Tragedies in Somalia, Yugoslavia, Haiti, Rwanda and Liberia - revisiting the validity of humanitarian intervention under international law.

• Author: Nanda, Ved P.
• Position: Part 2

1. INTRODUCTION

   In part I of this article,(1) Professor Ved Nanda presented a framework for determining the validity of unilateral humanitarian intervention under international law. The framework was based on an analysis of selected cases of humanitarian intervention that occurred during the Cold War. To fall within this category, the intervention had to be an assertion of a state's right to protect its "own nationals or a third state's nationals in another state, or even the nationals of the state against which coercive measures were undertaken."(2) Although a historical analysis of this doctrine was undertaken, the selected cases (the United States' 1965 intervention in the Dominican Republic, 1983 intervention in Grenada, and 1989 intervention in Panama; India's 1972 intervention in East Pakistan; Tanzania's 1979 intervention in Uganda; and Vietnam's 1978 intervention in Cambodia) all occurred in the post-United Nations Charter period.

   Based on these case studies, five criteria for evaluating humanitarian intervention were enumerated: (1) the necessity criterion, whether there was genocide or gross, persistent, and systematic violations of basic human rights; (2) the proportionality criterion, the duration and propriety of the force applied; (3) the purpose criterion, whether the intervention was motivated by humanitarian consideration, self-interest, or mixed motivations; (4) whether the action was collective or unilateral; and (5) whether the intervention maximized the best outcome.(3) These criteria were then applied to determine the validity of United Nations ("U.N.") intervention in Iraq to protect the Kurds in North Iraq and the Shiites in the South. However, since the publication of Part I of this article, several additional interventions on humanitarian grounds have occurred. For the most part, these interventions were undertaken collectively by multinational forces, under the auspices of the U.N. or other regional arrangements. In the case of Bosnia-Herzegovina, the international security organization, NATO, led the intervention.

   For the current study, we have selected the following five cases: Somalia, Bosnia, Haiti, Rwanda, and Liberia. Our purpose is to explore the current trends of humanitarian intervention and to make some tentative observations on its future direction. We will, however, begin with a few preliminary remarks highlighting the pertinent geopolitical changes in the recent past which have a significant bearing on how the doctrine is perceived and shaped.

2. THE UNITED NATIONS IN THE POST-COLD WAR WORLD

   The end of the Cold War was accompanied by hopeful signs that the dream of collective security for the maintenance of international peace and security would perhaps become a reality. To repel the Iraqi aggression against Kuwait, an effective marshaling of forces drawn from several countries occurred pursuant to the Security Council ("Council") mandate that Member States "use all necessary means ... to restore international peace and security in the area."(4) This effort reflected the ability of the Security Council's permanent members to work together as never before and created widespread hope that the U.N. would, at last, function as the framers intended.(5)

   Subsequently, in January 1992, a Council summit took place with a request to the Secretary-General to submit a report on the U.N.'s peacekeeping activities.(6) A few months later, Boutros Boutros-Ghali, then Secretary-General, complied with the request and submitted An Agenda for Peace,(7) a blueprint for future U.N. action. An ambitious vision of the U.N.'s role in the maintenance of international peace and security, this vision included four types of activities: preventive diplomacy before disputes escalate; peacemaking under Chapter VII when hostile parties have not yet reached an agreement; peace-keeping; and postconflict peace-building.(8) The Secretary-General emphasized the prospects for the U.N.'s ability to maintain peace in the post-Cold War world and characterized the new spirit of cooperation in the Security Council as a "second chance to create the world of our Charter.(9) Initially, the permanent members of the Security Council shared this enthusiasm, which they expressed by creating an unprecedented number of new operations. To illustrate, while there were just thirteen peacekeeping operations from the U.N.'s inception to 1985, they jumped to thirty by the end of 1994.(10)

   The prospects for a more effective U.N. role in the maintenance of the international order were, however, short-lived. The Gulf War became at best a distant memory after severe setbacks to U.N. peacekeeping efforts in Somalia;(11) a display of sheer helplessness by U.N. peacekeepers in Bosnia;(12) a withdrawal of the U.N. peacekeeping force from Rwanda, which led to disastrous results in that country--including genocidal acts, hundreds of thousands of deaths and casualties, and a million refugees and displaced persons;(13) and an ineffective U.N. partnership with the intervening forces of the Economic Community of Western African States (ECOWAS) in the Liberian civil war.(14)

   Meanwhile, the United Nations came under heavy attack in the U.S. Congress on charges that it suffered from cumbersome bureaucratic bungling and wasteful duplications and redundancies.(15) The outcome was that the U.N. had its share of financial woes, causing the organization nearly to go bankrupt.(16) Moreover, there was no enthusiasm among major players at the United Nations for building the organization's capacity to enable it to effectively discharge its primary function of maintaining international peace and security. The Secretary-General's plea for the U.N. to have a rapid deployment force and for sound financing came to naught.

   A major outcome of the end of the Cold War and especially the rapprochement between the U.S. and Russia was the closing of the chapter on superpower intervention and proxy wars on ideological grounds. The U.S. would now define its national interest quite narrowly, retreating from its earlier preference for assertive multilateralism as the focus of its foreign policy. The change in policy was articulated in May 1994 in Presidential Decision Directive ("PDD") 25(17) enunciating the criteria by which President Clinton's administration would determine whether or not to support U.N. sponsored peacekeeping operations. Henceforth the criterion for U.S. action or support would be the extent to which U.S. interests would be advanced. Among other factors were the severity of the threat to international peace and security, including the gross violation of human rights, the clarity of objectives, the capacity to accomplish those objectives, the consequence of inaction, and the anticipated duration of the mission.(18)

   In light of these developments, it remains doubtful whether collective intervention could be realistically expected to occur even in the face of egregious violations of human rights, if the major powers in the U.N., especially those with veto power in the Security Council, did not find it in their national interest to authorize the use of force for such intervention. Rwanda is a case in point, as are Burundi and Liberia. As a result, in order to prevent and deter further transgressions against humanity, there must be room for unilateral intervention on humanitarian grounds.

3. CASE STUDIES

   1. Somalia(19)

      1. The Conflict

         Somalia gained its independence in 1960 from colonial powers Britain and Italy.(20) For nine years immediately following independence, Somalia enjoyed a stable democratic government.(21) However, in 1969, allegations of fraud by the elected government prompted Major General Mohamed Siad Barre to seize power through a military coup.(22) By manipulating Somalis' clan loyalties, repressing opposition groups, and corruption, Barre maintained his grip on Somalia for over two decades.(23)

         Because of Somalia's strategic location near the Gulf of Aden, both superpowers sought Somalia's allegiance during the Cold War by providing Barre with foreign aid.(24) Playing Somalia's strategic geographical position to his advantage, Barre courted the U.S. and the Soviet Union alternately.(25) After coming to power in 1969, Barre declared his government to be Marxist in order to receive foreign aid from the Soviet Union.(26) In 1977, the Soviet Union signed a treaty with Ethiopia, Somalia's historical rival.(27) Consequently, Barre sought and received foreign aid from the U.S..(28)

         By the mid-1980s, the U.S. started decreasing its aid to Somalia, which fell from $34 million in 1984 to $8.7 million by 1987, a 75 percent decline in just three years.(29) By 1988, the U.S. and the European Community, except for Italy, had virtually abandoned Somalia.(30) After the end of the Cold War, Somalia's strategic position ceased to have value, and the international community's interest in the country diminished still further.(31) This undermined Barre's political position within his own country. Inter-clan rivalries, corruption within Barre's government, and weariness of political repression erupted into full-fledged civil war. Even before the final collapse of Barre's government in January 1991, the Somali state had ceased to fulfill its institutional, political, and economic functions.(32) After the final defeat of Barre, the United Somali Congress ("USC") appointed Ali Mahdi Mohamed as Somalia's interim president.(33)

         The USC draws its support from Somalia's largest clan, the Hawiye. However, Mohamed Ali Mahdi faced opposition from General Mohamed Farah Aideed, a member of a different Hawiye sub-clan.(34) During the course of their struggle for control, the factions supporting Ali Mahdi and Aideed destroyed most of Mogadishu.(35) The ongoing civil war between the USC factions, along with the presence of violent armed gangs in the country, resulted in the collapse of an effective government in Somalia. The situation was further exacerbated by...