Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative

Brooklyn Journal of International Law Volume 30 | Issue 2 Article 2 2005 Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative Mirko Bagaric John R. Morss Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Mirko Bagaric & John R. Morss, Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative, 30 Brook. J. Int'l L. (2005). Available at: https://brooklynworks.brooklaw.edu/bjil/vol30/iss2/2 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. File: Bagaric Morss MACRO - 03.13.05.doc Created on: 3/14/2005 12:40 PM Last Printed: 3/14/2005 8:39 PM TRANSFORMING HUMANITARIAN INTERVENTION FROM AN EXPEDIENT ACCIDENT TO A CATEGORICAL IMPERATIVE Mirko Bagaric* and John R. Morss** I. INTRODUCTION H istory, even if one focuses on the past fifty years, is replete with almost countless instances of preventable mass killings of people at the hands of their own government.1 In nearly all cases, the rest of the world has stood idly by, sometimes apparently frozen into inaction. Wealthy nations have remained deliberately ignorant of events, their citizens glued to MTV or the next major sporting event. Despite their power, these nations consistently fail to intervene militarily in order to bring a quick end to government-sponsored mass killings.2 This is not to deny that there has been considerable discussion regarding the merits of humanitarian military interven- * Professor and Head of School, Deakin University Law School, Geelong, Victoria, Australia. ** Associate Head of School, Deakin University Law School, Burwood, Victoria, Australia. 1. See, e.g., Kadic v. Karadic, 70 F.3d 232 (2d Cir. 1995) (assessing the complaints of Croat and Muslim citizens of the internationally-recognized nation of Bosnia-Herzegovina, formerly a republic of Yugoslavia, who claimed that they were victims of various atrocities, including brutal acts of rape, forced prostitution, forced impregnation, torture and summary execution, carried out by Bosnian-Serb military forces as part of a genocidal campaign during the Bosnian civil war); J. L. Holzgrefe, The Humanitarian Intervention Debate, in HUMANITARIAN INTERVENTION: ETHICAL, LEGAL, AND POLITICAL DILEMMAS 15–17 (J. L. Holzgrefe & Robert O. Keohane eds., 2003) [hereinafter HUMANITARIAN INTERVENTION] (describing the atrocities in Rwanda beginning in 1994). 2. Examples include the mass killing of citizens in Cambodia, Sudan, Rwanda, among many others. See, e.g., Michael J. Bazyler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT’L L. 547, 550 (1987) (discussing killing of Cambodians by the Khmer Rouge); Romeo Dallaire, Looking at Darfur, Seeing Rwanda, N.Y. TIMES, Oct. 4, 2004, at A25. File: Bagaric Morss MACRO - 03.13.05.doc 422 Created on: 3/14/2005 12:40 PM BROOK. J. INT’L L. Last Printed: 3/14/2005 8:39 PM [Vol. 30:2 tion.3 As observed by James Upcher in his analysis of international law and humanitarian intervention: “[w]hether seen as right, responsibility or missionary enterprise, the merits of intervention are commonly framed within a wider debate about the putative conflict between human rights and state sovereignty.”4 Formally, the main obstacle to humanitarian intervention is the notion of state sovereignty.5 In reality, however, the main disinclination to stop preventable mass killings of strangers in other parts of the world is simply that they are strangers and are in other parts of the world.6 On rare occasions, the world (or parts of it) has “stepped up” and drawn a line in the sand—a line inscribed on a moral or political plane, as contrasted with the geographical line marking a state's boundary—and said “no” to despots to stop them from more mass killings of their citizens.7 While this has been rare, the success of these interventions, combined with an absence of criticism following such 3. See, e.g., BEYOND WESTPHALIA? STATE SOVEREIGNTY AND INTERNATIONAL INTERVENTION (Gene M. Lyons & Michael Mastanduno eds., 1995) [hereinafter BEYOND WESPHALIA] (collecting essays from presentations on international intervention and theoretical issues about the nature of state sovereignty and the evolution of international society); ANNE ORFORD, READING HUMANITARIAN INTERVENTION: HUMAN RIGHTS AND THE USE OF FORCE IN INTERNATIONAL LAW 83–85 (James Crawford et al. eds., 2003) (stating that those who favor humanitarian intervention see intervention as a necessity which restores human rights and democracy; argues that principles of sovereignty and nonintervention should be abandoned); Holzgrefe, supra note 1, at 17 (discussing the legal and ethical issues implicated by the international community’s lack of intervention into the Rwandan crisis and those which might have arisen if it had intervened). 4. James Upcher, ‘Savage Wars of Peace’? International Law and the Dilemma of Humanitarian Intervention, 9 DEAKIN L. REV. 261, 263 (2004). 5. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 111 (June 27) (state sovereignty is closely linked with the principles of the prohibition of the use of force and of non-intervention codified in, inter alia, Article 2.1 and 2.4 of the United Nations Charter); U.N. CHARTER art. 2, paras. 1, 4. 6. As is discussed infra, state sovereignty is, at least at the pragmatic level, not a barrier to humanitarian intervention. There are numerous examples of successful armed military humanitarian intervention which have been declared as being contrary to international law. 7. The best example perhaps being Tanzania’s intervention in Uganda in 1978, in order to overthrow Idi Amin. Thomas M. Franck, Interpretation and Change in the Law of Humanitarian Intervention, in HUMANITARIAN INTERVENTION, supra note 1, at 219. File: Bagaric Morss MACRO - 03.13.05.doc 2005] Created on: 3/14/2005 12:40 PM Last Printed: 3/14/2005 8:39 PM HUMANITARIAN INTERVENTION 423 actions, demonstrates that state sovereignty is no barrier to humanitarian interventions.8 Indeed, this suggests that respect for state sovereignty is an excuse, rather than a reason, for the inaction of the world community. At present, humanitarian intervention is subject to the vagaries of geo-political forces beyond the comprehension of even the most ardent student of or commentator on international affairs.9 The only clear trend seems to be that proximity to Western Europe enhances the chances that intervention will occur.10 Overall, intervention is adventitious, almost accidental, or even opportunistic in nature.11 In this Article, we suggest a process whereby humanitarian intervention can be systematized and, moreover, transformed into a duty upon nations. Human life, especially when (...truncated)