Humanitarian Intervention and Fledgling Democracies
Humanitarian Intervention and Fledgling Democracies
Copyright c 1994
by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
W. Michael Reisman
This essay discusses the lawfulness of humanitarian intervention in circumstances in which
the lives of large numbers of a population are in danger and such government as is there is either
non-existent, ineffective, or itself the threat to basic human rights. If the great democracies back
up their insistence on respect for constitutional democracy in all other states with a claim of a
customary right to unilateral humanitarian intervention for its violation, that norm, in itself, will
act to deter coups.
W Michael Reisman*
The past three years have consolidated expectations about
the lawfulness of humanitarian intervention in circumstances in
which the lives of large numbers of a population are in danger
and such government as is there is either non-existent,
ineffective, or itself the threat to basic human rights. In northern Iraq,
a far-reaching and now long-term humanitarian intervention has
been accomplished under the aegis of the United Nations. In
Liberia, a sub-regional economic union supplied the nominal
authority for a substantial humanitarian intervention, led by
Nigeria. France intervened in Rwanda with United Nations
sanction, and the United States entered Haiti under U.N.
authorization and with the agreement of the legitimate government. The
tragedies of Somalia, Bosnia-Herzegovina, and the southern
Sudan have not been remedied by humanitarian intervention,
collective or unilateral. The obstacle has not been uncertainty
about the prospective lawfulness of such action, but the
uncertainty about feasibility.
The flow of international communications suggests that in
some of these circumstances, even a unilateral action would have
been accepted. This is not to say that all legal problems about
the international doctrine of humanitarian intervention have
been dispelled. The pressure on U.N. Charter Chapter VIII and
its potential for authorizing the creation or, recreation of
hegemonical spheres of influence is disquieting. But none of
this has, at least yet, tainted the conception of lawful
I wish to address a cognate problem, on which authority
expectations continue to be less certain: support, through the
various modes of humanitarian intervention, for democratic
governments that find themselves imperiled by violent domestic
anti* Hohfeld Professor of Jurisprudence, Yale Law School. This Essay is adapted
from the Author's presentation at International Law Weekend/94, sponsored by the
International Law Association, on October 2
, at the House of the Association of
the Bar of the City of New York and is printed here with the I-A's consent. The
research assistance of Douglas L. Stevick, J.D. Candidate, Yale Law School, 1996, is
INTERVENTION AND DFMOCRAMC,
democratic forces. The substantive law here is clear. Popular
government is an internationally prescribed human right.
Article 21(3) of the Universal Declaration on Human Rights
provides: "The will of the people shall be the basis of the authority
of government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal suffrage and
shall be held by secret vote or by equivalent free voting
The tendency among some diplomats, and even human
rights lawyers, to see the violation of the right to democratic
government that is expressed in Article 21 as lamentable, of course,
but somehow less urgent than other human rights violations, is a
serious error. It should not take a great deal of imagination to
grasp what an awful violation of the integrity of the self it is when
men with guns evict your government, dismiss your law, kill and
destroy wantonly and control you and those you love by
intimidation and terror. When that happens, all the other human rights
that depend on the lawful institutions of government become
matters for the discretion of the dictators. And when that
happens, those rights cease. Military coups are terrible violations of
the political rights of all the members of the collectivity, and
they invariably bring in their wake the violation of all the other
rights. Violations of the right to popular government are not
secondary or less important. They are very, very serious human
International human rights, it bears repeating, are matters
of international concern. They are not shielded by domestic
jurisdiction. Indeed, this aspect of the international law of human
rights has even affected the law of recognition. A verifiably
popular government has become an important component of the
international legitimacy of an elite.
Violations of popular sovereignty are increasingly subjected
to international condemnation. Even in our hemisphere, with
its long and melancholy history of interventions and its
understandably acute concern for national sovereignty, the Santiago
Declaration of the Organization of American States ("OAS") has
committed the members of the OAS to some regional action
when a democratically elected government has been
over1. Universal Declaration of Human Rights, art. 21(3), GA. Res. 217A (III), U.N.
GAOR, 3d Sess., pt. 1, at 75, U.N. Doc A/810 (1948) [hereinafter UniversalDeclaration].
It is encouraging that the international community, as a
whole, has made a clearer commitment to democracy, and that
so many actors have come to the realization that democratic
government enhances protection of human rights and reduces the
likelihood of aggression. With U.N. action in Haiti this year, we
may be seeing the beginning of a meaningful and not merely
rhetorical United Nations commitment to support democracy.
A corresponding doctrine of unilateral humanitarian
intervention to prevent or reverse violations of the fundamental human
right to popular government continues to be less certain, as if
this right were somehow less important or urgent than other
This was not always the case. In 1961, Tanganyika became
independent.' In January 1964, one week after a revolution in
neighboring Zanzibar,4 Tanganyika's small army mutinied.
Julius Nyerere, the President, turned to Britain for aid and a small
contingent of Royal Marines flew in and suppressed the mutiny
in one day. The death toll amounted to three mutinous soldiers
killed. There were no civilian injuries and no marine casualties.
As soon as it was over, Nyerere broadcast to his people that
"an army which did not obey the people's government was not
an army of that country and was a danger to the whole nation."
The next day, he sent a letter to the House of Commons,
thanking "with deep gratitude... the help which has been given by
Britain to Tanganyika." Evidently that was politically incorrect.
The next day, Nyerere publicly apologized to his people for
asking Britain to restore
Tanzania, as it is now called, may not be a political paradise,
but there have been no more coups and there have been
constitutional transfers of power. Unfortunately, the Tanzanian case
was not precedential. Consider the Gambia.
2. The Santiago Commitment to Democray and the Renewal ofthe InterAmericanSystem,
O.A.S. General Assembly, 3d plen. sess. (adoptedJune 4,1991), at 1, O.A.S. Doc. OEA/
Ser.P/XXI.O.2 (1991); RepresentativeDemocracy,O.A.S. General Assembly, 5th plen. sess.
(adoptedJune 5, 1991), AG/RES. 1080 (XXI.0/91), O.A.S. Doc. OEA/Ser.P/XXI.O.2
3. Tanzania, in THE STATESMAN'S YEAR-BooK 1994-95 1268, 1268 (Brian Hunter
ed., 131st ed. 1994) (1864).
5. EastAfrica, KEEsmnG's CONTEmPORARY ARCHrES, Mar. 21-28, 1964, at 19,963.
The Gambia had been one of Africa's few successful
multiparty democracies since Sir Dawda Jawara won the presidency
in 1970 in the nation's first post-independence democratic
elections. Although the Gambia remained poor, a series of Jawara
govemments had compiled a respectable record in freedom of
the press, independence of the judiciary, and respect for human
On July 23, 1994, a small group of disgruntled army officers
in the national army of some 800 people ousted Gambia's
elected government in a bloodless coup that had been planned
and mounted in less than twenty-four hours.7 After that, as the
inimitable Yogi Berra is supposed to have put it, "it was deja vu
all over again." The self-proclaimed and multiply oxymoronic
provisional military president, a twenty-nine-year-old recent
graduate of a military-police training course in the United States,
promised that this would be a "coup with a difference."8
Where have we heard that before? Predictably, the new
military dictatorship reneged on its pledge to announce a timetable
for a return to democracy by the end of September.9 It has
barred all political activity, arrested dissenting journalists and
confined ministers of the former government to house arrest.10
Twenty years earlier, Britain had flown a small force into
Tanzania, put the mutinous troops back in the barracks and the
elected government back in Government House and left.
The international response to the destruction of the
bia's democracy was quite different. PresidentJawara, like
Nyerere, asked for military action to restore democracy. A U.S.
warship was off the coast of the Gambia on the day of the coup, but
Washington refused to intervene, despite the U.S. Ambassador's
contention that the seventy marines on board could stop the
coup." For ten days, the United States did not even officially
condemn the coup. Finally, it announced that, in light of the
coup, it would review security and development assistance to the
Gambia. 12 On October 28, the United States cut off all but
humanitarian aid to the Gambia,' 3 and will close its AID mission in
the Gambia in early 1995.14
Europe's concern for the violation of democracy was
scarcely less tepid. Within three weeks, Britain, Germany, and
the European Union were praising the officers for the peaceful
nature of their coup, and threatening to cut off aid only if
democracy were shunted aside.'" Now those states have suspended
development aid to the Gambia.' 6 But that indication of
displeasure, which is surely an opiniojurisin favor of human rights, does
not restore democracy. It punishes the population at large,
whose members are already the victims of the violation of their
fundamental political rights. Consider Haiti.
In 1991, after decades of dictatorship by the Duvaliers, the
Haitian people installed a popularly elected president,
Jean-Bertrand Aristide. Every aspect of the election was monitored by
international organizations and confirmed as free and fair.'7
But authoritarian habits die hard. Within months, the army, an
ill-trained force of some 5000 men, seized power, expelled
Aristide, and suppressed popular protest in what became the most
violent dictatorship in Haitian history. Almost immediately, the
stream of refugees across the Florida Straits swelled to a
Once again, the Nyerere strategy was not followed.
Economic sanctions were applied. Economic sanctions are effective
when the target is a rational economic maximizer. The Haitian
military elite may have been rational, but there was no evidence
that it was losing sleep over the economy. Thus, all the sanctions
accomplished was to reduce the Haitian economy, already the
poorest in the hemisphere, to rubble -while creating economic
opportunities for the military elite. With remarkable enterprise,
the ymilitary elite added the contraband business to their
narcotraffic portfolios. Repression and economic desperation
escalated. The torrent of refugees h'e'morrhaged. Meanwhile, the
army, with no casualties from s. nctions, remained brutally in
control and the Duvalierist Macoute, reborn as Fraph and
Attaches, were back.
The villains of the piece would still be there and the great
bulk of the population would still be suffering if the United
States had stuck by its economic guns. Instead, Washington
came to its senses, acknowledged that economic sanctions were a
failure, pressed the United Nations for authorization and, on
that basis, intervened militarily, as the Multinational Force, to
restore the democratically elected government.
Since the United Nations was formed in 1945, many new,
small states have become independent. Most started with an
elected government and high aspirations for democracy. But
most lacked democratic traditions and, in particular, traditions
of military subordination to civilian authority. In state after
state, elected governments were overthrown. Democracy
acquired a new definition: "one man, one vote, once."
International law was turned on its head as spokesmen for military
govTIA CHALLENGE: U.S. FOREIGN POUCv CONSDERAIONS 49, 53,57 (Georges A. Fauriol
ed., 1993) (discussing actions of international observers to 1990 Haitian presidential
election); INm---AMEiuc. N COMMISSION ON HUMAN PGH-rs,ANNUAL REPORT, 1990-91, at
468, OEA/Ser. L/V/II.79 rev. 1 (1991).
18. Howard W. French, F/eing HaitiansFear Army More Than Perils at Sea, N.Y.
TrmEs, Nov. 22, 1991, § 1, at 1.
ernments twisted words like "sovereignty," "domestic
jurisdiction," and "internal affairs" to block international scrutiny. Soon
everyone, even Nyerere, was speaking this way. Any outside
unilateral effort, as in Tanganyika, in 1963, to restore an elected
government by forcing mutinous troops back to their barracks,
was sure to be condemned in international fora (most
vociferously by representatives of non-democratic governments) as an
imperialistic rape of national sovereignty. These rhetorical
broadsides were delivered with scant concern for the absurd. In
1979, when French paratroopers flew in and forcibly removed
the self-styled Emperor of the Central African Empire, Jean
Bedel Bokassa, a certifiable villain, certain other governments
had the temerity to protest France's action when the matter was
raised in the Security Council. They actually alleged an unlawful
violation of the sovereignty of the Central African Republic! A
representative of the new government in Banjal turned and
accused the accusers for not intervening sooner on behalf of the
Central African people.19
When the United States removed the Noriega regime in
Panama, and installed the government that had been brought to
power in an internationally certified free and fair election, the
then-Sandinista Government of Nicaragua said: "Once again an
offense has been committed against our peoples. Once again an
attempt is being made to make brute force appear to be law.
Once again the principles which are the foundation of
international relations have been violated."20 The Permanent
Representative of Nicaragua went on to cite sections of the Charters of
the United Nations and the OAS to establish "[t]his flagrant
violation of Panama's sovereignty and territorial integrity. ' 21 And
this, at the very moment, as we now know, that the then
Nicaraguan government was itself engaged in trying to overthrow an
elected government in El Salvador.
Reading speeches like these, one almost forgets that the
action removed Manuel Noriega, who had suppressed popular
sovereignty and refused to allow a government chosen in an
inter19. See generally W. Michael Reisman, Od Wine in New Bottles: The Reagan and
Brezhnev Doctrinesin ContemporaryInternationalLaw andPractice, 13 YALE J. INT'L L 171
(1988) (surveying international legal regime governing spheres of influence and
military intervention in peripheral states).
20. U.N. SCOR, 44th Sess., 2899th mtg. at 3-5, U.N. Doc. S/PV.2899 (1989).
21. Id. at 4.
nationally-supervised election to take power. In this odd
calculus, those matters are not important. "No argument," the
Nicaraguan diplomat said, "can possibly justify intervention
against a sovereign state."22
One would hope that anachronistic speech will be the last
time the international community is subjected to such a cynical
manipulation of international law. For make no mistake, it is a
manipulation of international law.
The U.N. Charter is based on "respect for human rights and
fundamental freedoms"23 and endows the Security Council with
the power to respond to violations of the basic right to
democracy. The Universal Declaration of Human Rights explains that,
in the political sphere, this means free and fair elections. 24
During the Cold War, members of the Security Council talked
human rights and democracy but felt that they had to view
military coups in developing countries in terms of their own strategic
interests. With the exception of the usurpation of power in
Rhodesia by a minority white government, which the Security
Council condemned and sanctioned, one superpower or the other was
likely to veto incipient international action to restore a
The Cold War has ended and a remarkable new
international consensus on the importance of political democracy, in its
own right and as an indispensable precondition to the
achievement of other human rights, has emerged. Suddenly, the
Security Council seems capable, among other things, of protecting
defenseless people from one particularly grave and, alas,
widespread threat to the peace: greedy and ambitious officers and
other thugs and bandits who seize power in fledgling
democracies. But the United Nations, as a whole, is still unable to make
this consensus operational. At least one Permanent Member of
the Council has shown no passion for the international
protection of political human rights.25 Many other governments that
send their representatives to the U.N. General Assembly are
per22. I at 6.
23. U.N. CHARTER art. 1,1 3.
24. UniveralDedaration,supra note 1, art. 21, at 75.
25. See, e.g., AMmNsTY INTRNTIONL, PEOPLE'S RruBuc OF CHINA: CONTINUED
PATrERNS OF HuMAN RicHTs VIOLATIONS IN CHINA (1992) (documenting China's
violations of political human rights); China: No Progresson Human Rights, Hum. RTs. WATcH/
ASIA, May 1994, at 1 (discussing China's crackdown on dissenters).
sonally concerned, perhaps with reason, about the consolidation
of an effective international norm requiring democracy and the
popular responsiveness of governments. In regional
organizations, there are usually enough military or military-based
governments to block action to protect democracies.
Who's left to do the job?
My colleague and friend, Professor Ruth Wedgwood, says no
one. In a recent study, she expressed skepticism for the notion
of the unilateral use of force to restore a democracy: "The
emerging norms of the United Nations, the Organization of
American States, and the Conference on Security and
Cooperation in Europe have not ratified the use of unilateral military
The issue, I submit, is customary international law, which all
of us play a role in shaping. Whether Professor Wedgwood
proves to be right depends on what customary law is made. My
friend, Professor Thomas Franck, in an important, indeed
indispensable article on the emerging right to democratic
governance, wrote in a similar vein: "[As a policy matter,] entitlement
to democracy can only be expected to flourish if it is coupled
with a reiterated prohibition on... unilateral initiatives."27 With
respect, I submit that exactly the opposite is the case.
The combination of a commitment to democracy, coupled
with an unwillingness to allow for its unilateral enforcement, if
that is the only alternative, has led to uses of economic sanctions
that can only be called trigger-happy. The good news about
these economic sanctions is that they confirm that the
international community views the right to constitutional government
as a basic human right and its violation as a threat to the peace.
Economic sanctions, no less than military sanctions, require such
a characterization as a prerequisite to their application, and with
26. Committee on International Arms Control and Security Affairs & Committee
on International Law, The Use ofArmed Force in InternationalAffairs: The CaseofPanama,
47 REc. Ass'N B. Crry N.Y. 604, 688 (1992) (citation omitted) (text by Ruth
Wedgwood). Professor Wedgwood restates her analysis in Ruth Wedgwood, The Use ofArmed
Force in InternationalAffairs: Sef-Defense and the PanamaInvasion, 29 COLUM. J.
TAN.sHAT'L L.609 (1991). But cf.Malvina Halberstam, The CopenhagenDocument:Intervention
in Support of Democracy, 34 HARv.INT'L LJ.163 (1993) (discussing Copenhagen
Document, which supports states' action in defending democratically elected governments
27. Thomas M. Franck, The EmergingRight to Democratic Governance,86 Am. J. INT'L
L. 46, 84-85 (1992).
good reason. Economic sanctions are as destructive as military
sanctions and far less discriminating as to their target. They do
not distinguish between combatants and non-combatants. The
bad news about economic sanctions for these violations is that,
more often than not, they severely punish the victims while
enriching the villains.
The results are anomalous: the international commitment
to democracy, but the disposition to authorize only economic
sanctions to vindicate it in cases of violations of the democratic
rights of peoples, produce sanctions programs destructive of the
innocent rather than action that promises to be effective in
deterring or removing the thugs and reinstating the government of
the people. This approach to the problem ensures the
continuing violations of the democratic aspirations of people by the
thugs and bandits who continue to shelter behind the terms
"territorial integrity" and "sovereignty."
Obviously, we must develop an organized and genuinely
international method for maintaining democratic processes in new
states. But to say it is not to have it. In many cases, some
members of the Security Council will not authorize international
action in support ofinternal democracy. In the short run, effective
international protection of fledgling democracies will depend
on decisive action by the great industrial democracies.
Hopefully, smaller states will join in, but if their prior
approval and active participation is a prerequisite, there will not be
much action. 'Ifthe great democracies back up their insistence
on respect for constitutional democracy in all other states with a
claim of a customary right to unilateral humanitarian
intervention for its violation, that norm, in itself, will act to deter coups.
Customary international law with respect to the protection of
property has been made and sustained by individual action.
Democracy is no less important, in its own right and as an
indispensable strut for the protection of other rights.
The proposal I am submitting to you is not ideal. It will only
be applied to smaller and weaker states and there is always the
danger that it will be used, as in the past, as a fig leaf for
intervention. That danger is now minimized when the government
that has been usurped was elected in internationally monitored
free and fair elections. That is why no one protested in
December 1990, when the United States put the Panamanian police
who tried to overthrow the Endara Government back in their
barracks or in November and in December, 1989, when U.S.
planes boxed in the Philippine air force and helped quell an
incipient coup against Mrs. Aquino.
Restoring democracies is not always that simple. Sometimes
it is messy, unpleasant, costly, susceptible to abuse even when the
intentions of the intervener are relatively pure, and sometimes it
is susceptible to denunciation even when the intentions of the
denouncer are not. As in Algeria, it is hard to determine the
right thing to do when the government about to be brought to
power through a democratic election espouses a manifest
program to violate fundamental human rights. Even when it is
clear, external action may simply not be feasible. And even
when the issues are clear and the mission is feasible, the results
don't always seem stellar. As Panama, Grenada, and the
Philippines show, reinstating a government chosen in an
internationally supervised free and fair election does not, ipsofacto, solve all
national problems. But that is not the objective of the exercise.
The purpose of this type of humanitarian intervention is to let
people have the government they selected in a free and fair
Given the nature of the problem, sanctions are rarely the
answer. They may make us feel virtuous, but they just punish the
innocent, while failing to deter or dislodge the usurpers of
legitimate government and the serious offenders of human rights.
Their frequent use in these types of cases manifests, I submit, a
failure to think through and accept the horror of military
usurpations of democracy, the gross violation of human rights
involved, and the avalanche of human rights violations that follow.
Democracy is a right guaranteed by international law and
the condition sine qua non for the realization of many other
internationally prescribed human rights. Democracy may also be
the sine qua non of international peace, for the evidence is
mounting that democratic countries do not attack each other.28
Democracy will not take root in many new states if outsiders do
28. See generally Bruce Russett, Politicsand AlternativeSecurity: Toward a
MoreDemocratic, Therefore More Peacefd World, in AL RvA SEcuirr. LmNvo Wrrour Nu.
cLEAR DEEmRRE.ca 107 (Burns H. Weston ed., 1990) (setting out and explaining
empirical data that democracies do not fight one another).
not commit themselves to doing what is necessary to sustain it.
The doctrine of humanitarian intervention allows such action.
6. See e.g., U.S. DEP'T OF STATE , THE GAmBi, . RIGHTS PRAGFCCES 1993 ( 1994 ), available in LEXIS, NEWS Library, CURNWS File; James Roberts, Soldiers Take Over in Gambia; 2 , 000 UK Tourists Trapped , INDEPENDENTJuly 24 , 1994 , at 12. But see Peter da Costa, GambiaPolitics: MultipartyAdvocate's Tolerance Was His Undoing , Inter Press Service, July 25 , 1994 , availablein LEXIS , Nexis Library , INPRES File (noting institutionalized corruption ofJawara's regime, in addition to outstanding human rights record).
7. Pap Sane , Gambia's Capital Calm After Coup, Reuters World Service, July 24 , 1994 , available in LEXIS, Nexis Library , REUTER File; Soldiers Take Power in Bloodless Coup; Other Developments, FAcTs ON FILE WoRLD NEws Dic ., Sept. 8 , 1994 , at 644 A2, availablein LEXIS , Nexis library , FACTS File.
8. Howard W. French , Waitingfor the ifference' in Gambia'sMilitary Coup , INT'L HEALn TRA M. , Aug . 30 , 1994 , availablein LEXIS , Nexis Library , IHT File.
9. Justice Fofanneh , Gambia-EuropeanUnion: FurtherSanctions Imposed onJunta ,Inter Press Service, Oct. 13 , 1994 , available in LEXIS, Nexis Library , INPRES File. The junta has since delayed the restoration of democracy to December 1998 . U.S.-Gambia: U.S. Cuts All Aid to Gambia, Inter Press Service, Oct. 28 , 1994 , availablein LEXIS , Nexis Library , INPRES File [hereinafter U.S. Cuts All Aid].
10. Howard W. French , In Gambia, New Coup Follows Old Pattern, N.Y. TIMES , Aug. 28 , 1994 , § 1, at 4.
11. Richard Dowden, Deposed President Callsfor Help; Gambia's Sir DawdaJawara Breaks His Silence to Describeto RichardDowden, Africa Editor,the MilitaryCoup Which Overthrew aModelMultipartyDemocracy with a UniqueHuman Rights Record , INDEPENDENT , Sept. 26 , 1994 , at 11.
12. U.S. Condemns Gambian Coup, Xinhua News Agency, Aug. 2 , 1994 , availablein LEXIS , Nexis Library , XINHUA File. The United States initially offered only to mediate betweenJawara and the militaryjunta that ousted him. U.S. Steps In as GambiaCoup Mediator,Agence Fr . Presse, July 24 , 1994 , available in LEXIS, Nexis Library , AFP File.
13. U.S. Cuts All Aid, supra note 9.
14. Pap Saine , Long Civil Rule Handover Worries Gambians,Reuters World Service, Oct. 25 , 1994 , available in LEXIS, Nexis Library , REUTER File.
15. Africa News Highlights 1700 GMTAug 13 , Reuters World Service, Aug. 14 , 1994 , availablein LEXIS , Nexis Library , REtWLD File.
16. EUSuspendsAid to Gambiain Reaction to ContinuedMilitaryRule, EuL IPT., Nov . 11 , 1994 , availablein LEXIS , Nexis Library , EURRPT File. The World Bank, which initially had cut off aid to the Gambia, has since restored some funds. Gambia'sLeaderLinks Ev-FinanceMinister to Plot , Reuters World Service, Nov. 15 , 1994 , available in LEXIS, Nexis Library , REUTER File.
17. See Georges A. Fauriol , Inventing Democracy: The Elections of 1990, in THE HAi-