Tài liệu Rethinking Humanitarian Intervention docx

Rethinking Humanitarian Intervention

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Rethinking Humanitarian Intervention

a fresh legal

approach based on

fundamental ethical

principles in

international law

and world religions

Brian D. Lepard

the pennsylvania state university press

university park, pennsylvania

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Library of Congress Cataloging-in-Publication Data

Lepard, Brian D.

Rethinking humanitarian intervention : a fresh legal approach based on

fundamental ethical principles in international law and world religions /

Brian D. Lepard.

p. cm.

Includes bibliographical references and index.

ISBN 0-271-02145-4 (alk. paper)

1. Humanitarian intervention. 2. Humanitarian law. 3. Humanitarian

intervention—Moral and ethical aspects. I. Title.

JZ6369 .L47 2002

341.5'84-dc21 2001036460

Copyright © 2002 The Pennsylvania State University

All rights reserved

Printed in the United States of America

Published by The Pennsylvania State University Press,

University Park, PA 16802-1003

The Scripture quotations contained herein are from the New Revised Standard Version Bible,

Copyright © 1989 by the Division of Christian Education of the National Council of the

Churches of Christ in the U.S.A., and are used by permission. All rights reserved.

It is the policy of The Pennsylvania State University Press to use acid-free paper for the

first printing of all clothbound books. Publications on uncoated stock satisfy the minimum

requirements of American National Standard for Information Sciences-Permanence of

Paper for Printed Library Materials, ANSI Z39.48–1992.

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In loving memory of my mother

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Contents

List of Figures ix

Preface and Acknowledgments xi

Abbreviations and Acronyms xvii

Note on Transliteration xix

Part One: The Problem of Humanitarian Intervention and International Law

1 The Need for a Fresh Approach 3

Part Two: Developing the Foundations of a Fresh Approach

2 Identifying Fundamental Ethical Principles in Contemporary

International Law and World Religions Relevant to

Humanitarian Intervention 39

3 Identifying and Interpreting International Legal Norms

Relevant to Humanitarian Intervention 99

Part Three: Some Problematic Issues Relating to U.N.-Authorized

Humanitarian Intervention

4 Human Rights Violations as a “Threat to” or

“Breach of” the Peace 149

5 Consent 179

6 Impartiality 202

7 The Use of Force 220

vii

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viii Contents

8 Obligations to Intervene or to Support U.N. Humanitarian

Intervention 256

9 The Command and Composition of Multinational Forces

Engaged in Humanitarian Intervention 284

10 The Security Council’s Decision-Making Process 309

Part Four: Humanitarian Intervention Not Authorized by the Security Council

11 The Legality of Humanitarian Intervention Without Security

Council Authorization 333

Part Five: Humanitarian Intervention and International Law in the New Millennium

12 The Prospects for a Fresh Approach Based on Fundamental

Ethical Principles 373

Notes 385

Glossary 427

Selected Bibliography 437

Index 457

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List of Figures

1. A proposed classification of ethical principles 41

2. A proposed classification of human rights 58

3. Selected essential human rights 59

4. Requirements for customary international law under a

fresh approach 104

5. Elements of general principles of law under a fresh approach 105

6. Selected general principles of moral law 107

7. A proposed methodology for interpreting the U.N. Charter and

other treaties 115

8. Alternative definitions of impartiality 204

ix

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Preface and Acknowledgments

This book began many years ago as an inquiry into the legal issues sur￾rounding humanitarian intervention—which I define as the use of military

force to protect the victims of human rights violations. As I delved into the

matter, however, I found that the legal problems of humanitarian interven￾tion were inextricably intertwined with important ethical issues, including

whether or not all countries and their citizens have a duty to come to the

rescue of those whose lives are imperiled by the malicious behavior of their

own governments or by armed factions. Indeed, a number of legal scholars

had written books that drew upon the works of prominent Western philoso￾phers in addressing the legal problems of humanitarian intervention.

It occurred to me that international law itself had begun to address many

of these ethical issues, at least tentatively, and that within contemporary

international law itself might be found the kernel of a number of funda￾mental ethical principles relevant to humanitarian intervention, such as prin￾ciples insisting on respect for human rights and limiting the use of force in

the international system. The most important fundamental ethical principle

I found, and which I argue ought to be adopted as the standard by reference

to which other principles should be prioritized, is that of the essential unity

of all human beings as members of a single human family that is neverthe￾less diverse in individual thoughts and beliefs, cultures, nationalities, reli￾gions, races, and languages, and whose diversity ought to be valued as a

precious asset of humanity.

As I researched these emerging ethical principles apparent in contempo￾rary international legal texts, including the U.N. Charter and the Universal

Declaration of Human Rights, another feature, however, began to emerge:

a general congruence between these broad ethical principles and certain

teachings of the scriptures of the world religions and philosophies. I have,

xi

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xii Preface and Acknowledgments

since my early childhood, been fascinated by religion, having been raised as

a Bahá’í to believe that all religions teach the same eternal spiritual truths.

I began reading the revered texts of seven religions and philosophies—Hinduism,

Judaism, Buddhism, Confucianism, Christianity, Islam, and the Bahá’í Faith

—to find out what they had to say about the moral problems of human

rights, the use of force in general, and humanitarian intervention in partic￾ular. In these texts I discovered not only explicit moral teachings on these

subjects, but also what I could not help but perceive as a remarkable con￾vergence among them.

It also became apparent to me that this convergence among ethical prin￾ciples evident in certain passages from religious and philosophical texts in

fact helped to bolster the authority of similar principles under international

law. And it also made it politically more probable that an approach to human￾itarian intervention and international law grounded in principles that found

support both in international legal texts and in revered religious and philo￾sophical texts could be endorsed and accepted by governments and peoples

representing a diverse array of cultures, many of which are rooted in par￾ticular religious and philosophical traditions.

The subject of humanitarian intervention and international law has proven

to be a challenging one to write about, not only because of its inherent com￾plexity, and the ethical dilemmas that it poses, but also because world events

either prompting actual intervention on humanitarian grounds, or at least

provoking a discussion of the possibility of such intervention, are becoming

more and more frequent. I have accordingly found it necessary to focus on

a number of case studies of interventions initiated before an arbitrary date—

September of 1999. Numerous events relevant to humanitarian intervention

have occurred between this date and the date of this writing, nearly two

years later. These events include intervention in East Timor in September

1999; the debate on humanitarian intervention at the fifty-fourth session of

the General Assembly in the fall of 1999; the decision of the international

community not to intervene to protect Chechens against attacks by Russian

forces; and the involvement of U.N. forces in Sierra Leone. I have touched

on such developments, through June 2001, as they relate to the arguments

in the book, but have not been able within the inevitable space limitations

to give them a comprehensive treatment.

Further, the book was written before the horrific terrorist attacks on

September 11, 2001, in New York City, Washington, D.C., and Pennsylvania,

in which thousands of innocent lives were lost. These attacks prompted mil￾itary intervention in Afghanistan by the United States and other countries

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Preface and Acknowledgments xiii

to apprehend the alleged perpetrators, most notably Osama bin Laden, and

disable his al-Qaeda terrorist network. This military action led to both the

fall of the Taliban, which had provided safe haven to bin Laden and his

associates, and the establishment of an interim government. Beginning in

late 2001 and early 2002, a U.N.-authorized multinational force was

deployed to help provide security during the reconstruction of Afghanistan’s

political, social, and economic institutions. The book was also completed

before the escalation of violence in the Middle East toward the end of 2001.

While Rethinking Humanitarian Intervention does not dicuss these events,

readers are invited to reflect upon the potential application of the princi￾ples developed in the book to them.

Readers who are unfamiliar with many of the technical terms used in the

book—including terms from the disciplines of international law, interna￾tional relations, religion, and philosophy—may find it helpful to refer to the

short glossary that appears at the end of the work. (For more detailed def￾initions of international human rights terms, readers may wish to consult

the more comprehensive and extremely helpful volume, Condé, A Handbook

of International Human Rights Terminology.) The glossary also defines the

new terms I have developed as part of my argument.

One of the fundamental ethical principles in contemporary international

law that I identify, and that many passages from the revered moral texts of

the world religions and philosophies can be interpreted to support, is that

of consultation—of seeking out the opinions of others with the objective of

learning from them, and if appropriate, revising one’s own views. This book

is a concrete example of the implementation of this principle, for it would

have been impossible to accomplish without the generous input provided by

numerous scholars and specialists from many disciplines, including those

disciplines with which I was less familiar, who were graciously willing to

share their expertise, ideas, and perspectives with me. Nevertheless, I bear

full responsibility for any weaknesses in the book’s arguments.

First of all, I must express appreciation to Sanford Thatcher, Director of

the Pennsylvania State University Press, for his willingness to publish my

manuscript and for the many ways in which he helped me produce a much

better book. I also benefited enormously from the comments of two exter￾nal reviewers for the press, Richard A. Falk, Albert G. Milbank Professor

of International Law and Practice at Princeton University, and Robert C.

Johansen, Professor of Government and International Studies and Director

of Graduate Studies at the Joan B. Kroc Institute for International Peace Studies

at the University of Notre Dame. My editor at the press, Andrew B. Lewis,

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xiv Preface and Acknowledgments

made many helpful suggestions, both stylistic and substantive. His keen

insights are much appreciated.

This book could not have been written without the constant support of

the deans of the University of Nebraska College of Law who served during

the many years required for its research and writing—Dean Harvey S. Perlman,

Dean Nancy Rapoport, and Dean Steven Willborn. I especially benefited from

summer research grants provided by the Ross McCollum Law College Fund

and offered by Dean Perlman and Dean Rapoport. Dean Rapoport also made

many valuable specific suggestions about the manuscript.

This book could not have been written, too, without the devoted (and

always good-natured) assistance of the staff of the Marvin & Virginia Schmid

Law Library, including Angela Brannen, Julee Hammer, Kris Lauber, Richard

Leiter, Michael Matis, Ariel Mink, Brian Striman, Rebecca Trammell, and

Sally Wise. Kris Lauber deserves special recognition for her tireless efforts

over many years to support my research. During the preparation of the final

manuscript I enjoyed the outstanding services of two research assistants,

Paul Butler and Sharon Joseph, both of whom not only helped check the

accuracy of my citations and prepare the index for the book, but also pro￾vided many suggestions for improving the text. I also wish to thank my sec￾retaries, including Kim Hailey, Darlene Svancara, and Vicki Lill, for their

help with the preparation of the manuscript.

My colleagues at the University of Nebraska College of Law generously

offered many suggestions relating to the book. I especially want to thank

Robert Schopp and Matthew Schaefer for their extensive comments on por￾tions of the manuscript, and Richard Duncan for his input about the book’s

overall approach. And the students in my international human rights law

course provided, in the classroom, invaluable feedback regarding many of

the ideas developed here.

I also benefited from the comments and recommendations of many colleagues

at the University of Nebraska from other academic departments. In particular,

I must warmly thank Robert Audi, Charles J. Mach Distinguished Professor of

Philosophy; Sidnie W. Crawford, Associate Professor and Chair of the Classics

Department; David P. Forsythe, Charles J. Mach Distinguished Professor of

Political Science; and Jeffrey Spinner-Halev, Schlesinger Associate Professor of

Political Science. They each went out of their way to provide extensive help.

I must express my appreciation to the many international law scholars

who commented on the manuscript, or the parts of it that they reviewed.

These include William R. Slomanson of the Thomas Jefferson School of Law,

who not only offered many helpful suggestions with respect to Chapter 3,

but also encouraged me to elaborate on my ideas in the form of a book;

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