High-Level Expert Group Meeting
22-23 April 2002
The John F. Kennedy School of Government, Harvard University
Cambridge, Massachusetts
Chaired by Malcolm Fraser
Introduction
1. The end of the Cold War has facilitated an increased
capacity for involvement in international affairs. There
have been more United Nations peacekeeping and enforcement
operations in the last decade than in all the preceding 45
years of the Cold War.
2. The preparedness of the international community to
become involved in humanitarian crises throughout the
world has its own complications. Humanitarian actions have
often brought into question the application of
international law both in the decision to intervene, and
in the military conduct of the intervention. Recognizing
that the international community is increasingly willing
to address gross violations of human rights, the
InterAction Council convened the Expert Group to explore
political and legal issues arising from humanitarian
crises and military intervention.
Rule of Law, Democracy, Freedom and Respect for Human
Rights
3. One of the most significant developments in
International Law since the end of World War II has been
the growth in International Human Rights Law. The
traditional position at International Law was that
sovereign independent States were free to treat their own
nationals as they chose without threat of external
interference. The advances of international human rights
law have rendered a State's treatment of its own nationals
an issue of international concern. Recent developments in
International Criminal Law affirm the trend. Now the
perpetration of atrocities, whether in armed conflict or
in peacetime, whether committed solely against a State's
own nationals or in the context of an international armed
conflict, are the subject of universal jurisdiction -
either in the domestic courts of another State or before
an international criminal tribunal.
4. Democratic societies which purport to value respect for
human rights and freedoms should be more likely to respect
the rule of law in the conduct of military operations as
well as in peacetime. Respect for international
humanitarian law and international human rights law,
however, is not determined solely by the character of the
domestic political system. Military conduct and the
treatment of particular groups within a society are also
guided by an inherent idea of identity, both of self and
of 'the other.' Political attempts to dehumanize 'the
other' will inevitably translate into diminished respect
for the need for correct application of humanitarian and
human rights law.
5. International efforts to promote the establishment of
institutional structures to support and strengthen
democratic systems of governance throughout the world
should be encouraged. In addition, even in existing
democratic societies, more can and should be done to
promote acceptance and tolerance of those perceived to be
different whether they are minority groups within the
society itself or the nationals of a military opponent. It
is incumbent on democracies to maintain the highest
standards of respect for, and effective implementation of,
existing international legal obligations in both
international humanitarian law and international human
rights law. Such societies should remain open and
accountable for the implementation of international legal
standards and welcome external review of their policies.
In an era, for example, of extensive movements of refugees
and asylum seekers, there is a disturbing tendency in
developed States to deal harshly with those individuals
seeking refuge. The standards of treatment of such groups
of people will communicate much about the commitment of a
particular society to humanitarian principles. These
societies must promote the education of their whole
society, particularly young people, about the importance
of respect for human rights.
6. The InterAction Council also recommends that leaders
from the G8 economies meet with leaders of the world's
major religions to discuss initiatives to promote
tolerance and respect for those who are different. It is
emphasized that the InterAction Council's proposed
Universal Declaration of Human Responsibilities is
relevant in this aspect. Against the possibility of a
'clash of civilizations' largely based on religion, in
1987 the leadership of the InterAction Council convened a
meeting between senior religious leaders and the Council.
The purpose was to examine the possibility of a common
ethical base, acceptable to all religions. The InterAction
Council was greatly encouraged by the meeting and, as a
consequence, drafted the proposed Universal Declaration of
Human Responsibilities, designed to reinforce and to
complement the Universal Declaration of Human Rights.
7. The Universal Declaration of Human Responsibilities
emphasizes the responsibilities of individual citizens to
each other and the responsibility of those in positions of
power and authority to advance the common good. Such
concepts reinforce the Universal Declaration of Human
Rights.
8. A meeting between key political leaders and senior
religious leaders could have very special benefits at this
time.
Humanitarian Intervention
9. The UN Charter only permits the use of military force
to intervene in the internal affairs of another State,
other than in self-defense, with Security Council
authorization pursuant to Chapter VII. The Council has, on
occasions, applied this authority by authorizing military
intervention on humanitarian grounds. Council decision
making can, of course, be frustrated on purely political
grounds by the exercise of the veto power by one of the
permanent five members. In the face of massive human
rights violations it is entirely unsatisfactory for one
permanent member of the Council to obstruct a collective
decision to intervene militarily to stop those violations.
A dogmatic commitment to Council authorization as the sole
determinant of the legitimacy of intervention will be
problematic in the face of political obstinacy expressed
through the use of the veto power.
10. On the other hand, unilateralist claims of the right
to intervene on humanitarian grounds also pose problems.
The collective enforcement mechanisms of the UN Charter
were designed to protect against the dangers of unbridled
resort to military force. The most serious ramification
arising from NATO's resort to force in Kosovo without
Security Council authorization is the possibility that
other groups of States may also decide that they too have
the right to use military force on humanitarian grounds
and to determine for themselves the circumstances in which
resort to such force is justified.
11. In circumstances where the Security Council is
frustrated in its decision making, the alternative exists
for the UN General Assembly to be called into Emergency
Special Session to recommend military intervention by two
thirds majority of states present and voting. Although
there are logistical and financial implications from
implementing this process, a recommendation from the
plenary body of the inter-governmental community would
ensure greater legitimacy of a military intervention.
12. Humanitarian crises such as genocide or crimes against
humanity rarely occur spontaneously. The international
community must value initiatives to identify potential
sources of conflict, and strategies designed to redress
them. There are significant advantages in pursuing
measures to avert humanitarian crises and any efforts to
do so should be supported and encouraged. In particular,
the Good Offices role of the UN Secretary-General in
Article 99 of the UN Charter could be affirmed and
enhanced - possibly through a consensus UN General
Assembly Declaration. The Secretary-General should have an
agreed mandate to monitor and report on impending
humanitarian tragedies to the UN Security Council and
should receive the financial and political support to
establish the structures and processes to facilitate this
increased capacity.
13. There are likely to be increasing calls for
development of international law to permit military
intervention on humanitarian grounds without UN Security
Council authorization in situations where that
authorization is prevented by the use of the veto. One
possible course of development is through Chapter VIII of
the Charter dealing with Regional Organizations.
Irrespective of the ways in which the law develops, it is
critical that the international community identifies and
agrees upon clear criteria for the practice. The Report of
the International Commission on Intervention and State
Sovereignty (established by the UN General Assembly in
2000 and co-chaired by Gareth Evans and Mohamed Sahnoun)
entitled The Responsibility to Protect makes an important
contribution towards identifying such criteria. In the
absence of agreed criteria for humanitarian intervention
there is a serious risk of a particular action providing a
precedent for others to spuriously claim justification for
their own aggression.
Universal Participation in International Humanitarian
Law Instruments
14. The Four Geneva Conventions of 1949 and their two
Additional Protocols of 1977 are amongst the most widely
supported multilateral treaties in existence and have long
been considered to reflect customary international law.
However, when powerful and influential States are seen to
conduct their military operations in disregard for these
major instruments such action calls the very integrity of
the treaties into question.
15. The US and its Allies have a significant
responsibility to set exemplary standards in upholding the
rule of law in international affairs. Perceptions of a
readiness to ignore or to bend rules of international
humanitarian law can only lead to a diminution of
international respect for the law. Recent practices in
aerial bombing campaigns and in the approach taken to the
legal status of detainees at Guantanamo Bay, for example,
raise serious concerns.
16. The 'War on Terror' presents new challenges for the
application of international humanitarian law and the
conduct of military operations. However, these challenges
must still be met on the basis of fundamental principles
of international humanitarian law and with respect for
human dignity and fundamental human rights.
Enforcement of International Humanitarian Law
17. One advantage of humanitarian intervention, in
addition to preventing the further perpetration of
atrocity, is to facilitate the bringing to justice of
those responsible for committing atrocities. The notion of
individual criminal liability for violations of
international humanitarian and human rights law is a long
established principle. Although the establishment of
international institutional structures and procedures for
the prosecution of violations of international
humanitarian law has been a protracted process, the entry
into force of the Rome Statute for the International
Criminal Court on 1 July 2002 is a welcome development.
18. While we celebrate the establishment of the
International Criminal Court it is important to
acknowledge that criminal prosecutions are not the only
means of enforcement of international humanitarian law.
Bodies such as the International Humanitarian Fact Finding
Commission (established pursuant to Article 90 of Protocol
I of 1977 Additional to the Geneva Conventions of 1949)
could have a critical role to play in monitoring the
conduct of military operations while they are still
occurring.
19. The new International Criminal Court constitutes one
of the most significant new multilateral institutions
since the establishment of the United Nations Organization
itself. The Court will exercise jurisdiction over war
crimes, crimes against humanity and acts of genocide
wherever they occur in the world. Unlike the two ad hoc
international criminal tribunals for the Former Yugoslavia
and for Rwanda, the new Court will be a permanent body
without territorial or temporal limitations (except that
its jurisdiction will not be retrospective). The
establishment of the Court is a major advance towards the
goal of ending impunity for the worst atrocities and all
non-Parties should be encouraged to participate in the
Court in order to render it a truly universal
institution.
20. The selection of a professional and competent
prosecutor will be one of the most important appointments
of the early part of the new Century. States which have
currently not ratified the Rome Statute should think
seriously about whether to rectify their non-participation
in order to participate in this selection process.
Non-Parties to the Statute will also be precluded from
nominating a judge for appointment to the Court, from
having nationals appointed to the Office of the Prosecutor
or to other employment positions within the Court and from
participating in subsequent conferences of States Parties
to review the Statute of the Court. Clearly one of the
best ways to influence both the key appointments to the
Court as well as the critically significant early years of
operation of the Court which establish the culture of the
new institution is to participate from the Court's
inception.
21. Some States have objected to the possibility that
their nationals might be tried by the Court without the
consent of those States. This possibility is unlikely for
two key reasons. First, the Statute only allows the Court
to exercise jurisdiction if the territorial State and the
State of nationality of the alleged perpetrator are
'unwilling or genuinely unable' to exercise their primary
right to domestic jurisdiction. The current level of
widespread support for the Statute is predicated upon this
so-called 'complementarity' principle and the Court's
Statute does not allow the Court to violate it. Secondly,
an 'overly zealous' Prosecutor does not have an unbridled
capacity to initiate proceedings against the national of a
non-consenting State. The Prosecutor must satisfy a
Pre-Trial Chamber of three judges that there is a case to
answer. Ultimately the principal safeguard against either
the Court or the Prosecutor acting ultra vires is a
political one. If the Court engages in spurious or
frivolous prosecutions or against the wishes of State
attempting to exercise its rightful primary national
jurisdiction existing States Parties are likely to
withdraw their support for the Court. Those States that
have ratified the Statute have done so because of their
commitment to international justice. It is unlikely that
many of those States would tolerate the perversion of the
primary objectives of the Court for fear that they too may
be subject to the same treatment in the future.
22. Some permanent members of the UN Security Council may
still decide that they are unable to become Parties to the
Rome Statute. Those States do not need to openly oppose
the work of the Court. As permanent members of the
Security Council, those States have the opportunity to
lead Security Council decision making to refer situations
to the Prosecutor of the Court for investigation and the
possible initiation of proceedings. This Council authority
could be the primary source of work for the Court in its
foundational stage and it would be a tragedy for any of
the P5 not Parties to the Statute of the Court to obstruct
the utilization of the Court through their use of the
veto.
Conclusion
23. International review of domestic implementation of
international humanitarian and human rights law
obligations often prompt States to raise a defense of
national sovereignty. An effective multilateral system
promoting international peace and security is in the
interests of all States. The voluntary participation by
States in multilateral treaties and institutions leads to
an enhancement of, rather than a derogation from,
sovereignty. For States to seek to evade international
humanitarian and human rights law obligations on the basis
of purported threats to sovereignty undermines the very
system that they have chosen to support.
24. Expectations have been raised that the international
community has an obligation to intervene and not simply
shrug and turn away when gross violations of human rights
or international humanitarian law take place. Despite
inconsistencies inherent in decisions to intervene in
particular situations, indications are that military
interventions are likely to continue to occur. It is
important that both the decision to intervene and the
conduct of the intervention are subject to international
regulation so that the growing willingness to act can be
guided, legitimate and increasingly effective.