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Critically examine the relationship between human rights and humanitarian intervention.

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Critically examine the relationship between human rights and humanitarian intervention.
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  060157937 Critically examine the relationship between human rights and humanitarian intervention. IntroductionThis paper will examine the relationship between humanitarian military intervention (HMI) and human rights. For the purposes of this paper humanitarian intervention will be referred toas humanitarian military intervention which falls into the category and or peace enforcement operations. Military intervention comes in many forms such as traditional peaceeeping under !hapter "I normally will not include the protection of international staff i.e. aid worers and the rules of engagement are curtailed to the self#defence of military personnel rather than the defence of civilians a pertinent example of this is the $nited %ations &mergency Force in '*+ and coercive intervention is where the rules of engagement (,-&) are robust these inds of operation are grounded in the protection of civilians and or the safeguarding of aid operations such as the protection of world food programme personnel or are the $%I!,! staff in the theatre of operations deemed to constitute a threat or breach of international peace and security these would in principle fall under chapter "II of the $% charter. /rime example of the these ind of peaceeeping operations would be &l 0alvador (1%$!2) or 0omalia ($%1# 01M I)+ robust peaceeepingenforcement operations using a !hapter "II would be 3osnia#Her4egovina ($%/,1F1,) or &ast Timor ($%T2&T). 1ne will critically investigate the legal issues+ for example who can and who should authorise military intervention5 Furthermore+ one will loo at the issue of 6estphalia treaty of '78*+ which is the principle of absolute sovereignty. Then the paper will loo at problem the of HMI .i.e. the failure of peaceeeping missions for example 0omalia+ 3osnia#Her4egovina ($%/,1F1,). 2nother example of the problem is the ,1& and the unwillingness of ey states to allow their troops to be under another country9s command. Throughout this paper there will be examination of International relation (I,) theory such as ,ealism+ and 0oldalistas. There is a debate within I, theory about the conduct and grounds for military 1 | Page  060157937 intervention. /lus a critical eye over the ,esponsibility to /rotect :octrine (,;/) which is thereport from the International !ommission on Intervention and 0tate 0overeignty (I!I00). Finally what is the future for military intervention in the next decade5 1ne will posit that militarily intervention is generally only conducted on the grounds of threats to international  peace < security rather than =ust on some abstract concept of Human ,ights. In terms of the  present crisis in 0yria+ it is >uestionable whether military intervention on human rights grounds would not cause significantly more problems and further destabilise an already fragmented region along sectarian lines which would in turn threaten human rights.The ey issue with Humanitarian intervention and the doctrine of ,esponsibility to /rotect (,;/ ) is the 6estphalia system. The Treaty of 6estphalia'78* is as sacred to the international community as is transubstantiation is to the ,oman !atholic !hurch. This is demonstrated by ?!hina is always against the use of force in international relations@ 3erman (;-';ABB). /owerful states in international society do not share the view that we are moving into a post 6estphalia system. The principle of non#interference in the internal affairs of another country is ingrained in international law this is enshrined in the $% charter article ; (8) ?all states shall refrain in the international relations from the threat or use of force against the territorial integrity and political independence of any state or in any manner inconsistent with the purpose of the $nited %ations@. This illustrates that the principles of sovereignty is at the heart of the charter+ this is further supported by article ; (C) ?the $% may not intervene in matters essentially within the domestic =urisdiction of any state@ 0haw (;--*A';-). Further endorsed by ey members of the $nited %ations 0ecurity !ouncil ($% 0!) accordingto ,obinson (;-'-A '*) ?powerful states continue to insist that the restoration of order was Indonesia9s responsibility@. This essentially proves that in ' there was little appetite within the international community to interfere in the internal affairs of a member state. It is  plausible to argue either way that this recalcitrant attitude to intervention is wholeheartedly 2 | Page  060157937 due to the protection of the principle of non#intervention or you could tae a cynical approachand say that there was no national interest in some small island in the /acific. 1ften the failure to intervene in humanitarian disasters is due to the failure of political will existing in the ey capitals+ this is supported by the analysis of ,obinson (;-'-A '**) ?what prevented it from happening in the pre#ballot period was not political reality and certainly not logistical difficulties but rather an acute lac of political courage and leadership@. $ndoubtedly one could posit that the lac of political will in 6ashington for intervention during the !linton administration was due in part to the fiasco of 0omalia and other intervention in the latter half of the ;- th  century rather than concerns over sovereignty or the legal niceties of intervention+ this will be examined later in the paper.In spite of the prohibition on the use of force within the $% charter there are clear grounds for the use of force written within the charter+ namely !hapter "II. The charter places the authority and responsibility for international peace and security firmly within the domain of the $nited %ations 0ecurity !ouncil ($%0!). This is promulgated in article ;8 of the charter ?in order to ensure the prompt and effective action by the $nited %ations+ its members confer on the 0ecurity !ouncil primary responsibility for the maintenance of international peace andsecurity+ and agree that in carrying out his duties under this responsibility the 0ecurity !ouncil acts on their behalf.@ Therefore if a situation occurs in the world which the council  believes constitutes a threat to international peace and security+ in accordance with article B of the charter they can determined whether there is a threat to peace+ breach of peace or an actof aggression. 1nce this has occurred the $% 0! can decide what action to execute under chapter "II in essence they can order enforcement action which will overrule article ; (C) on the prohibition of the use of force in the internal affairs of a member state article 8' and article 8; of the charter respectfully allowing for economic sanctions and coercive military force to restore threats to international peace and security. 2 prime example of the $% 0! 3 | Page  060157937 using its powers under chapter "II will be resolution 7C* and resolution ';78 which both contain the wording ?to tae all necessary measures@. Teson would argue that ?if a genuine humanitarian intervention does not result in territorial con>uest or political sub=ugationDit is a distortion to argue that it is prohibited by article ; (8)@ Hol4grefe ;--BABC. This raises two pertinent >uestions how do we determine what is genuinely humanitarian intervention and does the charter really allow for intervention suggested by the above >uote outside of chapter "II. /erhaps more importantly do the ey member states of the $% 0! subscribe to this view. However this interpretation has been re=ected by the international court of =ustice+ first in the !orfu !hannel !ase (I!E ,eports '8) and the %icaragua =udgement (I!E ,eports '*7). 2ccording to :elbruc ?the decisionof the 0ecurity !ouncil on what constitutes a threat to international peace and security is a  political one and sub=ect to political discretion.@ Further endorsed by the =udgement in the ocerbie case before the I!E ?/resident 0chwebel denied that the court is generally empowered to exercise =udicial review of the decisions of the 0ecurity !ouncil+ and enunciated that the court is particularly without power to overrule or undercut decisions of the 0ecurity !ouncil made by it in pursuance of its authority under articles B+ 8' and 8; of the charter@ :instein ;--AB;B. I would firmly agree with this analysis and we should move away from seeing the charter and other pieces of international law as purely legalistic in nature+ essentially it is all grounded in realpoliti. This is demonstrated by the actions of the $% 0! regarding 0omalia ';+ ,wanda '8 and Haiti '8+ in all these cases the $% 0! invoed chapter "II of the charter to authorise coercive military action without state consent to end or to try to end massive human rights abuses. ?2gain+ no impartial observer could conclude that the 0ecurity !ouncil thought that it was only the transboundary effects of the ,wandan genocide+ rather than the genocide itself+ that permitted it to intervene@ Hol4grefe ;--BA8;. 0imilarly $% 0!9s too a similar view in the situation in Haiti again determining 4 | Page  060157937 that a threat to peace did not have to be international in nature but could be regional instead. It is crystal clear $% 0! practice in sanctioning resolutions 8-+ ;+ 7** suggests that chapter "II sanctioned humanitarian intervention does not go against the tenants of the charters general ban on military intervention. In terms of HMI and international human rights for example the Genocide !onvention of '8* places an obligation on the signatories to?prevent and punish the crime of genocide@ in article '. 3ut this does not trigger in any shape or form authorisation for HMI outside of the $% system as is made clear in article "IIIof the genocide !onvention '8*. It demonstrates there is no automatic symbiosis between human rights and HMI while on occasions they do collide+ breaches of human rights are not an automatic trigger for coercive action as is demonstrated by :onnelly 'BA7;B ?none of the obligations to be found in multilateral human rights treaties may be coercively enforced  by any external actor@. 0tate practice demonstrates there is no acceptance of a right of unauthorised HMI the authority for this is the General 2ssembly ,esolutions ;'B'+ ;7;+ '*;+ 'C;.If Teson is correct and :onnelly is incorrect then in theory powerful states with the ability for force pro=ection be intervening in countries such as imbabwe+ 3urma. %evertheless the  political realities of our world I demonstrated by the state practice of the most powerful able states militarily to prevent and halt mass atrocities which would fall under article B. 6e onlyhave to loo at the current situation in 0omalia+ France+ the $nited 0tates and the $ are only prepared to send in special forces to rescue their own nationals rather than stabilise and improve the humanitarian predicament of 0omali nationals. There is no hurry to restore peaceand security to 0omalia you can postulate the rationale for this is there is no public support  bac home in countries lie France+ the $ for that ind of heavy militarily action and for theliely casualty rate and fatality rate from such action. In essence there is no real interest to tae such action this would support an I, realist approach where state interest comes before 5 | Page
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