An update on: Self-Determination and Humanitarian Intervention in a Community of Power by James A.R. Nafziger.

• Author: Jackson, Julie
• Position: Response to articles in this journal, 1991, 1994

1. INTRODUCTION

   This update focuses on two articles written by James A.R. Nafziger for the Denver Journal of International Law and Policy. The initial article is entitled Self-Determination and Humanitarian Intervention in a Community of Power.(1) This article was later followed by Humanitarian Intervention in a Community of Power: Part II.(2)

   Generally, Self-Determination and Humanitarian Intervention looks at the principles of self-determination and humanitarian intervention in the post-Cold War era. The author suggests that it would be an appropriate time now for the international community to end the debates surrounding these principles and move on to constructive discussions about methods of solving the disputes which continue to arise.(3) Specifically, efforts should include greater preventive diplomacy, pre-established procedures when disputes arise, and multilateral initiatives by regional and international institutions.(4) Nafziger argues that relying on regional and international institutions, rather than the unilateral actions of individual states, may prevent the issues of self-determination and humanitarian intervention from becoming threats to international peace and security.(5)

   The follow-up article, Humanitarian Intervention II, notes that the international community has embraced humanitarian intervention in the past few years, but many key issues remain unresolved.(6) Nafziger identifies the following five questions:

   1. What is the scope of the Security Council's powers to prescribe, organize, or authorize intervention?

   2. Is unilateral intervention any longer permissible?

   3. When should the United Nations condition intervention on a state's consent?

   4. May the Security Council authorize the "Blue Helmets" to take "all necessary measures," including the use of force, regardless of the purpose or type of operation?

   5. Is the new superpower of the Security Council simply a bully in multilateral disguise?(7)

   After Nafziger completed his research for this study in 1993, the tragedies in Rwanda and Somalia escalated to the point where humanitarian intervention became inevitable.(8) As a result, this update will first evaluate whether the events in Rwanda and Somalia support Nafziger's contention that reliance upon regional and international institutions could have prevented these situations from threatening international peace and security; and second, whether any of the five unresolved humanitarian intervention questions have been answered.

2. SUMMARY OF SELF-DETERMINATION AND HUMANITARIAN INTERVENTION AND HUMANITARIAN INTERVENTION II

   Self-Determination and Humanitarian Intervention traces the historical roots of the self-determination principle.(9) Provisions in many international documents contain this principle, most significantly, Article 1(2) of the United Nations Charter.(10) Additionally, the International Court of Justice further developed the right of self-determination in the Namibia and the Western Sahara cases.(11) Furthermore, the International Covenant on Economic, Social and Cultural Rights(12) and the International Covenant on Civil and Political Rights(13) expressly provide for the right of self-determination.

   Although generally accepted as a right, the scope of self-determination remains ambiguous and consequently is subject to differing views on the meaning of the term.(14) Nafziger raises ,,several unresolved questions regarding the time and to whom self-determination is appropriate.(15) Another debated issue is the right of self-determination for people in self-governing territories.(16) In general, states oppose this practice,(17) but in the former Soviet Union, this right was recently exercised through the dismantling of the USSR.(18) Overall, the principle of self-determination lacks precise guidelines for its application.(19) Section II provides the background on the practice of humanitarian intervention.(20) Humanitarian intervention, as a right, remains controversial in light of the fact that the only explicit exceptions to the prohibition against the use of force in the U.N. Charter are in Chapter VII or VIII, neither of which directly includes humanitarian intervention.(21) In addition, unilateral intervention remains extremely suspect, but nevertheless potentially permits a prohibited use or threat of force.(22) As a result, criteria were established to define the legitimacy of humanitarian intervention.(23) Nafziger concludes that the criteria provide excellent guidelines, but fail to reflect actual practices.(24)

   Section III briefly addresses the role of the United Nations during the Cold War and the constraints on the United Nations' ability to respond to issues of self-determination and humanitarian intervention.(25) Although the United Nations has been instrumental in decolonization efforts, it has been ineffective when dealing with post-colonial situations and when serving as an instrument for humanitarian intervention.(26) Nafziger contends that the bipolar stalemate limited the ability of the United Nations to effectively deal with these issues.(27)

   Section IV focuses on the close of the Cold War and its effect upon the ability of international institutions to handle self-determination and humanitarian intervention issues.(28) A community of power replaced the bipolar balance of power system present during the Cold War.(29) The author argues that this community of power also contains a rejuvenated United Nations, capable of "facilitat[ing] self-determination, preempt[ing] unilateral humanitarian intervention by states, and initiat[ing] its own form of intervention and dispute settlement."(30) The success in the Gulf War experience supports this proposition. Despite its positive outcome, however, the United Nations was weakened by: the failure of states to work together in good faith; the absence of clear ground rules; and the limited bases for decision making.(31) In light of these criticisms, the author suggests that structural changes, increased financing, and increased action on the part of other international and regional bodies should be implemented.(32)

   Section V focuses on the need for the members of the United Nations to clarify the law of self-determination and humanitarian intervention.(33) The author states that this is even more necessary now due to the larger community of power present today.(34) Further, improved mechanisms and procedures could significantly increase the efficiency of United Nations efforts to deal with these types of problems.(35) Nafziger suggests several possible changes: first, making the Security Council sit in session year-round; second, including the Secretary-General's participation in Security Council initiatives and undertaking other supportive activities; third, using United Nations human rights bodies to investigate and assess these issues; fourth, establishing an international courthouse with mandatory mediation prior to adjudication; fifth, establishing a general instrument for the settlement of disputes; and sixth, using regional arrangements in the settlement of disputes, coordinated by the staff of the Secretary-General.(36) In essence, Nafziger suggests shifting from a focus on unilateral action to multilateral deliberations and initiatives.(37)

   Nafziger further elaborated on his first article with the publication of Humanitarian Intervention II.(38) In that article, Nafziger concluded that the international community has finally embraced humanitarian intervention, but several questions remained unanswered. First, what is the scope of the Security Council's powers to prescribe, organize, or authorize intervention? Second, is unilateral intervention permitted, and if so, must an intervening state first exhaust international or regional remedies? Third, should the United Nations condition intervention on a state's consent? Fourth, may the Security Council authorize the "Blue Helmets" to take "all necessary measures" including the use of force, regardless of the purpose or type of operation? Fifth, is the new Superpower Security Council simply a bully in a multilateral disguise?(39)

3. THE SITUATIONS IN RWANDA AND SOMALIA

   1. Rwanda

      In April of 1994, the on-going civil war in Rwanda resumed between the majority Hutus and the minority Tutsi (which are primarily represented by the Rwandan Patriotic Front (RPF)).(40) Just six months earlier, representatives from each side had signed the Arusha Peace Agreement ending the most recent conflict in a long series of conflicts between the two tribes.(41) On April 6, 1994, the President of Rwanda, a Hutu, was killed in a suspicious plane crash.(42) In response, the Hutu's immediately began systematic waves of massacres aimed at the Tutsi and Hutu moderates resulting in the deaths of tens of thousands of people.(43) Within days, approximately 25% of the population fled or relocated internally.

      These events led the United Nations to increase involvement in Rwanda. Several months after the parties signed the Arusha Peace Agreement, the United Nations Assistance Mission for Rwanda (UNAMIR) was established for "peacekeeping, humanitarian assistance and...