State practice during the Cold War: A customary law?

Although the practice of states during the nineteenth century with regard to humanitarian intervention remains controversial, a certain body of the doctrine considers that the principle has been accepted to the extent that it can be argued that it has gained international custom status. Those who take this view argue that state practice in the nineteenth and early twentieth centuries had certainly established humanitarian intervention as a customary right.175 _{Indeed, their arguments are}

founded on the idea that intervention in response to humanitarian tragedy has fuelled several interventions in the nineteenth century and that this practice has survived the creation of the United Nations.176 _{As noted in chapter 2, the joint intervention of Great}

Britain, France and Russia in Greece in 1827, the French invasion of Syria in 1860 to stop the slaughter perpetrated by the Ottoman troops, and Russia’s incursion into the

172 Bartram S. Brown, ‘Humanitarian Intervention at a Crossroads’, 41 William and Mary Law Review, 2000, p. 1683.

173 The Belgium intervention in Congo in 1964, the US intervention in the Dominican Republic in 1965, The Tanzania intervention in Uganda in 1979, the India intervention in Pakistan in 1971 and the Vietnam invasion of Cambodia in 1978, the US intervention in Grenada in 1983 and in Panama in 1989 and 1990 are good examples of intervention with an humanitarian basis.

174 See Adam Robert, ‘The So-Called “Right” of Humanitarian Intervention’, Year Book I nternational Humanitarian Law, vol. 3, no. 23, 2000.

175 See Richard B. Lillich, ‘Forcible Self-help by States to Protect Human Rights,’ 53 Iowa Law Review, vol. 53, 1967, p. 334 ; Jean-Pierre L. Fonteyne, ‘The Customary International Law Doctrine of Humanitarian

Intervention: Its Current under the UN Charter’, 4 California Western International Law Journal, 1974, pp. 203- 70.

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former Yugoslavia in 1877 with support from a number of European states were cited as the earliest instances of humanitarian intervention.177 _{Some scholars, however,}

reject the idea that these interventions were humanitarian interventions arguing that there was no reference to a legal justification for intervention.178 _{For them it is clear}

that state practice in the nineteenth century did not establish a customary right of humanitarian intervention.179

However, although the practice of state in the nineteenth century did not permit to establish humanitarian intervention as a norm in customary international law, one may point to a number of state interventions during the Cold War era to maintain that the principle was gaining acceptance as a norm in customary international law. Brownlie for example maintains that the concept was already accepted, asserting that the twentieth century was marked by a wide acceptance of the right of humanitarian intervention within a non-intervention doctrine.180 _{It can be therefore argued that}

humanitarian intervention has been sufficiently accepted in cases of mass violation of human rights. For example, the 1971 Indian intervention to end civil war in East Pakistan, the 1978 Vietnam intervention in Cambodia which put an end to the genocidal rule of Khmer Rouge, and the 1979 Tanzanian intervention to overthrow Idi Amin in Uganda were widely accepted despite the fact that intervening states had no mandate to act as they did181_.

177 See Thomas M. Franck and Nigel S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67 American Journal of International Law, 1973, pp. 279-85.

178 Ian Browlie, ‘Humanitarian Intervention’ in John N Moore (ed.), Law and Civil War in the Modern World, Baltimore, Maryland: Johns Hopkins University Press, 1974, p. 217 - 221.

179 Ibid.

180 Ian Brownlie, International Law and the Use of Force by States, Oxford: Clarendon Press, 1963, p. 338. 181 For a brief history of these cases see for example Clark Arend and Robert Beck, International Law and the Use of Force: Beyond the UN Paradigm, Routledge, op. cit, pp. 122-125.

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It is important to note that despite the fact that the three military interventions aimed at stopping extreme violations of human rights, the intervening states chose to justify their actions by self-defense instead of invoking a customary right of humanitarian intervention.182 _{Indeed, none of the intervening states chose to justify their intervention}

on a humanitarian basis. In the case of the Indian intervention in Vietnam, while the unilateral intervention could have been justified on humanitarian grounds, India decided to cite self-defense as the reason for its intervention. Indeed, India’s decision to send its troops into Pakistan was taken after massacres, systematic torture, mass rape, assassination and arbitrary executions perpetrated by Pakistan’s army had been reported, and the United Nations Security Council blockage to declare the situation in Pakistan as a threat to international peace and security. In its military intervention, India succeeded in stopping the systematic killings of civilians. Similarly, in 1978 Cambodia was invaded by Vietnam which succeeded in driving out the Khmer Rouge who were perpetrating crimes against humanity causing a death of almost three million Cambodians. As to the Tanzania invasion of Uganda, intervention followed the slaughter of hundreds of thousands of innocent Ugandans under the Idi Amin regime. In fact, the tyrannical regime was marked by serious violations of human rights; the intervention halted the systematic killing of people from certain tribal and ethnic groups and led to the overthrow of Idi Amin Dada. However, Tanzania’s ostensible justification of its invasion was self-defense in response to the occupation and annexation of the Kagera salient.183

182 Ibid. 183 Ibid.

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Commentators believe that India, Tanzania and Vietnam have failed to make those cases to develop customary rule of international law on humanitarian intervention.184

Nevertheless, despite the fact that the motives of intervention were not purely humanitarian, these interventions could have been labelled humanitarian interventions as they were responses to humanitarian tragedies. In light of those cases, Kofi Annan comments:

What justified their action in the eyes of the world was the internal character of the regimes they acted against. And history has by and large ratified that verdict. Few would now deny that in those cases intervention was a lesser evil than allowing massacre and extreme oppression to continue. Yet at the time, in all three cases, the international community was divided and disturbed. Why? Because these interventions were unilateral.185

It is nevertheless a fact that disagreement continues about the status and legality of intervention for humanitarian purposes. Some scholars for example point out the fact that the right of humanitarian intervention has been applied in a selective manner arguing that ‘this alleged right lacks the two recognized attributes of a binding international norm: general observance and widespread acceptance that it is lawful’.186

Others, however, reject this argument, maintaining that the fact that the principle of humanitarian intervention is a permissive rather than a mandatory norm make it an element of selectivity in its exercise.187 _{The core challenge was to reconcile}

184 See for example Lyal S. Sunga ‘Is humanitarian intervention legal? In E-International Relations Online Journal, October 13, 2008, article is at http://www.e-ir.info/2008/10/13/is-humanitarian-intervention-legal/ accessed 02/05/2013.

185 Secretary-General Reflects on ‘Intervention’ in Thirthy-Fifth Annual Ditchley Foundation Lecture, SG/SM/6613, 26 June 1998.

186 Highlighting the selective exercise of humanitarian intervention, classicists mentioned that no state or regional organization had intervened to prevent or end the massacre of several hundred thousand ethnic Chines in Indonesia in mid-1960s; the killing and forced starvation of almost half a million Ibos in Nigeria; the slaughter and forced starvation of well over a million black Christians by the Sudanese government in the 1960s, etc. See J.L. Holzgrefe and Robert O. Keohane, Humanitarian Intervention, op.cit p.47.

187 See Dino Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’, 19 Michigan Journal of International Law, 1998, p. 1027.

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humanitarian intervention with the principle of sovereignty as well as the rules set forth in Article 2(4) of the UN Charter.188 _{As Murphy observes:}

A central challenge for the next century rests in reconciling existing construction on the use of armed forces with the increasing desire to protect civilians and combatants from widespread and severe deprivations of human rights that arise from internal conflicts due to civil war or to the persecution of groups by autocratic governments. Should states allowed to intervene in the affairs of other states to prevent deprivation of human rights, an act commonly referred to as ‘humanitarian intervention’?189