Introduction.
The progressive affirmation of the necessity to protect worldwide some basic
human rights of individuals is one of the most important development of the
international legal system. Human rights belong to each individual, exclusively
because they belong to humanity, independently if whether they are codified or not in
a legal body, because no government can refuse to acknowledge those rights. In the
first article of the UN Charter is established that the organization has the duty to
“encourage the respect of human rights and of fundamental liberties ”. Human Rights
are nowadays codified in many international treaties, as well as in national laws and
constitutions. The protection of human rights can be considered as a supreme value
and necessity for the International Community. This high sensitivity raises the
complex question of how this protection can be guaranteed when states ( the primary
subjects that should offer that protection), violate systematically the basic human
rights of people in their territory. At the same time, the respect for independence and
sovereignty of states is a fundamental principle of the international law. This means
that every state has territorial sovereignty and that no one could interfere in its internal
matters, in order to protect its “domestic jurisdiction ”. Beyond the protection of these
international principles, legal and moral dilemmas become self-evident. How is it
possible to protect individuals from violations of human rights caused by
governments, in cases in which diplomatic efforts and negotiations have been useless?
Could a military intervention led for humanitarian purpose be morally justified? Is a
military intervention in the name of human rights always a covert pursue of national
interests, or it could be a sincere attempt to stop massacre thereby representing a moral
duty for the international community? In this context, it is important to understand
both from the legal and moral point of view, whether the territorial sovereignty of the
states can be thought as unfettered and then analyse what can be done, precisely, in
particular cases in which states violate systematically fundamental norms of the
international law, like those concerning the protection of individuals ’ human rights. In
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the last twenty years the International Community has reacted very differently in
situations of dramatic humanitarian crises. A substantial inaction for the genocide of
Tutsi in Rwanda, a military campaign against the ethnic cleansing in Kosovo. An
almost inexistent mission for the crisis in Darfur, (or Chechnya, Tibet), a military
intervention in Libya, some months ago. These different approaches of the
International Community raise the moral (but also legal) problem of the consistency
of the interventions. If Kosovo, why not Rwanda? If Libya, why not Darfur? If
East Timor, why not Tibet or Chechnya? This is another aspect absolutely important to
discuss. As regards the juridical point of view, there are different perspectives and
opinions about the legality of the military intervention for humanitarian purposes. It is
also interesting to analyse the normative evolution on this issue with the adoption of
the “Responsibility to Protect ”(RtoP) by the United Nations in 2005.At the
philosophical level, scholars are divided regarding the utility, morality and
genuineness of these interventions. The existence of a complete legitimacy (moral and
legal) of a military humanitarian intervention is a really complex question and it is
intellectually honest not to reason in absolute terms and in an uncritical way.
Regardless whether it is opportune for the international community to intervene
militarily in extreme situations of humanitarian crisis, each choice entails dramatic
problems we can ’t ignore. I defend the idea that a passive attitude of the international
community can lead to the most serious damages. Certain dramatic humanitarian crisis
should not be ignored. I support the idea, that in extreme situations, the International
Community, with its most representative institutions, (UN in primis), has the moral
duty to intervene militarily. For this reason, I will offer an argument that aims to show
how military intervention is, under precise conditions and for specific extreme
situations, both morally obligatory and legally coherent with the current normative
arrangement of International Law.
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History of Humanitarian Intervention and Evolution
The history of International Relations has always been characterized by violent
crisis, wars and foreign interventions, but the category of humanitarian intervention
is a relatively new phenomenon on the world stage. It represents the new characteristic
of the international system and it should constitute a sort of natural response to the
universal affirmation of human rights after the Second World War. In particular
during the 90s, a new international sensitivity arose towards human rights. This was
the outcome of an historical period that has begun with the end of the Cold war and the
dissolution of the bipolar system. An era that has been characterized by several
humanitarian crisis that have attracted the attention of many NGOs, of a better
informed and aware public opinion and of the most important international organisms,
such as the United Nations. It was in this context that became absolutely unavoidable
for the International Community to give an answer to the question of “what to do ”
face to horrific humanitarian disasters, created or caused by states, despite the
normative antinomy between the protection of the territorial sovereignty of states and
the necessity to safeguard the basic human rights of people. This was exactly the
dramatic consideration publicly expressed by the ex United Nations secretary-general
Kofi Annan, after the aberrant events in Rwanda in 1994 and in Bosnia-Herzegovina
in 1995 : “If humanitarian intervention is an unacceptable assault on sovereignty,
how should we respond to a Rwanda, to a Srebrenica, to gross and systematic
violations of human rights that offend every precept of our common humanity ”?
While in Srebrenica, the International Community was not able to halt a massacre of
10.000 Muslim Bosnians, by the Serb-Bosnian troops of Ratko Mladìc, in Rwanda, in
1994, a Hutu majority undertook a terrific plan of genocide of the Tutsi minority,
with the support and the encouragement of the Hutu Government. No concrete
military operation was carried out by the United Nations, and this inaction, as a
consequence, didn ’t halt a full-fledged genocide, in which about 800.000 Tutsis lost
their lives and millions of them became refugees Rwanda is considered unanimously
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as the worse and dramatic moral failure of United Nations and of the International
Community and it has also marked the inadequacy of international law to deal with the
contemporary world. In 1999, the debate about the moral necessity, legality, and all
the other aspects tied with the military humanitarian intervention, raised again around
the NATO bombing in Kosovo, began on March 23 and continued until the June 10.
The military actions of the Atlantic organization, supported by the Italian government,
were aimed to stop an ongoing ethnic cleansing of the Kosovar Albanians ordered by
the Serbian leader Slobodan Mìlosevic. After the massacre of Racak, with about 150
Kosovar Albanians victims, and the absolute failure of the last diplomatic negotiations
in Rambouillet of February 1999, on March 22 the Atlantic Council of NATO
authorised a campaign of air raids against the Federal Republic of Yugoslavia. It is not
the aim of this work to analyse all the historical details and developments of this
international crisis, but the case of Kosovo is absolutely crucial in the analysis of the
doctrine of military intervention. First at all, it was the first case in which an
organization such as NATO implemented military operations against a sovereign state
without an authorization of the Security Council of the United Nations. It was de facto,
impossible to obtain a resolution like this, because of the veto power that China and
Russia menaced to use against this possibility. So, this first case raises the normative
problem and its relation with the morality of the intervention. Moreover, the military
campaign in Kosovo was the first to be internationally supported by statesmen and
politicians as “necessary for the protection of Human rights ”, with statements like that
by US president Bill Clinton and the British Prime Minister, Tony Blair;
“We act to protect thousands of innocent people in Kosovo from a mounting
military offensive.. We act to prevent a wider war, to defuse a power keg at the heart of
Europe, that has exploded twice before in this century with catastrophic results. By
acting now, we are upholding our values. Ending this tragedy is a moral
imperative ” (Bill Clinton, 24 march 1999)
“We need to enter a new millennium where dictators know that they cannot get
away with ethnic cleansing or repress their peoples with impunity. In this conflict we
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are fighting not for territory but for values. For a new internationalism where the
brutal repression of whole ethnic groups will no longer be tolerated. For a world
where those responsible for such crimes have nowhere to hide ” (Tony Blair)
With these statements and pronouncements, the political leaders of two important
countries of the world set aside the legal issue, and the central issue became the moral
rightness of the intervention. As underlined above, the military operations in Kosovo
conduced by NATO troops, were not authorized by the Security Council of the United
Nations, so they were, formally illegal. Nonetheless the bombing was consistent with
the norms and rules of the international law, it was now put in evidence the moral
necessity to protect individuals from the risk of a ethnic cleansing . Here, is the
dilemma between law and morality, between norms and values. Morality can be
invoked for justifying actions that are considered obligatory, and for overcoming the
imperfect mechanisms of the law, but at the same time norms reflect the shared moral
values of a community and laws are necessary for avoiding misuses and arbitrariness
in the use of military force. Also the military intervention of the US-led coalition
against Iraq in 2003 was justified in terms of protection of Human rights, at least after
UN inspectors claimed that they found no weapons of mass destruction.
1
The Iraqi
intervention thus added vividly a new problematic dimension to military humanitarian
intervention: the possibility of its misuse meant to justify any form of intervention
oriented to different and particularistic interests. This is a relevant problem, that will
be considered in the next paragraphs. On 16 march 2011, the Security Council of the
UN, has authorised the military intervention in Libya, adopting resolution n.
1973/2011
2
, in which the humanitarian reason has a prominent importance as
underlined in some passage of the text:, for instance: “ Condemning the gross and
1
http://www.repubblica.it/online/esteri/iraqattaccotrentadue/wolfowitz/wolfowitz.html
2
http://www.guardian.co.uk/world/2011/mar/17/un-security-council-resolution
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systematic violation of human rights, including arbitrary detentions, enforced
disappearances, torture and summary executions ” or “Considering that the
widespread and systematic attacks currently taking place in the Libyan Arab
Jamahiriya against the civilian population may amount to crimes against humanity ”.
Moreover, the military intervention in Libya has been justified for the necessity of
halting a situation that could put at risk “peace and international security ”, the supreme
task of the UN, indicated in the first article of its statute.
3
Here, contrarily to Kosovo
and Iraq, there was an official authorization of the UNSC, so the intervention was
formally legal, even if, as I will consider in the other paragraphs, there is no
unanimity of judgment among the experts of the doctrine. In every case, it raises again
the question about the morality of the intervention. Was it just or not to intervene? Was
it a moral duty for the international community to intervene, or it should have refrained
from the use of military force? Is it possible, in general, that a military intervention has
a moral grounding? Before analysing the related problems, in particular the
normative ones, I believe it is important to give an answer to these questions. It will be
useful in this sense, to apply the instruments of political philosophy and to analyse
theories and ideas expressed by different scholars on this issue.
3
Determining that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international
peace and security ”.. (Res. 1973/2011)
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