foods and other supplies such as medications. There are 2 types of Humanitarian Interventions: Unilateral intervention, multilateral intervention (collective).
¬ Unilateral intervention: “Uninvited intervention by a state or small group of states into the affairs of another state without the approval or sanction of some larger international organization such as the United Nations.” So, it is basically means that, the individual state intervene into another state’s affairs without authorization from the UN Security Council. This kind of intervention such as sending troops and army to the other countries is considered as illegal acts under the UN Charter.
¬ Multilateral intervention (collective): “Uninvited interference in the domestic affairs of another state carried out by many nations with the approval or sanction of a legitimate international organization such as the United Nations.” So, this type of intervention is legal as it goes under the authority of the UN (UNSC).
3. Peacekeeping mission vs. Humanitarian Intervention
– Peacekeeping Mission: UN peacekeepers provide security and the political and peace building support to help countries make difficult, early transition from conflict to peace. It is guided by basic principle: consent of the parties, impartiality, and non-use of force except in self-defense and defense of the mandate.The purpose is to help countries navigate the difficult path from conflict to peace. It also has unique strengths, including legitimacy, burden sharing, and an ability to deploy troops and police from around the world, integration them with civilians peacekeepers to address a range of mandates set by the United Nation Security Council and General Assembly.
-Humanitarian Intervention: refers to acts involving the use of force that called forcible intervention. The important issue regarding forcible intervention is that the use of force is subject to independent legal constraints. Therefore, a situation which could qualify for collective soft or hard intervention may nevertheless not be appropriate for collective forcible actions.
4. Duty to intervene: Responsibility to protect doctrine
Responsibility to Protect Doctrine has three dimensions. The responsibility to protect concept embraces three specific responsibilities to: a) prevent, b) react and c) rebuild. Responsibility of every state to ensure that its own people do not experience such atrocity crimes with the hands of the state itself or at the hand of group within society while the state is important or unwilling to deal with it’s the responsibility of every state to deal with those situations to the best of its ability. Responsibility of every states to assist other state that might be wanting to protect their own people but just not have all the resources or the capacity to do so, so responsibility to assist is very important both preventive stage and the reactive stage. Responsibility to actually engage when prevention has fail, when atrocity crimes are occurring or imminently feared, when clearly a state is incapable or unwilling of addressing the problems itself. Then there is responsibility for the international community to engage, no necessarily just through military intervention or use non-military coercive measures like sanction and threat of prosecution to ICJ.
IV. The legality and legitimacy of collective humanitarian intervention
1. Humanitarian intervention with a Security Council mandate
In the implementation of collective humanitarian intervention under the UN charter, the United Nation Security Council (UNSC) has the authority and the primary responsibility for the maintenance of peace and security. Throughout the year, the Security Council (SC) has not yet exercised its power to take action to the gross human rights violation in many cases because of the use and the threatened use of the veto by one or more of that Council’s permanent five members. Nonetheless, the council itself has found that there the existence of the violation of human rights that threat to the peace; it has placed sanctions such as the economic sanction and arms embargo against the state violated human rights. Under chapter VII of the UN Charter, the security council has the authority to conduct or authorize humanitarian intervention or the use of force when there is a threat to the international peace and security. Under the Article 24(1) of the UN Charter, the members: “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agreed that in carrying out its duties under this responsibility the Security Council acts on their behalf.” Under the Article 25, members: “agree to accept and carry out the decision of the Security Council.”
Moreover, the SC has the authority to decide which member states shall be authorized to carry out its decisions. In addition to this, Chestman points out that the determination of a threat to the peace, breach of the peace, or act of aggression must be made before the Security Council can decide what measures should be taken.
Under article 2(7), the UN Charter does not give the power to the UN to intervene “matters which are essentially within the domestic jurisdiction of any state”. However, this provision indicates that this non-intervention principle shall not be taken to limit the authority of the SC under chapter VII of the UN Charter. Consequently, the violation of the fundamental human rights is not just the internal affair and only falls within the domestic jurisdiction, but is the matter and concern involving with the international community as well. According to Javier Leon, he states that “the SC may take enforcement measures without taking into account the general principle of non-intervention in the internal affairs of a state when determining whether a particular situation is a threat to international peace and security.”Many scholars supported that humanitarian intervention is lawful if the act is authorized by the UNSC as part of its collective security function. Regarding the legal status of humanitarian intervention with a UNSC mandate, Teson says that “…international law today recognizes, as a matter of practice, the legitimacy of collective humanitarian intervention, that is, of military measures authorized by the Security Council for the purpose of remedying tyranny.” In addition, he concluded that “While traditionally the only ground for collective military action has been the need to respond to breaches of the peace … international community has accepted a norm that allows collective humanitarian intervention as a response to serious human rights abuses.”
2. Humanitarian intervention without a Security Council mandate (Unilateral humanitarian intervention)
The relations between human rights and international peace in the UNSC practice was broadly recognized by the international community and humanitarian intervention with a mandate of the SC. However, the states intervening with force and without advance authorized by the Security Council, its legality under the Charter is still being debated. Under article 2(4) of the UN Charter states about the legality of humanitarian intervention that does not allow the use of force. However, the interpretation of the provision was made in different ways. Some interpret that the use of force is prohibited with only two exceptions: authorized by the SC and under art. 51 in exercise of the right of self-defense. While others oppose the art. 2(4) by arguing that the unauthorized humanitarian intervention is allowed under this provision if it: “1. Does not constitute the use of force against territorial integrity; 2. Does not constitute the use of force against political independence; and 3. Is not otherwise inconsistent with the purposes of the United Nations.” To sum up, the humanitarian intervention is lawful if it is authorized by the UNSC in cases of terrible and large-scale violations of fundamental human rights. However, the unilateral intervention has no legal basis under the UN Charter.
V. Case study (Rwandan Genocide)
During the Rwandan genocide of 1994, members of the Hutu ethnic majority in the east-central African nation of Rwanda murdered as many as 800,000 people, mostly of the Tutsi minority. On April 6, 1994, a plane carrying Habyarimana and Burundi’s president Cyprien Ntaryamira was shot down over the capital city of Kigali, leaving no survivors. The mass killings in Kigali quickly spread from that city to the rest of Rwanda, with some 800,000 people slaughtered over the next three months. During this period, local officials and government-sponsored radio stations called on ordinary Rwandan civilians to murder their neighbors. In response, more than 2 million people, nearly all Hutus, fled Rwanda, crowding into refugee camps in the Congo (then called Zaire) and other neighboring countries. Among the first victims of the genocide were the moderate Hutu Prime Minister Agathe Uwilingiyimana and her 10 Belgian bodyguards, killed on April 7. This violence created a political vacuum, into which an interim government of extremist Hutu Power leaders from the military high command stepped on April 9. As in the case of atrocities committed in the former Yugoslavia around the same time, the international community largely remained on the sidelines during the Rwandan genocide. A UNSC vote in April 1994 led to the withdrawal of most of a U.N. peacekeeping operation (UNAMIR), created the previous fall to aid with governmental transition under the Arusha accord. As reports of the genocide spread, the SC voted in mid-May to supply a more robust force, including more than 5,000 troops. By the time that force arrived in full, however, the genocide had been over for months. In a separate French intervention approved by the U.N, French troops entered Rwanda from Zaire in late June. In the face of the RPF’s rapid advance, they limited their intervention to a “humanitarian zone” set up in southwestern Rwanda, saving tens of thousands of Tutsi lives but also helping some of the genocide’s plotters – allies of the French during the Habyarimana administration. In Rwanda nobody was interested. Attempts were later made to rectify this passivity. After the RFP victory, the UNAMIR operation was brought back up to strength; it remained in Rwanda until March 1996, as one of the largest humanitarian relief efforts in history.
In conclusion, for the protection of citizen’s fundamental rights or human rights, the international communities need to act collectively, whether the UN or its member states to protect, to respect and to fulfill those rights without violation as Human Rights are the standards that allows all people to live with dignity, freedom, equality, justice, and peace. And to the full development of individuals and communities.Therefore, collective humanitarian intervention is essential to respond to the gross violation of human rights so that as the world becomes more globalized, we can all together cooperate to bring peace and security to the world.