Humanitarian intervention is a means to prevent or stop gross violation of human rights in a state that is either incapable or unwilling to protect its own people or is actively persecuting them. Deliberate and systematic violation of human rights often takes the form of forced expulsions, ethnic cleansing and in most extreme cases genocide.

Humanitarian intervention can apply also in situations where there is no effective government causing complete collapse of civil order. Humanitarian intervention is not new. But the recent debate has its origins in the Cold War and was motivated by a number of controversial military actions. Three references are enough.

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India’s intervention in Bangladesh War of 1971 that created Bangladesh as a sovereign state, Vietnam’s intervention in Cambodia in 1978 that resulted in the overthrow of the Khmer Rouge regime and Tanzania’s intervention in Uganda in 1979 which ousted dictator Idi Amin. These interventions offered a fundamental challenge to the stability of the post-World War II international system and questioned the territorial integrity and sanctity of sovereignty.

These interventions took place during the peak of Cold War and superpower rivalry and dominance. Political observers believed that these were not humanitarian interventions but military aggressions with the backing of a superpower. Many scholars identify the 1990s as a decade during which the UN authorised several interventions on humanitarian grounds.

At the same time, the US and its allies took military action on at least three occasions for humanitarian purposes when the specific action was not authorised by the Security Council. Some instances of intervention, though unauthorised, have been declared legitimate like NATO’s intervention in Kosovo in 1999. Some case references will make the picture clear.

Operation Provide Comfort was a military operation initiated by the USA and other coalition nations of the Persian Gulf in April 1991 to defend Kurdish civilians fleeing their homes in northern Iraq in the aftermath of Gulf War and deliver humanitarian aid to them. It was a military mission. As Russia and China did not support a no-fly zone over Iraq, the operation was conceived as a humanitarian mission to by-pass the UN Security Council.

This operation remains in the history books as an under-appreciated success story of geostrategic importance. Somalia had allied itself with the Soviet Union until 1977, then switched allegiance to the USA in return for substantial military aid. But in 1990, the USA withdrew its support alleging human rights violations.

Authority within the state collapsed, warlords took control of food distribution and famine spread. A small UN mission, already on the ground, was unable to intervene. In December 1993, the UN Security Council approved the insertion into Somalia of a much bigger US-led UN mission to assist aid deliveries. This intervention was explicitly humanitarian and did not have the approval of the target state.

The state in any case had collapsed. The intervention appeared successful at first, but the scaling down of the force along with disagreement over mission objectives frittered away the success and the advantage swung back to warlords. Many UN peacekeepers and US Rangers were killed in October 1993. The UN/US mission withdrew soon afterwards, having learnt the hard way that the international community did not have the coordinated military strategy, intelligence and experience at nationbuilding or commitment from member states to fulfil the goal it had set itself.

The failure in Somalia contributed to the inaction of the international community in the face of genocide that took place in Rwanda in 1994. The 1990s ended with the most controversial humanitarian intervention – the NATO action in Kosovo. Kosovo was the seat of the Serbian Orthodox church. It was also the site of Serbian victory over the Turks in 1912.

The minority of Serbs had long bristled at the fact that Albanians who made up nine-tenths of the population, mostly Muslims, were in demographic control of an area considered sacred to Serbs, mostly Christians. Kosovo was an autonomous region until 1989, when Serbia took control of its administration prompting protests from the region’s Albanian population.

The Albanian Kosovars began a campaign of non-violent resistance. In 1992, they voted to secede from Yugoslavia. Growing tensions led in 1998 to armed clashes between Serbs and the Kosovo Liberation Army. The non-violent resistance became violent. The Serbs responded with a ruthless counter-offensive inducing the UN Security Council to condemn their excessive use of force including ethnic cleansing and to impose an arms embargo.

Russia and China asserted that domestic oppression was not a threat to international peace and security and as such the Council could not authorise an armed intervention against the wishes of a recognised government. However, NATO decided to act in March 1999 on humanitarian grounds. The intervention was carried out without ground troops as NATO member states were unwilling to risk casualties.

It was an air campaign that lasted for 80 days. NATO did succeed in ending Serbian control of Kosovo and bringing back many Albanian refugees. Kosovo came under interim administration of the UN. NATO stayed back in Kosovo and established a longterm unofficial protectorate in the province to provide military cover until Kosovo declared independence in February 2008.

After Kosovo and other Yugoslav wars, Serbia became home to the highest number of refugees and internally displaced persons in Europe. The UN Charter prohibits the use of force except in the case of a decision by the Security Council under Chapter VII or in self-defence against an armed attack ~ neither of which was present in the case of Kosovo. Birth of Kosovo as an independent state remained a test case for the legitimacy of humanitarian action.

In later years, the military intervention in Libya, though frowned upon by several states in the international community, can be said to be lawful since it was authorised by the Security Council. In March 2011, a multi-state NATO led coalition began a military intervention in Libya in response to events during the Libyan Civil War. The Civil War was considered a crime against humanity.

NATO flew 27,000 sorties after taking charge. The military action ended after the death of Muammar Gaddafi. The Security Council voted to end NATO’s mandate for military action from 31 October 2011. Humanitarian intervention is a serious and comprehensive challenge to the sovereign state as it involves the invasion of territory using military force. The Westphalia system can only work if states recognise each other’s sovereignty. Rulers understand that the right to sole jurisdiction within their territories is to recognise similar rights in others.

Thus, one of the principal norms of the system is that of non-intervention; each state must respect the borders of other states to ensure that its own borders remain secure. Territorial sovereignty is inviolable. This is the settled norm of non-intervention. This norm has been reaffirmed as a principle of international order, alongside universal self-determination and the promotion of human rights, in the UN Charter.

The Hague Convention, the Geneva Convention and the United Nations all have restricted the actions of sovereign countries in the international arena, as has International Law. The norm was radically unsettled during the 1990s due to humanitarian intervention – the forcible invasion of sovereign territory by one or more states, with or without the backing of the United Nations, motivated supposedly to alleviate human suffering within that state.

Such action appears to be entirely in contradiction of the principles of the sovereign state system. Its emergence can be linked to the increasing strength of the human rights regime, particularly the regime’s conception of legitimate state sovereignty as flowing from the rights of individuals. The growth of the human rights regime in the 1990s meant that states were held to new standards of legitimacy based on their observance of international human rights laws and norms.

State sovereignty and non-intervention began to be seen as privileges, conditional upon observance of international standards. Human rights are rights that belong to an individual. Human rights refer to a wide variety and capabilities reflecting the diversity of human circumstances and history. A logical implication that human rights rank higher than state rights to sovereignty is that intervention in support of human rights becomes legitimate and may even be required.

The end of Cold War removed the risk of superpower conflict and created fertile conditions for humanitarian actions as protectorates collapsed and nationalism spread through former socialist states. Political analysts are debating whether humanitarian intervention using military force is to remain a permanent fixture of 21st century international society. The United Nations started with 51 members in October 1945. Today it has 193 members with South Sudan gaining entry in July 2011.

The world has fragmented to such an extent that in 75 years of UN existence, sovereign states have gone up almost four times. Yet, the UN has continuously been involved with issues related to humanitarian intervention within the borders of nations. They are basically domestic conflicts involving violation of human rights.

They are transboundary military operations. The military cannot be a humanitarian actor because military action does not recognise principles of humanity, impartiality, neutrality and independence. No doubt, the UN has to address the crucial issue of reconciling the demands of state sovereignty with the need for humanitarian intervention where there is irrefutable evidence of sustained and systematic violation of human rights but recourse to the military should be the last resort. The UN must think of revising its Charter to include new articles and conditions to cover humanitarian intervention.

(The writer is a former central civil service officer who retired from the Ministry of Defence)