Human Rights and Humanitarian Intervention

1. HUMAN RIGHTS AND
HUMANITARIAN INTERVENTION
Sayeda Akther
Assistant Professor
Department of International Relations
University of Dhaka

2. “What can we do about human rights?”
Voltaire: “Let the people know them”.
 Human rights are rights that every human being has by virtue of his
or her human dignity
 Human rights are all about equality without discrimination.
 The aspiration to protect the human dignity of all human beings is at
the core of the human rights concept.
 It puts the human person in the center of concern.
 It is based on a common universal value system devoted to the
sanctity of life and provides a framework for building a human rights
system protected by internationally accepted norms and standards.
 Art. 1 of the Universal Declaration on Human Rights (UDHR),
adopted by the United Nations in 1948 refers to the main pillars of
the human rights system, i.e. freedom, equality and solidarity.

3. All about Human Rights
 Freedoms such as the freedom of thought, conscience and religion
as well as of opinion and expression are protected by human rights.
 Human rights guarantee equality, such as the equal protection
against all forms of discrimination in the enjoyment of all human
rights, including full equality of women and men.
 Solidarity stands for economic and social rights, like the right to
social security, just remuneration, and an adequate standard of
living, health and accessible education, which are an integral part of
the human rights framework.
 These are detailed under five headings as political, civil, economic,
social and cultural human rights.

4. Continued…
 Human rights pertain to all aspects of life.
 Their exercise enables all individuals to shape and determine their
own lives in liberty, equality and respect for human dignity.
 Human rights encompass civil, political, economic, social, and
cultural rights, as well as the collective rights of peoples
 In the area of civil and political rights
• Right to life
• Freedom from torture and cruel, inhuman or degrading treatment or
punishment
• Freedom from slavery, servitude and forced labour
• Right to liberty and security of person
• Right of detained persons to be treated with humanity

5. Continued….
 Right to a fair trial
 Freedom of movement
 Prohibition of retroactive criminal laws
 Right to recognition as a person before the law
 Right to privacy
 Freedom of thought, conscience and religion
 Freedom of opinion and expression
 Prohibition of propaganda for war and of incitement to national,
racial or religious hatred
 Freedom of assembly
 Freedom of association

6. Continued..
 Right to marry and found a family
 Right to take part in the conduct of public affairs, vote, be elected
and have access to public office
In the area of economic, social and cultural rights
 Right to work
 Right to just and favorable conditions of work
 Right to form and join trade unions
 Right to social security
 Protection of the family
 Right to an adequate standard of living, including adequate food,
clothing
and housing

7. Continued….
 Right to health
 Right to education
In the area of collective rights:
 Right of peoples to:
 Self-determination
 Development
 Free use of their wealth and natural resources
 Peace
 A healthy environment
Other collective rights:
 Rights of national, ethnic, religious and linguistic minorities
 Rights of indigenous peoples

8. Continued….
 Human rights are held by all persons equally, universally and
forever.
 Human rights are inalienable: you cannot lose these rights any
more than you can cease to be a human being.
 Human rights are indivisible: no-one can take away a right because
it is ‘less important’ or ‘non-essential’.
 Human rights are interdependent: together human rights form a
complementary framework.
 Human rights reflect basic human needs. They establish basic
standards without which people cannot live in dignity.
 In claiming these human rights, everyone also accepts
responsibilities: to respect the rights of others and to protect and
support people whose rights are abused or denied.
 Meeting these responsibilities means claiming solidarity with all
other human beings.

9. Human Rights and Human Security
“Most threats to human security reveal a direct or indirect human rights
dimension”- IInd Ministerial Meeting of the Human Security Network.
Lucerne. May 2000.
There are several links between human rights and human security-
 “Security” in the form of personal security (e.g. protection from
arbitrary detention), social security (e.g. provision of basic needs
like food security) and international security (the right to live in a
secure international order) corresponds to existing human rights.
 “[Human security] is, in essence, an effort to construct a global
society where the safety of the individual is at the center of the
international priorities […], where international human rights
standards and the rule of law are advanced and woven into a
coherent web protecting the individual.

10. Precursors of twentieth century human rights
 Documents asserting individual rights:
i. Magna Carta (1215)
ii. the English Bill of Rights (1689)
iii. the French Declaration on the Rights of Man and Citizen
(1789) and
iv. the US Constitution and Bill of Right (1791)
 Almost all of them excluded women, many minorities and
members of certain social, religious, economic and political
groups.
 None reflects the fundamental concept that everyone is
entitled to certain rights solely by virtue of their humanity.

11. Developments during the Nineteenth Century
o Nineteenth century efforts to prohibit the slave trade and to
limit the horrors of war: the Geneva Conventions.
o Established bases of international humanitarian law, which
covers the way that wars should be fought and the protection
of individuals during armed conflict.
o They specifically protect people who do not take part in the
fighting and those who can no longer fight (e.g. wounded,
sick and shipwrecked troops, prisoners of war).

12. The Universal Declaration of Human Rights
 Two major influences of mid-twentieth century to propel human
rights onto the global arena and the awareness of people around
the world.
• The first was struggles of colonial people to assert their
independence from foreign powers, claiming their human equality
and right to self-determination.
• The second catalyst was the Second World War.
 United Nations Universal Declaration of Human Rights (UDHR):
one of the first initiatives of the newly established United Nations.

13. “Human rights are the foundation of freedom, peace, development and
justice – and the heart of the work of the United Nations around the
world.”
Ban Ki Moon, UN Secretary-General. 2010.
Overview of the most important UN human rights conventions:
• Convention against Genocide (1948, 142 parties as of January 2012)
• International Covenant on Economic, Social and Cultural Rights
(1966, 160 parties)
• International Covenant on Civil and Political Rights (1966, 165
parties)
• Convention on the Prevention and Punishment of the Crime of
Genocide (1948, 48 parties)
• Convention against Torture and other Cruel, Inhuman and Degrading
Treatment or Punishment (1984, 146 parties)
• International Convention on the Elimination of All Forms of Racial
Discrimination (1965, 173 parties)

14. Continued….
Convention on the Elimination of All Forms of Discrimination against
Women (1979, 186 parties)
• Convention for the Protection of Migrants (1990, 45 parties)
• Convention on the Rights of the Child (1989, 193 parties)
• Convention on the Rights of Persons with Disabilities (2006, 106
parties)
• Convention on the Protection of all Persons from Enforced
Disappearance (2006, 30 parties).

15. The Commitment of Ratification
When a government ratifies a convention, it accepts the
procedures it defines, which may include these commitments:
 to uphold the convention, respecting, promoting, and
providing for the rights it establishes, and not to take any
action the treaty prohibits;
 to change any law in the country that contradicts or does not
meet the standards set by the convention;
 to be monitored by a designated authority to see that it is, in
fact, keeping its commitments;
 to report at regular intervals on its progress in making these
human rights real in the lives of its citizens.

16. Regional human rights conventions
 Regional human rights conventions are meant to reinforce UN
Conventions, which remain the framework and minimum standard in
all parts of the world:
 European Convention for the Protection of Human Rights and
Fundamental Freedoms
 European Convention on Human Rights, 1950
 European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, 1987
 European Social Charter, adopted by the Council of Europe in 1961
and revised in 1996;
 American Convention on Human Rights, 1969
 African Charter on Human and People’s Rights, 1981

17. Implementation of Universal human Rights Instruments
 States have a duty to respect, protect and to fulfill human rights.
 The duty to protect requires the state to prevent violence and other
human rights violations among the people on its territory.
 There is an increasing emphasis on prevention of human rights
violations by structural measures, i.e. national human rights
institutions or by including a human rights dimension in peace-
keeping operations.
 There may be obstacles like deficiencies in “good governance”,
such as a corrupt and inefficient administration or judiciary.
 In order to ensure that the state is meeting its obligations,
international monitoring of the performance of the state has been
institutionalized for most of the international conventions of human
rights.

18. Human Rights and Civil Society
 Development of the system of human rights: crucial role
played by civil society (mostly NGOs)
 NGOs, also called “conscience of the world”, are based on
the freedom of association, protected by Article 22 of the
ICCPR.
 International Crisis Group (ICG), Human Rights Watch or the
International Helsinki Federation (IHF).

19. Human Rights and its Link to Governance Building:
 Governance-building consists of two complementary forms of
capacity-building:
 state-building and
 societal development
o State-building provides “democratic security”, which can be seen
best in the efforts of rehabilitation and reconstruction after conflicts.
o Societal development includes broad-based human rights education
to empower people to claim their rights and to show respect for the
right of others.” (Walther Lichem, PDHRE).

20. State and Human Rights
 Human rights define relationships between individuals and
power structures, especially the State.
 Human rights delimit State power and, at the same time,
require States to take positive measures ensuring an
environment that enables all people to enjoy their human
rights.
 Human rights are the sum of individual and collective rights
laid down in State constitutions and international law
 Governments and other duty bearers are under an obligation
to respect, protect and fulfill human rights, which form the
basis for legal entitlements and remedies in case of non-
fulfilment.

21. Human Rights and State Sovereignty
 In the past human rights were regarded as a country’s
internal affair.
 Other States and the international community were prevented
from interfering, even in the most serious cases of human
rights violations, such as genocide.
 This approach was challenged in the twentieth century:
subsequently by the international community’s failure to
prevent mass atrocities in Cambodia, Rwanda and Bosnia
and Herzegovina.
 The concept of sovereignty as prohibiting foreign interference
has largely been replaced by one of responsibility, making
States accountable for the welfare of their people.

22. Continued…
 International human rights treaties and customary law impose three
obligations on States:
- the duty to respect
- the duty to protect and
- the duty to fulfill
 Obligation to respect:
 States are obliged to refrain from interfering in the enjoyment of
rights by individuals and groups.
 It prohibits State actions that may undermine the enjoyment of
rights.
 Example: with regard to the right to education, it means that
governments must respect the liberty of parents to establish private
schools and to ensure the religious and moral education of their
children in accordance with their own convictions.

23. Obligation to Protect
 The ‘obligation to protect’ requires States to protect
individuals against abuses by non-State actors, foreign State
agents, or State agents acting outside of their official
capacity.
 The obligation entails both a preventative and remedial
dimension.
 A State is thus obliged to enact legislation protecting human
rights; to take action to protect individuals when it is aware (or
could have been aware) of threats to their human rights; and
 also to ensure access to impartial legal remedies when
human rights violations are alleged

24. Obligation to Fulfill
 Obligation to fulfill: States are required to take positive action
to ensure that human rights can be realized.
 The extent of the obligation to fulfill varies according to the
right concerned and the State’s available resources.
 States should create “the legal, institutional and
procedural conditions that rights holders need in order to
realize and enjoy their rights in full.”
 States must provide ways and means for free and
compulsory primary education for all, free secondary
education, higher education, vocational training, adult
education, and the elimination of illiteracy (including such
steps as setting up enough public schools or hiring and
remunerating an adequate number of teachers).

25. Responsibility to Protect
 The Responsibility to Protect , known as R2P, is an international norm that
seeks to ensure that the international community never again fails to halt
the mass atrocity crimes of genocide, war crimes, ethnic cleansing and
crimes against humanity.
 The concept emerged in response to the failure of the international
community to adequately respond to mass atrocities committed in Rwanda
and the former Yugoslavia during the 1990s.
 The International Committee on Intervention and State Sovereignty
developed the concept of R2P during 2001.
 The Responsibility to Protect was unanimously adopted in 2005 at the UN
World Summit, the largest gathering of Heads of State and Government in
history

26. Responsibility to Protect
R2P stipulates three pillars of responsibilities:
1. Every state has the Responsibility to Protect its populations from four mass
atrocity crimes: genocide, war crimes, crimes against humanity and ethnic
cleansing.
2. The wider international community has the responsibility to encourage and
assist individual states in meeting that responsibility.
3. If a state is manifestly failing to protect its populations, the international
community must be prepared to take appropriate collective action, in a timely
and decisive manner and in accordance with the UN Charter.

27. Conceptual Evolution of R2P
 Several events have influenced the development of the concept of
RtoP.
 First, the genocide, which occurred in Rwanda in 1994, revealed the
absence of political will of states to intervene and the lack of a
sense of legal obligation to do so.
 Secondly, the inability of the UN peacekeeping force UNPROFOR
to prevent the massacre at Srebrenica, Bosnia, in 1995 clearly
pointed to the inadequacy of UN intervention.
 Thirdly, the NATO intervention in Kosovo in 1999 remains an
example of unauthorized and still controversial regional intervention.
 RtoP should entail (ICISS 2001), identifying three aspects: the
responsibility to prevent, the responsibility to react, and the
responsibility to rebuild.

28. Where Human Rights ends, what follows?
 A humanitarian intervention is an armed intervention in another
state, without the agreement of that state, to address (the threat
of) a humanitarian disaster, in particular caused by grave and
large-scale violations of fundamental human rights (NATO
seminar, Scheveningen, November 1999).
 The key aspects of this definition are related to sovereignty and
human rights.
 Firstly, for an action to be intervention, sovereignty of the state
being intervened in must be breached. Under this definition,
INTERFET action in East Timor, while motivated by humanitarian
concerns, was not an intervention as the action was undertaken
with the consent of the Indonesian government (questions of the
power of that government to enforce the decision aside).

29. Continued….
 Secondly, for an intervention to be humanitarian, the desire to
address violations of human rights should be the driving force
in the intervention decision.
 The notion of humanitarian intervention envisages a regime
that overcomes limitations of existing international law and
establishes a framework for preventing large-scale abuses of
human rights, the ideal of justice backed by power.

30. Definition of Humanitarian Intervention
 Humanitarian intervention has been defined as a state's use
of military force against another state, with publicly stating its
goal is to end human rights violations in that state." This
definition may be too narrow as it precludes non-military
forms of intervention such as humanitarian aid
and international sanctions.
 ….“the theory of intervention on the ground of humanity (...)
recognizes the right of one State to exercise international
control over the acts of another in regard to its internal
sovereignty when contrary to the laws of humanity”.

31. Criteria for Humanitarian Intervention
1. The threat or occurrence of grave and large-scale violations of
human rights.
2. Clear and objective evidence of such a threat or occurrence.
3. The government of the state is unwilling or unable to take remedial
action.
4. There is clear urgency.
5. The use of force should be the last resort.
6. The purpose is clearly explained to publics and the international
community.
7. The purpose is limited to stopping the human rights abuses.
8. The action is supported by those for whom it is intended.
9. There is support of regional states.

32. Continued….
10. There should be a high probability of success.
11. There should be a mapped-out transition to post conflict
peace building.
12. The use of force should be proportionate to achieving these
goals.
13. International law on the conduct of war should be followed
during the action.

33. Terms Used
 “Intervention on the grounds of humanity” and the droit
d’ingérence (“right to intervene”) are the terms used in the
past to describe operations involving assistance and
intervention in a country’s
internal affairs.
 The first term, used mainly during the 19th century, referred
to protection of a State’s own citizens in another country, but
was also used to react to particularly shocking acts
perpetrated by a State on its own citizens.

34. Humanitarian Law and Humanitarian Intervention
 Humanitarian law stipulates that when grave breaches of its
provisions are committed, those responsible are to be
prosecuted and punished as criminals.
 They can be tried either by national courts or, failing that, by
international courts created for this purpose, or else by the
International Criminal Court once it has been set up.
 Under Article 1 common to the Geneva Conventions, there is
an individual and collective obligation to “respect and ensure
respect for” international humanitarian law.
 If grave violations of that law are committed, the States are
obliged to take action jointly or separately, in cooperation with
the United Nations and in accordance with the UN Charter
(Protocol I additional to the Geneva Conventions, Article 89).

35. When does a State or a group of States have the right to resort
to force?
UN Charter
 In principle, States are to refrain from the use of force in their
international relations (Article 2 para. 4).
 Chapter VII sets out exceptions. In the event of a threat to
international peace and security, the Security Council may take
military action (Article 42).
 The Charter also guarantees the right to individual or collective self-
defence (Article 51).
 The right to self determination is another possible justification for
intervention accepted in practice.

36. When to Intervene?
 States have a responsibility to protect the basic human rights of
their own people and the international community has a
responsibility to step in when the state fails to do so.
 it is generally accepted that all states have an international
obligation to respect human dignity and to refrain from
committing gross violations of human rights such as genocide,
torture, slavery, systematic racial discrimination or severe and
widespread deprivations of the rights and freedoms of their
citizens.
 The International Court of Justice (ICJ) has recognized this
general obligation as an erga omnes obligation on several
occasions.

37. Continued….
 The international community, collectively or through the action of
individual states, may forcibly intervene within the sovereign sphere
of other states, which are unwilling or unable to stop humanitarian
catastrophes involving mass murder, starvation and crimes against
humanity.
 The modern concept of the Responsibility to Protect (RtoP) is
broader than the old doctrine of humanitarian intervention.
 The Responsibility to Protect, known as R2P, is an international
norm that seeks to ensure that the international community never
again fails to halt the mass atrocity crimes of genocide, war crimes,
ethnic cleansing and crimes against humanity.
 It comprises the duty to prevent, to stop and to remedy.

38. Doctrines
 First doctrinal strand: international legal positivism- humanitarian
intervention is only permitted when authorized by the Security
Council under Chapter VII. This conclusion is based on a textual
reading of the UN Charter and of a restrictive interpretation of opinio
juris and international practice.
 Second: when the state collapses or becomes itself the perpetrator
of massive human rights violations, others have the right and
perhaps the duty to intervene. According to this natural law,
humanitarian intervention is legal, even without the authorization of
the Security Council.
 Third doctrinal strand: the “realist-constructivist” theory- within the
process of dynamic evolution of international law, the formal breach
for humanitarian purposes of the UN Charter prohibition of force,
can trigger a new practice legitimizing humanitarian intervention as
a collective response by members of the international community
acting as “trustees of the general interest”.

39. Continued…
 Responsibility to Protect is the name of a report produced in 2001
by the International Commission on Intervention and State
Sovereignty (ICISS).
 The Canadian government's report, "The Responsibility to Protect,"
found that the sovereignty not only gave a State the right to
"control" its affairs, it also conferred on the State’s primary
"responsibility" for protecting the people within its borders.
 The report also proposed that when a State fails to protect its
people - either through lack of ability or a lack of willingness - the
responsibility shifts to the broader international community.
 The report sought to establish a set of clear guidelines for
determining when intervention is appropriate, what the appropriate
channels for approving an intervention are and how the intervention
itself should be carried out.
 Responsibility to protect seeks to establish a clearer code of
conduct for humanitarian interventions and also advocates a greater
reliance on non-military measures.

40. Case Studies and Legal Developments
 Case Study: 2011 intervention in Libya/ Resolution 1973 and the
Responsibility to Protect [HW]
 Libyan crisis combined a number of factors:
o First, the threat of committing mass atrocities against civilians
was explicitly made by Qadhafi himself, making this threat
imminent and unequivocal.
o Second, the time frame between the beginning of the violence
and its escalation into an outright civil war was very short,
leaving little time for extensive deliberations in the Security
Council.
o Third, regional organizations played a significant role; the Gulf
Cooperation Council (GCC), the Organization of the Islamic
Conference (OIC) and the League of Arab States (LAS) all called
for a no-fly zone. This clear position taken by several regional
actors is likely to have paved the way for Russia and China not

41. Continued…
 These factual circumstances clearly facilitated the decision-
making process in the Security Council.
 “resolution 1973 affirms, clearly and unequivocally, the
international community’s determination to fulfill its
responsibility to protect civilians from violence perpetrated
upon them by their own government” (UN 2011d).
 The failure of the international community to respond to the
atrocities occurring in Syria has dampened some of the early
enthusiasm kindled by the authorized use of force in Libya.

42. The Question behind the Debate
 Pessimist view from ‘Global South’.
 Emergence of ‘Middle Powers’ as active players and
exclusion of poorer states.
 Anne Orford: recent Western humanitarian incursions into the
Third World, amount to neo-colonialism.
 The issues surrounding humanitarian intervention are
indicative of disparities between its theory and application.
 Whilst the doctrine professes a universalist, liberal outlook, its
use by powerful states, particularly the West, appears at
times to simply legitimize old hierarchies, under a new guise.

43. Continued….
 What measures are to be taken by the States and the United
Nations in order to put an end to those breaches is not dealt
with by humanitarian law, but rather by the UN Charter
(Chapters VII or VIII).
 The Security Council has a variety of means at its disposal,
ranging from condemnation to the sending of troops, with full
or partial interruption of economic relations as an
intermediate measure.
 If armed intervention is decided upon, the Security Council
can decide whether it is to be carried out by UN forces or
delegated to a State or regional security body.
 Article 53 of the Charter specifies that “no enforcement action
shall be taken under regional arrangements or by regional
agencies without the authorization of the Security Council”.

44. Continued..
 in deciding to order armed intervention under Chapter VII of
the UN Charter, the Security Council cannot ignore the fact
that its primary role is to restore peace. It cannot take such a
decision without drawing up a consistent and comprehensive
plan of action that addresses the situation as a whole and, in
particular, deals with the underlying causes.
 Adequate resources and facilities must be provided to those
sent on such missions, in order to ensure that genuine
protection is provided for those groups who are supposed to
be protected.