We met in a context providing topicality through the continuing shambles of the former Yugoslavia, and the imminence of the UN-sponsored conference in Vienna on human rights. The former tested all our generalisations, often (as it seemed) to destruction; the latter indirectly reflected the concern, evident throughout our discussions, to anchor both theory and practice as securely as possible in the United Nations Charter and Organisation.
The Charter embodied two themes not always easily compatible - a principle barring external intervention in intra-state affairs, and a principle enjoining observance of universal human rights. Non-intervention coupled with the primacy of state responsibility for these rights had to remain the central norm, but over the years there had been a gradual evolution, common-law-fashion, towards greater practical readiness to tilt the balance between the two principles, where they clashed severely, in favour of international concern for human rights, based ultimately on a concept of humanity as one family. We were not at one on whether external forcible intervention could legally find any other ground than Chapter VII of the Charter; “threat to peace” was in any event a notion capable of wide interpretation, and we were wary of going wider still.
We were clear that the Security Council, for all the debatable imperfections of its membership and working, must remain the central legitimator of intervention. We paused on whether there should separately be some ultimate legal arbiter, like the International Court of Justice, on the vires or propriety of its actions; but most of us doubted the wisdom or realism of this. Formal subordination to the General Assembly aside, there were valuable sanctions in public opinion both internationally and domestically within individual member countries; awareness of cost, in its various forms, also served as a powerful counterweight to any excessive disposition towards intervention. Transparency of decision-taking was important; and it might be useful to give the Secretary General a specific right or duty of initiative in bringing to Security Council attention grave intra-state breaches of human rights.
While we did not rule out an “agency” role for regional organisations in intervention, under UNSC legitimation, we were sceptical of this as a general feature. Some of the organisations superficially apt for such a role were in practice too weak; there was often moreover difficulty from the fact that regional neighbours might seem too involved in the issues, and so not impartial. Beyond this, we noted that it might not always be possible to disqualify, or at least condemn in practice, action by individual states or ad hoc groupings with special grounds for direct concern, especially if there were any reversion to a situation in which renewed global antagonisms deadlocked the Security Council; but we were deeply reluctant to see this possibility legitimised in any widely-usable way.
There was some discussion of the part which a criminal-prosecution approach might play in the international response to gross human rights violations, especially in inter-communal conflict. We recognised the tension between this approach and the pragmatic need often to deal with leaders in de facto authority (a tension not totally unfamiliar, in pattern, within British de-imperialising history). Though many of us instinctively liked the idea of personal and state accountability to international justice, we were not agreed on how important a role its pursuit could play; if there were to be a role it might be better founded in a permanent tribunal than in situation-by-situation contrivance.
One of the liveliest issues in our debate was that of which rights, breached, justified external intervention. We were in no doubt that the scale of breach had to be massive and systematic; external intervention was a very big step, and a concept of proportionality must apply; but should some rights be regarded as inherently of more compelling international concern than others? None of us favoured relativism, among societies and states, on what rights were to be recognised at all - we were all universalists - but some were minded to regard certain rights directly involving the ultimate dignity of the person (freedom from unjust killing, torture and imprisonment, for example) as falling in a clear class of non-derogable rights distinguishable from, and more apt to justify intervention than, other rights of a societal character like gender equality or freedom of religious worship. Other participants were deeply mistrustful of any such attempt to divide and rank rights in a hierarchy of implied importance (though there was recognition that certain declared rights, like the right to a job, could not anyway be directly guaranteed by governments in free-market societies; and also, that rights could sometimes collide, for example as between minorities and democratically-empowered majorities).
The vivid tragedy of ex-Yugoslavia and the conflicts in parts of the former Soviet Union illustrated in sharper relief the emergence of ethnic-group rights as a particular category of concern, partnering the more familiar one of oppressive government bearing down upon individuals. We reviewed, without solving, the awkward issue of self- determination. There must, we knew, be boundaries to what this principle could mean, for an unlimited right to secession would lead to chaos; yet we accepted that secession (or border change) must sometimes in the end be the right course. In this as in most other areas of our debate we had to acknowledge the impossibility of framing prescriptive laws of international behaviour that would be proof against every awkward historical example. We noted that candidate cases for external intervention were always, virtually by definition, difficult and exceptional - which perhaps served to emphasise the inevitability of situation-specific political judgment (in practice, through the preferred medium of the Security Council) as the final arbiter, albeit with maximum reference to a consistent framework of international law.
We agreed that the political authority of the UN would be strengthened, and the risk of recourse to unwelcome alternative bases for action reduced, if UN capability for effective action were enhanced. The performance of the UN when it did lead intervention was uneven; partly as a result, key countries sometimes held back from supporting desirable-seeming interventions on grounds of impracticability or low probability of success, with consequent risks to the credibility and perceived legitimacy of action, and to the weight of deterrence, in other instances. Some situations (Tibet?) would remain beyond realistic reach, but better UN capability might widen the range, and heighten achievement and cost-effectiveness, where action was feasible (and thus indirectly prompt a more candid recognition of the true costs of inaction, such as migration flows). Avenues of improvement could include stronger professional staffing at UN Headquarters to support intervention operations; more systematic and pre-planned training and logistic support for forces earmarked for UN roles; better communications, and a more robust acceptance that politico-military intelligence was crucial; more thorough recognition of the need to frame objectives and directives in operationally-meaningful terms at both theatre and tactical levels, and to relate action to coherent long-term policy aims rather than just first-aid; perhaps too, despite the political difficulties, some concept that the performance of national force contingents was subject to review and accountability.
We touched briefly on ideas of special UN-raised volunteer forces (perhaps after the Foreign Legion model), and also of hired protection for the work of non-Governmental organisations (NGOs). We had misgivings about these ideas, on grounds of coherence, discipline and responsibility. The operation of NGOs in dangerous environments raised delicate issues. They were invaluable elements in the world’s inventory for relieving distress; they deeply valued their independence; and their visible dissociation from governmental structures was often central to their efficacy. That dissociation however could not always be absolute; for example, in extreme situations like Bosnia NGOs could not expect to operate regardless of the guidance of politico-military authorities who would be unable in practice to stand aside if protection or rescue became necessary.
We were aware of problems, perhaps increasingly salient, about burden-sharing, financially and otherwise, in UN operations. Even if subscriptions under current UN arrangements were conscientiously paid, those arrangements did not fully cover the real costs of all force contributions; so long as that remained so, resentments could arise from the fact that nations shouldering the political and human costs of force contribution might also carry an extra financial cost. At the same time, a fair comprehensive accounting might need to acknowledge other related burdens, such as those of aid and refugee acceptance.
This note, like most of the discussion, has focused upon the case of intervention by military force against the wishes of the territorial government (or where no such government really exists). That class of case raised questions complex enough for one conference; beyond those already sketched, for example, there lay a tension of approach between a last-resort minimum-force concept of military intervention - the concept to which the realities of political structure and procedure anyway pre-disposed the UN - and the merits in some settings of early and decisive action, on a scale brooking no argument, to pre-empt, seal off or terminate intolerable events. We did not resolve that tension, save to note that minimum use of force when shooting started need not mean minimum deployment of force to prevent it doing so. But we were recurrently keen to emphasise that military action stood at the far end of a substantial spectrum of possible international actions reasonably classifiable as external intervention, from political condemnation through benefits withheld (with robust use of conditionality) and on to economic sanctions and blockade. When faced with massive human-rights violations the international community should operate in constant awareness of the availability, potential and effects of all elements in the spectrum, especially if used in timely fashion.
Our discussion naturally focused upon complication and difficulty. But we heard - and this note should perhaps end with - reminders that external action had to its name successes (including pre-emptive successes, the best kind); that it would be no service to the defence of human rights simply to flagellate ourselves with the desperate cases like Bosnia, or to regard impotence or failure in one place as destroying legitimacy and confidence for all others; and that the highlighting of UN limitations in recent years sprang partly from an increasing sense that the ending of the Cold War had opened up new political scope for collective action. The right agenda for the future - though achievement might never entirely match the aspirations of media-driven public opinion anxious for effective action yet reluctant to accept its costs - was to bring capabilities and expectations more nearly into balance, at levels ambitious for the former as well as realistic for the latter.
This Note reflects the Director's personal impressions of the conference. No participant is in any way committed to its content or expression.
Chairman: The Rt Hon Baroness Elles
Life Peer (Conservative); Barrister; ‘Of Counsel’, van Bael & Bellis, Brussels
LIST OF PARTICIPENTS
Mr Juan E Méndez
Executive Director, Americas Watch, Washington DC
Lady Fox QC
Editor, British Institute of International and Comparative Law
Sir David Gillmore KCMG
Permanent Under-Secretary of State, Foreign and Commonwealth Office(FCO) and Head, HM Diplomatic Service
Dr James Gow
Department of War Studies, King’s College, London
Mr Christopher Greenwood
Fellow, Tutor and Director of Studies in Law, Magdalene College, Cambridge
Mr Bryan Magee
Visiting Scholar in Philosophy, Wolfson College, Oxford
Dr Claire Palley
Constitutional Adviser, Republic of Cyprus
Professor Adam Roberts
Montague Burton Professor of International Relations and Fellow of Balliol College, Oxford
Ms Barbara Smith
Writer on the UN, The Economist
Major General R A Smith DSO OBE QGM
Assistant Chief of Defence Staff (Operations and Security), Ministry of Defence
Mr Michael Stephen MP
Member of Parliament (Conservative), Shoreham
Professor Trevor Taylor
Head, International Security Programme, The Royal Institute of International Affairs
The Hon Edward Broadbent PC
President, International Centre for Human Rights and Democratic Development, Montreal
Mr David Matas
Private law practice in refugee immigration and human rights, Winnipeg
Major-General Armand Roy CD
Commander, Land Force Quebec Area
Professor Stephen J Toope
Associate Dean, Faculty of Law and Institute of Comparative Law, McGill University, Montreal
M Philippe Moreau Defarges
Professor, Institut d’Etudes politiques, Paris; Adviser to the Director, Institut Français des Relations Internationales (IFRI), Paris
Dr Jean-Christophe Rufin
Vice President, Médicins sans Frontfères
Professor Brigitte Stern
Professor of International Law, University Paris I, Panthéon-Sorbonne, and Institut d’études politiques de Paris
Professor Dr Hanns Maull
Professor of International Relations, University of Trier
Dr Sabine Vollmar-Libal
Deputy Director, West European and North American Affairs, Foreign Office, Bonn
Professor Yukio Shimada
Professor of International Law, School of Law, Waseda University
Dr Mats Berdal
Research Associate, International Institute for Strategic Studies, London (project on the military requirements of peacekeeping) (1992-93)
Ten-Cor José Luis Pinto Ramalho
The Hon George H Aldrich
Judge, Iran-United States Claims Tribunal, The Hague
The Hon J Kenneth Blackwell
US Representative to United Nations Human Rights Commission, (1991); Senior Fellow, Heritage Foundation, Washington DC and Urban Morgan Institute for Human Rights, University of Cincinnati
Mr William Butler
President, American Association for the International Commission of Jurists (ICJ)
Mr Geryld B Christianson
Staff Director, (1987-), Minority Staff Director (Democratic) (1981-87), Senate Foreign Relations Committee
Mr Robert P DeVecchi
President, International Rescue Committee
Mr Conrad K Harper
Legal Adviser, Department of State
Dr William Korey
Director, International Research, B’nai B’rith International, New York
George N Lindsay Esquire
Of Counsel (former Presiding Partner and former Resident Partner, London), Debevoise & Plimpton, New York
Mr John D Marks
President and Founder, Search for Common Ground
Professor Theodor Meron
Professor of International Law, School of Law, New York University
Mr Maynard Parker
Mr Michael Posner
Executive Director, Lawyers’ Committee for Human Rights, New York
Mr Lionel A Rosenblatt
President, Refugees International
Dr Enid C B Schoettle
Senior Fellow and Director of the Project on International Organisations and Law, Council on Foreign Relations, New York
WESTERN EUROPEAN UNION
HE Dr Willem van Eekelen
Secretary General, Western European Union (WEU)