655435_unidade iv humanitarian intervention

“HUMANITARIAN” INTERVENTION TODAY

by

V. S. MANI

V. S. MANI

CONTENTS

Chapter I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 231.1. The relevance of the study . . . . . . . . . . . . . . . . . . . . . . 231.2. The scope and objective of the study . . . . . . . . . . . . . . . . 251.3. The study plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271.4. Defining “humanitarian” “intervention” and “modern international

law” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281.5. The contemporary international community : a perspective . . . . 29

Chapter II. “Humanitarian” intervention : a historical perspective . . . . 34

2.1. Doctrines and practices . . . . . . . . . . . . . . . . . . . . . . . 342.1.1. Ancient Indian traditions . . . . . . . . . . . . . . . . . . . . . . 352.1.1.1. Concept of dharma . . . . . . . . . . . . . . . . . . . . . . . . 362.1.1.2. Dharmayuddha (the righteous war) . . . . . . . . . . . . . . . 372.1.1.3. Means and methods of warfare . . . . . . . . . . . . . . . . . 402.1.1.4. Treatment of non-combatants and prisoners of war . . . . . . . 422.1.1.5. Treatment of civilians and civilian objects . . . . . . . . . . . 432.1.2. Buddhism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432.1.3. Jainism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472.1.4. Ancient Chinese traditions . . . . . . . . . . . . . . . . . . . . . 492.1.4.1. Confucianism . . . . . . . . . . . . . . . . . . . . . . . . . . . 492.1.4.1.1. Limited justifications for war. . . . . . . . . . . . . . . . . . 492.1.4.2. Sun Tzu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512.1.5. Islamic traditions . . . . . . . . . . . . . . . . . . . . . . . . . . 512.1.5.1. Elements of just war . . . . . . . . . . . . . . . . . . . . . . . 532.1.5.1.1. Just cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542.1.5.1.2. Right intention . . . . . . . . . . . . . . . . . . . . . . . . . 572.1.5.1.3. Legitimate authority . . . . . . . . . . . . . . . . . . . . . . 582.1.5.1.4. The rule of proportionality . . . . . . . . . . . . . . . . . . . 592.1.5.1.5. The rule of discrimination . . . . . . . . . . . . . . . . . . . 602.1.5.1.6. Probability of success. . . . . . . . . . . . . . . . . . . . . . 622.1.5.1.7. Last resort . . . . . . . . . . . . . . . . . . . . . . . . . . . 622.1.6. Christian traditions . . . . . . . . . . . . . . . . . . . . . . . . . 632.1.6.1. Christian pacifism. . . . . . . . . . . . . . . . . . . . . . . . . 632.1.6.2. Just war theories . . . . . . . . . . . . . . . . . . . . . . . . . 662.1.6.2.1. Historical contexts . . . . . . . . . . . . . . . . . . . . . . . 682.1.6.2.2. The doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . 742.1.6.2.2.1. Cicero [106-43 BC] . . . . . . . . . . . . . . . . . . . . . . 762.1.6.2.2.2. St. Augustine of the Hippo (353-430 AD) . . . . . . . . . . 772.1.6.2.2.3. St. Thomas Aquinas (1224-1274) . . . . . . . . . . . . . . 802.1.6.2.2.4. Just war theories of fifteenth to seventeenth centuries . . . . 862.1.6.2.2.5. Grotius’s De Jure Belli ac Pacis (1625) . . . . . . . . . . . 942.1.7. Kantian philosophy and just war . . . . . . . . . . . . . . . . . 972.1.7.1. International state of nature . . . . . . . . . . . . . . . . . . . 992.1.7.1.1. The right to go to war . . . . . . . . . . . . . . . . . . . . . 992.1.7.1.2. The right during war . . . . . . . . . . . . . . . . . . . . . . 100

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2.1.7.1.3. The right after war . . . . . . . . . . . . . . . . . . . . . . . 100 2.1.7.1.4. The right to peace . . . . . . . . . . . . . . . . . . . . . . . 1012.1.7.1.5. The right against unjust enemy ? . . . . . . . . . . . . . . . 1012.1.7.2. Duty to strive for perpetual peace . . . . . . . . . . . . . . . . 1022.1.7.2.1. Perpetual peace : preliminary articles . . . . . . . . . . . . . 1032.1.7.2.2. Perpetual peace : definitive articles . . . . . . . . . . . . . . 1082.1.7.2.3. Kant and Bentham : a comparison . . . . . . . . . . . . . . . 1102.2. Changing responses of traditional international law . . . . . . . . 1122.2.1. Balance of power doctrine . . . . . . . . . . . . . . . . . . . . . 1122.2.2. Intervention as a policy issue, outside the pale of law . . . . . . 1182.2.3. Legal right to intervene . . . . . . . . . . . . . . . . . . . . . . 1212.2.3.1. Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242.2.3.2. Oppression . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242.2.3.3. Uncivilized wars . . . . . . . . . . . . . . . . . . . . . . . . . 1242.2.3.4. Injustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1252.2.3.5. Slave trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1262.2.3.6. Humanitarian asylum . . . . . . . . . . . . . . . . . . . . . . . 1262.2.3.7. Foreign commerce . . . . . . . . . . . . . . . . . . . . . . . . 1282.2.4. Legal prohibition of intervention . . . . . . . . . . . . . . . . . 1292.2.5. Implications of traditional doctrines for traditional international

law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Chapter III. Response of the contemporary international law . . . . . . . 134

3.1. The United Nations as an actor in international relations . . . . . 1343.1.1. International institution : a doctrinal perspective . . . . . . . . . 1343.1.1.1. Organizing in the vortex of plurality of competing forces . . . 1343.1.1.2. International institution as an “autonomous” actor . . . . . . . 1373.1.2. Emergence of the United Nations . . . . . . . . . . . . . . . . . 1423.1.3. The United Nations : a mix of idealism and “realism” . . . . . . 1433.1.4. The normative order of the United Nations Charter . . . . . . . 1483.1.4.1. A historical perspective . . . . . . . . . . . . . . . . . . . . . 1483.1.4.2. Evolution of international human rights law . . . . . . . . . . 1543.1.4.3. Legal order governing use of force . . . . . . . . . . . . . . . 1573.1.4.3.1. Sovereign equality . . . . . . . . . . . . . . . . . . . . . . . 1593.1.4.3.2. Non-use of force . . . . . . . . . . . . . . . . . . . . . . . . 1613.1.4.3.3. Non-intervention . . . . . . . . . . . . . . . . . . . . . . . . 1693.1.4.3.4. Good faith . . . . . . . . . . . . . . . . . . . . . . . . . . . 1773.1.4.4. Institutional mechanism at the United Nations . . . . . . . . . 1783.1.4.4.1. International personality of the United Nations . . . . . . . . 1793.1.4.4.2. The General Assembly . . . . . . . . . . . . . . . . . . . . . 1813.1.4.4.3. The Security Council . . . . . . . . . . . . . . . . . . . . . 1823.2. Peremptory norms of international law and obligations erga omnes 1883.3. Rights and duties of States . . . . . . . . . . . . . . . . . . . . . . 1893.4. “New” humanitarian doctrines : towards a new “higher” law of

human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2073.4.1. Western discourse on contemporary international law . . . . . . 2073.4.2. A new “higher” law of human rights : towards an obligation to

intervene ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2133.4.2.1. Henry G. Schermers . . . . . . . . . . . . . . . . . . . . . . . 2133.4.2.2. Fernando R. Tesón . . . . . . . . . . . . . . . . . . . . . . . . 218

14 V. S. Mani

Chapter IV. Unilateralism of “humanitarian” intervention . . . . . . . . . 2314.1. Issues of burden of proof of legality of unilateral resort to “huma-

nitarian” intervention . . . . . . . . . . . . . . . . . . . . . . . . . 2314.1.1. General burden of proof of legality of a unilateral act . . . . . . 2314.1.2. Burden of proof of validity of unilateralism and jus cogens . . . 2344.2. Legality and objectives of intervention . . . . . . . . . . . . . . . 2364.3. Invasion of Afghanistan 2001 . . . . . . . . . . . . . . . . . . . . 2384.3.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2384.3.2. 9/11 and aftermath . . . . . . . . . . . . . . . . . . . . . . . . . 2384.3.3. Economic and other sanctions and US demands on Taliban . . . 2414.3.4. US military response . . . . . . . . . . . . . . . . . . . . . . . . 2424.3.5. The role of the United Nations in forging transnational arrange-

ments for Afghanistan . . . . . . . . . . . . . . . . . . . . . . . 2434.3.6. International law issues through the Afghan war . . . . . . . . . 2454.3.6.1. Existing framework on control of international terrorism . . . 2454.3.6.1.1. General international law . . . . . . . . . . . . . . . . . . . 2454.3.6.1.2. Treaty framework . . . . . . . . . . . . . . . . . . . . . . . 2464.3.6.2. Legality of unilateral force . . . . . . . . . . . . . . . . . . . . 2484.3.6.3. Bringing the terrorists and their collaborators to justice . . . . . 2504.4. Invasion of Iraq 2003 . . . . . . . . . . . . . . . . . . . . . . . . 2544.1.1. Issues of legality of unilateral use of force against Iraq . . . . . 2554.1.1.1. Right to collective self-defence . . . . . . . . . . . . . . . . . 2554.1.1.2. Individual self-defence . . . . . . . . . . . . . . . . . . . . . . 2564.1.1.3. Enforcement of international obligations arising from Security

Council decisions . . . . . . . . . . . . . . . . . . . . . . . . 2594.1.1.4. Obligation to prevent and punish international terrorism . . . . 2614.1.1.5. “Humanitarian” intervention . . . . . . . . . . . . . . . . . . . 262

Chapter V. “Humanitarian” action by the United Nations . . . . . . . . . 2645.1. Institutional mechanism for use of force under the UN Charter . . 2645.1.1. The Security Council (and whatever little left of the General

Assembly) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2645.1.1.1. Charter framework . . . . . . . . . . . . . . . . . . . . . . . . 2645.1.1.2. Some UN practice : an interpretation . . . . . . . . . . . . . . 2695.1.2. Problems of Security Council-sponsored UN peace actions . . . 2755.1.3. Towards a concept of UN “humanitarian” action ? . . . . . . . . 2885.1.4. The so-called “responsibility to protect” . . . . . . . . . . . . . 2925.1.5. UN “humanitarian” action and issues of illegality and illegitimacy 299

Chapter VI. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . 305

Select bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313

“Humanitarian” Intervention Today 15

16

BIOGRAPHICAL NOTE

Venkateswara Subramanian Mani, born in India, 6 March 1942.M.A., LL.B., Ph.D. Jawaharlal Nehru University, “Procedure before Interna-

tional Tribunals”.Director, Gujarat National Law University (since April 2004) ; Professor of

International Space Law, Jawaharlal Nehru University (JNU) (May 1990-March2004) ; Professor-in-Charge, Jawaharlal Nehru Chair in International Environ-mental Law, JNU (1999-2004) ; Director, Human Rights Teaching and Research,SIS, JNU (1993-2004) ; Chairperson, Centre for Studies in Diplomacy, Interna-tional Law and Economics, JNU (1993-1996) ; Member, Academic Council andUniversity Court, JNU (1993-1996) ; Member, Board of Studies, SIS, JNU(1990-2004).

Visiting Fellow, Max Planck Institute for Comparative and Public Interna-tional Law, Heidelberg, Germany (July–December 2003) ; Visiting Professor,International Centre for Comparative Law and Politics, University of Tokyo(June-July 2000) and West Bengal National University of Juridical Sciences,Kolkata, India (June-July 2002).

Member, Association of Indian Universities’ Panels on International Humani-tarian Law Curricula at graduate levels, University Grants Commission (UGC)of India’s Human Rights and Duties Curriculum Development Committee (Jus-tice V. S. Malimath Committee) (1999-2001) ; Member, UGC Standing Commit-tee on Human Rights and Duties Education.

Executive President (2003-2006), Secretary-General (1997-2000), IndianSociety of International Law, New Delhi.

Agent and Legal Counsel for the Republic of Nauru before the InternationalCourt of Justice in the case concerning Certain Phosphate Lands in Nauru(Nauru v. Australia) (1989-1993) (handled the organization and conduct of thecase since 1986) ; Legal Counsel and Expert Consultant for India in the caseconcerning the Aerial Incident of 10 August 1999 (Pakistan v. India) (1999-2000) ; associated in preparation of India’s written pleadings in the case con-cerning Jurisdiction of ICAO Council (India v. Pakistan) before ICJ and Nauru’swritten pleadings in Legality of the Threat or Use of Nuclear Weapons.

Chief Secretary, Secretary to the Cabinet and Public Service Commissioner,Republic of Nauru (1985-1990) ; simultaneously acted as Secretary for ExternalAffairs (1986-1989), Secretary for Civil Aviation and Telecommunications(1987-1989) ; acted as Secretary for Justice, Republic of Nauru (1982-1983) ;Republic Counsel, Republic of Nauru (1981-1983).

Fellow of Indian Council of Arbitration ; Life Member, Indian Society ofInternational Law and Indian Law Institute (New Delhi), International Instituteof Space Law, Société de législation comparé (Paris), India International Centre(New Delhi) ; Founder Trustee, Institute for the World Congress of HumanRights (New Delhi), International Board of Advisors, Weeramantry InternationalCentre for Peace, Education and Research (Colombo) (since 2000).

Editor, India Journal of International Law (since 2003) ; Member of EditorialBoard, International Review of the Red Cross and Singapore Yearbook of Inter-national and Comparative Law.

PRINCIPAL PUBLICATIONS

I. Books

India on the Threshold of the 21st Century : Shape of Things to Come, NewDelhi, co-ed. with S. Bhatt, 1998.

Human Rights in India : An Overview, New Delhi, Occasional Paper No. 4,Institute for the World Congress of Human Rights, 1997.

Recent Trends in Space Law and Policy, New Delhi, co-ed. with S. Bhatt andV. B. Reddy, 1996.

Air Law and Policy in India, New Delhi, co-ed. with S. Bhatt and V. B. Reddy,1994.

Basic Principles of Modern International Law : A Study of the United NationsDebates on the Principles of International Law concerning Friendly Relationsand Co-operation among States, New Delhi, 1993.

The Non-Aligned and the United Nations, New Delhi, co-ed. with M. S. Rajan,and C. S. R. Murthy, 1987.

International Adjudication : Procedural Aspects, Martinus Nijhoff, The Hague,New Delhi, 1980.

II. Articles and Shorter Articles

1. Published in Journals/Yearbooks

“International Humanitarian Law : Challenges in the Twenty-First Century”,ISIL Year Book of International Humanitarian and Refugee Law, New Delhi,Vol. 4, 2004, pp. 1-10.

“Future Strategies in the War against Terrorism and Proliferation of Weapons ofMass Destruction : An Indian Perception”, Indian Journal of InternationalLaw, Vol. 44, 2004, pp. 221-259.

“Six Decades of the United Nations — An Indian Perception”, Indian Journal ofInternational Law, Vol. 44, 2004, pp. 1-73.

“Extradition and International Law : India’s Recent Experiences”, CBI Bulletin,New Delhi, Vol. XI, No. 1, January 2003, pp. 25-27.

“International Terrorism : A Quest for International Legal Controls”, Interna-tional Studies, New Delhi, Vol. 40, 2003, pp. 41-67.

“The Second Bush War and International Law”, The Little Magazine, Delhi,Vol. IV, 2003, Issue 1, pp. 10-15.

“The Fifth Afghan War and International Law”, Economic and Political Weekly,Mumbai, Vol. 37, No. 4, 26 January 2002, pp. 294-298.

“Obligation to Enact a Law on Genocide”, Human Rights Today, New Delhi,Vol. IV, No. 2, April-June 2002, pp. 10-11.

“An Indian Perspective on the Evolution of International Law on the Thresholdof the Third Millennium”, Asian Yearbook of International Law, Vol. 9, 2001,pp. 31-77.

“Environmental Law in South Asia : An Overview”, Banares Law Journal,Varanasi, India, Vol. 30, 2001, pp. 15-38.

“Development of Effective Mechanism(s) for Settlement of Disputes arising inRelation to Space Communication”, Singapore Journal of International andComparative Law, Vol. 5, July 2001.

“International Humanitarian Law : An Indo-Asian Perspective”, InternationalReview of the Red Cross, Geneva, Vol. 83, No. 841, March 2001, pp. 59-76.

“The Atlantique Case between Pakistan and India before the ICJ”, Journal of theIndian Law Institute, New Delhi, Vol. 42, 2000, pp. 56-73.

17

“Humanitarian Intervention Revisited”, ICCLP Review, International Center forComparative Law & Politics, University of Tokyo, Vol. 3, No. 2, September2000, pp. 5-14.

“Kargil Conflict : International Law Perceptive”, Himalayan and Central AsianStudies, New Delhi, Vol.3, Nos. 3-4, July-December 1999, pp. 76-86.

“The Right to Consular Assistance as a Basic Human Right of Aliens — AReview of the ICJ Order Dated 3 March 1999”, Indian Journal of Interna-tional Law, New Delhi, Vol. 39, 1999, pp. 32-46.

Editorial Comment, “Kargil Conflict and International Law”, Indian Journal ofInternational Law, Vol. 39, 1999, pp. 333-342.

“The International Court and the Humanitarian Law of Armed Conflict”, IndianJournal of International Law, Vol. 39, 1999, pp. 32-46.

“Human Rights and the United Nations : A Survey”, Journal of the Indian LawInstitute, Vol. 40, 1998, pp. 38-66.

“Unilateral Imposition of Sanctions through Extra-Territorial Application ofDomestic Laws : A Tale of Two US Statutes”, Indian Journal of InternationalLaw, Vol. 38, 1998, pp. 1-27.

“Symposium on India’s Nuclear Tests 1998 : Policy and Legal Implications”,Indian Journal of International Law, Vol. 38, 1998, pp. 218-226.

“Tehran Seminar on Extra-Territorial Application of National Legislation : Sanc-tions Imposed against Third Parties — A Report”, Indian Journal of Interna-tional Law, Vol. 38, 1998, pp. 59-64.

“Human Rights and Terrorism : An International Law Perception”, Himalayanand Central Asian Studies, Vol. 2, No. 1, January-March 1998, pp. 3-31.

“Competence of the Projected International Criminal Court in Regard to Viola-tion of International Humanitarian Law — A Critique of the 1994 ILC DraftStatute”, Bulletin on IHL & Refugee Law, New Delhi, pp. 13-54.

“Effectuation of International Law in the Municipal Legal Order : The Law andPractice in India”, Asian Yearbook of International Law, Vol. 5, 1997, pp. 145-174.

“The Nuclear Weapons and the World Court”, Indian Journal of InternationalLaw, Vol. 37, 1997, pp. 167-184.

“Bilateral Co-operation in Containing Terrorism : Extradition Arrangements”,International Studies, New Delhi, Vol. 32, 1995, pp. 129-150 (a version ofNo. 26).

“On International Law”, Seminar, New Delhi on “Rules and Laws, A Sympo-sium on Certain Personal and Social Strategies for our Time”, No. 434, Octo-ber 1995, pp. 35-37.

“The Role of Law and Legal Considerations in the Functioning of the UnitedNations”, Indian Journal of International Law, Vol. 35, 1995, pp. 91-118.

“Humanitarian Intervention and International Law”, Indian Journal of Interna-tional Law, Vol. 33, 1993, pp. 1-26.

“Extradition and Terrorism — The Indo-British Extradition Treaty, 1992”,Indian Journal of International Law, Vol. 33, 1993, pp. 72-83.

“Aviation Security, International Terrorism and the Law”, Indian Journal ofInternational Law, Vol. 32, 1992, pp. 1-59.

“Libya, Pan-Am Crash of 1988 and the UN”, Third Concept (New Delhi),Vol. 6, 1992, pp. 18-02.

“Towards Codification of the Legal Regime of Islands”, Indian Yearbook ofInternational Affairs, Madras, Vol. 19, 1986, pp. 3-105.

“Research and Information System for the Non-Aligned and Other DevelopingCountries”, Non-Aligned World, New Delhi, Vol. 2, 1984, pp. 623-625.

“Ocean Dumping of Radioactive Wastes : Law and Politics”, Indian Journal ofInternational Law, Vol. 24, 1984, pp. 224-244.

“Regional Approaches to the Implementation of Human Rights”, Indian Journalof International Law, Vol. 21, 1981, pp. 96-119.

“The 1970 Declaration on Friendly Relations : A Case Study in Law Creation bythe UN General Assembly”, International Studies, Vol. 18, 1981, pp. 287-321.

18 V. S. Mani

“India’s Maritime Zones and International Law : A Preliminary Inquiry”, Journalof the Indian Law Institute, Vol. 21, 1979, pp. 336-381.

“International Terrorism — Is a Definition Possible ?”, Indian Journal of Inter-national Law, Vol. 18, 1978, pp. 207-211.

“Study of International Institutions — Changing Perspectives and Approaches”,Aligarh Law Journal, Aligarh, Uttar Pradesh, India, Vol. 6, 1978, pp. 69-81.

“The Concept of Economic Coercion”, India Quarterly, New Delhi, 1977,pp. 334-343.

“Basic Conditions of Seabed Operations : An Inquiry into the Third Law of theSea Conference”, International Studies, Vol. 15, 1976, pp. 321-341.

“Resources of the Sea-Bed beyond National Jurisdiction : Who Shall Exploit andHow ?”, Indian Journal of International Law, Vol. 14, 1974, pp. 245-260.

“Malacca Straits and International Law” (with S. Balupuri), Indian Journal ofInternational Law, Vol. 13, 1973, pp. 262-272.

“Interim Measures of Protection : ICJ Practice”, Indian Journal of InternationalLaw, Vol. 13, 1973, pp. 262-272.

“The 1971 War on the Indian Sub-Continent and International Law”, IndianJournal of International Law, Vol. 12, 1972, pp. 83-99.

“Right of ‘Self-Defence’ of Peoples Exercising Their Right of Self-Determina-tion and Article 2, Paragraph 4 of the UN Charter”, Cuttack Law Times, Cut-tack, Orissa, India, Vol. 38, 1972, pp. 21 ff.

“Insanity in Criminal Law : The McNaughten Rules Today”, Cuttack Law Times,Vol. 38, 1972, pp. 12 ff.

“The Barcelona Traction Case (Second Phase) 1970 through the InternationalCourt : A Case Comment”, Indian Journal of International Law, Vol. 11, 1971,pp. 112 ff.

‘The Beruberi Cases from the Perspective of International Law : A Critique”,Indian Journal of International Law, Vol. 11, 1971, pp. 655-661.

“A Review of the Functioning of the International Court of Justice”, IndianJournal of International Law, Vol. 11, 1971, pp. 27-38.

“The Advisory Opinion in Namibia Case : A Critique”, Indian Journal of Inter-national Law, Vol. 11, 1971, pp. 467-480.

“The Law Commission and the Indian Penal Code : A Note”, Supreme CourtDecisions, Cuttack, Orissa, India, 1971.

“Negotiable Instruments Act, 1881 and Private International Law — A Restate-ment as to Choice of Law”, Supreme Court Decisions, 1971, pp. 17 ff.

“Social Sanction and Law Enforcement : Some Theoretical Problems”, SupremeCourt Decisions, 1970, pp. 49 ff.

“Law’s Delays and Computer Technology”, Supreme Court Decisions, 1970,pp. 11 ff.

“Section 105 of the [Indian] Evidence Act [1872] and the Nature of Burden ofProof of Accused : The Jayasena Case”, Supreme Court Decisions, 1970,pp. 19 ff.

“Interim Measures of Protection : Article 41 of the ICJ Statute and Article 94 ofthe UN Charter”, Indian Journal of International Law, Vol. 10, 1970, pp. 359-372.

“Contempt of Court and Democratic Criticism : The Khadilkar Contempt Case”,Supreme Court Decisions, 1970, pp. 49 ff.

“Audi Alteram Partem : Journey of a Principle from the Realms of Private Pro-cedural Law to the Realms of International Procedural Law”, Indian Journalof International Law, Vol. 9, 1969, pp. 381-411.

“Constitutional Amendments and Fundamental Rights”, Supreme Court Deci-sions, 1968, pp. 27 ff.

“General Attitude of the Asian-African Nations towards Certain Aspects ofInternational Law of Treatment of Aliens with Special Reference to IndianLaw and Practice”, Supreme Court Decisions, 1968, pp. 27 ff.

“General Concept of Sovereignty under International Law”, Supreme CourtDecisions, 1967, pp. 9 ff.


“Some Thoughts on Sovereignty in International Organisation and the ModernWorld”, Supreme Court Decisions, Vol. 1967, pp. 17 ff.

“Doctrine of Non Liquet and International Law — A Note”, Supreme CourtDecisions, 1966, pp. 59 ff.

“The Enigma of Parliamentary Privileges”, Supreme Court Decisions, 1966,pp. 3-5.

2. Chapters in edited works“The Legal Systems in the Pacific : An Overview”, in N. N. Vohra, ed., India

and Australasia : History, Culture and Society, Institute of Asian Studies,Kolkata, Shipra Publications, Delhi, 2004, pp. 236-240.

“The Second Bush War and the Aftermath : Some Issues of International Law”,in Mahavir Singh, ed., Asian Annual — 2003, India International Centre,Shipra, Delhi, 2003, pp. 17-34.

“Environmental Law in South Asia : An Overview”, Smitu Kpthari, ImtiazAhmed and Helmut Reifeld, eds., The Value of Nature : Ecological PoliticalPolitics in India, Konrad Adenauer Stiftung, Rainbow, Delhi, 2003, pp. 191-220.

“The Promise, the Content, and the Performance : Human Rights Provisions inthe Indian Constitution”, K. P. Saksena, ed., Human Rights and the Consti-tution : Vision and the Reality, Gyan Publishing House, New Delhi, 2003,pp. 35-78.

“The Role of Law and Legal Considerations in the Functioning of the UnitedNations”, in Nigel D. White, ed., Collective Security Law, Aldershot, UK,2003, pp. 65-94, being a reprint of IJIL, Vol. 35 (1995), pp. 91-188.

“India, Europe and Combating Terrorism”, in R. K. Jain, ed., India and theEuropean Union in the 21st Century, Radiant Publishers, New Delhi, 2002,pp. 119-138.

“Bamiyan Buddhas and International Law”, in K. Warikoo, ed., Bamiyan : Chal-lenge to World Heritage, New Delhi, 2002, pp. 196-205.

“Possible International Regulatory Frameworks, including Legal Conflict Reso-lution in Expanding Space Commercialisation”, Summary of the CommentaryPaper at the 7th Session of the UN Technical Forum on Space Law, at theUNISPACE III, Vienna, July 1999, published in UN Office for Outer SpaceAffairs, Proceedings of the Workshop on Space Law in the Twenty-first Cen-tury, United Nations, New York, 1999, pp. 192-193.

“International Litigation and Peaceful Settlement of Disputes : A Case Study ofCertain Phosphate Lands in Nauru”, in UN Office of the Legal Affairs, Col-lection of Essays by Legal Advisers of States, Legal Advisers of InternationalOrganisations and Practitioners in the Field of International Law, UnitedNations, New York, 1999, pp. 415-434.

“India and International Law on the Threshold of the Third Millennium”, in S.Bhatt and V. S. Mani, eds., India on the Threshold of the 21st Century : Shapeof Things to Come, New Delhi, 1999, pp. 375-399.

“Human Rights in India : A Survey”, in K. P. Saksena, ed, Human Rights : FiftyYears of India’s Independence, New Delhi, 1999, pp. 169-194.

“Humanitarian Intervention in International Law”, in Sushil Kumar, ed., NewGlobalism and the State, New Delhi, 1999, pp. 235-248.

“The Friendly Relations Declaration and the International Court of Justice”, inA. Anghie and G. Sturgess, eds., Legal Visions of the Twenty-first Century :Essays in Honour of Judge Christopher Weeramantry, Dordrecht, 1998,pp. 527-542.

“Unilateral Sanctions and Extra-Territoriality of Domestic Laws : A Perspectiveof Public International Law”, in Asian African Legal Consultative Committee,Report of the Seminar on Extra-Territorial Application of National Legisla-tion : Sanctions Imposed against Third Parties, Held in Tehran, IslamicRepublic of Iran in January 1998, New Delhi, 1998, pp. 65-82.

20 V. S. Mani

“India’s Role in the Development of International Law over the Past Half Cen-tury : Some Reflections”, in Surjit Mansingh, ed., Nehru’s Foreign Policy :Fifty Years On, New Delhi, India International Centre, 1998, pp. 69-96.

“The European Union’s Approach to Human Rights : Implications for India’sTrade”, in H. S. Chopra, ed., India and the European Union into the 21st Cen-tury, New Delhi, Indian Council of World Affairs, 1997, pp. 10-22.

“United Nations, Human Rights and International Terrorism”, in Lalima Varma,ed., United Nations in the Changing World, New Delhi, 1997, pp. 10-22.

“International Court and the Third World”, in Asian African Legal ConsultativeCommittee, ed., Essays on International Law : Fortieth Anniversary Volume,New Delhi, 1997, pp. 115-132.

“Human Rights in International Relations”, in Lalit Mansingh, Dilip Lahiri,J. N. Dixit, Bhabani Sen Gupta, Sujatha Singh and Ashok Sajjanhar, eds., India’sForeign Policy : Agenda for the 21st Century, New Delhi, 1997, Vol. 1,pp. 311-330.

“Norm Setting Activities of UNESCO and India’s Contribution”, in IndianNational Commission for Co-operation with UNESCO, N. K. Krishnan and C.S. R. Murthy, eds., India and UNESCO : Five Decades of Co-operation, NewDelhi, 1997, pp. 35-46.

“Resolving the Cyprus Conflict : A Framework for Self-Determination”, in R. C.Sharma and Stavros A. Epaminondas, eds., Cyprus : In Search of Peace andJustice, New Delhi, 1997, pp. 195-197.

“Recent Trends in International Space Law and Policy : Issues and Perspec-tives”, in V. S. Mani, S. Bhatt, and V. B. Reddy, eds., Recent Trends in Inter-national Space Law and Policy, New Delhi, 1997, pp. 17-24.

“Aerospace Vehicles and the Law”, ibid., pp. 355-362.“Transfer of Space Technology, MTCR, National Security and Space Oligopoly :

A Study of the Recent Indo-Russian Experience”, ibid., pp. 549-578.“The Role of Law and Legal Considerations in the Functioning of the United

Nations”, in M. S. Rajan, ed., United Nations at Fifty and Beyond, New Delhi,Indian Society of International Law, 1995, pp. 167-208.

“History and Development of Air Law in India : A Survey” (with V. B. Reddy),in S. Bhatt, V. S. Mani and V. B. Reddy, eds., Air Law and Policy in India,New Delhi, 1994, pp. 11-34.

“Upper Limits of Sovereignty in Air Space — New Challenges of Technology”,ibid., pp. 341-352.

“Aviation Security, International Terrorism and the Indian Response”, ibid.,pp. 365-386.

“Law, Science and Environment : Overview [of A Symposium]” (with Rahma-tullah Khan), in R. P. Anand, Rahmatullah Khan and S. Bhatt, eds., Law,Science and Environment, New Delhi, 1987, pp. v-xxv.

“Legal Controls of River Pollution in India : A Preliminary Inquiry”, ibid.,pp. 42-53.

“The United Nations, Law of the Sea and the Developing Countries”, in M. S.Rajan, V. S. Mani and C. S. R. Murthy, eds., The Non-Aligned and the UnitedNations, New Delhi, 1987, pp. 56-79.

“Ocean Dumping of Radio-active Wastes — Law and Politics”, in R. C. Sharma,ed., The Oceans : Realities and Prospects, New Delhi, 1985, pp. 211-232.

“Human Rights in Developing Countries — A Perspective”, in S. K. Agrawala,T. S. Rama Rao and J. N. Saxena, eds., New Horizons of International andDeveloping Countries, Bombay, Indian Branch of International Law Associa-tion, 1983, pp. 31-37.

“National Jurisdiction : Islands and Archipelagoes”, in R. P. Anand, ed., The Lawof the Sea : Caracas and Beyond, New Delhi, 1978, pp. 82 ff.


ACKNOWLEDGMENTS

First of all, I thank most sincerely the Hague Academy of International Lawand the distinguished members of its Curatorium for inviting me to the SummerCourse 2005. It is an honour to be at the Academy.

I thank my alma mater, Jawaharlal Nehru University, New Delhi, where Ispent more than three decades and a half most profitably, with such livelyexchanges with my former colleagues — my teachers, my students. Indeed,these exchanges shaped much of my thoughts and understanding of internationallaw. My salute to that great school of international law, perhaps the only oneThird World school of international law in the world. I thank the Indian Societyof International Law in whose cradle I learned my first lessons in the teachingof international law. It fed me with incessant literature on international law ingeneral and “humanitarian” intervention in particular. I thank C. Jayaraj, its cur-rent Secretary-General, and its staff, some of whom I have known ever since Icame into contact with the Society in 1967.

I thank the Max Planck Institute for Public International Law and Compara-tive Law, Heidelberg, its Directors Rudiger Wolfrum and Armin von Bogdandi,former directors, research fellows and such co-operative staff of its library, forfacilitating my research on this subject while a Visiting Fellow in 2003. What aninvigorating experience it was !

I thank the International Centre for Law and Politics of Tokyo University andOnuma Yasuaki for taking me in as a Visiting Professor during the summer of2001. That is where my research into this subject began.

To the staff of the Gujarat National Law University, my thanks, most for steel-ing my resolve to complete this project, for throwing up several challenges oneafter another. Do keep challenging my resolve, and I shall bounce back withredoubled resolve to produce the result that I earnestly cherish to achieve.

Last but always first in my life, my wife, Vathsala, has been a constant inspi-ration for me for all my ventures. A ready in-house critic, she has been theembodiment of sacrifice for me and my children : she sacrificed her entire careerfor us, despite her brilliant academic achievements. How can I thank her enoughfor all the deprivations that I caused to her, more particularly after I took up thisproject alongside the Directorship of the new Gujarat National Law University ?Can I ever make it up to her ? I dedicate this work to her name.

22

CHAPTER I

INTRODUCTION

This Introduction seeks to indicate broadly the contemporaryrelevance of the project, its canvas of scope and object, the studyplan, and definitions of the terms “humanitarian intervention” and“modern international law”. It also endeavours to adumbrate on someperspective points on the contemporary international communityas it evolved since the Second World War.

1.1. The Relevance of the Study

Since 1990, a post-cold war power structure has been unfolding,heralding a “new world order” in the process of taking shape fromout of the vortex of the changing international politics. The interna-tional community has been confronted by new challenges of geno-cide, “ethnic cleansing”, terror attacks, and the flexing of muscles bythe sole surviving superpower. Some of these have been nurtured inthe fertile ground of the old, largely unattended, ones — poverty,issues of human health, threats to the environment, and failure ofStates to ensure good government often resulting from earlier bigpower interventions (e.g., Congo, Liberia).

While history does not exactly repeat itself in terms of identityand undercurrents of events and dramatis personae, the “New WorldOrder” ushered in by the last decade of the Second Millennium hasunfolded certain disturbing trends in resort to coercion in inter-national relations, quite reminiscent of the days of the Concert ofEurope of the nineteenth century. The days of gunboat diplomacy ofthe likes of Commodore Perry of circa 1853 seem to have been re-invented to become fashionable, nay even morally held “justifiable”,and therefore handy for the powers-that-be seeking to reorder thenations of the world into a mould of their liking. The genuine con-cern of the international community for the protection and promo-tion of human rights the world over has provided these powers witha new façade of legitimacy for the use of coercion against smaller orweaker nations, whether through or outside the instrumentality of theUnited Nations. The currently unfolding of, predominantly Western,

23

1. Declaration on the Principles of International Law concerning FriendlyRelations and Cooperation among States in Accordance with the Charter of theUnited Nations, UN General Assembly resolution 2625 (XXV) of 24 October1970, the Silver Jubilee Day of the Organization. For a detailed study of theseprinciples, see V. S. Mani, Basic Principles of Modern International Law : AStudy of the United Nations Debates on the Principles of International Law con-cerning Friendly Relations and Co-operation among States, New Delhi, 1993.

2. Although many of the Latin American States are not so “new”, they werefor long kept perforce on the margin of the traditional Eurocentric internationalsystem, yet they made their presence felt to the great discomfiture of some ofthe “old” States.

doctrine of human rights seeks to justify use of coercion as an indi-vidual or “collective-unilateral” response to violations of humanrights within a State, be it in Bosnia-Herzegovina, Kosovo orHaiti.

From this vantage point of current history, therefore, a review ofthe concept of humanitarian intervention from a developing countryperspective of modern international law will be highly in order, par-ticularly when “humanitarian intervention”, as advocated in thecurrent, twenty-first century Western doctrine, has become “a capthat fits every head, for everyone wears it” — a “moralist” façade forunabashed and vigorous pursuit of national objectives. This new pol-icy of “humanitarian” intervention now seems to encompass not onlythe old, strictly “humanitarian” justifications of protection of humanlives and prevention of gross violations of human rights in anothercountry, but also every other, such as the war on terrorism and thehunt for a suspected cache of weapons of mass destruction. By itsvery internal dynamics, it seeks to establish its own ground rules.Would it or has it upset the “apple cart” of international consensusbehind the jural character of the basic principles of modern interna-tional law many of which find expression in the 1970 Friendly Rela-tions Declaration 1 ? This indeed is a matter of immense concern forthe “small” countries of today that international consensus sostrenuously evolved through a decade-long, tortuous, yet consciouslaw-making diplomacy in the 1960s by the post-Second World Warinternational community that comprised then not only the “old”States but also the “newly” independent States of Asia-Pacific,Africa and Latin America 2, and indeed the “socialist” bloc. It istherefore of great importance to examine the evolution of some ofthe basic concepts and doctrinal bases for this newly found attractionfor “humanitarian” intervention, and the extent to which it relatesitself to modern international law.

24 V. S. Mani

1.2. The Scope and Objective of the Study

As a necessary backdrop to the study, it is important to recognizethe characteristic features of the contemporary international commu-nity. While the co-existence of State sovereignties is the foundationof international law, the perennial problem of implementation ofinternational law reinforces the on-going tension between the opera-tional aspects of sovereignty of a State and the normative frameworkwhich international law proffers to the international community foreventual attainment of community objectives. This problem assumesdiverse dimensions. It also explains the peculiarities of internationallaw in contradistinction to a system of law catering to a communitywith a highly integrated value system, such as the municipal ordomestic legal system within a State, where the formal law-making,the law-implementation, and disputes settlement functions are per-formed by different organs of government, not left to the subjects ofthe law as such. The group theories and human rights have not dis-sipated or disintegrated the domestic legal system ; if anything theyhave strengthened the integral functioning of these three formal,institutionalized arms of government. The principal advantage ofsuch institutionalization is that it facilitates these institutions (evenwhile catering for certain dominant group interests) acquiring a sub-stantial level of absence of bias, if not total impartiality, in imparting“justice” to the governed. The peculiarity of the international systemis that while the process of formal institutionalization of these func-tions of government is still nebulous, States, the principal actors inthe international system, are expected to perform these functionsthemselves. In this sense, the international system is a largely decen-tralized system where, at the operational level, States which are theprimary subjects of international law are also called upon to performthe legislative, executive and judicial functions. Ideally, there isnothing wrong with such a situation, provided States behave as theyare “expected” to behave in accordance with the normative orderprescribed by them unto themselves. The inny, however, is thatStates, agglomerates of humans and driven by individual humans,cannot be so “expected”. Ideally, again, if all men were angels, therewould be no need for law or regulations !

The fusion of functions of law-making, execution and applicationto disputes settlement with the function of law-compliance is thus areality in the international system. Indeed, in the practice of States in


3. See the Declaration on Friendly Relations, footnote 1, supra.For an earlier, in-depth study of the Western doctrine on non-intervention

from a Third World perspective, see Bhupinder Singh Chimni, “Towards a ThirdWorld Approach to Non-Intervention : Through the Labyrinth of Western Doc-trine”, Indian Journal of International Law, Vol. 20, 1980, pp. 243-264. For apost-Yugoslavia treatment of the subject by an Indian scholar, see YogeshKumar Tyagi, “Humanitarian Intervention Revisited”, Michigan Journal ofInternational Law, Vol. 16 (1995), pp. 883-910.

their relations with one another the normative distinctions amongthese functions are difficult to maintain, as more often than not indi-vidual State interests eclipse these distinctions and inhibit their per-formance. Yet the existence of an international community with cer-tain community objectives such as minimization, if not elimination,of violence, and maximization of social and economic welfare,through certain evolving, generally accepted, basic precepts of inter-national behaviour such as the principles of non-use of force, non-intervention, peaceful settlement of disputes, sovereignty, good faithfulfilment of international obligations, self-determination and humanrights, and international co-operation 3, is equally a reality. That thereare gaps between this normative order and State conduct does notreadily diminish either the social or the jural value of the normativeorder ; the existence of gaps between the norm and the conduct ofthe subject is not peculiar to the international system, but pervadesevery system of law. The jural character of a legal norm does notdepend on the absence of these gaps, although the sociology of lawmust address the question and seek explanations and remedies fromthe community and community institutions for the problem of non-compliance.

As already indicated, the present study seeks to examine the ratio-nale, real or fancied, of the new claim to use of armed force for“humanitarian” purposes such as to halt or prevent gross violationsof human rights in a State that has failed to respond to the situationand set it right. Is there a new “higher law of international humanrights” to justify such resort to force ? If so, who should respond tohuman rights emergencies such as heinous offences against human-ity ? States in their individual capacity, or the United Nations repre-senting the international community as a whole, or both “jointly andseverally” ? To what extent does the sovereignty of a target Statestand as an “impediment” to international action, in an internationalcommunity characterized by decentralization of power and authority?

The role of the international organization in enforcement of

26 V. S. Mani

4. Preventing War and Disaster : A Growing Global Challenge, UnitedNations, 1999.

5. Ibid., para 8, at p. 3.6. Ibid., para 56, at p.17 ; emphasis added.

human rights deserves separate consideration, particularly in viewof the increasing involvement of the United Nations in civil strife(Somalia, Yugoslavia, Rwanda). The United Nations Secretary-General, Kofi A. Annan, has dwelt on the issue in some of his recentreports. The Introduction to the 1999 Annual Report of the Secre-tary-General on the Work of the Organization 4, addresses itself to the“unprecedented humanitarian challenges”. The Secretary-General’smain complaint is that “The humanitarian challenge is heightened bythe fact that the international community does not respond in a con-sistent way to humanitarian emergencies.” 5 While emphasizing therole of preventive measures in diffusing potential conflict situations, theSecretary-General recognizes that even the best of prevention stra-tegies cannot completely eliminate the chances of war. Hence his view:

“It follows that, for the foreseeable future, the internationalcommunity must remain prepared to engage politically — andif necessary militarily — to contain, manage and ultimatelyresolve conflicts that have got out of hand. This will require abetter functioning collective security system than exists at themoment. It will require, above all, a greater willingness tointervene to prevent gross violations of human rights.” 6

The Secretary-General poses the issue as one of respect for Statesovereignty versus prevention of crimes against humanity. This is aserious issue calling for deep reflection. The principle of humanityversus the principle of sovereignty? And does the United Nations havepower to “intervene” on behalf of the international community ?

1.3. The Study Plan

It is proposed to present the study in five chapters, besides thisIntroduction. Chapter II examines the concept of “humanitarian” inter-vention, mainly through the various doctrines and practices relatingto war in general and situations of permissibility of war in particular.In the process, it deals with ancient civilizations — something thatWestern writings rarely venture to do —, diverse religious concepts,a fairly extensive examination of the Christian just war doctrines,


and a special highlight on Kant’s philosophy — for the reason thatmuch of the “credit” of inspiring, if not authoring, the “modern” con-cept of just war doctrine has been attributed to Kant. This chapteralso seeks to identify the diversity of responses of traditional inter-national law and relations on the jural nature of intervention.

Chapter III is on the response of contemporary international law.It takes into account the presence of an international institution “rep-resenting” the international community and its sui generis nature, thenormative order of the United Nations as the international institutionpar excellence and its relationship to modern international law, theimpact of the emergence of jus cogens on rights and duties of States,and an examination of the “new” doctrines positing human rightsagainst the concept of State sovereignty and justifying the revival of“just” war doctrines.

Chapter IV examines the juridical aspects of the new claims of“humanitarian” intervention by States in justification of unilateralresort to force by them. Chapter V focuses on the legal aspects of therole of the United Nations in mounting institutional “humanitarian”action. Chapter VI embodies the conclusions of the study.

1.4. Defining “Humanitarian” “Intervention” and“Modern International Law”

“Humanitarian” “intervention” has come to be used and abused indiverse situations for diverse purposes. Two aspects of the term mustbe highlighted, namely, “intervention” and “humanitarian”. Inter-vention for our purposes means forcible (i.e., by use of armed force)interference in the internal affairs of a State, often interfering withthe governance of the State, without the consent of the target State.That intervention must be “humanitarian”, i.e. the objective of theuse of force must be humanitarian ; it must prevent gross violationsof human rights or cause immediate cessation of and retraction fromsuch violations, and all this must be objectively determinable. A“humanitarian” intervention must exclusively have the “humanita-rian” objective ; otherwise, it will be something else, but not “humani-tarian”. Evidently, as it is generally claimed to be an exceptionalmeasure, it must avoid excesses ; it must focus on its mission,and it must comply with the requirements of proportionality andother relevant principles and rules of international law, includingthose applicable to armed conflict.

28 V. S. Mani

The term “modern international law” is used quite advisedly.Implicit in it are a range of considerations and values generallyacceptable to the international community of the post-Second WorldWar, and some of them so dear to the developing countries, the pre-ponderant majority of members of the contemporary internationalcommunity. These are juxtaposed to those of the traditional interna-tional community and its international legal system. It is difficult tolay down a chronological divider between the traditional interna-tional law and the modern, as there is considerable overlap betweenthem. The modern international law represents a continuum for someof the traditional principles ; it redefines and reorients some others,and, based as it is on the United Nations Charter, it represents arejection of still some others as being incompatible with the Charter,and the creation of some new principles in whose germination andnurturing the Charter and the Organization have played a significantpart. In respect of many of these principles the United Nations hasan umbilical connection. Indeed, the United Nations is central to theconcerns of the developing countries — its centrality is inverselyproportionate to their individual “smallness” or “weakness”. The testof validity and legitimacy of a legal system lies in its capacity tocater for equity and justice for the smallest and the weakest, not inautomatically legitimizing the acts of the strongest.

1.5. The Contemporary International Community : A Perception

Defining modern international law necessarily requires both a his-torical and a contemporaneous context. From this point of view, oneneeds to take into account the characteristic features of the post-Second World War world. While many strands of developmentsthrough the later half of the nineteenth century and the first half ofthe twentieth century have contributed to the emergence of themodern international law, it is generally recognized that many ofits principles have found expression in the Charter of the UnitedNations and in the continuing law-making activities of the Organiza-tion conditioned by the vicissitudes of the ever-changing internationalrelations of the post-Second World War world. In fact both the UnitedNations Charter and the modern international law is mutuallyreinforcing, and each is an intrinsic part of the other.

The post-war international society has been characterized by anumber of features. First, in the words of Radha Binod Pal, a great


7. By now democracy too started becoming fashionable and accepted widelyeven if in varied forms conforming to the genius of each national society.

Indian judge, “the geography of international law” has changed, withthe large-scale emergence into independence of countries of Asia,Africa and Latin America. Although they are known as “new States”,many of them are in fact ancient societies, representing ancient civi-lizations which existed at a time when what has come to be recog-nized as the European civilization had not even germinated. Theyhave brought on to the world stage their ancient values of humanwelfare, indeed a diversity of core social and cultural values.

Secondly, these countries brought into the focus of attention of theinternational community their urgent need for development, havingshared a common experience of devastating colonial exploitation.This was an area that had stayed outside the realm of the traditionalinternational law (being a matter of “domestic jurisdiction” of thecolonial powers), but was central to the immediate concern of thenewly independent countries. The new international law, therefore,had to forge a principle of international co-operation on the basis ofArticles 55 and 56 of the Charter and also evolve its operational rules.

Thirdly, the Second World War also taught the world that humanrights must be recognized as part of the new international law andthe new world organization must have a role in its promotion, evenas the sovereign States remain primarily responsible to their citi-zens 7 for the implementation of the basic human rights norms,according to their genius, and given the resources available to them.

Fourthly, since the world had already divided into two powerblocs, human rights also became a handy instrument of foreignpolicy as between these two blocs. Thus the West characterized theSoviet bloc countries as “totalitarian”, as the civil and political rightsas understood in the West stood violated or denied primacy of placein these countries. On the other hand, the Soviet bloc gave primacy— at least doctrinally — to economic and social rights as well asgroup rights such as self-determination, over the civil and politicalrights. This divergence in the dogma of human rights became ajustification for covert interference in other countries mainly aimedat preventing them from joining the rival power bloc. Primarilyin order to halt the communist expansion westward in Europe, theEuropean human rights regime was established in 1950, whicheventually, and happily, proved to be a model regime for the entire

30 V. S. Mani

8. In 1967 there was a raging controversy between the World Bank and theUnited Nations on the issue of compliance by the former of the UN GeneralAssembly resolutions seeking to dissuade it from granting loans to the then racistSouth Africa and the Portugal. The Bank refused to abide by the UN resolutionssince its lending policies then were exclusively based on economic considera-tions, and under the UN-Bank special agreement the UN resolutions adoptedwithout consultation of the Bank were not binding on the latter.

world. But the Cold War greatly contributed to the “politics ofhuman rights” in international relations that ill served the cause ofhuman rights.

Fifthly, slowly but steadily, gross violations of human rights, suchas those obtained in South Africa and Namibia, could not remainstrictly as matters of domestic jurisdiction. They came to beregarded by the United Nations as threats to international peace andsecurity and justified international coercive action in the form ofinternational sanctions (even if short of use of armed force). Indeed,the consensus required for this action evolved rather painstakingly,given the entrenched economic interests of some of the permanentmembers of the Security Council in these situations. It is interestingto note the manner in which even the economic organizations likethe IMF and IBRD have, over the years, changed their policies totake into account human rights situations in the potential beneficiarycountries as part of their conditionalities for according access totheir resources and facilities 8.

Sixthly, since the 1970s there has been, a growing trend towardsliberalization and globalization in international and national eco-nomic relations. This has slowly but surely led to the further dilutionof the political and economic boundaries between countries. Liberal-ization and globalization have had a direct bearing on the pursuithuman welfare by national societies. The serious debate over thecontribution of liberalization and globalization to the enhance-ment/achievement of human welfare, the core value of human rights,continues to storm the centres of international and national decision-making.

Finally, the disappearance of the Soviet Union from the worldstage has had a revolutionary effect on the post-Cold War interna-tional relations since 1990. It has left the whole field to one singlesuperpower to dominate the world affairs, and fashion a “new worldorder” of shape and values preferred by it. This superpower couldnow manipulate the principal organs of the international organizationand get international actions initiated in arenas of its preference,


9. In this case the Court observed :

“This opinio juris may, though with all due caution, be deduced from,inter alia, the attitude of the Parties and the attitude of States towards cer-tain general Assembly resolutions, and particularly resolution 2625 (XXV). . . The effect of consent to the text of such resolutions cannot be under-stood as merely that of a ‘reiteration or elucidation’ of the treaty commit-ment undertaken in the Charter. On the contrary, it may be understood as anacceptance of the validity of the rule or set of rules declared by the resolu-tion by themselves.” ICJ Reports 1986, p. 14, at pp. 99-100.

under the façade of organizational legitimacy — actions for which itcould not have used the organizational facilities at the height of theCold War while the other superpower was alive. This situation hasleft the smaller powers at the mercy of this “new world order”.

Even as the post-war international society was evolving, thediversity of social and political systems and the emergence of a largenumber of new States keen to play an active part in internationalrelations led to new international norm-setting under the auspicesof the United Nations General Assembly. While the human rightsnorms themselves came to be evolved through a number of instru-ments like the Universal Declaration of Human Rights of 1948 andthe International Covenants of 1966, the basic principles of moderninternational law evolved on the basis of the principles of the UnitedNations Charter. By far the most important formulation of theseprinciples is the Friendly Relations Declaration of 1970, whichembodies consensual formulations of prohibition of force, non-inter-vention, peaceful settlement of international disputes, sovereignequality, good faith, self-determination and international co-opera-tion. The International Court of Justice has had an occasion in theNicaragua case to examine and recognize the evidentiary value ofthis declaration as reflecting the contemporary opinio juris at least inrespect of the principles of prohibition of force, non-intervention andsovereign equality 9.

The nomenclature of principles such as those of non-interventionand sovereign equality may sound “traditional”, but it is submittedthat their contents and orientations have undergone a metamorphosisin the context of the post-war world and are quite modern and vastlydifferent from their traditional namesakes, particularly from the per-spectives of the developing countries. The basis of sovereignty,according to these countries (as it is according to Immanuel Kant), isself-determination. In exercise of the rights under the principle ofself-determination, every State is fully entitled to determine its

32 V. S. Mani

10. The Friendly Relations Declaration 1970 formulates the principle of non-intervention as follows :

“No State or group of States has the right to intervene, directly or indi-rectly, for any reason whatever, in the internal or external affairs of anyother State. Consequently, armed intervention and all other forms of inter-ference or attempted threats against the personality of the State or againstits political, economic and cultural elements, are in violation of interna-tional law. No State may use or encourage the use of economic, political orany other type of measures to coerce another State in order to obtain fromit the subordination of the exercise of its sovereign rights and to securefrom it the advantages of any kind. Also, no State shall organize, assist,foment, finance, invite or tolerate, subversive, terrorist or armed activitiesdirected towards the violent overthrow of the regime of another State orinterfere in civil strife in another State. . . .

Nothing in the foregoing paragraphs shall be construed as affecting therelevant provisions of the Charter relating to the maintenance of interna-tional peace and security.”

For a detailed study of the travaux preparatoires of this and other principlesformulated in the declaration, see V. S. Mani, footnote 1, supra.

11. ICJ Reports 1986, p. 14 at p. 108.

social, political, and economic system, subject only to the interna-tional obligations that it undertakes. Non-intervention is concomitantof sovereign equality, and ensures a policy of peaceful coexistencein the relations between States. Each national society has a right tochart out the course to be pursued by its national polity, and othernational societies have no business to interfere with the exercise ofthat right. No longer does the modern international law protect andpreserve the “divine right” of the ruler, if the rule does not meet thetests of legitimacy and accountability. Yet the form of governmentand the standard of governance in terms of achievement of humanwelfare, given its resources, must be determined by the nationalsociety itself in exercise of its right of self-determination. Non-inter-vention, thus, has a positive function to perform in a national societyin the modern context — to promote its right to self-determination,and right to development, without interference from outside 10. Asthe International Court ruled in the Nicaragua case,

“A prohibited intervention must accordingly be one bearingon matters in which each State is permitted, by the principle ofState sovereignty, to decide freely. One of these is the choice ofa political, economic, social and cultural system, and theformulation of foreign policy. Intervention is wrongful whenit uses methods of coercion in regard to such choices whichmust remain free ones.” 11


12. Koopamandookam, the frog that dwells in a well, is a typical Sanskritidiom, adapted into most Indian languages. A frog confined all its life to the wellthinks that the well is the only world, the reality, that exists, that that is theworld it presides over, and that there is nothing beyond it.

CHAPTER II

“HUMANITARIAN” INTERVENTIONIN AN HISTORICAL PERSPECTIVE

There are two reasons why an endeavour must be made to enquireinto the historical roots of the concept of “humanitarian” interventionin terms of the doctrines and practices of States that are now recitedto lend firm support to its continuing validity. One, historical enquirywould reveal their nature, origins and contexts from the vantagepoint of which we need to understand the concept today. Two, it wouldalso help us to determine the biases of its modern day protagonists.

In this study, an attempt is made to understand the principal doc-trines, cultural moorings and practices of States in historical contextsin respect of the concept of “humanitarian” intervention, and broadlyidentify the changing responses of the traditional international lawand relations, particularly through the eighteenth and the nineteenthcenturies.

2.1. Doctrines and Practices

The historical legal and political literature on “humanitarian”intervention, as in most other respects, has been rather eclectic.However, in terms of the history of human civilization, the portrayalof ancient history and a large part of the medieval history are seri-ously inhibited, if not coloured, principally by the intellectual pre-dispositions and subjective judgments of historians, including inter-national law historians. Small wonder, therefore, that most Westerninternational legal historians seldom looked at Africa or Asia in theirstudy of evolution of international law. Indeed, much of the ancientphilosophical thinking and practices prevalent in these parts of theworld did not interest them, either because they found them to beculturally so different and therefore difficult to appreciate, orbecause of their general frog-in-the-well mind-set 12. At any rate, the

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impact of the process of European colonization of Africa and Asiahas been at once devastating and debilitating. Many of the ancientcustomary institutions that had held sway and held the various seg-ments of these ancient communities together had fallen apart as thecolonial juggernaut rumbled on supplanting them altogether, andoften replacing them with copies or hybrid variants of institutionsfrom the metropolitan countries or indeed logical outgrowthsrequired for sustenance of colonialism.

The doctrinal canvas spread out here encompasses the ancientIndian traditions, Buddhism, Jainism, Islamic traditions, Chinese tra-ditions, Christian traditions, and Kantian philosophy and just wardoctrines. The special focus on Kant is deliberate, because Kantremains much “maligned” in the modern context of “humanitarian”intervention doctrines.

2.1.1. Ancient Indian traditions

Ancient Indian traditions refer to the traditions that arose evenas the concept of a modern State took shape in ancient India, about300 BC. Formation of States as an historical process relates to thecore process of common identification and integration of a commonlyshareable community value system and the corresponding process ofevolution of institutional mechanisms — particularly political — toenable a community to pursue these core values on behalf of thecommunity. Evidently, a community of people must have undergonea period of transition from the nomadic tribal set-up to a territory-based statehood, when it discovered agriculture along a river basinin the Indo-Gangetic plane. Till then, it must have exercised the inci-dents of sovereignty through social institutions including that ofa tribal chief. (It is interesting to note that the Sanskrit word raajanliterally means “he who rules”, it includes the king, but it encom-passes anyone who governs including a tribal chief.)

It was during this process of political stabilization around 1000 BC

that the first of the Hindu Scriptures, the Rig Veda, came to bewritten, as the Sanskrit language came to be crystallized : it musthave indeed existed in the oral tradition of the community a long timeearlier — typical of all tribal communities.

By “ancient Indian traditions” we refer to concepts emanatingfrom the scriptural and post-scriptural contributions. The conceptsnoted here are those of Dharma, Dharmayuddha, means and


methods of warfare, treatment of non-combatants and prisoners, andtreatment of civilians and civilian objects.

2.1.1.1. Concept of dharma

While it is not difficult to find in Hindu Scriptures prohibitions ofviolence in interpersonal relations, their regulation and penal sanc-tions were left to the ruler, the raajan, who would take action inaccordance with what he perceived to be raajadharma (the king’sduty) in a given context. The concept of dharma underscores humanlife on earth. It is not generally realized that the term “Hindu” or“Hinduism” is not found in the Scriptures ; instead the religion isdescribed as Sanaatanadharma (the eternal web of duties). Thenature and content of dharma, however, varies from subject to sub-ject. To ordinary people, it is maanava dharma (a man’s duty in rela-tion to his fellow beings). A network of mutuality of duties governstheir interpersonal relations. Depending on the context, this turns outto be kutumbadharma (duty in relation to one’s family), sanaatana-dharma (duty in relation to God), raajadharma (the duty of the king),prajaadharma (duty of the subjects), devadharma (duty of God inrelation to His creations), and so on.

The raajan (king) had the duty to protect his people (praja) —and hence he was described as the prajaapati (the master/protector ofhis people). If he was required to take up arms to protect his people,their homes and hearths, to do so was his bounden duty — thecall of his office. If he could not protect his people, he had noreason or legitimate claim to the throne. However, this right to pro-tection of the people must have also limited the king’s right to go towar : he could only wage a war on an enemy who posed a “clearand present danger” to his people.

Those were the days when the sovereignty of a people on theIndo-Gangetic plane was probably not territorially based and the“king” was probably a tribal chief, devoid of later decorative andceremonial image that the term later came to depict. It acquired aterritorial base, only after agriculture was discovered and becamethe main foundation of the political economy of the times, for agri-culture transformed the essentially nomadic existence of the grazingcommunities into one bound to a territorial base. This developmentin the historical evolution of the Indian society added one moreessential element of sovereignty, namely territory. The concept ofdesha or raashtra (i.e., country) evolved. So did deshadharma (duty

36 V. S. Mani

13. K. R. R. Sastry, “Hinduism and International Law,” Recueil des cours,Vol. 117, 1966, pp. 507-615, at pp. 568, 570. See also Surya P. Subedi, “TheConcept in Hinduism of ‘Just War’,” Journal of Conflict & Security Law, Vol. 8,2003, pp. 339-361.

in relation to a desha), which on the part of the ruler meant the sameas raajadharma (i.e., good governance and protection of the sub-jects), and on the part of the governed meant loyalty to the institu-tion of king (prajaadharma) and patriotism (deshaabhimanam)including the duty to protect one’s motherland (the country — thesoil that gave birth to a subject — was the Mother Goddess).

2.1.1.2. Dharmayuddha (the righteous war)

From now on, the king had just not the right, but a duty, to go towar, if necessary, in order to protect his kingdom and its people.Such a war, morally forced upon the king, was a righteous war. Thusthe ancient Hindu scriptures and epics conceived of war in twocategories : dharma yuddha (righteous war) and adharma yuddha(unrighteous war) 13. A war that was waged in contravention of therules of warfare or that aimed to satisfy greed was not a just war. InRaamaayana, Raama, the hero, fought a righteous war, because hedid so to save his queen from the clutches of the demon-king, Raa-vana, who had abducted her as he entertained amorous intentions onher. The war that Raavana waged was unrighteous ab initio for theobvious reason — he coveted the lawfully wedded wife of another.In Mahaabhaarata, however, the element of moral righteousness didnot clearly belong to one side alone. The sons of Paandu werewronged and cheated of their kingdom by their cousins, the Kau-ravas, who even refused to concede to them one village, let alonehalf the kingdom, despite the divine intervention of Krishna in theirbehalf. On the other hand, Kauravas too had a legitimate claim overthe kingdom, because their father, Drutaraashtra, was elder toPaandu, yet deprived of the right to rule on ground of his blindness.The war that ensued was a dharmayuddha for both sides. In hisfamous Geeta (the divine poem, the gospel) Krishna advised Arjuna,the great Paandava warrior-hero, not to be overwhelmed by emotionson the need to fight with his own cousins and other venerable eldersarraigned on the opposite side, but to fight his dharmayuddha andleave the result to divine judgment. He had to do what he ought todo under the law of dharma, without any emotional attachment to


14. C. J. Chacko, “India’s Contribution to the Field of International Law Con-cepts”, Recueil des cours, Vol. 93, 1958, pp. 117-219, at p. 132. Chacko refersto Sukraneeti, Book IV, canto 725.

15. Sukraneeti, Book IV, cantos 845-860, cited in Chacko, op. cit., p. 132.Kamandaka’s work is known as Kamandakaneeti.

16. Ibid., cantos 498-500.17. Chacko, footnote 14, supra, p. 135.18. This erudite man from the priestly class practising austere life, decided to

avenge his humiliation at the hands of the Nandas, the ruling dynasty in the east-ern part of India, identified from among street children a candidate for the firstmost powerful Indian emperor, elaborately planned and caused the establishmentof the Maurya Empire by his cunning and deft statecraft. His thoughts on state-craft are found in his Arthasaastra (the science of prosperity of a State), andChaanakyaneeti. Wrongly, and mostly inadequately, described as the IndianMachiavelli, Kautilya was in fact a personality before whose titanic stature andgreat achievements and accomplishments Machiavelli pales into insignificance.Kautilya’s theory of State went far beyond the prosecution of foreign policy. It

the end result. He would be rewarded of such result as divinelydetermined as appropriate. He had a duty to do what ought to bedone, and no right or duty to expect a result that he would desiremost or that he thought he deserved. But the war had to be wagedfor a righteous cause, regardless of whether the “enemy” was one’sfamily relation, said Krishna.

The limits of a dharmayuddha were not clear at times. Sukra, agreat propounder of policies for guidance of kings, could advocate atreacherous war (kutayuddha) for the purpose of self-preservation.“The foe has to be killed in wars, whether wars are carried on byprinciples of morality or not”, he warned his princely disciples 14.Chacko discovers that both Sukra and Kamandaka (of the eighthcentury AD) discussed interventions in inter-State relations. Theformer held that such kings as were devoid of morality and powershould be punished 15. Sukra suggested that the kin should “surroundand coerce a ruler . . . who is an addict to sensuous pleasures, or onewho plunders other people’s goods, and whose officials are cor-rupt” 16. Yet, ancient sages stressed that war should only be the lastresort, on failure to achieve the end through peaceful means. Chackoobserves that “the early writers on war were primarily against warfrom a moral and economic point of view, but turning to it as a lastresort was not discredited” 17.

Further down in history, in the fourth century BC, it was time forgreat empires to arise. The first great empire — perhaps the onlyempire that encompassed nearly the whole of the subcontinent —was the Maurya Empire. It was arguably the handiwork of one man,Kautilya or Chaanakya 18. In his seminal work, Arthsaastra (the

38 V. S. Mani

dealt with the functions of government, welfare state, details of public adminis-tration, rules of inter-individual behaviour, law and punishment, national andinternational trade and commerce, and so on.

19. Arthsaastra, Book VII, 18, Samasaastri, footnote 31, infra, p. 34420. Chacko, footnote 14, supra, p. 135.21. M. V. Krishna Rao, Studies in Kautilya, Kautilya Mandali Publication,

Mysore, 1953, pp. 112-114.

science of wealth/prosperity), Kautilya, the redoubtable king-makerand empire-builder, supports the justice of intervention on humani-tarian grounds 19. “He advises his Prince to attack another if thelatter was oppressing his subjects”, notes Chacko 20.

According to Krishna Rao, another commentator on Kautilya,

“the Artha Saastra essentially is a study of monarchy in rela-tion to the expansion of dominion of the monarch ; and eventhe importance of the economic institutions of the Raashtra ismeasured in terms of their contribution to war. The ideal ofKautilya’s monarchy is universal sovereignty through con-quest.”

In Krishna Rao’s view,

“The Artha Saastra itself appears as a guide to the would-beconqueror ; and nine out of fifteen Addhikaranas (Parts) of thework directly or indirectly deal with the Chaturaanta Raajan [i.e.the conqueror of the four ends — quarters — of the world] and thesuzerainty which had to be established over the whole world boundby the four quarters. This conception of universal sovereignty wasa familiar category in Hindu politics and Kautilya indicates in hisArthasaastra the means of its realisation and consolidation aspreparatory to universal righteousness. . . . The Utsaaha [zealousefforts] of the Swaami [the sovereign] is to attain superiority, pre-eminence and overlordship, and to acquire an all-embracingauthority over all kings by achieving all forms and degrees ofsovereignty over space and time and thus establish his over-lord-ship of the earth up to the seas [from the Himalayas to the south-ern seas].” 21

The objective is to achieve a universal moral order. The State thusrepresents the universal dharma.

But Kautilya’s model king, according to Krishna Rao, was arighteous king. He followed the Raaja Dharma (the duty of theking).


22. Ibid., p. 104.23. Ibid., pp. 115-116.24. Ibid., p. 118.25. Chacko, footnote 14, supra, pp. 137-138. The ashwamedha or vajapeya

sacrifices involve inviting all princes to the sacrificial rites, and asking themsymbolically to accept the vassaldom of the emperor (the chakravartin, theparamount emperor, in the Kautilyan scheme of things.)

26. K. R. R. Sastri, footnote 13, pp. 567 ff.27. Ibid.

“Which enemy is to be marched against ? A powerful enemyof wicked character or a powerless enemy of righteous charac-ter ? The strong enemy of wicked character should be marchedagainst, but when the enemy of virtuous character is attacked,his subjects will help him or die with him.” 22

There are references in Arthasaastra to weak States being protectedby a strong State against another strong State. “Kautilya condemns afight with a righteous king because thereby he [the invader] incursthe displeasure of his own State (i.e. people).” 23 But “The army,Kosa [the public treasury] and the resources of the vijigishu [theconqueror] were to be employed only against the wicked and notagainst the virtuous princes.” 24

Chacko formally categorizes the causes of war accepted in ancientIndia :

“(1) the desire to securing imperial power and status throughaggression, or through the permitted modes of the Ashwamedhaor Vajapeya Yagas . . ., (2) self-preservation, (3) maintenanceof the balance of power, and (4) prevention of oppression by amonarch of his people”.

Religion was of course excluded from the list 25, unlike the just wardoctrine in Medieval Europe.

2.1.1.3. Means and methods of warfare

In the early pre-Vedic period, when the Indian society was orga-nized in tribal communities, war between communities was “nor-mal”, with no holds barred 26. Yet in many parts of India, the processof war was known to be in five stages : seizure of the enemy’s cattle,moblization for invasion, bombardment of the enemy fortress, actualfighting, and victory/defeat. The seizure of cattle was an advancewarning of an attack, and it gave civilians and non-combatants timeto seek shelter, before actual fighting broke out 27.

40 V. S. Mani

28. See Jawaharlal Nehru, The Discovery of India, 5th reprint, Signet Press,Calcutta, 1948, p. 108.

29. See generally, K. R. R. Sastri, footnote 13, supra, Nehru, footnote 28,supra, Nagendra Singh, India and International Law, New Delhi, 1969, Chacko,footnote 14, supra.

30. Nagendra Singh, footnote 29, supra, p. 6.31. Only Kautilya openly disagreed with this rule. See R. Samasastry, trans.,

Kautilya’s Arthasastra, 5th ed., Mysore, India, 1956, Books X to XIV. See atypical statement : “He who is possessed of a strong army, who has succeededin his intrigues, and who has applied remedies against dangers, may undertakean open fight, if he has secured a position favourable to himself ; otherwise atreacherous fight.” Sasamasastry, op. cit., p. 394.

Detailed “laws and customs of war” began to emerge as thesociety became more politically, territorially and socially organizedduring the Vedic period. The Vedas, the Saastras, the epics of Raa-maayana and Mahaabharata, and the Upanishads evidence a largebody of laws and customs of war as developed and practised inIndia. Except for some of Kautilya’s prescriptions, most other earlypublicists recorded a general agreement on banning illegitimatemethods of warfare. “A war for a righteous cause must be righteouslyconducted”, they asserted 28. Many ancient texts such as the Raamaa-yana, the Mahaabhaarata, the Agni Puraana, and the Manusmritiembody a number of ethical precepts that emerged in ancient India 29.

One of the principles on which the ancient Indian laws of warwere based was the equality of status of the combatants. Combatmust be between two warriors similarly placed. A warrior protectedby armour should not fight with another without similar protection.A cavalry soldier should only fight with another cavalry soldier, notwith a chariot-driven warrior. He whose weapon was broken, whosebowstring was cut or who lost his chariot should not be struck.

The principle of proportionality seems to have existed in respectof use of weapons during the war. Nagendra Singh cites from theMahaabhaarata an instance in which Arjuna refrained from usingthe Paasupataastra — a “hyper-destructive” weapon granted to himby Lord Siva, the God of Destruction — because the hostilities atthat point of time were restricted to conventional weapons. Such useof unconventional weapons was considered “not even moral, let alonein conformity with religion or the recognised laws of warfare” 30.

While deception to mislead the enemy was permitted, fightingwith concealed weapons was considered to be treachery and wascondemned 31. According to the Mahaabhaarata, it was permissibleto fight only during the day, not between the sunset and the dawn.


32. Nagendra Singh, footnote 29, supra, p. 5, citing Raamaayana, Yuddha-kanda, sloka 39. This example is clearly relevant in the context of contemporarydebates on nuclear weapons.

33. Nagendra Singh, op. cit., pp. 7-8.

The principle of prohibition of use of weapons causing unneces-sary suffering was recognized in ancient India. Poisoned and barbedarrows were forbidden. The main aim of use of weapons was toweaken the enemy and place its warriors hors de combat, and not tomassacre the enemy. In Raamaayana, during the war betweenRaama, the divine hero, and Raavana (the demon king who hadabducted and kept prisoner Raama’s consort), Raama forbade hisbrother Lakshmana from using a weapon of war that would havedestroyed the entire enemy race, including those who did not beararms,

“because such destruction en masse was forbidden by theancient laws of war even Raavana was fighting an unjust warwith an unrighteous objective and was classed as a devil-demon himself and hence could be considered outside the thenworld of civilisation” 32.

2.1.1.4. Treatment of non-combatants and prisoners of war

There were detailed rules relating to the treatment of persons whowere not directly involved in the war or who were captured as pris-oners of war. Enemy non-combatants, such as charioteers, mahouts,war musicians and priests, should not be fought with. A panic-strickenfoe or an enemy on the run should not be followed in hot pursuit.Guards at the gates should not be killed. A weak or a wounded manshould not be killed. He who surrendered or was defeated should notbe killed, but should be captured as a prisoner of war and treatedwith dignity. A wounded prisoner should either be sent home orshould have his wounds medically treated. The Indian lore containsan instance related to Alexander’s invasion of India in the summer of326 BC. Alexander, after a hard-fought war, defeated the Indian KingPaurava (Poros) and took him prisoner. When he asked him how thelatter expected to be treated, the Indian king advised him : “Act likea king.” So impressed was Alexander by the valour and courage ofthe Indian king that he not only returned him his kingdom but alsogranted some more territories, and gained a faithful friend 33.

42 V. S. Mani

34. Samasastry, footnote 31, supra, Book XIII, Chap. IV, p. 434.35. Ibid., p. 433.36. Nehru, footnote 28, supra, p. 105.

2.1.1.5. Treatment of civilians and civilian objects

The ancient Indian texts lay great emphasis on the protection ofcivilians and civilian objects from the adverse impact of warfare. Apeaceful citizen walking along a road, or engaged in eating, or whohas hidden himself, and all civilians found near the battle theatreshould not be harmed. Fruits, flower gardens, temples and otherplaces of public worship should be left unmolested. Even Kautilya,who otherwise so characteristically deviated from the majority oftexts with regard to the conduct of war, emphasized the need to pro-tect civilians and their way of life. His wise counsel, however,chiefly stemmed from the rationale of pragmatism or utilitarianism,rather than idealism :

“When a fort can be captured by other means, no attemptshould be made to set fire to it ; for fire cannot be trusted ; it notonly offends gods, but also destroys the people, grains, cattle,gold, raw materials and the like. Also the acquisition of a fortwith its property all destroyed is a source of further loss.” 34

And again,

“The territory that has been conquered should be kept sopeacefully that it might sleep without fear. … By destruction oftrade, agricultural produce, and standing crops, by causing thepeople to run away, and by slaying their leaders in secret, thecountry will be denuded of its people.” 35

As Nehru notes, it was a common practice in ancient times for thewarring parties to enter into formal agreements with the headmen ofself-governing village communities, undertaking not to harm the har-vest in any way and to give compensation for any injury unintention-ally caused to the land 36. Wars were usually fought on plains, awayfrom inhabited and cultivated areas.

2.1.2. Buddhism

The impact of Buddhism on the contemporary life was so greatthat its teachings even moved one of the mightiest emperors from


37. Ibid.38. The 13th Asokan Rock Edict said the following :

“Beloved-of-the-Gods [devanaam priya], King Piyadasi [Priyadarsi =handsome looking, charming] conquered the Kalingas eight years after hiscoronation. One hundred and fifty thousand were deported, one hundredthousand were killed and many more died (from other causes). After theKalingas had been conquered, Beloved-of-the-Gods came to feel a stronginclination towards the Dhamma [Buddhist Dharma]. Now Beloved-of-the-Gods feels deep remorse for having conquered the Kalingas.

Indeed, Beloved-of-the-Gods is deeply pained by the killing, dying anddeportation that take place when an unconquered country is conquered. ButBeloved-of-the-Gods is pained even more by this — that Brahmans,ascetics, and householders of different religions who live in those countries,and who are respectful to superiors, to mother and father, to elders, and whobehave properly and have strong loyalty towards friends, acquaintances,companions, relatives, servants and employees — that they are injured,killed or separated from their loved ones. Even those who are not affected(by all this) suffer when they see friends, acquaintances, companions andrelatives affected. These misfortunes befall all (as a result of war), and thispains Beloved-of-the-Gods.

There is no country, except among the Greeks, where these two groups,Brahmans and ascetics, are not found, and there is no country where peopleare not devoted to one another religion. Therefore the killing, death ordeportation of a hundredth, or even a thousandth part of those who diedduring the conquest of Kalinga now pains Beloved-of-the-Gods. NowBeloved-of-the-Gods thinks that even those who do wrong should be for-given where forgiveness is possible.

Even the forest people, who live in Beloved-of-the-Gods’ domain, areentreated and reasoned with to act properly. They are told that despite hisremorse Beloved-of-the-Gods has the power to punish them if necessary, sothat they should be ashamed of their wrong and not be killed. Truly,Beloved-of-the-Gods desires non-injury, restraint and impartiality to allbeings, even where wrong has been done.

Now it is conquest by Dhamma that Beloved-of-the-Gods considers to be

the path of violence. It converted Emperor Asoka (273-232 BC), thegreatest king of his time, to the faith of non-violence. In Nehru’swords : “Unique among the victorious monarchs and captains inhistory, he [Asoka] decided to abandon warfare in the full tide ofvictory.” 37

H. G. Wells, the celebrated British historian, has remarked :“Amidst the tens of thousands of names of monarchs that crowd thecolumns of history . . . the name of Asoka shines, and shines almostalone, a star.” But Asoka remains an exception to this day, althoughhis conduct offered the most powerful challenge to the moral legiti-macy of the many opportunistic rules of warfare propounded byKautilya, his grandfather’s stern mentor. In terms of humanitarianlaw, Asoka represents the earliest manifestation of the principle ofnon-use of force in international relations, now enshrined inArticle 2, paragraph 4, of the United Nations Charter 38.

44 V. S. Mani

the best conquest. And it (conquest by Dhamma) has been won here, on theborders, even six hundred yojanas [1 yojana = 40 miles approx.] away,where the Greek King Antiochos rules, beyond there where the four kingsnamed Ptolemy, Antigonos, Magas and Alexander rule, likewise in thesouth among the Cholas, the Pandyas, and as far as Taraparni. Here in theking’s domain among the Greeks, the Kambojas the Nabhakas, the Nabha-pamkits, the Bojas, the Pitinikas, the Andhras and the Palida, everywherepeople are following Beloved-of-the-Gods’ instructions in Dhamma. Evenwhere Beloved-of-the-Gods’ envoys have not been, these people too, havingheard of the practice of Dhamma and the ordinances and instructions inDhamma given Beloved-of-the-Gods, are following it and will continue todo so. This conquest has been won everywhere, and it gives great joy . . .the joy which only conquest by Dhamma can give. But even his joy is oflittle consequence. Beloved-of-the-Gods considers the great fruit to beexperienced in the next world to be more important.

I have had this Dhamma edict written so that my sons and great-grand-sons may not consider making new conquests, or that if military conquestsare made, that they be done with forbearance and light punishment, orbetter still, that they consider making conquest by Dhamma only, for thatbears fruit in this world and the next. May all their intense devotion be givento this which has a result in this world and the next.” Asoka’s Rock EdictNo. 13 in English by Ven. S. Dhammika, Buddhism in India : the Edicts ofKing Asoka, DharmaNet ed., 1994.

Dhammika acknowledges a great debt to Amulyachandra Sen and two others forthe translation.

39. References are to Elottaraagama Sootra, Vaidooryaraaja Sootra andArthavargeeya Sootra. See Hirata Seiko, “Zen Buddhist Attitudes to War”,Thomas Kitchner trans, p. 3, http://www.nanzan-u.ac.jp/SHUBUNKEN/publi-cations/nlarc/pdf/Rude%20awakenings/Hirata.pdf.

40. In return, however, the law of karma caught up with Kosala, when asevere storm and lightning struck the country, killing several people includingVirudhaka. Seiko, op. cit., p. 4.

That war was immoral in any circumstances and that even adefensive war had no claim to moral justification were well recog-nized canons in the ancient Buddhism as it evolved in India. HirataSeiko narrates a story retold in some Buddhist scriptures 39 involvingBuddha himself, who decided not to rescue his Saakya clan fromcertain destruction. According to it, Virudhaka, the king of Kosala,the powerful country neighbouring the Saakya, of Kapilavastu, wasinsulted by the Saakyas, and he sent a powerful army to destroy thecity of Kapilavastu. The army’s progress was stopped as it cameupon the Buddha sitting under a dead tree. According to an ancientcustom, the army retreated home as it was forbidden to cross a HolyMan’s path on a military campaign. This happened two more times.On the fourth time, the word of impending invasion reached Buddha,he decided not to intervene, and the entire Saakya clan (to which theBuddha belonged) was destroyed. He knew that the law of karmamust take its own course 40. In Seiko’s view, this story


41. Seiko, op. cit.42. Seiko, op. cit., p. 5.43. Seiko, op. cit., p. 7.44. Ibid.45. Ibid.

“provides a good illustration of the absolute rejection of war inancient Indian Buddhism. The early Buddhist posture of non-violence was based not on humanistic ideas about the value oflife, but on a religious understanding of the workings of karma.The Buddha’s ultimate refusal to act for the sake of clanand country was rooted in his belief that the Buddhist dharmatranscends ethnic and national concerns.” 41

By the time Buddhism expanded to China in the fourth century AD,it developed an interpretation based on Taoist and Confucianthoughts. Thus was established Ch’an (Japanese Zen) Buddhism infifth-sixth century, “a synthesis of Taoist, Confucian, and Buddhistthought” 42.

However, over a period of time, Buddhists came to be persecuted.Between 843 and 845 under Emperor Wu-tsung, about 40,000Buddhist temples were closed, 260,000 monks and nuns returned tolay life and vast temple properties were confiscated. The doctrinalrestoration of Buddhism was only possible with the recognition ofthe identity of the Buddhist law with the imperial law. Soon theBuddhadharma became “the jewel (i.e., the sovereign), while theimperial law is the manifestation (i.e. subject) of this secret jewel” 43.Thus Buddhism began to be bound to the earth’s laws. Soon, in someparts of China, a practice developed in Chinese temples : on the firstand the fifteenth of every month prayers were held for the health andlong life of the emperor, and whenever a new head priest assumedoffice, a special prayer was held for the peace of the nation 44.

When the Sung dynasty was invaded and forced to relocate southof the Yangtze, there was considerable debate among the Buddhistorders whether its disciple officials should join armed resistance orwhether it was better to sue for peace. Ch’an master Ta-hui Tsungkao argued in favour of taking up arms “even if only for the honourof the dynasty”. Finally, conciliators won the day, and Ta-hui andfollowers were exiled to far-off regions 45.

However, slowly, Ta-hui’s arguments found the fancy of the laterZen masters. They travelled to Japan when Wu-hsuch Tsu-yuan

46 V. S. Mani

46. Ibid., p. 8.

(1226-1286) was invited to Japan in 1279 by the Kamakura shog-nate. As the Mongols invaded Japan for the second time in 1281,Wu-hsuch inscribed on a scroll the phrase “Dispel all illusion”, andadvised military defence against invasion. This is seen as a justifica-tion for defending the “Buddha’s realm” (by then identical with theemperor’s realm) 46. Thus arose the Zen philosophy for the samurais :“Death is the way of the samurai. It is in the law of the sovereignthat the law of the Buddha must be found. Fighting for its honourensures eternal bliss.”

Meiji reforms further accentuated this process of identification ofthe Zen Buddhism and the Chrysanthemum Empire. Zen simplyreplaced the Buddha with the Emperor and held that the serviceto the emperor was service to Buddha. The original MahayanaBuddhism largely replaced Vishnu with Buddha ; now under Zen,Buddha was replaced by the emperor as his representative on earth.Thus the wars that the Japanese fought in the twentieth century werejust wars.

What a swing of the pendulum from the Buddha-Asoka conceptof non-violent dharma to the violent just war on behalf of theBuddha-incarnate emperor !

2.1.3. Jainism

Although Jainism was claimed to have been prevalent in Indialong before Buddhism, it was Mahaavira who formulated and gaveeffect to most of the current Jain precepts. It is said that Asoka washimself a Jain. Evidently, pre-Mahaavira Jains did participate in wars.

Vardhmaana Mahaavira (599-527 BC), the most famous of the Jainpreceptors, was the 24th Tirthankar of the Order of Jain Preceptors.Lord Mahaavira’s preachings were orally compiled into many texts(number of scriptures) by his disciples. These scriptures are knownas Jain Ägamas or Ägama Sutras. The Ägam Sutras teach great rev-erence for all forms of life, strict codes of vegetarianism, asceticism,compassion, non-violence, and opposition to war. The scriptureswere not documented in any form but were memorized by asceticsand passed on by oral tradition to future generations of ascetics.

Jainism is a religion that advocates that it is possible for one tobecome a Jin, i.e. a person who has attained liberation from birth,


47. http://www.jcnc.org/Jainism/intro_Jainism.htm#_Toc22698619.48. Ibid.49. Ibid.

death and suffering 47. But it does not believe in God in the sense ofa Creator, Preserver and Destroyer. The path to become a Jin is byfollowing the right faith, right knowledge and right conduct.

The tenet of right conduct for Jains encompasses five great vows :

— Ahimsa (non-violence, compassion, not to cause harm to anyliving beings),

— Satya (truthfulness, to speak only harmless truth),— Asteya (non-stealing, not to take anything not properly given),— Brahmacharya (chastity, not to indulge in sensual pleasure), and— Aparigraha (non-possession, non-attachment, complete detach-

ment from people, places, and all material things).

Ahimsa (non-violence) has a central place in Jainist philosophy. Ithas both positive and negative contents. It means not only abstinencefrom any form of violence, but also charity and sympathy to allliving beings. Use of force, even for self-defence is forbidden. Thebasic prescription of Jainism is ahimsä paramo dharmah (non-vio-lence is the supreme duty). Dharma relates to the true nature of aman — “Compassion is the true nature of a human being.” The Jainsalso believe in the dictum Parasparopagraho jeeväanäam, i.e., lifeis for rendering service to one another 48.

“The supreme ideals of the Jain religion are non-violence(Ahimsä), equal kindness, reverence for all forms of life, non-possessiveness, and non-absolutism (Anekäantaväada = multi-plicity of views) in speech, thought, and action. Above all it isa religion of love and compassion to all living beings.” 49

Anekaantavaada recognizes the manifestation of truth in diversity ofviews, each view representing a part of the truth. (One recalls LordActon’s saying : “For every truth, there is a balancing truth.”) Arecognition of this leads to tolerance and non-violence in thoughtand speech, and thus in action.

It would appear that the post-Mahaavira Jainism remained stead-fast on its touchstone of non-violence and withstood the test of time.

In a sense, both the Buddhism as it evolved in India and Jainismembodied many of the basic tenets of Vedic Hinduism, except fortheir disavowal of theism.

48 V. S. Mani

50. Leonard Shihlien Hsu, Political Philosophy of Confucianism, London,George Routledge & Sons, 1932, p. 116.

51. Samuel B. Griffith, Sun Tzu : The Art of War, trans. with Introduction,Clarendon, Oxford, 1963, pp. 21-22.

2.1.4. Ancient Chinese traditions

The ancient Chinese traditions covered here encompass Confu-cianism and the thoughts of Sun Tzu.

2.1.4.1. Confucianism

Confucius is regarded as one of the most famous of politicalphilosophers of the Orient. He is believed to have lived in China inthe sixth-fifth century BC (born 550 or 551 BC). According to him,militarism was contrary to “the principle of benevolent government”.In his book on Spring and Autumn, he recorded some 400 warswithin a period of some 242 years and condemned all of them,“since war is contrary to humanity”. He found absolutely no justifi-cation for any of these wars 50. His Book of Poetry contains a num-ber of poems depicting the calamity of broken homes, the sorrow ofwidows, and the crying of mothers to show the human waste of war.Following the same vein, writers like Mo Ti and Mo Tzu (479-381BC) denounced the crime and futility of war. Mo Tzu pointed to thedeath of innumerable people and animals due to wars. Mo Tidenounced aggressive war :

“When murder is committed in attacking a country it is not con-sidered wrong; it is applauded and called righteous. Can this beconsidered as knowing what is righteous and what is unrighteous?When one man kills another man it is considered unrighteousand he is punished by death. Then by the same sign when aman kills ten others, his crime will be ten times greater, andshould be punished ten times. . . . [I]f a small crime is con-sidered crime, but a big crime such as attacking another country isapplauded as a righteous act, can this be said to be knowingthe difference between righteous and unrighteous?” 51

2.1.4.1.1. Limited justifications for war

Confucius and his disciples appear to have recognized two justifi-cations for war : one self-defence, and the other use of force againsttyranny and oppression. In both cases, it was a matter of duty on the


52. Hsu, footnote 50, supra, p. 116.53. Ibid., p. 117.54. Ibid., p. 120. Hsun Tzu, a Confucian of 4th-3rd century BC, is reported to

have approved use of armies “for the purpose of stopping tyranny and getting ridof injury”. See Griffith, footnote 51, supra, at p. 16.

55. Hsu, footnote 50, supra, p. 118.56. Griffith, footnote 51, supra, p. 30.

part of a ruler to use force. In the Book of Change Confucius advisedthe wise rulers to provide strong forts in order to protect the countryfrom foreign aggression. This apparently meant that Confucius con-doned going to war in self-defence. According to Confucius threethings were essential in governance of a country : sufficient food forthe people, sufficient military equipment and the confidence of thepeople in government 52.

Confucius also advocated the use of the military when there wastyranny in another country, as the people under tyranny should beliberated and led to goodness 53. Hsu, a disciple of Confucius,explained thus :

“When a people are suffering from tyranny, naturally theywill hate their own government and they will be inclinedtoward some other benevolent government, should there beany. When their wish for the other benevolent government iswell crystallized, the will of Heaven is for the latter as againsttheir own government. Then this benevolent government isduty bound to overthrow the tyrannical government. In such acase force may be used if necessary.”

But, after the invasion, the new territory could not be annexed with-out the consent of the people — except where both the formertyranny and its people were bad, in which case, the conquerorhad the duty to reform the people, by annexing the territory, evenwithout the consent of the people 54.

Yet as regards the means and methods of war, Confucian thoughtcame close to the ancient Indian thought.

Confucius’s king “would never commit an act of unrighteousnessor put to death one innocent person in order to gain the control of anEmpire”. So no war was permissible if killing of even one innocentperson was involved 55. Until about 500 BC, war in China was “in asense ritualistic. Seasonal campaigns were conducted in accordancewith a code generally accepted. Hostilities were prohibited duringthe months devoted to planting and harvesting.” 56

50 V. S. Mani

57. Thomas Cleary, trans., The Art of War : Sun Tzu, Shambhala South AsianEditions, Boston, Mass., 1999, p. 13.

58. Ibid., p. 38.59. S. Mahmassani, “The Principles of International Law in the Light of

Islamic Doctrine”, Recueil des cours, Vol. 117, 1966, pp. 205-328, at p. 242.

2.1.4.2. Sun Tzu

Taoism in China flourished as a philosophy of life, of society andof governance. The Tao simply means “the way”. It is a wholesomeway of looking at things, in total harmony with the surroundings ; itis a cosmological outlook of life. Thus it results in “humaneness andjustice”. As Du Mu (803-852 AD), a commentator of Sun Tzu, 544-496 BC), the master Chinese general, says :

“The Way means humaneness and justice. In ancient timesa famous minister of state asked a political philosopher aboutmilitary matters. The philosopher said, ‘Humaneness and jus-tice are the means by which to govern properly. When govern-ment is carried out properly, people feel close to the leadershipand think little of dying for it.’ ” 57

Sun Tzu, probably one of the first philosophers to conceptualizewar as “the Way” of life, takes war to be a serious business, as itinvolves total victory over the enemy. Therefore he argues that useof armed force must be the last resort. It should be applied “so thatvictory was gained : (1) in the shortest possible time ; (2) at the leastpossible cost in lives and effort ; and with infliction on the enemy ofthe fewest possible casualties” 58. Tzu lays down these conditions inthe interests of efficiency of prosecution of military campaign andensuring a quick and devastating victory over the enemy. To him,thus, waging a war not as a last resort would not be a just war,besides considerations of pragmatism and statesmanship.

2.1.5. Islamic traditions

The very word “Islam” implies peace.

“The word ‘peace’ and its derivatives are cited in more thanone hundred verses of the Quran, while the word ‘war’ and itsderivative verb are mentioned in only six verses.” 59

While the term “Jihaad” has the broad connotation of the all-round struggle (both external as well as within one’s own mind)


60. Ibid., pp. 279-280.61. Ibid., p. 282.62. Ibid., p. 285.63. Oleh Ustaz Muhammad Hanif Hassan, “Jihad and the Just War Theory : A

Comparative Overview”, www.pergas.org.sg/RisalahWebOct04/fiqh.html. Per-gas, Fiqh (Singapore), October-December 2004. The portrayal of the Islamicconcept of just war contained herein heavily relies on Hassan’s interpretation ofthe Islamic Scriptures.

against evil and injustice and for righteousness, it has also come tomean

“as just war to defend freedom of religion and social order, andto prevent aggression and injustice. It has always kept thischaracter of a protective, defensive and preventive war, and hasnever been considered as an aggressive measure”.

“Jihaad, from the verb jahaada, etymologically meansextreme strife and struggle. In legal terminology, it is definedas the struggle for the cause of God by all means, includingspeech, life and property.” 60

According to Mahmassani,

“In theory, war is just and permissible only on grounds ofextreme necessity and subject to strict conditions. The groundsjustifying such war may be grouped under the following head-ings, namely, protection of the freedom of religion, defenceagainst aggression, prevention of injustice, and protection ofsocial order.” 61

War in defence of justice and in prevention of injustice is “notonly permissible when aggression or injustice is committed againstthe Muslim State, but also if it be non-Muslim”. The Prophet isreported to have said :

“Whoever from among you sees a reprehensible action, hehas to change it by his hand ; if he cannot, he has to do so byhis tongue ; if he cannot, he has to do so by his heart, this beingthe weakest of faith.”

Thus all these forms of response are jihaad. The last one includes casessuch as rebellion, highway robbery and apostasy (abjuration of Islam) 62.

Oleh Ustaz Muhammad Hanif Hassan draws analogy, ratherelaborately, from the European/Christian just war theories, to showthat Islam, too, recognizes similar components of a just war 63. In

52 V. S. Mani

64. Ibid. In one of the verses in the Holy Koran, says Hassan, Allah describesProphet Muhammad as a person with the best morals. “And verily, you (O,Muhammad) are on an exalted (standard of) character (morals) . . .” (The HolyQuran, 68 : 4). Thus, Muslims are expected always to strive to emulate theProphet, in their application of principles of morality to all aspects of life : indi-vidual, family, social, economic and political. Muslims are required to maintaingood moral conduct in all aspects of their life. The Prophet said : “The best ofyou are those who have the best manners/morals”. (Narrated by Al-Bukhari andMuslim). Hassan, op. cit.

65. Afzalur Rahman, Muhammad as a Military Leader, The Muslim SchoolsTrust, London, 1980, p. 15, cited in Hassan, op. cit.

66. Hassan, op. cit.

his view, Islam, like other religions, stresses morality to be central toIslamic concepts. “Nothing, including war, can be detached from it”,he asserts. Morality is one of the divinely ordained objectives of ProphetMuhammad’s mission on earth. Hassan cites Al-Hakim for the Prophet’sstatement : “I was sent [to this world] to perfect the morals.” 64

In war, too, morality is an important consideration. As Hassan remarks,Muslims are bound by “a certain code of conduct in war”. Hence theimportance of the just war theory. The argument runs as follows:

“In Islam, life is sacred and to be respected. Its preservationrequires security. Islam advocates peace as the fundamentalprinciple of life and takes all the necessary measures to secureand maintain it. However, it acknowledges that human societyis not composed of angels who cannot and do not commit anywrong. There are individuals, as well as groups, who are vio-lent and aggressive, and do not let others live in peace andsecurity. They transgress all bounds of morality and ethics, andencroach upon other peoples’ rights without just cause. Suchindividuals and societies have to be kept under restraint so thatother individuals and societies may live in peace.”

When there are such people who will not let others live in peace,fighting not only becomes justifiable but obligatory on Muslims.This is how war figures in Islam — “to restore conditions of peaceand order” 65. Thus, in this sense, “war in Islam is much closer to theJust War Theory” 66.

2.1.5.1. Elements of just war

Closely following the pattern of the Western analysis of the JustWar Doctrine, Hassan looks at the Islamic Scriptures to evolve anIslamic analysis of the doctrine. Thus he examines them in terms ofthe “elements of Just War” — just cause, right intention, legitimate


67. The Holy Quran, 2 : 193, quoted in Hassan, op. cit.68. The Holy Quran, 4 : 75, quoted ibid. Hassan quotes Louay Safi’s expla-

nation of both verses :

“It should be made clear here that oppressiveness of a particular regimeis not to be determined by comparing the values and conduct of that regimewith Islamic norms and standards, but rather by its toleration of the Musliminteraction with its subjects and the communication of Islam to the generalpublic. Corruption and mismanagement should not be considered, therefore,the criteria that classify a particular regime as oppressive, deserving, thus,to be fought, because, it may be recalled, Muslims are commanded to invitemankind to Islam through friendly means and effect social and politicalchange using the peaceful methods of education and moral reformation.Only when their peaceful efforts are frustrated and met with violence, arethey justified to use violence to subdue the aggressive party. . . . [T]heProphet did not resort to war against the Pagan Arabs until they persecutedthe Muslims and violated their lives and properties ; nor did he fight theJews of Madinah until they betrayed the Muslims and conspired with theirenemies. Similarly, the Prophet declared war against Byzantium and itsArab allies only when they killed the messengers and missionaries whowere sent to peacefully summon people to Islam and introduce to them thenew revelation of God.”

69. “And We have not sent you but as a mercy to the worlds.” The HolyQuran, 21 : 107, cited by Hassan, op. cit.

authority, proportionality of use of force, rule of discrimination,probability of success, and the rule of last resort.

2.1.5.1.1. Just cause

Closely following the methodology of just war analysis in theWestern literature, Hassan looks for similar elements in Islam thatconstitute an Islamic just war theory. He cites the following verses ofthe Holy Quran whereby war is justified, in terms of its cause :

“And fight with them until there is no persecution, and reli-gion should be only for Allah, but if they desist, then thereshould be no hostility except against the oppressors.” 67

“And what reason have you that you should not fight in theway of Allah and of the weak among the men and the womenand the children, [of] those who say : Our Lord ! cause us to goforth from this town, whose people are oppressors, and give usfrom You a guardian and give us from You a helper.” 68

The obligation of the Muslims to protect and defend againstoppression and persecution encompasses not only fellow Muslims,but all fellow human beings 69, and all places of worship, be theymosques, monasteries, churches or synagogues.

What then is oppression that calls for justifiable use of force ?

54 V. S. Mani

70. Hassan, op. cit. Hassan cites in support Abdul Hamid A. Abu Sulaymanwho wrote :

“Jihad, as the duty to pursue what is true and right, includes protection ofthe human rights of life, belief, honour, family and education. The highestpurpose of jihad is to change one’s own life so that one will pursue theserights in submission to Allah. The second highest purpose is to defend therights of justice for everyone, always, everywhere ; and the substance ofjustice is human rights.” Abdul Hamid A. Abu Sulayman, Towards anIslamic Theory of International Relations : New Directions for Methodologyand Thought, The International Institute of Islamic Thought, Hendon, Vir-ginia, 1993, p. 24.

71. The Holy Quran, 2 : 194, in Hassan, op. cit.72. The Holy Quran, 22 : 39, 40, Hassan, op. cit. This is amongst the first

verses that Allah revealed allowing Muslims jihad with arms, notes Hassan. Itwas in response to the more than 10 years of persecution committed by peopleof Mecca on the followers of the Prophet, during which the latter “were com-manded to persevere patiently and maintain peaceful means of propagatingIslam. They were prohibited from retaliating to the physical abuse and violencecommitted against them”.

73. However, Hassan notes some of the verses in the Holy Quran, that aremisused to justify use force against non-Muslims due to their infidelity or faithor to ensure Islam’s dominance over other religions. These are the following :

“So when the sacred months have passed, then slay the unbelieverswherever you find them, and take them captives and besiege them and lie

“Mere acts of discrimination and injustice do not justifyMuslims going to war or taking up armed rebellion against astate. The offending act must be severe to the extent that itinvolves violence against people and property, and all peacefulmeans of resolving the situation had been exhausted.” 70

“Whoever then acts aggressively against you, inflict injuryon him according to the injury he has inflicted on you and becareful (of your duty) to Allah and know that Allah is withthose who guard (against evil).” 71

Thus use of force may only be justified in response to aggression.

“Permission (to fight) is given to those upon whom war ismade because they are oppressed, and most surely Allah is wellable to assist them ; Those who have been expelled from theirhomes without a just cause except that they say : Our Lord isAllah. And had there not been Allah’s repelling some people byothers, certainly there would have been pulled down cloistersand churches and synagogues and mosques in which Allah’sname is much remembered ; and surely Allah will help himwho helps His cause ; most surely Allah is Strong, Mighty.” 72

A justifiable cause of war is self-defence and response to oppression73,


in wait for them in every ambush, then if they repent and keep up prayerand pay the zakat, leave their way free to them ; surely Allah is Forgiving,Merciful.” (The Holy Quran, 9 : 5.)

“Fight them, Allah will punish them by your hands and bring them todisgrace, and assist you against them and heal the hearts of a believingpeople.” (The Holy Quran, 9 : 14.)

“Fight those who do not believe in Allah, nor in the latter day, nor dothey prohibit what Allah and His Messenger have prohibited, nor do theyfollow the religion of truth, out of those who have been given the Book,until they pay the tax in acknowledgment of superiority and they are in astate of subjection.” (The Holy Quran, 9 : 29.)

“O Prophet ! Strive hard against the unbelievers and the hypocrites and beunyielding to them ; their abode is hell, and evil is the destination.” (TheHoly Quran, 9 : 73.)

“O you who believe ! Fight those of the unbelievers who are near to youand let them find in you firmness ; and know that Allah is with those whoguard (against evil).” (The Holy Quran, 9 : 123.)

Hassan concedes that “A faction of Muslims takes these verses as the finalinstructions on jihad because they were revealed near the end of the Prophet’slife, hence abrogating all other verses discussed earlier. However, the majorityof Muslim scholars reject this view.” For this proposition Hassan refers toWahbah Az-Zuhaily, “Al-Tafsir Al-Munir Fi Al-’ Aqidah wa Al-Shari’ah wa Al-Manhaj” (Illuminating Interpretation Regarding Belief, Law and Approach), DarAl-Fikr, Damascus, 1991, Vol. 10, pp. 110, 175-178. According to Hassan,

“The prevalent opinion is that these verses cannot be interpreted inde-pendently of the others. All the verses on jihad in Islam need to be studiedtogether to derive the cause of war in Islam. Furthermore, there is no strongevidence that the above verses were revealed to abrogate the others, asProphet Muhammad would have explained as such otherwise.”

Hassan draws our attention to the historical background to these five verses :

“all these 5 verses were revealed around the same time, during a state ofwar between the Prophet and the various Arab tribes, in particular theQuraiysh people of Mecca. The words used in the verses were direct andfirm because of the prolonged persecution against Muslims, which hadbegun from the Meccan period. The hostilities remained even after the Mus-lims migrated to Medina in search of peace. Despite entering into varioustreaties with the Muslims in Medina, those tribes treacherously violatedtheir part time and again. In that late stage in the Prophet’s mission, itbecame clear that peaceful relations with those tribes was impossible, hencethe instruction in that chapter to denounce such treaties and wage war”.

“The most appropriate interpretation of the above verses”, in Hassan’s view,“is that they refer to non-Muslims who have been in a prolonged state of waragainst Muslims through unprovoked aggression and violence. That explainswhy the verses pertaining to this incident seem discordant with those mentionedin other parts of the Quran, as discussed earlier”. “Some of the verses of chap-ter 9 of the Holy Quran referred specifically to the Arab Pagans of that time, notto non-Muslims of all time” (Hassan cites the support of Az-Zuhaily, et al., citedabove, pp. 108-109). Hassan, op. cit.

74. Hassan refers to two statements from the Quran to support this generalrule :

although coexistence of Muslims with non-Muslims is the generalrule 74.

56 V. S. Mani

“Allah does not forbid you respecting those who have not made waragainst you on account of (your) religion, and have not driven you forthfrom your homes, that you show them kindness and deal with them justly ;surely Allah loves the doers of justice.”

“Allah only forbids you from respecting those who waged war upon youon account of (your) religion, and drove you forth from your homes andbacked up (others) in your expulsion, that you make friends with them, andwhoever makes friends with them, these are the unjust.” (The Holy Quran,60 : 8-9.)“let not the hatred of a people — because they hindered you from theSacred Masjid [Mosque] — incite you to exceed the limits, and help oneanother in goodness and piety, and do not help one another in sin andaggression ; and be careful of (your duty to) Allah ; surely Allah is severe inrequiting (evil).” (The Holy Quran, 5 : 2.) Hassan, op. cit.

75. The Holy Quran, 5 : 8, cited in Hassan, op. cit. Hassan quotes theProphet :

“Do not envy one another ; do not inflate prices by overbidding againstone another ; do not hate one another ; do not harbour malice against oneanother ; and do not enter into commercial transaction when others haveentered into that (transaction) ; but be you, O slaves of Allah, as brothers. AMuslim is the brother of another Muslim ; he neither oppresses him nordoes he look down upon him, nor does he humiliate him. Piety is here (andhe pointed to his chest three times). It is enough evil for a Muslim to holdhis brother Muslim in contempt. All things of a Muslim are inviolable forhis brother-in-faith : his blood, his property and his honour.”

76. On self-aggrandizement, Hassan quotes the Prophet :

“The first person to be judged on Judgement Day is the shahid (he whodied in Allah’s cause). He will be brought forward and shown the favoursbestowed upon him, and he will acknowledge them. Allah will then say,‘What have you done ?’ He replies, ‘I fought in Your cause until I died(shahid)’. Allah will say, ‘You lie. You fought so that you will be said to bebrave and you have said so’. He will then be dragged and thrown intoHell.” (Narrated by Muslim.)

2.1.5.1.2. Right intention

An essential element of a just war is the right intention. The inten-tion of use of force to remove oppression, not to respond to anyfeeling of hatred against the initial wrongdoer. Hassan refers to thefollowing verse in the Holy Quran in support :

“O you who believe ! Stand for Allah as bearers of witnesswith justice, and let not hatred of a people incite you to actinequitably ; act equitably, that is nearer to piety, and be carefulof (your duty to) Allah ; surely Allah is Aware of what youdo.” 75

The significance of the above statement, according to Hassan, is thatIslam prohibits any act based on malice, hatred and envy, be it insocial life or war 76. As Hassan points out, “Islam teaches forgive-


77. Hassan, op. cit.78. Wahbah Az-Zuhaily, “Al-Fiqh Al-Islami Wa Adillatuhu”, Dar Al-Fikr,

Damascus, 1991, Vol. 6, pp. 419 ff., “Ibn Qudamah, Al-Mughni”, Dar Al-Fikr,Beirut, 1984, Vol. 10, pp. 368-367, “Al-Mawardi, Al-Ahkam As-Sultaniyah”,Dar Al-Kutub Al-Ilmiyah, Beirut, 1982, p. 35 : all cited by Hassan, op. cit.

79. Hassan, op. cit.80. Sheikh Faisal Mawlawi, “Al-Mafahim Al-Asasiah Li Ad-Da’wah Al-

Islamiah Fi Bilad Al-Gharb”, available at www.mawlawi.net (10 February2004), cited by Hassan, op. cit. Rahman, Muhammad as a Military Leader, foot-note 65, supra, p. 285. See fatwa War Ethics in Islam. Available at http://www.islam online.net /fatwa/English /Fatwa Display. asp?

81. Hassan quotes the Quran : “O you who believe ! Fulfill (your) obligations(contracts).” The Holy Quran, 5 : 1, Hassan, op. cit.

ness, not vengeance. Even in a case of murder, the victim’s familymembers are encouraged to forgive the murderer.” 77

Thus, the intention of resorting to war must not serve other thanthe cause permitted in Islam.

2.1.5.1.3. Legitimate Authority

According to Hassan, Islam considers war “as an issue of publicdomain” to be decided only by the Ulil Amri, persons of appropriateauthority 78. There is no private war recognized in Islam. As Hassanexplains,

“No individual or groups are allowed to wage war or jihad inthe name of Islam or for the community. War will always affectthe public at large, thus the principle of consultation taughtby Islam requires proper mandate from the people. The bestpeople who are appropriate to hold such mandate are thosewho are mandated to be the government. Only in a situationwhere the government has collapsed, are Muslims allowed toorganize themselves collectively to fights against any aggressionas what had happened in Afghanistan during the invasion bySoviet Union.” 79

“Any Muslim state, which is a member of the United Nations”, saysHassan, “is by default, in a peaceful agreement with all other mem-bers of the United Nations by way of the United Nations Charter.This is further strengthened if such countries have diplomaticties.” 80 Thus, “Islam does not permit Muslims to make unilateraldecisions in terminating a peaceful treaty, even if the other party isnot strictly observing the terms.” 81

58 V. S. Mani

82. The Holy Quran, 2 : 190, quoted in Hassan, op. cit.83. The Holy Quran, 2 : 194, quoted in Hassan, op. cit.84. The Holy Quran, 16 : 126, quoted in Hassan, op. cit.85. The Holy Quran, 42 : 40, quoted in Hassan, op. cit.86. The Holy Quran, 5 : 45, quoted in Hassan, op. cit.87. The Holy Quran, 2 : 178, quoted in Hassan, op. cit.88. The Holy Quran, 2 : 229. “Do not commit excesses in your religion.” The

Holy Quran, 4 : 171, 5 : 77, quoted in Hassan, op. cit. Similarly, Prophet

2.1.5.1.4. The rule of proportionality

In war, Muslims are required to comply with the rule of propor-tionality, notes Hassan :

“And fight in the way of Allah those who fight you, and donot exceed the limits, surely Allah does not love those whoexceed the limits.” 82

“whoever then acts aggressively against you, inflict injury onhim according to the injury he has inflicted on you and be care-ful (of your duty) to Allah and know that Allah is with thosewho guard (against evil)” 83.

“And if you take your turn, then retaliate with the like of thatwith which you were afflicted ; but if you are patient, it willcertainly be best for those who are patient.” 84

“And the recompense of evil is punishment like it, butwhoever forgives and amends, he shall have his reward fromAllah ; surely He does not love the unjust.” 85

“And we ordained therein for them ‘Life for life, eye foreye, nose for nose, ear for ear, tooth for tooth and woundsequal for equal.’ But if anyone remits the retaliation by way ofcharity, it shall be for him an expiation . . .” 86

“O you who believe ! Retaliation is prescribed for you in thematter of the slain, the free for the free, and the slave for theslave, and the female for the female, but if any remission ismade to any one by his (aggrieved) brother, then prosecution(for the blood wit) should be made according to usage, andpayment should be made to him in a good manner ; this is analleviation from your Lord and a mercy ; so whoever exceedsthe limit after this he shall have a painful chastisement.” 87

“These are the limits ordained by Allah ; so do not transgressthem, if any do transgress the limits ordained by Allah, suchpersons do wrong (to themselves as well as others).” 88


Muhammad said : “Distance yourselves from being extreme in religion.” (Nar-rated by Ahmad, Ibn Khuzaimah, An-Nasa’ii, Ibn Majah and Al-Hakim.)“Indeed that which destroyed the people before you is the extremist stance inpractising religion.” (Cited by Ahmad, Ibn Khuzaimah, An-Nasa’ii, Ibn Majahand Al-Hakim.) “Disaster on those who are extreme.” (Cited by Muslim, AbuDaud and Ahmad), Hassan, op. cit.

89. See fatwa against Destroying Places of Worship in War Times. Available athttp://www.islam-online.net/fatwa/english/FatwaDisplay.asp?hFatwaID= 101 034(10 February 2004). See also fatwa Islam and The Protection of Non-Muslims’Places of Worship. Available at http: //www.islam-online.net/fatwa/english/FatwaDisplay.asp?hFatwaID=101034 (10 February 2004), cited in Hassan, op. cit.

90. See fatwa on Using WMD in War : Islamic View, citd in Hassan, op. cit.91. Afzalur Rahman, footnote 65, supra, p. 271, cited in Hassan, op. cit.

Hassan points out that :

“The rule of proportionality is also invoked in some of therulings pertaining to the Islamic code of conduct in war, whichprohibits Muslims from [committing] certain acts such as,unnecessarily cutting off trees or destroying buildings, animalsand places of worship for Muslims and non-Muslims.” 89

Based on this principle, argues Hassan, contemporary Muslimscholars recognize the prohibition of use of weapons of massdestruction 90.

“In principle [observes Hassan], Muslims are not allowed togo beyond what is required and needed to repel aggression ormore than what is inflicted on them. The basic principle of warin Islam is to use force only for removing the aggression of theenemy and also to protect the weak and the oppressed. Force isnot intended to kill or destroy the enemy but to weaken,frighten or discourage him so that he might give up his aggres-sion and hostility.” 91

2.1.5.1.5. The rule of discrimination

In waging war, Muslims are also required to adhere strictly to theIslamic code of conduct in war as taught by the Prophet. “Thisdefines the rule of discrimination”, says Hassan. He then quotes theProphet :

“Do not kill the elderly, sick, young children or women and donot behave excessively, accumulating the spoils of war. Be kind,for Allah loves those who are kind.” (Retold by Abu Daud.)

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92. Al-Bukhari, Sahih Al-Bukhari, Vol. 4, Book 52, No. 257-8. Available athttp://www.wponline.org/vil/hadeeth/bukhari/052.htm (10 February 2004).

93. The Holy Quran, 47 : 4, quoted in Hassan, op. cit.94. The Holy Quran, 76 : 7-8, quoted in Hassan, op. cit.95. 60 Dr Wahbah Az-Zuhaily, Al-Fiqh Al-Islami Wa Adillatuhu, Vol. 6,

pp. 474-475. Hassan finds Rahman supporting the view that the Prophet treatedprisoners of war very generously and often freed them, as in the case of prison-ers from the Battle of Hunain. Some prisoners from the Battle of Badr were ran-somed ; others were asked to teach some Muslim children in exchange for theirrelease. He cites Afzalur Rahman, footnote 65, supra, p. 286. See also fatwaIslam’s Stance on Prisoners of War. Available at http://www.islam-online.net/fatwa/english/FatwaDisplay.asp? hFatwaID=55158 (10 February 2004) ; also fatwaWar Ethics in Islam. Available at http://www.islamonline.net/fatwaapplication/english/display.asp?hFatwaID=79793 (10 February 2004). Hassan, op. cit.

“Do not embezzle the spoils, do not break your pledge anddo not mutilate (the dead) bodies, do not kill the children”.(Retold by Muslim.)

“Do not kill people of monasteries.” (Retold by Ahmad.)

The reason for prohibiting the killing of the elderly, the sick,young children and women 92 is because generally they are non-combatants, in Hassan’s view.

On the treatment of the prisoners of war, Allah has stipulated asfollows :

“So when you meet in battle those who disbelieve, thensmite the necks, until when you have overcome them, thenmake (them) prisoners, and afterwards either set them free as afavour or let them ransom (themselves) until the war termi-nates. That (shall be so) ; and if Allah had pleased He wouldcertainly have exacted what is due from them, but that He maytry some of you by means of others ; and (as for) those who areslain in the way of Allah, He will by no means allow theirdeeds to perish.” 93

“They fulfil vows and fear a day the evil of which shall bespreading far and wide. And they give food out of love for Himto the poor and the orphan and the captive.” 94

As prisoners of war are no longer in a position to fight (hors decombat), Islam requires Muslims to provide humane treatment tothem 95. Hassan recounts an incident from the Prophet’s life :

“During the conquest of Mecca, Prophet Muhammadshowed magnanimity to its people despite their previous pro-


96. Rahman, footnote 65, supra, p. 287, referred to in Hassan, op. cit.97. Retold by At-Turmuzi, in Hassan, op. cit.98. Ibn Taimiyah, Majmu’ Al-Fatawa, Matabi’ Ar-Riyadh, Riyadh, 1372H,

Vol. 28, pp. 126-127, cited in Hassan, op. cit.99. Hassan, op. cit.

longed ill-treatment of him. He said to them : ‘O Quraish, whatdo you think I am going to do with you ?’ They replied : ‘Good.You are a noble brother, son of a noble brother.’ He said : ‘Thisday let no reproach be cast on you. God will forgive you. Goyour way, for you are freed.” 96

2.1.5.1.6. Probability of success

Success in war, says Hassan, is intrinsically related to the justcause as in Islam. He refers to a statement by the Prophet :

“A Muslim is not to despise himself. The Companions asked‘How does he despise himself?’ Prophet Muhammad said ‘Heexposes himself to a disaster that he has no capacity to face.’” 97

Allah instructed the Prophet to achieve or perfect the commongood, to hinder or reduce harm, and to avoid a bigger harm byaccepting a lighter one. War may only be waged if the benefitderived from it is bigger than the harm it inflicts in relation to theobjective it wants to achieve — the just cause. If the harm outweighsthe benefits, then Islam does not condone it 98.

“This rule [Hassan explains] requires Muslims to make dueconsideration between its advantages and disadvantages. Thus,in principle, resorting to war is only allowed if it will bringgreater good or prevent greater evil.” 99

2.1.5.1.7. Last resort

“While armed jihaad is permissible in Islam”, emphasizes Hassan,“there is enough evidence to show that Islam prefers peace ratherthan war or violence”. He points out that the very word “Islam”means peace and tranquillity. Hence “any act of aggression, war andviolence would not be consistent with its meaning”. Further, Allahsays in the Quran :

“The good deed and the evil deed cannot be equal. Repel(evil) with one which is better. Then verily ! He, between

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100. The Holy Quran, 41 : 34, quoted in Hassan, op. cit.101. The Holy Quran, 10 :61,quoted in Hassan, op. cit.102. Rahman, footnote 65, supra, p. 19, cited in Hassan, op. cit.103. Paul Ramsey, War and Christian Conscience : How Shall Modern War

Be Conducted Justly ?, Duke University Press, Durham, 1961, p. 83.

whom and you there was enmity, (will become) as though hewas a close friend.” 100

The usual Muslim greeting, “Assalamualaikum”, itself means “Peacebe upon you”. Preference for peace over war is ingrained in theteachings of the Quran.

Hence Allah to the Prophet :

“And if they (the enemy) incline towards peace, do you(also) incline towards peace and trust in Allah, verily He is theAll-Hearer and the All-Knower.” 101

“In Islam, peace is the rule and war is the exception ; it isadopted only as necessity to maintain and establish peace, theobjective of humanity.” 102

2.1.6. Christian traditions

There is not one approach to war in the Christian thought. Thereligious and moral thoughts in Christianity, like in most otherreligions, have vacillated between pacifism and justifiability of warresponding to contemporaneous “realities”.

2.1.6.1. Christian pacifism

Like their more ancient counterparts in Asia and Africa, theMedieval European ethical and religious philosophies have, to beginwith, centred on the “divinely given” — the religious scriptures —,but diverged in their approaches to the concept of just war. Thesescriptures prohibit killing : “Thou shalt not kill” (Fifth Command-ment). Jesus Christ advised his flock to “turn the other cheek”. Healso admonished St. Peter to keep his sword in its sheath. A simpleand straightforward interpretation of these and other similar state-ments in the Bible has led to the “pacifist” thought that condemns allwars.

In his Christmas message 1948, Pope Pius XII condemned“aggressive war” as “a sin, an offence, and an outrage against themajesty of God” 103. The Pope had, in his Christmas message of


104. Ibid., p. 84. He cites Fr. John Courney Murray from his “Remarks on theMoral Problem of War,” Theological Studies, Vol. XX, p. 1.

105. Ibid., p. 306.

1944, said : “The theory of war as an apt and proportionate means ofsolving international conflicts is now out of date.” Interpreting this,Fr. John Courtney Murray, said :

“The use force is not now a moral means for the redress ofviolated legal rights. The justness of the cause is irrelevant ;there simply is no longer a right of self-redress ; no individualstate may pursue to take even the cause of justice into its ownhands. Whatever the grievance of the state may be, and how-ever objectionable it may find the status quo, warfare under-taken on the sovereign decision of the national state is animmoral means for settling the grievance and for altering exist-ing conditions.”

The explanation for this radical modification of the traditional doc-trine is two-fold : (1) “the immeasurably increased violence of wartoday disqualifies it as an apt and proportionate means . . . even forthe redress of just grievances”, and (2) it would impede the principleof peaceful settlement of disputes and correction of just grievances(possibly through international organization), which the Pope meantto be the only means of outlawing of war 104.

The Pope proclaimed :

“[T]he statesman cannot escape from his evil necessitiesby asserting that his nation’s power to retaliate against wholepeoples is for the purpose of deterrence. No ethics — least ofall Christian ethics — gives him leave, either in his private orhis public capacity, to kill another man’s children directly asa means of weakening that man’s murderous intent or act.Preparation to do so — if that is the true and the only objectof our weapons — is also intrinsically a grave moral evil andpolitically wrong.” 105

In the context of the impending invasion of Iraq by United States-United Kingdom forces in March 2003, Pastor David B. Millerobserves :

“The commitment to non-violence is rooted in a radicalcommitment to the meaning of the confession ‘Jesus is Lord’.

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106. Editorial by David B. Miller, pastor, University Mennonite Church, StateCollege, PA, “Peace and Faith : Antiwar Activism and Christianity Have BeenHand-in-Hand for Centuries”, Central Daily Times 15 March, 2003, (Peace andJustice Support Nework of Mennonite Church, USA), available on websitehttp://peace.mennolink.org/articles/opendmiller.html.

107. Ibid., Miller quotes Bainton.108. Miller quotes Hppolytus, Apostlic Traditions, ca. 200 AD, ibid.109. Miller quotes Tertullian, who wrote in early 2nd century. See ibid.

We understand that to name Christ as Lord means to submitourselves to seek to do what Jesus taught in word and deed. Wedo not claim perfection, but neither can we place the claim ofnation above the commitment to Christ as Lord.”

Miller contends that Matthew 10.34 has been grossly misunderstoodto be authorizing use of force. The text says : “Do not think that Ihave come to bring peace to the earth ; I have not come to bringpeace, but a sword.” Miller argues that although this seems to givethe impression that “Christ is authorizing lethal force”, but

“read in context the passage means the opposite, Jesus tells hisdisciples to anticipate bitter resistance, but ‘not [to] fear thosewho can kill the body’ for ‘Those who find their life will loseit, and those who lose their life for my sake will find it.’ ”

Hence Miller asserts, Christ’s disciples “are never authorised to kill,but told to be ready to lay down their own lives” 106.

Miller notes that, according to a Yale church historian, RonaldBainton,

“From the end of the New Testament period to the decade170-180 there is no evidence whatever of Christians in thearmy. All of the East and West repudiated participation in war-fare for Christians.” 107

And until the pre-Constantine era (313 AD), a military career forChristians was disapproved. Those who were already soldiers wereadmonished not to take the military oath, and pledged not to kill. “Ifa . . . baptised Christian wishes to become a soldier, let him be castout.” 108 Quite possibly, “The Lord in disarming Peter, unbeltedevery [Christian] soldier.” 109

In Miller’s view,

“Christians only began to ‘make peace with war’ followingthe accession of Constantine to the imperial throne. In a mere


110. Ibid.111. James F. Childress, “Just War Tradition and the Invasion of Iraq”, at the

Conference on Ethical Issues Raised by Pre-Emptive War, the Churches’ Centerfor Theology and Public Policy, Wesley Theological Seminary, Washington, SC,1 May 2003. Available at http://www.cctpp.org/ childresspaper.htm. The aboveborrowing of the pegging points is without, however, agreeing with some of hisanalysis of the doctrine, which nowhere takes into account the impact of the nor-mative order of the United Nations, even at the ethical level.

75 years Christians went from being outlaws, condemned andpersecuted for their faith, to those who wielded imperial power.”

It was from this point in time that Christ’s teachings underwent“rationalised interpretation” to authorize “a pragmatic, constraineduse of lethal power (just war) in the cause of justice and order” inthe “public” sphere, whereas they applied their original intents “inthe realm of private behavior”. Miller remarks,

“In the wake of this rationalization came forced conversions,the inquisition and the persecution of so-called heretics. Thisfateful shift in ethics made way for a series of wars of ‘libera-tion’ that we know of as the crusades.” 110.

2.1.6.2. Just war theories

On the other hand, the diverse and evolving historical contexts inwhich Christianity began to take root by ensuring freedom of expres-sion and conscience as also protection of those who embraced theChristian faith, against hostilities from those who practised other faiths,gave rise to a series of tortuous interpretations whose intention hasbeen to recognize war to be morally and religiously justifiable, inview of the contemporaneous exigencies. Thus it is argued down tothis age that while no one had any right to kill “thy neighbour”, useof force strictly according to the rule of proportionality is permissibleto ward off any present and imminent threat to the safety of oneself,one’s family and friends, and one’s property — a principle that, ifextended, precludes condemnation of such use of force, if resorted toby or on behalf of a State or religion to protect itself “in the interest ofensuring peace”, an essential condition for people to live. Life in thisworld is not that of angels, but of men. The just war theories thus repre-sent a superimposition of “earthly realism” over “religious idealism”.

One would, however, recognize at least four doctrinal peggingpoints, drawn from James F. Childress 111 :

1. “There is no single just-war theory [JWT]. Rather there is a living

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112. Bernard Temple Adeney, A Critical Assessment of Just War Theory andPolitical Realism as Methods for Evaluating Modern War, Dissertation pre-sented to the Faculty of Graduate Theological Union, University of Los Angeles,Berkeley, University Microfilms International, Ann Arbor, Mi, 1982, pp. 1-2.

tradition, with many sources and roots. This tradition providesa framework for moral deliberation and justification, but it ismore than a historical deposit on which we can draw as needed.Instead, . . . we participate in and thus shape and reshape theJWT, for better or worse, through the judgments and argumentswe make about war.”

2. “The JWT’s function is to justify and limit — to legitimate andrestrain — both resort to war and ways to conduct war. Thestate’s use of armed force in particular circumstances requiresjustification and it can sometimes be justified. . . . Properlyunderstood, the just-war tradition restrains or constrains war inthe sense of recognizing moral limits on the resort to and the con-duct of war. In the process, it should prevent some wars — theones that are unjustified.”

3. “The just-war tradition embodies an on-going argument, . . . anddebates occur about that tradition’s boundaries.”

4. “A major task for communities of moral discourse, includingChristian and other religious communities, that embody the JWTis to make it viable and credible in the 21st century. This taskincludes examining the tradition’s presuppositions and implica-tions in an on-going process of appropriation and re-appropriationin light of new historical, technological, and other realities.Fidelity to the tradition permits and even requires new formula-tions and sometimes revisions under changing circumstances.”

It must be noted that just war doctrine or doctrines are notnecessarily a most logical or scientific way of understanding thephenomenon of war. But as Adeney rightly remarks,

“Just war theory has been the dominant tradition throughwhich Christians have subjected war to ethical and theologicalanalysis. Both as a mode of thinking and as a set of principles,just war theory frames an understanding of war through thequestions it asks. Just war theory is not chosen because it isnecessarily the best vehicle for the moral evaluation of war.Just war theory merits close analysis because it has exercisedenormous influence on Christian thinking about war.” 112


113. Ibid., pp. 4-5.

Nor does the theory take into account the changes that have takenplace in the ground realities of war, technology and the internationalsystem. The nature of warfare has changed over the years. In termsof its impact, participants, and technology, war has become increas-ingly globalized, dehumanized and automated. It is no longer con-fined to the erstwhile military elite. Technology has also made themilitary profession diffused into more and more sectors of society,and arms race reutilized as a permanent function of government.Nuclear weapons and other weapons of mass destruction have forceda major change in our perception of both war and peace. They havebecome a permanent part of our “culture”. Sophistry in weaponsdelivery technology now makes recall of a weapon, or rectificationof a mistakenly executed manœuvre impossible. Adeney says :

“As a concrete set of rules, however, just war theory isanachronistic because it does not address the unique problemsof deterrence in a nuclear age [add : in any age]. The funda-mental problem with just war theory is the impossibility ofeffectively defending a nation in modern war without breakingthe canons of just warfare. A second area of difficulty is theineffectiveness of the principle of discrimination as a means forthe protection of the innocent. The key moral problem of mod-ern war is the strategy of deterrence. [The issue is that deter-rence implies an intention to use the weaponry, to overwhelmthe enemy]. None of the attempts to reconcile deterrence withjust war theory have been successful.” 113

2.1.6.2.1. Historical contexts

Like most theories, the Western just war doctrines were responsesto contemporaneous events that overtook Europe since the earlymedieval times : they provided a doctrinal justification for the sup-port of Christianity to defend itself, consolidate its flocks in WesternEurope and then to encourage aggressive spread into other territo-ries.

Christianity became a mass movement in Europe around the thirdcentury, when some 10 per cent of the population of the RomanEmpire became Christian. Emperor Constantine I gave it legal

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114. There was, of course, no appeal for help from “a legendary land and ahalf-forgotten race”. http://www.geocities.com/catholic_profide/history2.htm?200529.

recognition in 312-313 AD. Christianity became one of the officialreligions of the empire in 392 under Theodosius. The simplicity ofthe Christian teachings and the message of equality among humanbeings appeared to have fast attracted people to the new faith, asthey found a way out of oppressive and wretched life under theprevalent political, social and religious “order”. Those were the daysbeset with wars, troubles and tribulations, resulting from the politicalinstability and internecine quarrels within the Church. The histori-ans generally describe some of these wars by the generic term “bar-barian invasions”. Some others were a natural consequence of therise of Islam in the region of Holy Lands 114. The challenges toChristianity as a nascent religion, thus, were both internal as well asexternal.

Numerous were the internal problems. When the Roman Empirehad been divided into the Eastern and the Western, the political andreligious impact of this division was not adequately anticipated.However, this led to the religious Schism between Rome, the seat ofSt. Peter and the Orthodox Church of Constantinople. By 451, fiveseats of Christianity, namely, Rome, Constantinople, Alexandria,Antioch and Jerusalem were recognized, and each was presided overby a bishop elected by his peers. Yet, the Schism even led to theexcommunication of the Patriarch Michael Cerularius of Con-stantinople in 1095 and later the “sack of Constantinople” as anobjective for the “Western” Crusaders to pursue in 1204.

It was probably during the reign of Emperor Charlemagne that,along with his political power, the importance of Rome as the “cen-tral” seat of Christianity grew, a factor to further contribute to theSchism later. During his reign, peace was established with CaliphHaroon Al Rashid, which facilitated Christian pilgrimages to theHoly Land. This peace held on for a while. After Charlemagne,Rome was under frequent threats, and at times the Pope even had torun away from Rome as the city fell into the hands of invaders. Itwas threatened both by the Muslims from the south (who even occu-pied Sicily and had held their sway in Spain for a long time, havingestablished a Caliphate at Cordoba) as well as by the northern “bar-barians”. St. Augustine of the Hippo lived in those days. He had a


115. LeRoy Brandt Walters, Jr., Five Classic Just War Theories : A Study inthe Thought of Thomas Aquinas, Vitoria, Saurez Gentili, and Grotius, Yale Uni-versity Ph.D. 1971, Religion, University Microfilms International Law, AnnArbor, Michigan, London, 1980, p. 14.

view of contemporary history from the vantage point of his resi-dence on and familiarity with the North African coast. The handfulof Christian princes and the Catholic seat of Rome had to be doc-trinally supported in their joint struggle against the Muslim thrustsfrom Egypt and Morocco on to Spain and other parts of southernEurope on the one side, and the pagans, Goths, Normans, Huns andwhatnot from the north. Evidently, Augustine had to find a way outof, yet apparently based on, the Scriptures, to justify resort to armsagainst these barbarians and heretics.

The clarion call for the First Crusade to the Holy Land was madeso eloquently by Pope Urban II in 1095. “From their inception theanti-Moslem crusades had been viewed by Christians as a defensiveresponse to infidel aggression.” 115 Thus, the prime goals of crusadeswere not only (although primarily) against Muslims to retrieve con-trol over the Holy Land as well as their Spanish possessions. Theywere also directed against any non-Christian tribes that threatenedthe existence of the Christian princes and the pope. There was a cru-sade against the “pagan” Prussians during the lifetime of Aquinas.This followed the precedents set by earlier crusades against othernorthern European pagans — the Wends, the Letts, and the Esto-nians.

Despite the events of 1054, Rome never lost touch with Con-stantinople. There was a friendly exchange between Pope St. Gre-gory VII and Emperor Michael VII of Constantinople in 1073. In1074 the Pope even made an attempt — that failed — to organize anarmy in defence of the Byzantine Empire. The Pope made out astrong religious case for such a military campaign :

“These pagans have made a vigorous onslaught on the Chris-tian empire : they have pillaged and laid waste the whole landwith unheard of cruelties up to the very gates of Constanti-nople. They have occupied these countries with tyrannicalviolence and massacred thousands and thousands of Christianpeople, the unhappy fate of this great empire and the deathsof so many Christians must be for us all a great anxiety. OurLord’s own example, who redeemed us, and the duty of

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116. Quoted in A History of the Church, http://www.geocities.com.catholic_profide/history2htm?200529.

117. Ibid.118. Pope Urban II exhorted :

“Although, O sons of God, you have promised more firmly than ever tokeep the peace among yourselves and to preserve the rights of the church,there remains still an important work for you to do. Freshly quickened bythe divine correction, you must apply the strength of your righteousness toanother matter which concerns you as well as God. For your brethren wholive in the east are in urgent need of your help, and you must hasten to givethem the aid which has often been promised them. For, as the most of youhave heard, the Turks and Arabs have attacked them and have conqueredthe territory of Romania [the Greek empire] as far west as the shore of theMediterranean and the Hellespont, which is called the Arm of St. George.They have occupied more and more of the lands of those Christians, andhave overcome them in seven battles. They have killed and captured many,and have destroyed the churches and devastated the empire. If you permitthem to continue thus for awhile with impurity, the faithful of God will bemuch more widely attacked by them. On this account I, or rather the Lord,beseech you as Christ’s heralds to publish this everywhere and to persuadeall people of whatever rank, foot-soldiers and knights, poor and rich, tocarry aid promptly to those Christians and to destroy that vile race from thelands of our friends. I say this to those who are present, it means also forthose who are absent. Moreover, Christ commands it.

All who die by the way, whether by land or by sea, or in battle against thepagans, shall have immediate remission of sins. This I grant them throughthe power of God with which I am invested. O what a disgrace if such adespised and base race, which worships demons, should conquer a people

Christian charity, bid us not only to lament these misfortunes,but also, if it be necessary, to give ourselves in sacrifice forour brethren.” 116

However, there were no takers for this appeal, which at any rate wasovertaken by a long war with the German king, that commanded allpapal attention.

“But what Gregory VII had failed to do in 1074”, it is aptly said,“his disciple and alter ego Urban II did achieve twenty yearslater.” 117 Urgency of pleas for help from Constantinople was gettingstronger. Pope Urban II was ready when the emissaries of ByzantineEmperor Alexis I repeated these pleas at the Council of Piacenza inMarch 1095, now against a new enemy, the Seljuk Turks. On11 November 1095, the Pope exhorted a vast council, the Council ofClermont in France — a multitude of some hundred thousand com-mon folks, besides some 12 archbishops, 225 bishops, and over90 abbots, scores of princes and others — “to give themselves gener-ously to deliver the Christians of the East” 118. The cries of “Godwills it” rent the air. The volunteers took as their badge the Cross-of-


which has the faith of omnipotent God and is made glorious with the nameof Christ ! With what reproaches will the Lord overwhelm us if you do notaid those who, with us, profess the Christian religion ! Let those who havebeen accustomed unjustly to wage private warfare against the faithful nowgo against the infidels and end with victory this war which should havebeen begun long ago. Let those who for a long time, have been robbers,now become knights. Let those who have been fighting against their brothersand relatives now fight in a proper way against the barbarians. Let thosewho have been serving as mercenaries for small pay now obtain the eternalreward. Let those who have been wearing themselves out in both body andsoul now work for a double honor. Behold ! on this side will be the sorrow-ful and poor, on that, the rich ; on this side, the enemies of the Lord, on that,His friends. Let those who go not put off the journey, but rent their landsand collect money for their expenses ; and as soon as winter is over andspring comes, let hem eagerly set out on the way with God as their guide.”Version of Fulcher of Chartres in Bongars, Gesta Dei per Francos, 1,pp. 382 ff., trans in Oliver J. Thatcher and Edgar Holmes McNeal, eds., ASource Book for Medieval History, Scibners, New York, 1905, pp. 513-517.

There are several versions of Urban II’s oration.119. The Bishop of Le Puy was appointed to supervise the whole vast affair.

Constantinople was appointed to be the rendezvous and Assumption 1096 as thedate, before the final assault on the Holy Land. Special preachers wereappointed to “stir up enthusiasm and enlist recruits even in smallest towns andremotest villages”. “Never had Europe known, in any cause such a vast cam-paign of propaganda.” Walters, footnote 115, supra.

120. Customarily there have been eight Crusades : (1) the first 1095-1101 ;(2) headed by Louis VII, 1145-1147 ; (3) by Philip Augustus and Richard Coeur-de-Lion, 1188-1192 ; (4) When Constantinople was taken in 1204 ; (5) Conquestof Damietta, 1217 ; (6) 1228-1239 in which Frederick II, Thibaud de Champagneand Richard of Cornwall took part at various times ; (7) led by St. Louis 1249-1252 ; and (8) also under St. Louis, 1270 — see Catholic Encyclopaedia Websiteon Crusades.

red-cloth whence came the name “the Crusade”. To those whovowed to go to the Holy Land and fight, Urban II granted plentifulincentive of “plenary indulgence” — remission of all past sins, butthe vow was irrevocable, and if broken was to be punished withexcommunication. The Church also gave protection to the propertyand kin of the crusaders, organized through the bishoprics andparishes 119. The motley crowds that included tens and thousands ofwretched humans who found a way to escape the oppressive feudal-ism of the day moved in the direction of Constantinople andwherever they went they wreaked havoc, plundered and pillagedthe towns and villages, also got themselves massacred, and finallyreached Constantinople and then turned towards the Holy Land onlyto be totally slain en route by the Muslim forces. The subsequentwaves, however, wrested the Holy Lands from Muslim control, for abrief while, only to lose them soon. But the first crusade set the tonefor the further crusades 120 — that of pillages, lootings, massacres,

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121. Walters, footnote 115, supra, at p. 19, quotes from Kenneth ScottLatourette, A History of the Expansion of Christianity, Vol. II : The ThousandYears of Uncertainty : A.D. 500-A.D. 1500, New York, Harper & Brothers, 1938,pp. 207-208.

122. K. M. Panikkar, Asia and World Dominance : A Survey of the Vasco daGama Epoch of Asian History, 1498-1945, George Allen and Unwin, London,1959, 8th Impression, 1970, p. 27.

and most importantly of sowing the seeds of animosity betweenChristians and Muslims. Thus it came naturally to President GeorgeBush Jr. to announce a “crusade” in response to the 9/11 terrorist attacks.

Conversion was certainly one of the objectives of the crusadeagainst Prussia. In a treaty of 7 February 1249, one of the treatiesthat established peace, it was stipulated that “all who were not bap-tized must receive the rite within a month, that those who declinedto comply should be banished from the company of Christians, [and]that any who relapsed should be reduced to slavery” 121. As alludedto already, there was also a thirteenth-century crusade against theGreek Orthodox Christians, when in 1204 the participants in thefourth Crusade diverted to Constantinople and ousted the ByzantineEmperor, and established a Latin Kingdom of Constantinople.

In 1454, Prince Henry of Portugal received from Pope Nicolas Vthe right to all discoveries up to India. The Papal Bull “conceded toKing Alphonso, the right, total and absolute, to invade, conquer andsubject all countries which are under the rule of the enemies ofChrist, Saracen or Pagan”. The Bull further wished the king, theprince, “and their successors, [to] occupy and possess in exclusiveright the said islands, ports and seas . . .”.

It proclaimed :

“all faithful Christians are prohibited without the permission ofthe said Alfonso and his successors to encroach on theirsovereignty. Of the conquests already made, or to be made, allthe conquests which extended to . . . all the Orient is perpetu-ally and for the future the sovereignty of King Alfonso.” 122

The Bull further said that this authorization was in response toPrince Henry’s expressed desire to find a sea route to India,

“which, it is said, is already subject to Christ . . . If he entersinto relations with these people, he will induce them to come tothe help of the Christians of the West against the enemies of thefaith. At the same time, he will bring under submission, with


123. Ibid., pp. 26-27. In these pages Panikkar, the redoubtable Indian histo-rian-statesman-diplomat, reproduces the Bull in extenso. In 1456, Pope Calictusconfirmed this Bull by a second Bull. For a legal analysis of this Bull, see V. S.Mani, “An Indian Perspective on the Evolution of International Law on theThreshold of the Third Millennium”, Asian Yearbook of International Law,Vol. 9, 2000, pp. 31-77, at pp. 45-46.

the King’s permission, the pagans of the countries not yetafflicted with the plague of Islam and give them the knowledgeof the name of Christ.” 123

Thus the Papal Bull that ignited the surge of colonial expansion intothe Asian continent, with the Portuguese in the lead, set a twinobjective for the search India : one, to continue the Crusades againstthe Muslims from the rear (as it were) with the help of the peoplewaiting to be converted to Christianity, and two, to commend thespread of Christianity to the Orient as a prime objective of Europeancolonialism.

In other words, the meaning of just war varied with the type ofopponent that the Pope in Rome selected as the target. The term“infidels” meant “anyone other than my churchmen”. Evidently, interms of practice, a war became a Crusade depending on which sideyou were on. Indeed, it was the inherent right of the Pope to decidewhich war should qualify for the sacred label of Crusade — thatincluded “sovereign” power to authorize colonial expansion. “Justwar” surely came full circle with the Bull of 1454, lost all its credi-bility and became a vehicle for export of colonialism. Further, despitethe theological admonitions against it, the Middle Ages had shownan enormous propensity to accept cruelty and barbarity as a fact oflife, let alone as a “given” in wars. Thus, for instance, Sir JohnHawkwood, who would probably be at home as a warlord in Bosniaor Somalia in the recent past, was praised sky-high in the fifteenthcentury as “a chivalrous and noble knight who deserved to beremembered alongside Edward III”.

It is this free-for-all, no-holds-barred, just war that we shall nowexamine in terms of the doctrine, an examination that the contempo-raneous European practice has rendered so totally irrelevant andabused in its own time.

2.1.6.2.2. The doctrine

Adeney identifies four stages in the evolution of the Christian justwar tradition : first period is represented by Cicero — deeply influ-

74 V. S. Mani

124. Adeney, footnote 112, supra, pp. 36-37.125. Ramsey, footnote 103, supra, p. 15126. Adeney, footnote 112, supra, p. 37. Hence his remark :

“Just war theory as a code of rules, had some very modest success inEurope. However its ineffectiveness, in spite of a cultural, moral consensusand the mediation of the Church, is also striking. Codified just war theoryis still a basis for moral discussion of war. But the major changes in thenature of war have undercut the usefulness of the rules.” Ibid., at p. 38.

127. Ibid., pp. 38-39.

enced by the Roman natural law thinking and the stoic philosophyresulting in a moral justification of the expansion of the Romanempire 124. This is analogous to the post-war ideological approach tojustifying war in defence of or propagation of Western democracy, orMarxism.

Second period is represented by Augustine’s theological conceptof just war that separated internalized motivations from externalactions, relying more on “just intentions”. Yet, Augustine’s was theburden of propounding a justification for Christian war in the face ofthe Fifth Commandment : “Thou shalt not kill.” His cunning logicturned it around to “Thou shalt not kill”, but “Thou shalt kill indefence of religion or in defence of thyself”. In fact, Ramsey saysthat bellum justum should be translated as the “justified war” ratherthan the “just war” 125.

Third period drew heavily from Augustine, but refined andreduced his theory — at places even diverging from it — to anelaborate code of rules, roughly coinciding with the rise and fallof Christendom in Europe 126.

Fourth period witnessed the break-up of the Christendom and therise of the nation-State. This period saw attempts to de-emphasizethe justifiability of war and concentrate on rational means ofrestraining its destructiveness.

The emphasis now was on the rules of war, “based on the recip-rocal self-interest of the parties involved”. This approach “down-played the strictly moral question and gave birth to internationallaw” — then there was Grotius.

Hence, in Adeney’s view,

“Strictly speaking, traditional just war theory is not a theoryat all but a set of normative and empirical assumptions fromwhich proceeds both a qualified justification of warfare and astrategy for its limitation.” 127


128. Ibid., p. 39. Marcus Tulllius Cicero, On Duties, Harry G. Edinger, trans.,Bobbs Merrill Co., NY, 1974, Book I, 34, p. 19.

129. Cicero, On Duties Book I, 34, p. 19, cited in Adeney, footnote 112,supra, pp. 39-40.

130. Cicero, op. cit., I, 160, p. 73, cited in Adeney, op. cit., p. 40.131. Cicero, op.cit., I, 83, p. 39, cited in Adeney, op. cit., p. 40.132. Adeney, op. cit., p. 41.133. Ibid., p. 42.

2.1.6.2.2.1. Cicero [106-43 BC]

Cicero is regarded as “the first great proponent of a universaltheory of just war” 128. He begins with the statement that all peoplesare subject to the eternal principles of natural law and justice :

“Although reason is characteristic of men and force ofbeasts, you must resort to force if there is no opportunity toemploy reason. Therefore, wars should be undertaken only sothat one may live in peace without wrongdoing.” 129

Cicero makes a patriotic presentation of his theory of duties :“[O]ur first duty is to the immortal gods, our second, to country ; ourthird, to parents ; and so on, in a descending scale, to the rest.” 130 Healso says that evil should never be done even to save one’s country.The Roman State was the highest human embodiment of natural law.Thus any war that upheld the State’s honour and reputation was ajust war. “We ought to be more prepared to wage war over honourand reputation than over advantages of other sorts.” 131 All people areequal before natural law, but Cicero holds the conviction that Romewas destined to rule the world. War whose object is the glory ofsupremacy must be waged less bitterly than a war for survival.

To Cicero, a just war must aim at establishment of a just peace.War is just only if it is waged according to the Roman law. Thus nowar is just unless it is waged after the Government has demandedrestitution or unless the war is previously announced and declared.There should be a legitimate case for war 132. Enemies who are notcruel or barbarous in warfare must be spared after the war. A liberalpeace is the only sound basis to build an empire. In both war andpeace one should be guided by the principle of humanitas. Itincludes decorum, civility, refinement, benevolence, magnanimityand mercy 133.

Cicero emphasizes on fidelity to oath between States. War canonly be legally fought between them, by persons authorized by them.

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134. Ibid., p. 43.135. Ibid., p. 44.136. Ramsey, footnote 103, supra, p. 15.137. Adeney, footnote 112, supra, p. 44.

Thus there can be no private war, by an individual against a Stateeven if the cause is just. Rome’s dominion of the world is not as aruler but as “the protector of the world”.

Cicero recognizes that excessive cruelty sometimes occurredin war, as expediency led to the breaking of natural law. “In thegovernment the securing of an apparent advantage very frequentlycauses wrongdoing as the Romans did wrong in the sack ofCorinth”, says Cicero. “Nothing is advantageous that is barbarous,barbarity is extremely repugnant to the nature of human being andwe ought to follow nature.” While he viewed Roman warfare as aglorious activity, he took a humane view of warfare. Plato and Aris-totle were rather parochial in that they advocated moral restraints inwar only between socially equal Greek States, not with non-Greeks.But Cicero was universalistic 134.

2.1.6.2.2.2. St. Augustine of the Hippo (353-430 AD)

Augustine, whose theory held sway in the Christian thinking for1,500 years, added to Cicero’s theory the bases of theology, anthro-pology and political realism 135. Paul Ramsey describes St. Augustineto be “the first great formulator of the theory that war might be‘just’, which thereafter has mainly directed the course of WesternChristian thinking about the problem of war” 136.

Augustine, as noted already, lived on the brink of destruction ofthe Roman Empire. Rome had been sacked, but the Roman legionsstill offered some resistance 137.

The primal roots of war, according to Augustine, lie in the origi-nal rebellion — “the original sin” committed by Adam in defyingGod’s interdiction in the Garden of Eden — and fall of humanity.The Fall has brought sin into the world, passed on from generationto generation and that has been the cause of all war. The founding ofthe Earthly City was an act of fratricide. Cain who represented theEarthly City killed Abel who represented the Heavenly City. InitialRoman wars were just because the target neighbours were unjust.Soon Romans were propelled by love of domination and thirst forglory. God does not intend that man should have dominion over


138. Ibid., p. 45.139. Ibid., pp. 50-52.140. Ibid., p. 52 (citing Augustine, The City of God, Marcus Dods, trans.,

Great Books of the Western World, Vol. 18, Chicago, Encyclopaedia Britannica,1957, Book XII, Chap. 13, p. 174).

141. Ibid., p. 53, citing Augustine, op. cit., Book XIX, Chap. 11, p. 519.142. Ibid., p. 54.143. Ibid., p. 55.

man. Pursuit of domination and glory is a rejection of God and Hisrole 138.

Adeney picks up five points made by Augustine as the bases of hisjus ad bellum (right to war) as well as the jus in bello (just conductof a war) : (1) War should be waged only as a necessity, as a neces-sity for peace. So the officer who fights the war must have “the spiritof a peace maker”. (2) Wars must have a just cause. A war is just ifit avenges injuries (justa bella ulciscuntur injuria = just wars avengeinjuries). “Primarily Augustine meant an attack on the existence ofthe [temporal] state.” 139 (3) The inward attitude of love was a thirdrequirement of a just war. Love is not incompatible with killingbecause it is an attitude of the heart, not of action. Love of enemydoes not exclude war of mercy waged by the good. But this is not forprivate Christian citizens, but public functionaries who alone candeliver justice without negative emotions, but with love (Augustine’s“mournful magistrate” who is mournful because of his love, butdelivers the punishment which he must). (4) War should be wagedunder proper auspices — under a legitimate ruler or Government. Con-duct of war must be just. No wanton violence, profaning of temples,looting, massacre, or burning, vengeance, all atrocities and reprisals.

To Augustine, the words, “glory” and “victory” are evil masksthat hide the true character of warfare. “Tear off the disguise of wilddelusion, and look at the naked deeds ; weigh them naked, judgethem naked.” 140

Augustine denies that any war can bring lasting peace. To himpeace is not simply the absence of conflict, but the “perfectlyordered, harmonious enjoyment of God and one another in God” 141.But this state of peace will only materialize when the Human City issubsumed by the City of God. For, in the Fallen World, in the Cityof Man, war is a tragic fact. A Christian must judge on the basis oflove between greater and lesser evils. War may be an evil necessityagainst even greater evils 142. Only the monks or clerics are bound bythe “counsels of perfection”, not lesser mortals 143. The former are

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144. Ramsey, footnote 103, supra, p. 16.145. From Augustine’s City of God, XIX, p. 21, Ramsey trans., footnote 103,

supra, at p. 26.

bound by the Commandments to the letter ; they are bound to ‘turnthe other cheek”, adhering to Christ’s postulates which are not tobind the lesser mortals.

Augustine arrives at this interpretation of the Scriptures on thefoundation of a perception of “Two Cities of God” implicit in them.As he finds the city of Rome crumbling around him, he perceivesRome (or even Constantinople) symbolizing as the City of Man —representing all that is worldly — and Jerusalem as the City of God.

The City of God is in the Heaven, around God, and the City ofMan is what we have on earth with all its imperfections, as a resultof the Original Sin of Adam, for which all Adam’s progeny is evencongenitally punished with greed, envy and power, and their evilconsequences. Man’s journey now is from the latter to the former.

Quite possibly, the “two cities” vie with each other for primacy inthe minds of men. To Augustine, justice is one of the four personalvirtues (the other three being prudence, courage and temperance)of an individual. However, he denounces its actualization in thematerialistic world — health, wealth, pleasure or honour. Theseforms of actualization being temporal, they do not serve the ultimatejourney of the soul to rest in God. They are vain and also selfish 144.

If justice is a personal virtue, social justice is a social virtue of thecommunity. Ramsey quotes Augustine, “When a man does not serveGod what justice can we ascribe to him . . . ? And if there is no jus-tice in such an individual, certainly there can be none in a commu-nity of such persons.” The social justice in such communities will belacking in rectitude 145.

So this was the concept of justice that Augustine was talking ofwhen he spoke of wars in which Christian engagement was justified.Speaking of the numerous “great wars” and “how much slaughterand bloodshed” providing for the unity of the imperial city, Augus-tine says :

“but, say they, the wise man will wage just wars, as if he wouldnot all the rather lament the necessity of just wars, if heremembers that he is a man ; for if they were not just he wouldnot wage them, and would therefore be delivered from all wars.For it is the wrongdoing of the opposite party which compels


146. Ramsey, op. cit., p. 27, quoting Augustine from p. 7 of his City of God,XIX.

147. Ibid. As to the result of the war, “every victory, even though gained bywicked men, is a result of the first judgment of God, who humbles the van-quished wither for the sake of removing or punishing their sins”. (Augustine, op.cit., XIX, p. 15.)

148. Ibid., at p. 32.

the wise man to wage just wars ; and this wrongdoing, eventhough it give rise to no war, would still be matter of grief toman because it is man’s wrongdoing. Let every one, then, whothinks with pain on all these great evils, so horrible, so ruthless,acknowledge that this is misery. And if any one either enduresor thinks of them without mental pain, this is a more miserableplight still, for he thinks himself happy because he has losthuman feeling.” 146

The justness in Augustine’s just war derives more from the mentalpain that every man must feel triggering his waging the war than justbecause the opposite party has done something wrong. One does notfeel happy going to war, one must feel sad that one has to go to warto rectify a wrong. Augustine also says, “even when we wage justwar, our adversaries must be sinning” 147.

2.1.6.2.2.3. St. Thomas Aquinas (1224-1274)

In Ramsey’s view, from Augustine to Aquinas, first, there was

“a shift from voluntarism to rationalism in understanding thenature of political community, and therefore an increasingemphasis upon the natural-law concept of justice in analysis ofthe cause that justifies participation in war”.

This is what is usually meant by “just war”. Secondly, rules ofconduct of war were also drawn up for the protection of non-combatants 148.

Bigongiari crisply summarizes the Aquinas logic thus :

“The ruler, who is under the obligation to protect the com-mon good from the assaults of a foreign enemy, has the rightand duty to resort to the necessary measures of war. The natureof his power authorizes the destruction of life and property,provided the war is just. An offensive war is just when threeconditions are complied with. First, it must be declared by thesovereign.”

80 V. S. Mani

149. Dino Bigongiari, ed., The Political Ideas of St. Thomas Aquinas : Repre-sentative Selections, Hafner Publishing Co., NY, 1953, Introduction, pp. xvi-xvii.

150. Walters, footnote 115, supra, p. 59. (Mostly in Aquinas’s Summa Theo-logiae.)

Private wars are not allowed, because to settle private disputes thereis a superior authority to adjudicate ; and also a private individualcannot raise enough men to wage a war.

“The second condition is a just cause.” Here Aquinas restates theargument endorsed by Augustine :

“A just war is usually defined as one by which a wrong isrighted, viz., when a state or a nation is attacked because itneglected to punish some crimes committed by one of itsmembers or when it failed to make restitution of something thathad been unjustly seized.”

The third condition is the maintenance of righteous intentions onthe part of those who have declared war, viz., that the purpose of waris to lay the foundations of a better and more lasting peace. Thus awar can be made “iniquitous by the evil intentions entertained by theattacking power”. What are these evil intentions ? St. Thomas tells usin the words of St. Augustine :

“They are a desire to harm the enemy more than the conductof hostilities demands, a spirit of revenge, implacability,recourse to destructive practices that fit beasts better than men,and finally lust of supremacy.” 149

Walters examines the thoughts of Aquinas on the issue of war interms of four central questions (the way in which Aquinas himselforganizes them) 150 :

— Whether

“Whether fighting in war is always a sin.”“Whether any war is lawful.”

— Who

“The authority of the prince.”“Whether it is lawful for clerics and bishops to fight.”

— When

“A just cause is required.”


151. Ibid., p. 62.152. Ibid., p. 62-63.153. Ibid., pp. 63-64.

— How

“It is required that the intention of those fighting be right.”“Whether it is lawful to lay ambushes,”“Whether it is lawful to wage war on holy days.”

Walters identifies three sets of religious texts that Aquinas has hadto circumvent, or explain away, to uphold his theory of just war —the texts from the Scripture, religious morality and the canon law :

Objections based on the Scriptures (the Bible) :

The first “difficult” text is Jesus’ statement : “All who take thesword will perish by the sword.” (Mathew 5 : 39.) Thomas Aquinas,following Augustine, limits the application of this text by giving thewords “take the sword” a technical meaning : i.e., to use the swordwithout official authorization 151.

Second, in his Sermon on the Mount, Jesus counselled his follow-ers : “But I say to you. Do not resist evil.” (Mathew 5 : 59.) InRomans 12 :19, Paul said : “Do not defend yourselves, beloved, butgive place to wrath.” Aquinas limits the application of these twoinjunctions to a case of self-defence involving no more than two pri-vate citizens. He denies their applicability to (1) “a situation involv-ing punishment rather than self-defence”, (2) “a situation involvingsuch official roles as those of prince, judge, policeman, or soldier”,and (3) “a situation involving moral responsibility for third persons”.Even in the case of self-defence, the injunctions applies only to the“preparation of the mind” and not to external action. Thus theRoman law dictum, “force may be repelled by force” applies incases of self-defence, despite the Jesus-Paul dictum 152.

Third is Jesus’ command to Peter (when Peter sought to draw hissword in defence of Jesus) : “Put up your sword into its scabbard.”(Matthew 26 : 52.) Aquinas explains that Christ’s command appliedto Peter only as “representing bishops and clerics” not as a moralprecept. The clergy, as a vocation, is forbidden from resorting toforce, but this is not an issue of morality 153.

Finally, again following Augustine, Aquinas interprets from whatJohn the Baptist said to what he did not expressly forbid. John urged

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154. Ibid., p. 64.155. Ibid.156. Ibid., pp. 64-65.157. Ibid., p. 65. Translation from Latin, by Walters.158. Ibid.

the soldiers to do violence to no one and be content with their pay(Luke 3 : 14). Aquinas argues that John did not tell the soldiers toleave the army. “Thomas seems not to have reflected further on thenormative status of John’s advice or the validity of an argumentfrom silence”, observes Walters 154.

Religious-moral objections :

The moral objections flow from the treatise on charity. One of theeffects of charity is peace. War is denial of peace. Hence it is denialof charity 155.

Aquinas defines peace “in decisively moral terms”. It does notmean absence of violence. Peace is “an integrated orientation towardwhat is truly good. As such, it includes both personal self-integrationand social harmony.” According to him, opposed to true peace is“evil peace”, which aimed at “an apparent but false good”. HenceWalters :

“According to Thomas, those who waged just wars‘intended’ true peace as the end of war. They thus destroyedonly the evil peace of their enemies, bringing them to ‘the pros-perity of [true] peace’.” 156

Canon law prohibitions :

Prohibiting tournaments, Pope Gregory IX had decreed as fol-lows :

“We prohibit those detestable festivals which people calltournaments, in which soldiers are accustomed to cometogether by agreement and, to show off their manliness andboldness, rashly engage in combat. These tournaments oftencause death to men and danger to souls.” 157

Walters notes : “Thomas carefully limited the application of thisdecree to warlike exercises which were not inordinate and perilous,and end in slaying or plundering.” But he would exclude militarytraining from this interdiction 158.


159. Ibid., p. 66.160. Ibid., p. 69.161. Ibid., p. 71.162. Walters, op. cit., at p. 86, footnote 89 cites an interesting case : Pope

Adrian I complained to Emperor Charlemagne that the Christian King of theLombards was usurping papal territories, and Charlemagne went to war againstthe king.

163. Ibid., p. 85.164. Ibid., p. 111.

The conclusion that Thomas derives from the above analysis ofthe whether-question is : “In principle, there is no valid objection tothe act of waging war.” 159

According to Aquinas, there are three primary aspects of a moralact : (1) the object (objectum) of the act, (2) the circumstances (cir-cumstantiae) of the act, and (3) the end (finis) of the act. A defectwith respect to any of the three makes an act immoral. Aquinas listsseven possible circumstances of an act — who, what, where, bywhat means, why, in what manner, and when 160.

The first two primary aspects relate to the faculty of reasoning,while the third, the end, the faculty of the will or intention. Hiswhether-question relates to the object of the act, i.e., going to war.Thus the moral question of whether war is good or bad dependsessentially on the other aspects. Consequently, Aquinas would haveaccepted the following ethical proposition : “It is morally right towage war (the object), provided that due circumstances are observedand a proper end is intended.” 161

Aquinas’s three famous criteria for a just war — (1) the authorityof the prince (proper authority to wage war), (2) a just cause, namelythe blameworthy or the culpable act of the victim, and (3) a rightintention, namely, the advancement of the common good — flowfrom the above “ethical” considerations.

Ecclesiastical authority in military matters took three forms : (1) thegranting of crusade-indulgences ; (2) urging secular princes to wagewar 162 ; and (3) furnishing chaplains for arms in the field 163.

In his ex professo treatment of just war Aquinas defines just causein the following terms : “A just cause is required, namely, that thosewho are attacked merit the attack because of some fault (propter ali-quam culpam).” 164

Culpa, to Aquinas, is critical to his just-cause formula. It meansthat the enemy’s offence had to be voluntary or wilful, not involun-tary or accidental. It must be one of subjective guilt. Yet, despite his

84 V. S. Mani

165. Ibid., p. 115.166. Ibid., p. 116.167. Ibid., p. 120.168. Ibid., p. 121.

emphasis on the culpa of the enemy, he includes among his selectionof the just causes of war, the following non-religious causes :

— “Defending the commonwealth from external enemies.”— “The salvation of the fatherland.”— “Conserving the temporal peace of the commonwealth.”— “The assistance of neighbours, not only as regards the defence of

private persons but also as regards the defence of the whole com-monwealth.”

— “Defence of the poor and oppressed.” 165

— Failure of a Government to “punish what has been done wickedly byits own [citizens]”.

— Failure of a Government to “give back what was unjustly carriedaway”.

Despite this listing of seven non-religious, Aquinas’s formulationsof just causes, whether positive or negative, “remained in the realmof generality” 166.

The religious causes justifying war include “injustices or wrongs(injuriae) done to God”. Aquinas’s justification for issuance ofcrusade-indulgences was that they aimed at “the repression of theChurch’s enemies, who disturb her peace” 167. He also justified theestablishment of the various military-religious orders, as accordingto him, their establishment had been necessary “for resistingunbelievers in certain lands” 168.

Aquinas defines a “suitable cause” (causa conveniens) as “a causepertaining to the honour of God, or to the necessity or utility of theChurch”. In his words, religious wars could be commended for thefollowing causes :

— “For the conservation of the divine worship.”— “Because of service to God.”— “For the utility of the Church.”— “For the truth of the faith.”— “For the defence of Christians.”— “For the defence of the commonwealth of the faithful.”

The Crusades, fought for “the support of the Holy Lands” (in sub-sidium terrae sanctae), were just religious wars. Aquinas says :


169. Aquinas’s discussion of the relations between the believers and the non-believers leads him to add two more “suitable reasons” for religious just wars —combating extension of pagan authority over Christians, and preventing theexercise of such authority in certain cases. Ibid., p. 124.

In the early thirteenth century Pope Innocent III had already affirmed theChurch’s authority to determine whether a war waged by one Christian princeover another Christian prince was just. Ibid., p. 128.

170. Ibid., p. 126.171. Ibid., p. 138.172. Ibid., p. 217.

“The faithful of Christ frequently wage war against un-believers, not indeed in order to force them to believe — because,even if they conquered them and held them as captives, theywould leave to their liberty whether they wish to believe — butrather to compel them not to hinder (impediant) the faith ofChrist.” 169

Aquinas’s definition of just cause is simplistic : “A just cause isrequired, namely, that those who are attacked merit the attackbecause of some fault (propter aliquam culpam).” As Waltersremarks, “What is surprising in retrospect is the elasticity ofThomas’s formula : its language was sufficiently abstract to allow fora variety of possible applications.” 170 However, the canon-lawexperts of Aquinas’s period had already reached

“a consensus on three just causes for war : (1) defence of thefatherland (patria) against enemy attack ; (2) the recovery ofgoods seized by the enemy ; and (3) denial by the enemy of theright of free passage” 171.

2.1.6.2.2.4. Just war theories of the fifteenth to seventeenthcenturies

The chief proponents of just war theories of fifteenth-to-seventeenth-century Europe are Francisco de Vitoria (1492-1546),Francisco Suarez (1548-1617), Alberico Gentili (1552-1608),Hugo Grotius (1583-1645).

During the three centuries that spanned between Vitoria andAquinas, a number of canon lawyers, civil lawyers and theologianscontinued the debate on permissible wars 172. There was a minorityof pacifist views as well. Peter Chelciky, Erasmus and SebastianFranck spoke of pacifism in general, although the latter two did notapprove of total pacifism. The Anabaptists, a radical reformist group,

86 V. S. Mani

173. Ibid., pp. 221-222. Walters’s examination is based on Vitoria’s De Indiset de iure belli relectiones, Ernest Nys, ed., and John Bowley Pate, trans., Clas-sics of International Law, Washington, DC, Carnegie Institution, 1917.

174. Ibid., p. 227. Indeed, Vitoria was not the first to protest against themethods of colonization of Latin America used by the Spanish colonizers. Ibid.,p. 223. In a sermon preached the Sunday before Christmas, a Dominican friar,Montesinos, protested Spanish treatment of the Indians in Hispaniola (Haiti) :

“Tell me, by what right or justice do you keep these Indians in such acruel and horrible servitude ? On what authority have you waged adetestable war against these people who dwelt quietly and peacefully ontheir own land ?. . . Why do you keep them so oppressed and weary, notgiving them enough to eat nor taking care of them in their illness ? For withthe excessive work you demand of them they fall ill and die, or rather youkill them with your desire to extract and acquire gold every day. [A]nd whatcare do you take that they should be instructed in religion ? . . . Are thesenot men ? Have they not rational souls ? Are you not bound to love them asyourselves ? . . . Be certain that, in such a state as this, you can no more besaved than the Moors or Turks.” Pedro Henriquez-Urena, Literary Currentsin Hispanic America, pp. 15-16, cited by Walters, ibid., p. 224.

On the other hand, Walters says, there was also a Dominican missionary whodeclared before the Council of the Indies that the Indians were “beasts” and neednot be treated at par with the Europeans.

175. Ibid., pp. 278-281.176. Ibid., p. 285.

constituted the bulk of the pacifists who argued on scriptural andtheological grounds that all participation in warfare was forbidden toChristians. Machiavelli brought in realism to argue that necessitiesof State, rather than considerations of justice or religion, should ulti-mately determine a nation’s military policy.

Vitoria and Suarez were Spanish Catholic priests. Gentili, aProtestant, though born in Italy had to live in England. Grotius, bornin Holland, had to live in France. All the four were post-Renaissancescholars.

Vitoria was influenced by Renaissance humanism as well asAquinas’s integrity of human nature and natural human communi-ties 173.

Vitoria’s humanism is evidenced by his strong views on themanner in which the European colonialism was being imposed onthe “New Territories” in the Amercas. In a letter dated 8 November1534, Vitoria wrote to a Dominican superior that the very mention ofevents in the [West] Indies (Americas), especially in Peru, “makesmy blood run cold” 174.

All four discussed the questions of whether, who, when and how.They recognized that some contemporary writers seemed to espousepacifism 175. They had, wrongly, even found fault with Luther forbeing a pacifist in his attitude towards the Turks 176. While the


177. Ibid., p. 286 : these are Vitoria’s words.178. Ibid.179. Ibid., p. 293.180. Ibid., pp. 294-295.181. Ibid., pp. 310-311.182. Ibid., p. 312. At footnote 127 to this page, Walters notes, Vitoria added

two more general causes : compensation, and peace and security. Grotius addedone more : “the obtaining of what is owed to us”.

four endorsed and embellished Aquinas’s arguments, they alsoargued,

“that without war wrongdoing would not be deterred, innocentpersons would suffer harm, the security of the state would bethreatened, and the ‘good of the whole world’ undermined” 177.

“They were concerned to deny that the object (objectum)of war was evil and conversely to affirm that war could bemorally permissible, provided that its circumstances and endwere properly regulated.” 178

Who had the just-war-making capacity ? Like Thomas Aquinas,the four theorists attributed the war-making authority to a pluralityof princes — Christian sovereigns of Europe, also the paganprinces, even of Latin America, and the Indies (of both east andwest). But Suarez supported the Spanish annexation of Portugal of1580, whereas Gentili and Grotius opposed 179. Vitoria and Suarezfavoured the indirect capacity of the Pope to influence princes to goto war, while Gentili was critical, and Grotius wanted the kingsrather than the Pope to correct gross abuses against religion 180.Suarez and Grotius disagreed on the Dutch revolt against Spain,and Gentili essentially agreed with Grotius and argued that QueenElizabeth could rightly have aided the Dutch against the Spanishinjustice.

When should a just war commence ? All the four theorists, likeAqauinas, distinguished between natural and religious causes forwar. Natural causes were based on the law of nature. They sought“to discover universally-applicable ethical criteria — standardswhich would be normative for all men and nations in all times andplaces” 181.

Why ? All the four with minor variations “accepted a trilogy ofgeneral causes for war : defense (defensio), recovery of property(recuperatio rerum), and punishment (punitio)” 182. The first wasidentified with defensive war, and the third with “offensive” or

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183. Ibid. Walters in footnote 128 expresses the view : “The terms ‘defensivewar’ and ‘offensive war’ seem to have occurred first in Vitoria.” Suarez used theterm “aggressive” rather than “offensive”. Grotius avoided both terms, whileGentili used the term “make war” for offensive war.

184. Ibid., p. 313.185. Ibid., p. 315. Footnote 138 refers to Vitoria and Suarez.186. Ibid., with footnote 139 referring, again, to Vitoria and Suarez.187. Ibid., footnote 140 refers to Grotius’s De jure belli ac pacis, Vol. II, 20,

40, 4, and 20, 44, 1.188. Ibid., pp. 316-331.

“aggressive” war 183. The status of the second — whether defensiveor offensive war — is less clear.

To Vitoria, a defensive war is to ward off an attack and to avoidan injury or wrong. The attack could be “either imminent or alreadyin progress”. Following the natural law as reflected in the Romancivil law, the right of defence would apply to both persons and prop-erty and could be exercised either by individuals or by States 184. Thereason why war for punishment was designated as an offensive oraggressive war was probably because it was in response to a wrongor injury already suffered, not necessarily preceded by militaryaction on the part of the enemy.

The categories of “defence” and “punishment” underwent con-siderable extension in the hands of Gentili and Vitoria, to includedefending the subjects of another sovereign against their sovereign,and the defence of allies. “The ultimate extension was reached whenthe ‘defence’ of innocent persons anywhere in the world wasaccepted.” 185 Similarly, the concept of “punishment” was firstapplied to crimes against oneself or one’s own nation, then to crimesagainst one’s allies or friends 186. In Walters’s view, “Grotius took thefinal step when he accorded [the right of punishment] to princes notguilty of the same crime committed anywhere in the world.” 187

On the central issues concerning the “cause”, all four theoristsaffirmed that a just cause was “necessary” and that the employmentof military force should be a last resort 188. None of them gave anycentral role to arbitration as a means of avoiding war. But Gentiliand Grotius recognized a formal declaration of war with a graceperiod to settle the dispute, where possible, to be appropriate.

Since war resulted in serious damage,

“the cause had to pass a certain threshold or exceed a minimumlimit before it constituted a just cause for war. In other words,resort to war was not proportionate to a ‘slight’, ‘trifling’, ‘trivial’,


189. Ibid., p. 318.190. Ibid., pp. 322-323.191. Ibid.192. Ibid., p. 319.193. Ibid., pp. 323-324.194. Ibid., pp. 324-325.195. Ibid., at p. 325.196. Ibid., at p. 327.197. Ibid., p. 328.

or ‘endurable’ cause. Rather, the cause had to be ‘grave’,‘weighty’, ‘great’, ‘very important’, or ‘sufficient’.” 189

All four agreed that an enemy’s objective offence against justiceconstituted a just cause for recourse to military action. To Suarez andGentili, the enemy’s persistence in wrongdoing was good enough tomake it a just cause. But Grotius and Vitoria would insist on culpa(subjective element) on the part of the enemy to justify use of mili-tary force against him 190.

The four theorists generally recognized the principle of propor-tionality in the prosecution of a just war. But, proportionality alsoreferred to “an imaginative, anticipatory comparison of the harmcaused by unchecked evil with the damage resulting from the effortto check or punish that evil” 191. Gentili, on the other hand, does notaccept proportionality limits to cases involving defence or thoseinvolving divine matters 192.

Both Suarez and Gentili argued that the entire enemy must bepunished for collective guilt, even if a minority (in the enemynation) had voted against the action taken by the enemy 193. ButVitoria and Grotius argued for individualization of both guilt andpunishment. This also was in conformity with their insistence of theculpa doctrine 194. Walters quotes Grotius : “Properly speaking, noone may be punished for another’s wrong . . .” Again, “Guilt . . .attaches to the individuals who have agreed to the crime, not to thosewho have been overmastered by the votes of others.” “No one mayrightly be killed because of ill-fortune . . . for example those whotake sides under compulsion.” 195

In a case where both sides to a war claimed the probability or cer-tainty of the just cause, Vitoria would propose that the proper coursewas to arrange a compromise or maintain status quo 196. But he said,objectively speaking, no war could be just on both sides — so forone side it was objective, and the other side it could be wrongly sub-jective 197. However, Grotius argued that “either party may justly,

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198. Ibid., p. 329.199. Ibid., p. 330.200. Ibid., pp. 330-331.201. Ibid., pp. 340-341.202. Ibid., p. 345.

that is in good faith, [and] plead his case. For both in law and in factmany things out of which a right arises ordinarily escape the noticeof men.” 198

The concept of neutrality, in the context of the just war doctrine,produced a unique response from Grotius who, in Walters’s words,felt that

“non-involved states were under obligation to determine thejust cause of every war and to discriminate in their treatment ofthe just and unjust sides. Only when the justice of the causewas seriously in doubt did Grotius countenance non-interven-tion.” 199

Vitoria gave the most elaborate consideration of the decisionalprocess leading to war : “He cautioned princes against snap-judg-ments, urging them to make ‘an exceedingly careful examination . . .of the justice and cause of the war’.” The “careful examination” isnot complete until the prince has listened to, in Vitoria’s words,“even the reasons of those who oppose the war on the grounds ofequity and the good”.

“The king alone does not suffice to examine the causes ofwar. It is very possible for him to err, and his errors bring greatevil and ruin to large numbers of people. Therefore war oughtto be waged, not on the basis of the king’s judgment alone, norbecause of the judgment of a few persons, rather, war ought tobe waged only when approved by many wise and honestmen.” 200

Walters presents in a tabular form as many as 14 causes of justwar culled out from the opinions of the four theorists 201. In hisview 202, the four theorists are in agreement on five propositions :

— extension of empire or aggrandizement is not a just cause ;— natural slavery or inferiority of primitive people is not a just

cause ;— human sacrifice of innocent victims is a just cause ;


203. Ibid., p. 346.

— killing of innocent persons for cannibalistic purposes is a justcause ; and

— harming an ambassador is a just cause.

They differed theoretically, but not practically, on :

— inability of a primitive people to govern themselves (Vitoria wasunsure of this being or not being a just cause ; Suarez felt thatthis could very seldom be a just cause ; Gentili did not deal withit at all ; and Grotius felt that this could sometimes become a justcause) ;

— sexual immorality opposed to the law of nature (Gentili andGrotius would recognize this as a just cause).

The foursome had some basic disagreements on some of the can-didates for just causes :

— denial of the right of innocent passage through territory (Grotiusargued that even enemies should be allowed innocent passage ;Gentili differed with Grotius’s view ; Vitoria and Suarez held thatthe denial is a just cause, except where the Pope had assigned asphere of influence) ;

— denial of free trade or freedom of the seas (Vitoria and Suarezwould hold it a just cause, except where the denial was approvedby the Pope ; Grotius, however, emphatically without any suchqualification supported the cause ; Gentili conceded that thiscould sometimes be a just cause) ;

— trading with an enemy belligerent (Gentili felt that this should beconsidered a just cause ; Grotius felt that it could sometimes beused as a just cause : it depended on how it affected one’s war.Vitoria and Suarez did not deal with it as a just cause) ;

— growth in the power of the traditional enemy (Vitoria and Suarezdid not deal with this ; Grotius did not regard this as a just cause,and Gentili considered it as a just cause).

Walters also presents in a tabular form eight religious causes forjust war 203. Of these,

— “The refusal to accept the Christian faith” received all the fourvotes.

— “Papal enforcement of the law of nature” got three negativevotes (Gentili did not deal with it).

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204. Ibid., pp. 350-351.205. Ibid., pp. 353-388.206. Ibid., pp. 357-358.207. Ibid., p. 362.

— Harassment of Christian missionaries or teachers by unbelievers,got the same votes.

— Forcible prevention of unbelievers’ conversion into Christianity(Vitoria and Suarez considered this as a just cause, while theother two did not deal with it).

— Persecution of Christians (all four voted in favour).— Heresy (Suarez voted for war against a deposed heretical king ;

Gentili and Grotius disagreed with him, while Vitoria did notdeal with it).

— Idolatry (Grotius said it could be a just cause, if the idols weremorally evil ; while the other three denied it the just cause status).

— Atheism, total lack of religious belief (Gentili and Grotiusaccepted this as a just cause ; the other two did not deal with this).

Of the four theorists, only Suarez discussed the relationship ofpolitical and religious causes. In his view, all suitable causes forreligious war are analogous to, or ultimately reducible to, the justcauses of purely secular wars 204.

How should a just war be fought? All the four theorists agreed that“how” was a question of means and methods of warfare, rather thanof intention. A just war had to be fought with justice. In a just waronly one side is objectively righteous. However, the other side mightmistakenly consider itself to be righteous and so has a right of self-defence. In a just war where one side is clearly just, the other sideis required to submit to the judgment, to the righteous side, andthat was the only means of war open to it 205. Self-defence by theunrighteous side (offender) is equated with the crime of resistingarrest 206.

Grotius proposed a combination of both legal and moralapproaches to the means-question, in order to promote maximummoderation in warfare. According to him, neither side could be heldlegally liable for employing, in a formally declared war, the meansallowed by the law of nations (jus gentium). Prescribing the maxi-mum standards of morality to the means-question, he contended :“the righteous side was obliged by moral justice or Christian ethicsto exercise far greater moderation in warfare than the law of nationsrequired” 207.


208. Ibid., pp. 364-365.209. Ibid., p. 366.210. Ibid., p. 367.211. Ibid., pp. 368-369.212. Ibid., at p. 368.213. Ibid., p. 369.214. Walters, op. cit., p. 388.215. Ibid., at p. 418.

The four theorists also considered whether a just cause justifiesunlimited employment of all available military means — whether thejust end justified the means. Their unanimous answer was that the endof promoting justice justified the use of all military means necessaryfor achieving victory 208. But they expressed their concern for propor-tionality in warfare 209. Grotius gave proportionality “the most cen-tral role”. He spoke of a temperamentum ac belli [temperamentum =a mixture in due proportion, or a proper measure] 210. He discussedboth qualitative and quantitative proportionality 211. Qualitative pro-portionality includes “the assessment of several factors : the natureof the enemy’s offence ; damage to a particular region, to one’s ownstate, to the enemy state, or to the Church ; harm to innocent per-sons” 212. Proportionality, quantitatively, calls for a cost-benefit ana-lysis of specific means or policies. The enemy is held accountablenot only for the original cause of war but also for subsequent attemptsto resist the administration of justice by the righteous side 213.

Vitoria, Suarez and Grotius “allowed unintentional killing ofinnocent persons during the period of actual combat and in cases ofnecessity” 214. They evidently recognized the concept of collateraldamage in the interest of military necessity.

Walters concludes his study of the just war theorists (ThomasAquinas, Vitoria, Suarez, Gentili and Grotius) :

“It is misleading, if not incorrect, to speak of ‘the just wartheory’. Despite a measure of continuity within the traditionthere was striking diversity of opinion in the theoretical formu-lation of just-war views — to say nothing of disagreements inconcrete application. The major areas of historical consensusand dissensus can be rather precisely delimited.” 215

2.1.6.2.2.5. Grotius’s De Jure Belli ac Pacis (1625)

Hugo Grotius is generally regarded as the father of the modern(European-born) international law, many parts of which, even with

94 V. S. Mani

216. Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Vol. II, TranslationBook I by Francis W. Kelsey, William S. Hein & Co. Inc., Buffalo, New York,1995 reprint, p. 54.

217. Book I, p. 160.218. Book II, p. 171.219. Ibid., p. 172.

changes inflicted on it by the shifting sands of history, have stillstayed in place to this day. He calls for special notice for two furtherreasons. One, he probably anticipated the Westphalian system ofsovereign States that began to set in since 1648. Two, while he drewa wide range of authorities to support his propositions, includingreligious, he is largely seen to be secular in his perception of aspectsof international law. For these reasons, his contribution should beseparately treated, not just alongside other European scholars of thepast.

One of the initial principles upon which Grotius relies for hisintellectual endeavours in international law is this :

“It is not contrary to the nature of society to look out foroneself and advance one’s own interests, provided the rights ofothers are not infringed ; and consequently the use of forcewhich does not violate the rights of others is not unjust.” 216

“[I]f the usurper has seized the governmental power bymeans of a war that is unlawful and not in accordance with thelaw of nations, and no agreement has been entered into after-ward, and no promise has been given to him, but possession ismaintained by force alone, it would seem that the right to wagewar against him still remains, and whatever is permissibleagainst any enemy is permissible against him.” 217

Grotius firmly holds the view that every war must have a just cause.According to him, “Authorities generally assign to wars three justi-fiable causes, defence, recovery of property [‘the obtaining of whatis owed to us’], and punishment.” 218 As he explains further,

“It was in accordance with this natural principle that a kingof India, according to Diodorus, brought against Semiramis thecharge that ‘she commenced war without having suffered anywrong’. So also the Romans demanded of the Senones that theyshould not attack a people at whose hands they had received noinjury.” 219


220. Ibid.221. Ibid., p. 184.222. Ibid., p. 551. Can Grotius be considered to be one of the forerunners of

anti-imperialism ?223. Ibid., pp. 546-556.224. Ibid., p. 560.

Grotius would probably include this right to respond to a wrongin his concept of right of self-defence.

“This right of self-defence, it should be observed, has itsorigin directly, and chiefly, in the fact that nature commits toeach his own protection, not in the injustice or crime of theaggressor.” 220

Grotius is against the modern day concept of preventive war. Hesaid :

“Quite untenable is the position, which has been maintainedby some, that according to the law of nations it is right to takeup arms in order to weaken a growing power which, if itbecomes too great may be a source of danger. . . . But that thepossibility of being attacked confers the right to attack isabhorrent to every principle of equity. Human life exists undersuch conditions that complete security is never guaranteed tous. For protection against uncertain fears we must rely onDivine Providence, and on a weariness free from reproach, noton force.” 221

Grotius readily agrees : “There are certain causes which present afalse appearance of justice.” They include, “the fear of somethinguncertain”, “advantage”, “desire for richer land”, “discovery ofthings previously taken over by others”, and “desire for freedomamong a subject people”. “An unjust cause of war also is the desireto rule others against their will on the pretext that it is for theirgood.” 222 These are among the “unjust causes of war” 223.

To Grotius, war is too serious a business to engage in by States onfrivolous grounds :

“Now war is of the utmost importance, seeing that in conse-quence of war a great many sufferings usually fall upon eveninnocent persons. Therefore in the midst of divergent opinionswe must lean towards peace.” 224

Conference, arbitration, and drawing of lots are the three ways

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225. Ibid., pp. 560-563.226. Ibid., p. 567.227. Ibid., p. 575.228. Ibid., pp. 585-586. See also Onuma Yasauki, “War” in his ed., A Nor-

mative Approach to War : Peace, War, and Justice in Hugo Grotius, ClarendonPress, Oxford, 1993, pp. 57-121.

that Grotius suggests to avoid war 225. As Grotius reminds us, there isno rule that

“where a right has been adequately established, either warshould be waged forthwith, or even that war is permissible inall cases. On the contrary, it frequently happens that it is moreupright and just to abandon one’s right [to wage war].”

Commending that as the right conduct “above all becoming forChristians”, Grotius asks them to

“imitate the most perfect example set by Christ, for He waswilling to die for us who were as yet ungodly and hostile(Romans, v. 6). This fact of itself much the more urges us notto follow up our own interests or what may be due to us, sofar as to cause others the suffering that wars bring withthem.” 226

Hence the ground rule : “war is not to be undertaken, unless ofnecessity” 227. The patriarch of international law does not hide hisstrong feelings against war : “Warfare has no place among the usefularts. Nay, rather, it is so horrible that only the utmost necessity, ortrue affection, can render it honourable.” 228

2.1.7. Kantian philosophy and just war

Emmanuel Kant (1724-1804) is a serious philosopher who hassought to establish a connection between what is and what ought tobe, between the world of realities and the ideal world, and betweenselfishness and human happiness as an ultimate goal of all humanactivities informing and conditioning human institutions towardsachievement of that goal. Thus, many of the Kantian quotes nor-mally used as a strong philosophical support for propositions com-mending just war doctrine, tend to be eclectic, without taking intoaccount in a wholesome manner, what the great thinker from the for-mer Konigsberg has perceived of the humankind and its institutions,and its place in the universe of matter and ideas. Using them eclec-


229. Gwyn Prins, “The Politics of Intervention”, Pugwash OccasionalPapers, Vol. 1, No. 1, February 2000 (Pugwash Study Group on Intervention,Sovereignty and International Security).

230. Gwyn quotes this from Kant, Groundwork of the Metaphysics of Morals,1785. In Kant’s Fundamental Principles of the Metaphysics the translation of anearly identical statement reads as follows : “So act as to treat humanity,whether in thine own person or in that of any other, in every case as an endwithal, never as means only. We will now inquire whether this can be practicallycarried out.”

231. Gwyn quotes this from Kant’s The Metaphysics of Morals, 1797.232. Kant’s opposition to war is in fact absolute and unqualified. In his essay

on Perpetual Peace : A Philosophical Sketch, 1795, he speaks of “reason, fromits throne of supreme moral legislating authority, absolutely condemns war as alegal recourse and makes a state of peace a direct duty, even though peace can-not be established or secured except by a compact among nations”. See hisexplanation under the Second Definitive Article.

233. Kant, Introduction to Metaphysics of Morals, 1785, trans. W. Hastie.

tically and out of context in support of just war doctrines has indeedbecome a pastime with “just warriors” these days. Here are two of them229:

“So act that you treat humanity, both in your own person andin the person of every other human being, never merely as ameans, but always at the same time as an end.” 230

“When it comes to happiness the promotion of which as anend is my duty, it must be the happiness of other people whosepermitted end I hereby also make my own.” 231

The principal problem in using such quotes from Kant to justify ajust war doctrine is principally two-fold. One, Kant’s propositionslogically arise from his earlier deductions and often stand as stepping-stones to his subsequent deductive propositions or conclusions.Two, such statements do not necessarily a priori imply Kant’sapproval (or disapproval) for use of force to remedy a situation, nordo they underscore the existence of any legal rule to that effect 232.

Take for example the second quote above. It is part of Kant’sconcept of the metaphysics of morals. In fact, Kant here examines“a system of duties”. He states :

“All duties are either duties of right, that is, juridical duties(officio juris), or duties of virtue, that is ethical duties. Juridicalduties are such as may be promulgated by external legisla-tion ; ethical duties are those for which such legislation is notpossible.” 233

His general divisions of metaphysics of morals are at diverselevels : as a system of duties generally, according to the objective

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234. For this purpose, we have identified two of Kant’s important works,namely, Metaphysical Elements of Justice, Sections 56 to 62, and PerpetualPeace : A Philosophical Sketch.

relation to the law of duty, according to relations of obligations,according to the subjective relation of obligors and obligees, and soon. His concept also encompasses the relation of the faculties of thehuman mind to the moral laws. Evidently, Kant’s philosophicalsearch has been on a higher plane of concept rather than just war inexposition of metaphysics of morals.

It is precisely for this reason that we find it appropriate to exam-ine the major contours of Kantian concepts specific to internationallaw and relations 234. To begin with, Kant treats the relations betweenStates and issues of war and peace mainly with reference to twosocial conditions, namely what is in the international state of natureand what ought to be in progression from that state towards attain-ment of “perpetual peace and a permanent congress of nations”.

2.1.7.1. International state of nature

In the international state of nature, Kant recognizes the scenarioof relations between the States similar to the inter-individual rela-tions in a state of nature as they begin moving from “nationhood” to“statehood”. In the international state of nature, he perceives inter-State relations in terms of (1) a right of going to war against hostileStates, (2) a right during war, (3) a right after war, (4) a right topeace, and (4) a right against unjust enemy.

2.1.7.1.1. The right to go to war

There seems to be a widespread view that Kantian worldview isessentially romantic in the sense that it is intrinsically sunshine, nowor ever. Contrary to this perception, Kant, conditioned as he is by hiscritical empiricism, begins with the primary assumption that nations,conglomerates of humans, are prone to hostilities, as they were in astate of nature of Hobbesian fame. Hence his opening statement onthe “Right of Going to War in relation to Hostile States” :

“Viewed as in the state of nature, the right of nations to goto war and to carry on hostilities is the legitimate way by whichthey prosecute their rights by their own power when theyregard themselves as injured ; and this is done because in that


235. Kant on War (excerpts from his Metaphysical Elements of Justice), Sec-tion 56, “Right of Going to War in Relation to Hostile States”, http://www.uwplatt.edu/~drefcins/113KantWar.html.

236. Section 56, ibid.237. Section 57, ibid.238. Section 58, ibid.

state the method of juridical process, although the only properto settle such disputes, cannot be adopted.” 235

Kant examines the above right to war in terms of “right of goingto war in relation to hostile states” 236, “right during war”, and “rightafter war”. The right of going to war is subject to further distinctionbetween “the threatening of war”, “the active injury of a first aggres-sion”, and “general outbreak of hostilities”. According to him,

“[t]he right to go to war is constituted by any overt act ofinjury. This includes any arbitrary retaliation or act of reprisal(retorsio) as a satisfaction taken by one people for an offencecommitted by another, without any attempt being made toobtain reparation n a peaceful way. There is no distinctionbetween just and unjust wars in a state of nature.”

2.1.7.1.2. The right during war

While addressing the issue of the “right during war”, Kant feelsthat

“[t]he determination of what constitutes right in war, is themost difficult problem of the right of nations and internationallaw. It is very difficult even to form a conception of such aright, or to think of any law in this lawless state without fallinginto a contradiction. Inter arma silent leges. It must then be justto carry on war according to such principles as render it alwaysstill possible to pass out that natural condition of the states intheir external relations to each other, and to enter into a condi-tion of right.” 237

Kant envisages some rudiments of international humanitarian lawinforming the right of States during war.

2.1.7.1.3. The right after war

The “right after war” in a state of nature begins with a treaty ofpeace dictated by the power of the victor 238. This treaty of peace is

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239. “This right of federation, however”, stresses Kant, “does not extend toformation of any league for external aggression or international aggrandize-ment”. See ibid.

240. Section 60 on “Right as against an Unjust Enemy”, ibid.241. This statement is itself a negation of any Kantian concept of humanitar-

ian just war.242. Section 60, footnote 235.

essentially a truce until the next war breaks out (and this should bedistinguished with the permanent treaty of peace whereby perpetualpeace is to be established).

2.1.7.1.4. The right to peace

In his state of nature, Kant also recognizes some “rights ofpeace”.

“The rights of peace are :— The right to be in peace when war is in the neighbourhood,

or the right of neutrality.— The right to have peace secured so that it may continue,

when it has been concluded, that is the right of guarantee.— The right of the several states to enter into a mutual

alliance, so as to defend themselves in common against allexternal and even internal attacks.” 239

2.1.7.1.5. Right against unjust enemy ?

What about the “right against an unjust enemy” ?

“The right of a state against an unjust enemy has not limits,at least in respect of quality as distinguished from quantity ordegree. In other words, the injured state may use — not, indeedany means, but yet — all those means that are permissible andin reasonable measure in so far as they are in its power, inorder to assert its right to what is its own.” 240

However, Kant expresses conceptual difficulties to accept theconcept of “unjust enemy”. For one thing, in this international stateof nature, “every state is judge in its own cause”. For another,

“the expression ‘an unjust enemy in the state of nature’ is pleo-nastic ; for the state of nature is itself a state of injustice 241. A justenemy would be one to whom I would do wrong in offeringresistance ; but such a one would really not be my enemy.” 242


243. Ibid., Section 61.244. Ibid.245. Kant, The Science of Right, W. Hastie, trans., Conclusion.246. Kant, The Critique of Pure Reason, J. M. D. Meikeljohn, trans., p. 222.

2.1.7.2. Duty to strive for perpetual peace

According to Kant, “The natural state of nations as well as ofindividual men is a state which it is a duty to pass out of, in order toenter into a legal state.” 243 Even as individuals in a nation have aduty to progress towards establishment of a State to ensure in com-mon pursuit of happiness, so have States the duty in the internationalstate of nature to pursue the happiness of their peoples by strivingfor the establishment of a “perpetual peace”, a “federation of freestates” or a “permanent congress of nations”, and a “world citizen-ship limited to the conditions of universal hospitality”. This pursuit,to Kant, is “analogous to that by which a nation becomes a state” 244.The pursuit of perpetual peace is our duty, according to Kant,because :

“The universal and lasting establishment of peace constitutesnot merely a part, but the whole final purpose and end of thescience of right as viewed within the limits of reason.” 245

A staunch critic of war — all wars —, Kant vehemently argues infavour of a peaceful legal process to replace war as an institutionalremedy :

“Without the control of criticism, reason is, as it were, in astate of nature, and can only establish its claims and assertionsby war. Criticism, on the contrary, deciding all questionsaccording to the fundamental laws of its own institution,secures to us the peace of law and order and enables us to dis-cuss all differences in the more tranquil manner of a legal pro-cess. In the former case disputes are ended by victory, whichboth sides may claim and which is followed by a hollowarmistice ; in the latter by a sentence, which, as it strikes at theroot of all speculative differences, ensures to all concerned alasting peace.” 246

A focal point of Kantian philosophy is the people, not the rulers,nor States. People ought to be treated as an end in themselves, andnot a means to an end selected by the ruler. They ought not to be

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247. Kant, footnote 235, supra, p. 55.248. Immanuel Kant, Perpetual Peace : A Philosophical Sketch, 1795, first

published in 1796, http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm, open-ing sentence. For another translation of this book, see the Grotius Publications,Kant’s Perpetual Peace. A Philosophical Proposal, translated by Helen O’Brien,with an Introduction by Jessie H. Buckland, Sweet & Maxwell, Ltd., London,1927.

treated as objects for a warlike purpose. Being the immediate vic-tims of war,

“As such they must give their free consent, through theirrepresentatives [Kant’s concept of republican government], notonly to the carrying on of war generally, but to every separatedeclaration of war ; and it is only under this limiting conditionthat the state has a right to demand their services in under-takings so full of danger [i.e., wars].” 247

Kant’s Perpetual Peace : A Philosophical Sketch probably grew outof his Metaphysical Elements of Justice, noted above. It begins witha satire :

“Whether this satirical inscription on a Dutch innkeeper’ssign upon which a burial ground was painted had for its objectmankind in general, or the rulers of states in particular, who areinsatiable of war, or merely the philosophers who dream thissweet dream, it is not for us to decide.” 248

Kant’s postulations and observations on his Perpetual Peace areriddled with such subtle satirical statements, perhaps reflectinghis intellectual impatience with the irrationality of the internationalstate of nature in an “Age of Reason”.

2.1.7.2.1. Perpetual peace : preliminary articles

Kant believes :

“The state of peace among men living side by side is not thenatural state (status naturalis) ; the natural state is one of war.This does not always mean open hostilities, but at least anunceasing threat of war. A state of peace, therefore, must beestablished, for in order to be secured against hostility it is notsufficient that hostilities simply be not committed ; and, unlessthis security is pledged to each by his neighbour (a thing that


249. The paragraph introductory to the Definitive Articles for Perpetual Peaceamong States, ibid.

can occur only in a civil state), each may treat his neighbour,from whom he demands his security as an enemy.” 249

Kant, therefore, deals with the problem of perpetual peace in twophases.

First, he states his preconditions for a perpetual peace under Sec-tion I of his essay “containing the preliminary articles for perpetualpeace among states”. He postulates six Preliminary Articles aimed atcleansing the Aegean’s stable, as it were, to prepare for the transitionfrom a state of war to a state of peace, whose conditions are laiddown in Section II :

1. “No treaty of peace shall be held valid in which here istacitly reserved matter for a future war.”

Explanation : Kant explains :

“Otherwise a treaty would be only a truce, a suspension ofhostilities but not peace, which means the end of all hostilities— so much so that even to attach the word ‘perpetual’ to it is adubious pleonasm.”

He is keen that all causes of war must be eliminated.

2. “No independent state, large or small, shall come underthe dominion of another state by inheritance, exchange, pur-chase or donation.”

Explanation : Kant points out by way of explanation :

“A state is not, like the ground which it occupies, a piece ofproperty (patrimonies). It is a society of men whom no one elsehas any right to command or to dispose except the state itself.It is a trunk with its own rots. But to incorporate it into anotherstate, like a graft, is to destroy its existence as a moral person,reducing it to a thing : such incorporation thus contradictsthe idea of he original contract without which no right over apeople can be conceived.”

This preliminary article is Kant’s response to the many wars thattook place in Europe during his lifetime and before, triggered as they

104 V. S. Mani

250. Kant’s subtle satire is at its best when he says that“it [the propensity of European States for territorial aggrandizement ‘by thepresumption that States could espouse one another through diverse wayssuch as these’] is in part a new kind of industry for gaining ascendancy bymeans of family alliances and without expenditure of forces, and in part away of extending one’s domain”. Kant, op. cit., explanation of PreliminaryArticle 2.

were by the diverse methods of gaining domination over otherStates 250.

3. “Standing armies shall in time be totally abolished.”

Explanation :

“For they incessantly menace other states by their readinessto appear at all times prepared for war ; they incite them tocompete with each other in the number of armed men, andthere is no limit to this. . . . A standing army is itself a cause ofoffensive war. Add to this that to pay men to kill or to be killedseems to entail using them as mere machines and tools in thehand of another (the state), and this is hardly compatible withthe rights of mankind in our own person.”

But Kant makes an exception to one possibility of war for whichthere is need for military preparedness on the part of a State : “Butthe periodic and voluntary military exercise of citizens who therebysecure themselves and their country against foreign aggression areentirely different.” On the basic principle of abolition of standingarmies, however, Kant is firm. He underscores the role of “threepowers” of State — “the power of armies, of alliances, and ofmoney” — that lead to war.

4. “National debts shall not be contracted with a view toexternal friction of states.”

Explanation : Kant is not against a State contracting external debt“when the purpose is domestic economy”. Without such justifica-tion, accumulation of national debt “constitutes a dangerous moneypower”. Kant explains :

“This ingenious invention of a commercial people [England]in this [eighteenth] century is dangerous because it is a wartreasure which exceeds the treasures of all other states . . . Thisfacility in making war, together with the inclination to do so on


the part of rulers — an inclination which seems inborn inhuman nature — is thus a great hindrance to perpetual peace.Therefore to forbid this credit system must be a preliminaryarticle of perpetual peace all the more because it must eventu-ally entangle many innocent states in the inevitable bankruptcyand openly harm them. They are therefore justified in allyingthemselves against such a state and its measures.”

Surely, these words are quite a morale-booster for the debt-riddendeveloping counties of today ! They now have a justification to takecollective measures against the “International Shylocks” ! Kant doesnot indeed go as far as clearly expressing himself in favour of a “justwar” against these Shylocks, yet — on a lighter vein — his argu-ments could be used in support of such a just war, if ever such a warwould be practically possible (for the debt-ridden States are notlikely to be powerful enough to launch such wars).

5. “No state shall by force interfere with the constitution ofgovernment of another state.”

Explanation : Is not such interference an “offence, perhaps, whicha state gives to the subjects of another state” ? Explaining further thelimit of this rule, Kant says :

“But it would be quite different if a state, by internal rebel-lion, should fall into two parts, each of which pretended to be aseparate state making claim to the whole. To lend assistance toone of these cannot be considered an interference in the consti-tution of the other state (for it is then in a state of anarchy). Butso long as the internal dissension has not come to this criticalpoint such interference by foreign powers would infringe onthe rights of an independent people struggling with its internaldisease ; hence it would itself be an offence (scandalum accep-tum) and would render the autonomy of all states insecure.”

This is Kant’s doctrine of non-interference in the internal affairs of aState by another. It is here that all eclectic quotes from Kant in sup-port of a “humanitarian” just war doctrine fall flat, for basically, heis a non-interventionist in respect of inter-State relations. And heregards all external interventions in the affairs of a State as morallyuntenable because they violate the self-determination of the peopleof the State. To him, State sovereignty represents the self-determina-tion of its people.

106 V. S. Mani

6. “No state shall, during war, permit such acts of hostilitywhich would make mutual confidence in the subsequent Peaceimpossible : such are the employment of assassins (percus-sores), poisoners (venefici), breach of capitulation, and incite-ment to treason (perduellio) in the opposing state.”

Explanation : This principle brings out Kant’s perception of inter-national humanitarian law, even if on the moral plane : “These aredishonourable stratagems.” If the belligerent parties do not recognizesuch limits to means and methods of warfare,

“no [worthwhile] peace could be concluded and the hostilitieswould degenerate into a war of extermination (belluminternecinum). War, however, is the only sad course in the stateof nature (where there is no tribunal which could judge with theforce of law) by which each state asserts its rights by violenceand in which neither party can be adjudged unjust (for thatwould presuppose a juridical decision) ; in lieu of such a deci-sion, the issue of the conflict (as if given by a so-called ‘judg-ment of God’) decides on which side justice lies.”

A further reason why Kant cannot support a “humanitarian” just wardoctrine.

Kant contends, in the same vein :

“a war of extermination, in which the destruction of both par-ties and of all justice can result, would permit perpetual peaceonly in the vast burial ground of the human race. Therefore,such a war and the use of all means leading to it must be abso-lutely forbidden”.

Kant makes a distinction between principles contained in Prelimi-nary Articles Nos. 1, 5 and 6, and others (in Nos. 2, 3, and 4). Theformer are leges strictae — principles that are of “that strict kindwhich hold regardless of circumstances and which demand promptexecution”.

Whereas the latter,

“while not exceptions from the rule of law, nevertheless aresubjectively broader (leges latae) in respect of their observa-tion [i.e., compliance], containing permission to delay theirexecution without, however, losing sight of the end”.


251. Ibid., Section II, first paragraph, footnote 3. Kant further states :“Every juridical constitution which concerns the person who stands under

it is one of the following :(1) The constitution conforming to the civil law of men in a nation (ius

civitas).(2) The constitution conforming to the law of nations in their relation to one

another (ius gentium).(3) The constitution conforming to the law of world citizenship, so far as

men and states are considered as citizens of a universal state of men, intheir external mutual relationships (ius cosmopoliticum).

This division is not arbitrary, being necessary in relation to the idea ofperpetual peace.” Ibid.

252. “Republicanism”, says Kant, “is the political principle of the separationof the executive power (the administration) from the legislative ; despotism isthat of the autonomous execution by the state of laws which it has itselfdecreed”. Perhaps following the Aristotelian classification of forms of govern-ment, he remarks :

“Of the forms of the state, that of democracy is, properly speaking,necessarily a despotism, because it establishes an executive power in which‘all’ decide for or even against one who does not agree ; that is, ‘all’, whoare not quite all, decide, and this is a contradiction of the general will withitself and with freedom.” Ibid., explanation to the First Definitive Article.

2.1.7.2.2. Perpetual peace : definitive articles

Having postulated for transition from the war-torn internationalstate of nature, Kant now seeks to prescribe three essential condi-tions as the fundamental bases for his perpetual peace. “The postu-late which is basic to all the following articles”, says Kant, “is : allmen who can reciprocally influence each other must stand undersome civil constitution.” 251 His three Definitive Articles in Section IIof his essay are the following :

1. “The civil constitution of every state should be repub-lican.”

Explanation : According to Kant, “the only constitution whichderives from the idea of the original compact, and on which alljuridical legislation of a people must be based, is republican”.Clearly, Kant conceives of a republican constitution to be what isnow understood to be democratic 252, as his republican constitutionis “established by the principle of freedom of the members of asociety”, “by principles of dependence of all upon a single commonlegislation”, and “by the law of their equality” as citizens. Hence hisconclusion : “The republican constitution, therefore, is, with respectto law, the one which is the original basis of every form of civilconstitution.” Kant feels that a republican constitution is a safer bet for

108 V. S. Mani

253. Ibid. At an earlier attempt at Perpetual Peace, Kant conceives of a unionof States, which

“in order to maintain peace, may be called a permanent congress of nations ;and it is free to every neighbouring state to join in it. A union of this kind,so far at least as regards the formalities of the right of nations in respect ofthe preservation of peace, was presented in the first half of his century, inthe Assembly of the States-General at The Hague. In this Assembly most ofthe European courts, and even the smallest republics, brought forward theircomplaints about the hostilities which were carried on by the one againstthe other. Thus the whole of Europe appeared like a single federated state,accepted as umpire by the several nations in their public differences.”

But such an assembly of nations soon dissipated. Kant would therefore recom-mend a union of states similar to the United States of America. See his Meta-physical Elements of Justice, Section 61. The Assembly of the States-Generalthat he refers to was probably of 1651. The gathering of more than 300 delegatesmet from January to August 1651 following the sudden death of SadholderPrince William II in November 1650. The extraordinary assembly was convenedin the Great Hall of the Binnenhof in The Hague, the former court of the countsof Holland, when Holland (the Republic of United Provinces) was much vasterthan what it is today. An earlier meeting of the States-General had taken place inthe same venue in 1581. The Hague Assembly was made “permanent” from 1593.

peace than any other form of government, as in the former the issuesof war would need the consent of the citizens to be determined, and“nothing is more natural than that they would be very cautious incommencing such a poor game, decreeing for themselves all thecalamities of war”. On the other hand, in other forms of government,“a declaration of war is the easiest thing in the world to decideupon” ; the ruler “may resolve on war as on a pleasure party for themost trivial reasons, and with perfect indifference leave the justifica-tion which decency requires to the diplomatic corps who are everready to provide”.

2. “The law of nations shall be founded on a federation offree states.”

Explanation : In a state of nature, “peoples, as states, like individ-uals”, live in a condition of threat of mutual injury. Hence,

“Each of them may and should for the sake of its ownsecurity, demand that the others enter with it into a constitutionsimilar to the civil constitution, for under such a constitutioneach can be secure in his right.”

This, Kant clarifies, does not mean that they are creating a supra-State. “That would be contradictory, since a state implies the relationof a superior (legislating) to an inferior (obeying).” Kant now prefersto call it a “league”, “a league of peace (foedus pacificum)” 253,


“which would be distinguished from a treaty of peace (pactum pacis)by the fact that the latter terminates only one war, while the formerseeks to make an end of all wars forever”.

Kant is convinced that the “practicality (objective reality) of thisidea of federation, which should gradually spread to all states andthus lead to perpetual peace, can be proved”. His optimism seems tolie in his argument that any enlightened people could get together toform a republican constitution establishing legislative, executive andjudicial authorities to replace the war as a method of resolution ofdisputes, such a federation could form a fulcrum around which othersimilarly minded peoples could do the same and get associatedtogether, even though they might not acknowledge any supremelegislative power over all of them, except that which they haveestablished for each of them to govern themselves internally. Eachof them could pledge, “There ought to be no war between myselfand other states, even though I acknowledge no supreme power bywhich our rights are mutually guaranteed.” The result will be a “freefederation, the surrogate of the civil social order, which reasonnecessarily associates with the concept of the law of nations . . .”.

3. “The law of world citizenship shall be limited to condi-tions of universal hospitality.”

Explanation : Kant censors “inhospitality” to foreigners, includingtheir ill-treatment being “opposed to natural law”. Nationals of dif-ferent countries should be allowed to interact between themselves.“In this way distant parts of the world can come into peaceable rela-tions with each other, and these are finally publicly established bylaw. Thus the human race can gradually be brought closer and closerto a constitution establishing world citizenship” which is a sure guar-antee against war. The idea of the law of world citizenship, Kantsuggests, “is a supplement to the unwritten code of the civil andinternational law, indispensable for the maintenance of the publichuman rights and hence also of perpetual peace”.

2.1.7.2.3. Kant and Bentham : a comparison

Finally, our examination of Kant’s views on “just” war invites usto the striking similarity of some of the conclusions of Kant andBentham, both contemporaries. Jeremy Bentham (1748-1832), thecelebrated British jurist and philosopher, like Kant, believes in “the

110 V. S. Mani

254. Jeremy Bentham, The Principles of Morals and Legislation, 1789, p. 2.Bentham says :

“By utility is meant that property in any object whereby it tends to pro-duce benefit, advantage, pleasure, good, or happiness, or to prevent the hap-pening of mischief, pain, evil, or unhappiness to the party whose interest isconsidered ; if that party be the community in general, then the happinessof the community ; if a particular individual, then the happiness of the indi-vidual.”

255. Jeremy Bentham’s essay, A Plan for a Universal and Perpetual Peace,1790, http://www.la.utexas.edu/research/plotheory/bentham/pil/pil.e04.html.

256. “All trade is in its essence advantageous. — even to that party to whomit is least so. All war is in its essence ruinous ; and yet the greatest employmentsof government are to treasure up occasions of war, and to put fetters upontrade.” See Bentham, op. cit.

257. Sanderson Beck, “Peace Plans of Rousseau, Bentham, and Kant”, http://www.san.beck.org/GPJ15-Rousseau. Kant.html.

258. Bentham, footnote 255, supra.

greatest happiness of the greatest number” to be the end of allgovernment, all human activity 254. But then, Kant relies on thesovereign reason (high reason is the sovereign to determine anydecision) to dictate human action to this end, whereas Bentham, con-ditioned by a “trade-driven” era of British industrial revolution,advocates utilitarianism as the essential philosophy that would natu-rally dictate the progress to that end. Both believe in “humanity”,and “human welfare”, even if they denoted more of materialism inBentham (who has a “hedonic calculus” to measure the positive(pleasure) and negative (pain) consequences of any human decision),and more of spiritualism in Kant. Kant’s Perpetual Peace is a state ofhappiness dictated by reason, and represents progress away frominternational state of nature of perpetual war. Whereas Benthamenvisions his state of Perpetual Peace to be one determined by con-ditions of the greatest happiness of the greatest number, its “utility”being a function of these conditions — the utility of Perpetual Peaceinforms these conditions 255. Bentham, like Kant, believes that every-one suffers from war. But he wants peace more because that condi-tion promotes trade and trade human happiness 256. “Bentham’s planhas two main propositions — to reduce military forces in Europeand to emancipate colonies” 257. And “for the welfare of all civilizednations” he has three goals — “simplicity of government, nationalfrugality, and peace” 258. Benthams feels colonies are a drag onnations, for maintaining them with the help of large navies is in thelong run not utilitarian for the mother country. Perpetual treatiesshould be established to limit armed forces, end mutually inimical


259. Jeremy Bentham, Of War, Considered in Respect of Its Causes and Con-sequences, http://www.la.utexas.edu/research/poltheory/bentham/pil/pil.e03.html.

260. Ibid.

alliances, and to create a common court of judicature to adjudicatedifferences between countries peaceably. He advocates open andtransparent diplomacy. Each country must have a Congress ofDeputies whose proceedings should be public, with power to reportto public opinion. In Bentham’s view, if secrecy is given up and suchpublic reporting is assured, then the public will not support war. Noruling elite has the right to push a nation into war against its people’swill.

Like Kant, Bentham too expresses himself very clearly against the“utility” of any war — whether bona fide wars (wars resulting frominjuries, transgression of boundaries or territories, “enterprises ofconquest”, etc.) or mala fide (wars with no such reasons). In eithercase, “the miseries of a more or less hopeless war” must tilt the bal-ance against any war. And “the expense of a single campaign” wouldmore than outweigh the cost of suing for a peaceful solution 259. InBentham’s view, a remedy against the bona fide wars is to be foundin “The Tribunal of Peace.” Whereas the remedies for other kinds ofwars (“wars of passion,” and “wars of ambition”) include “reason-ing, showing the repugnancy betwixt passion on the one hand, andjustice as well as interest on the other”, or “showing the repugnancybetwixt ambition and true interest”, and “remedies of regulation, inthe event of a temporary ascendancy on the part of reason” 260.

2.2. Changing Responses of Traditional International Law

The traditional international law and relations responded to thetheories of just war principally in three ways – the balance of powerdoctrine, interventions kept out of the pale of international law,intervention as a legal right and duty, and a total prohibition ofintervention.

2.2.1. Balance of power doctrine

In quest of the “causes of modern [eighteenth-century] Europeanwars”, Sheldon Amos identifies Balance of Power as one of the prin-cipal causes. He observes :

“The most striking form the doctrine of Intervention has

112 V. S. Mani

261. Sheldon Amos, Political and Legal Remedies for War, New York,Harper & Bros, 1880, p. 58. (Amos was Professor of Jurisprudence in Univer-sity College, London.)

262. Ibid., pp. 58-59.

taken is that of the Balance of Power, as it was understood inthe sixteenth, seventeenth, and part of the eighteenth century,and according to which a certain relative and existing politicalsituation of the States of Europe was to be definitely guaran-teed to each State, and any political assumption or encroach-ment incompatible with this situation was ground for War to bewaged by any or all of the other States.”

He finds the Holy Alliance as a “manifestation of a tendency tointervention”. As it resulted from the wars of the French Revolution,it provided a framework “in accordance with which certain leadingStates allied themselves together, with the avowed purpose ofmaking War on any State which should adopt institutions uncongenialto themselves” 261.

With biting sarcasm, Amos remarks : “England, especially, fromher insular position, and her complicated commercial system, hasbeen prominent in advocating doctrines of so-called ‘Non-interven-tion’, which present a career.” Not that England had been consistentin this ; its consistency or the lack of it often depended on the diver-gent views of the British political parties. In actuality, England didpractice intervention often enough. Amos cites the examples of itsinterventions resulting in establishment of the kingdom of Greece,the principality of Servia, the kingdoms of Belgium and Holland atdiverse times 262.

Often, the doctrine of non-intervention

“is further professed as a tenet even by those States which aremost habitually tempted to intervene. An apology — often verymuch laboured and tortuous — is always alleged in the diplo-matic correspondence, which must not be turned into a prece-dent. Each case is treated as exceptional, and as justifying spe-cial measures, which must not be turned into a precedent.Either the circumstances are those of the alleged oppression ofa nationality, or religious persecution, or a mere succession ofbrutal outrages, due to a tyrannical or incompetent government,or apprehended danger to neighbouring States ; and a State rep-resenting persons having a common nationality or religious


263. Ibid., p. 59.264. Ibid.265. Ibid., p. 61.266. Ibid., p. 103.

creed with the oppressed, or bound by historical ties of varioussorts, conceives itself entitled to interfere in the avowedbehalf of humanity or abstract justice, if not of obvious self-interest.” 263

To the same genre had been the US intervention (“liberation” of)in Cuba, Russian and Austro-Hungarian intervention in the TurkishEmpire (to ameliorate the condition of the European provinces of theEmpire !). Amos, writing in 1880, notes that Austria and France

“within the last twenty years, vied with each other in inter-fering in the internal struggles of Italy ; and France, Italy, andGermany have each held themselves, and would again doubtlesshold themselves, on one ground or another entitled to intervenein the case of serious internal discord in Switzerland” 264.

Amos finds a romantic two-face of the instrument of intervention,in pursuit of the foreign policy of the intervening power. One, it hadto be proved that the intervention had been timely and in the bestinterest of the target State, “to be decided by the real and internal,and not by the factitious and external, elements of victory”. Two,

“it is always open to a State, influential, designing, andunscrupulous, to foster in another State, subject to its moralcontrol, the very condition of things which will, sooner or later,being about a fit opportunity for its own overt interference.”(E.g. Russia’s role in Servian War and the Herzegovinian Insur-rection 265.)

The “the shadowy line which separates a legal from a moral right” tointervene, remained in a sense “the inherent imperfection which atpresent clings to International Law” 266.

But to begin with it was non-intervention that appealed to States,particularly Britain, in the late eighteenth and the nineteenth cen-turies. It is well known that the general principle of non-interferencein the affairs of foreign States was first practically asserted by LordCanning in 1826, especially against the doctrines of the HolyAlliance. Amos adds :

114 V. S. Mani

267. Ibid.268. The Times (London), 15 July 1876, quoted by Amos, op. cit., pp. 113-

114.

“The Free-trade Movement, and his innate pacific disposi-tion, stimulated Mr. Cobden to go still farther in the samedirection, and prepare the way for ‘Non-Intervention’ beingerected into a dogma, advocated by a distinct party, and havingno inconsiderable influence in the domain of practical poli-tics.” 267

As the nineteenth century began to wear out, a sense of “realism”dawned on the practitioners of statecraft. Lord Derby, then BritishForeign Secretary, made a statement on 14 July 1876 (which accord-ing to him expresses, “fairly enough, the modern doctrine of Inter-vention, as held in England by practical statesmen”) :

“The doctrine of absolute indifference is not one which thiscountry ever has professed, and I do not think it is one whichwould be popular with the nation at large. We have a greatposition in Europe ; and with nations, as with individuals, agreat position involves great responsibilities. We cannot abso-lutely decline to accept our responsibilities ; for if every nationthat had reached a certain state of civilization were to acceptthe principle of Non-Intervention in its absolute and extremeform, and say, ‘we will never meddle in any international ques-tions unless our own interests are touched’, the effect of thatwould be to leave the regulation of all international affairs tonations which have not reached that state of civilization. Ifvoice of England, in questions such as those we are now dis-cussing, were to be silenced altogether, there would be onevoice less heard on the side of Peace. No one is more stronglyin favour of Non-Intervention, within reasonable limits, than Iam ; but we must push no doctrine to extremes ; and an absolutedeclaration of Non-Intervention on all occasions would be aproclamation of international apathy, and I need not tell youthat international apathy does not mean either Peace orprogress.” 268

Some of these words — “a great position involves great responsi-bilities” — remind us of recent history — resonating some of thestatements by President George Bush, Jr. and Prime Minister Tony


269. Ibid., p. 114.270. Ibid.271. Ibid., p. 115.

Blair. The reference to States “which have not reached that stateof civilization” did fit into the world of the nineteenth century, yetsome of the big powers of today do relapse quite frequently into asimilar, if not the same, mindset about other smaller nations. Theycontinue to carry “the White Man’s burden”.

Given the emerging State attitudes of his time and recognizing the“theoretically justifiable” (read “objective”) need for internationalintervention into the internal affairs of weaker States, Amos toobelieves that, ideally, there was a moral rationale to recognize inter-vention into the internal affairs of a foreign State to be justifiablein two situations : one engendered by “the duration of an anarchicalcondition, coupled with the apparent improbability of order everbeing restored” (intervention justified “on the ground of the interestwhich all States are presumed to have in the stability and integrity ofeach State”) ; and the other when gross acts of inhumanity persisted(“on grounds of humanity”) 269. Yet, Amos concedes, “it is obviousthat there are a number of indeterminate elements still left open, thearbitrary determination of which, by a single interested State in anygiven case, may lead to serious abuses” 270. Writing at a time whenthere was no global international organization like the UnitedNations, Amos strongly recommends :

“It is in the highest degree desirable that the element of pri-vate interest should be entirely removed — an object which canbest be secured, in respect of such cases as these, by habits ofcombined policy among as great a number of States as pos-sible, and those States especially who are above the suspicionof having an interested motive lower than that of promotingPeace, order, and general well-being. Thus, so far as this sort ofIntervention is concerned, it is, above all, desirable that thepurity of the motives should be conspicuous, and, for this end,the more States that join, the better the reputation for publichonesty of the Government of those States ; and the greater thepublicity of the grounds of Intervention alleged, the less likelyis the intervention to be inexpedient, unjust, and provocative ofgeneral War.” 271

Balance of Power has been a policy followed by many countries

116 V. S. Mani

272. For an extensive examination of Balance of Power, see Hans J. Morgan-thau, Politics among Nations — The Struggle for Power and Peace, 4th ed.,1967, Indian ed., by Scientific Book Agency, Calcutta, 1969, Part IV on “Limi-tations of National Power : The Balance of Power”, pp. 161-218.

and great powers in particular over time 272. It, indeed, bore twofaces. Status quo in terms of territorial possessions and militarypower should be maintained at all times, so that no great powershould be more powerful than its natural adversaries. This required itto follow a general policy of non-intervention in the affairs of otherStates, as any such intervention would tilt this balance of power, thestatus quo. On the other hand, if, after all, an intervention did takeplace, spoils needed to be shared with other great powers, again torestore status quo in terms of power equilibrium.

Some of the treaties that resulted from the Napoleonic warsembodied the concept of balance of power, even as some of themsowed the seeds for the Concert of Europe system (the nineteenth-century equivalent of P-5). The Preamble to the Treaty of Paris of30 May 1814 recited, inter alia, the desire of the parties (Austria,Great Britain, France, Portugal, Prussia, Russia, Spain and Sweden)to terminate the long agitations of Europe, and the sufferings ofmankind, by a permanence of peace, founded on a just repartition offorce between parties, and pledged its durability. Four “Separate andSecret” Articles were also signed at the same time by the Great Powers(Austria, Britain, France, Prussia and Russia). Article I, spoke of“a system of real and permanent balance of power in Europe” basedon the settlement of territories, Austro-Sardinian boundary in Italyand the guarantee of Switzerland, with the territory of Holland, andwith the aggrandisement of Holland by the acquisition of the Ger-man territories from France. The third Article expressly stated thatthe “establishment of a just Balance of Power in Europe requires thatHolland should be so constituted as to be enabled to support herIndependence through her own resources”.

The Congress of Vienna, participated in by Austria, Great Britain,Prussia and Russia (France, a defeated power, was not yet grantedadmission into this meeting of the “founders” of the Concert ofEurope), on 14 June 1814 adopted a protocol on the Union of Bel-gium and Holland. Its very first clause stated, unabashedly, “theunion was decided upon, by virtue of the political principles adoptedby them for the establishment of a State of equilibrium in Europe”.The establishment of a “just equilibrium in Europe” was again


273. Amos’s quotes, ibid., p. 224.274. Ibid., p. 225. Amos’s quote.

referred to among the general objects of the Treaty of 31 May 1815.This treaty later formed Annex X of the Vienna Congress Treaty of9 June 1815. The Prussia-Russian treaty of 3 May 1815 in its pre-amble referred to “a just Balance of power”. The London Conferenceof 1850 adopted a protocol “considering that the maintenance orintegrity of the Danish Monarchy, bound to the general interest ofEuropean equilibrium, is of great importance for the preservation ofPeace”. The 12 March 1854 treaty between Britain, France andTurkey agreed on the principles of their alliance against Russia, withits Preamble stating that the Parties to the Treaty were fully per-suaded “that the existence of the Ottoman Empire in its presentlimits was essential to the maintenance of the Balance of poweramong the States of Europe” 273.

If the balance of power policy was rather opportunistic andimmoral in practice, the wars fought to restore or maintain theEuropean balance of power, more often than not, cared little aboutprinciples of humanity that some of the early theorists of just waradvocated so strenuous.

Sutherland Edwards, one of The Times correspondents whocovered the Franco-German War, remarked rather sarcastically :

“Laws are not silent in the midst of arms, but the laws madeto replace ordinary laws are of a primitive and barbarous type. Inthe principle they might, not unfairly, be summed up as follows :

1. For every offence punish someone ; the guilty if possible,but someone.

2. Better a hundred innocents should suffer than that oneguilty man should escape.

3. When in doubt, shoot the prisoner.” 274

2.2.2. Intervention as a policy issue, outside the pale of law

There have been many Western writers of the nineteenth centurywho have argued seriously that intervention into the affairs ofanother country was never a matter of international law, but exclu-sively one of policy and that therefore it was not amenable to bejudged on the basis of legal principles. Indeed it needed no legaljustification at all.

118 V. S. Mani

275. William Vernon Harcourt (Historicus), Letters by Historicus on SomeQuestions of International Law, reprinted from The Times, London, Macmillanand Co., London and Cambridge, 1863, Kraus Reprint Co., New York, 1971,pp. 14-15. A similar view is held by Lawrence : “An intervention to put a stop tobarbarous and abominable cruelty is ‘a high act of policy above and beyond thedomain of law.” Thomas Joseph Lawrence, Principles of International Law, 4thed., Boston, Mass., 1910, p. 129.

276. Ibid.277. Ibid., p. 41.

Thus, speaking of proposals on the possible British intervention inthe American Civil War, Historicus, the irrepressible and regularacademic contributor these days to the Letters to the Editor columnsof The Times, proclaimed :

“Intervention is a question rather of policy than of law. It isabove and beyond the domain of law, and when wisely andequitably handled by those who have the power to give effectto it, may be the highest policy of justice and humanity. But inorder to do this, it is obviously necessary that those who are tointervene should know and be able to declare what they areprepared to enforce, or that those who offer to mediate shouldbe in a position to state what they propose to recommend. . . .There are many things which we cannot help, but there aresome things with which it were wise to have nothing to do.” 275

Further, according to Historicus, intervention

“is a high and summary procedure which may sometimessnatch a remedy beyond the reach of law. Nevertheless, it mustbe admitted that in the case of Intervention, as in that of Revo-lution, its essence is illegality, and its justification is its suc-cess. Of all things, at once the most unjustifiable and the mostimpolitic is an unsuccessful Intervention.” 276

Intervention is not necessarily an abrupt strike of force ; it maycomprise a range and variety of application of force as a situationmay demand. As Historicus pointed out,

“It may be of various kinds and of different degrees. As afamous physician said of scarlet fever, it may be anything, froma fleabite to the plague. And it is by no means impossible thatit may begin with one and end with the other.” 277

But, to Historicus, the object of intervention is eminently impor-tant :


278. Ibid., p. 42.279. Ibid., p. 43.280. Ibid., pp. 46-47.281. Ibid., p. 48.282. Ivor Jennings’s domestic constitutional law analogy (“A revolution, if suc-

cessful, is legal”) should remain confined to the circumstances of domestic law,where the acquiescence of the people is critical to the legitimacy of the revolution).

“The only object and justification of intervention is peace.To interpose without the means or the intention to carry intoeffect a permanent pacification is not to intervene, but to inter-meddle. . . . it [intervention] must be efficacious. An inconclu-sive interference is at once impertinent and mischievous.” 278

In Historicus’s view, to mount a successful intervention is not asimple follow-up to a decision to intervene. Its potential successdemands that it meets with a congenial condition in the target Stateand that therefore the potential intervener ought to prepare theground, as it were, before actual intervention takes place. “Therecords of history will teach us that interventions have not beenaccomplished with Foreign-office rose-water alone.” 279 Hence thewise counsel :

“Intervention may be wise, may be right, — nay, sometimesmay even be necessary. But let us not deceive ourselves ;intervention never has been, never will be, never can be short,simple, or peaceable.” 280

Thus,

“If we are to intervene it is in order to establish peace. Butwe cannot establish peace except by settling all the bellicosequestions between the parties ; for otherwise they will infalliblyrecur to arms in order to resolve them.” 281

In short, finding that unilateralism in use of force has seriouslimits in international law (see his observation that a failed interven-tion is illegal), Historicus perhaps “pragmatically” takes the safestcourse of taking intervention outside the realm of law, and places itin the centre of policy — assuming of course that operationality ofpolicy stays outside the scope of law. However, if a failed interven-tion is illegal, why should a successful intervention be deemed legal,simply by virtue of its success ? How is the legality of a certainactivity be determined not in terms its intrinsic nature, but in terms ofquantum or the manner of force applied to make it “succeed” 282 ?

120 V. S. Mani

283. Ellery C. Stowell, Intervention in International Law, John Byrne, Wash-ington, DC, 1921, reprint by Fred B. Rothman & Co., Littleton, Col., 1983,p. vi.

284. Ibid., p. v. Emphasis added.285. Ibid., p. vi.

2.2.3. Legal right to intervene

We pick up Stowell, a well-known, early twentieth-century publi-cist on law of war, to present the “aggressive” Western view that tra-ditional international law clearly recognized a legal right on the partof a State to forcibly intervene in the affairs of another State, providedthe exercise of the right was within certain limits. Indeed, he evenrecognizes that there could even be an obligation to intervene.

Stowell recognizes, at the outset,

“a rule of transcending practical importance for the preserva-tion of a just peace among nations, namely : that no state shallunreasonably insist upon its rights or pursue its interests tothe detriment of the opposing rights and interests of otherstates” 283.

This circumscribes the general right of intervention.He further emphasizes :

“[T]he rule of conduct which general practice recognizes ascorrect does not justify a selfish insistence upon the right ofeach state to act absolutely independently even within its owndomain, nor does it authorize any state lightly to interfere withthe independence of a neighbor. The law of intervention liesbetween the extremes of absolute independence on the onehand and unregulated interference on the other.” 284

Thus “Intervention in the relations between states is, . . ., the right-ful use of force or the reliance thereon to constrain obedience tointernational law.” 285

While there was under traditional international law an obligation,as well, to intervene in certain situations, Stowell warns :

“Under the present conditions the obligation to intervene forthe vindication of the law cannot be made absolute, but must beleft to the discretion of each state. Reasonable action by way ofremonstrance and discrimination will generally be taken in sup-port of the innocent, as opposed to the transgressor. Occasion-


286. Ibid., p. 49.287. Ibid., pp. 51-277, nearly one half of his book.288. Ibid., p. 53.289. Ibid., pp. 51-52.290. Ibid., p. 52, fn. 8.291. Ibid., pp. 53-54. The authorities include : Antoine Rougier, “La theorie

de l’intervention d’humanité”, Revue generale, Vol. 17, 1910, pp. 468-526(Stowell seems to have quite heavily relied on Rougier) ; John Westlake, Interna-tional Law, Vol. I, pp. 319-320 ; J. B. Moore, Principles of American Diplomacy,New York, 1918, p. 262 (Moore quotes what President Theodore Rooseveltwrote in 1904 : “Brutal wrong-doing, or impotence, which results in the generalloosening of the ties of civilized society may finally require intervention bysome civilized nation in Western Hemisphere ; the United States cannot ignoreits duty”) ; Alfred Mahan, Some Neglected Aspects of War, 1900, p. 107 ;Grotius, Wheaton, Heiberg, Woolsey, Bluntschli, Westlake “and many others”.

ally a government will go further and intervene by force ofarms for the vindication of the law. Such intervention is legal.It is commendable, but it must be confessed that it has gener-ally been actuated by political considerations.” 286

Stowell deals with humanitarian intervention quite extensively 287.He defines humanitarian intervention as follows :

“Humanitarian intervention may be defined as the relianceupon force for the justifiable purpose of protecting the inhabi-tants of another state from treatment which is so arbitrary andpersistently abusive as to exceed the limits of that authoritywithin which the sovereign is presumed to act with reason andjustice.” 288

Stowell proclaims :

“For it is a basic principle of every human society and thelaw which governs it that no member may persist in conductwhich is considered to violate the universally recognized prin-ciples of decency and humanity.” 289

In a long footnote to this sentence, he says :

“That the flagrant and persistent violation of the recognizedprinciples of humanity is a violation of international law, aswell as of international morality, is indicated by the preambleto the Hague Convention Respecting the Law and Customs ofWar on Land.”

He then quotes the de Martens clause in support 290. Stowell cites anumber of authors supporting the legality of humanitarian interven-tion 291.

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292. Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, NewYork, 1915, p. 15, cited in Stowell, footnote 283, supra, at p. 55.

293. William Edward Hall, International Law, 4th ed., London, 1880,pp. 302-305, and pp. 307-308, cited ibid., p. 60.

294. Lassa Oppenheim, International Law, vol. I, 2nd ed., London, 1912,pp. 194-195, cited in Stowell, op. cit. p. 61.

295. Stowell, p. 62, fn. 14, citing Moore, footnote 291, supra, p. 208.296. Ibid., p. 63.

Stowell quotes with approval Borchard who, while asserting theexistence of certain minimum rights for all individuals under inter-national law, observes :

“This view, it would seem, is confirmed by the fact thatwhere a state under exceptional circumstances disregards cer-tain rights of its own citizens, over whom presumably it hasabsolute sovereignty, the other states of the family of nationsare authorized by international law to intervene on the groundsof humanity.” 292

Stowell notes that William Edward Hall 293 does not approve ofhumanitarian intervention, but recognizes that the weight of author-ity and State practice are at variance with his view. In view of thepossibility of frequent abuse, a right to humanitarian interventionshould only be recognized when “the whole body of civilized stateshave concurred in authorizing it”. Similarly, although the “original”Oppenheim expressed doubts about the legality of humanitarianintervention, he did concede State practice to the contrary 294.

According to Stowell, it is possible to conceive of a doctrine of“international nuisance” built upon the analogy of the common lawright to remove a nuisance, to justify humanitarian intervention. Hecites J. B. Moore : “there existed in Cuba conditions so injurious tothe United States, as a neighboring nation, that they could no longerbe endured. Its [US] action was analogous to what is known in pri-vate law as the abatement of a nuisance.” 295 But Stowell disagreesthat US intervention could be described as “humanitarian”. TheUnited States could have waited longer. US intervention was simplyin defence of American interests 296.

Stowell identifies seven reasons, based on his interpretation ofcontemporary State practice, invoked in justification of humanitarianintervention :

— Persecution.— Oppression.


297. Ibid.298. Ibid., p. 86. Stowell categorizes this as an instance of intervention in

defence of self-determination.299. Ibid., p. 127.

— Uncivilized warfare.— Injustice.— Suppression of the slave trade.— Humanitarian asylum.— Protection of foreign commerce.

2.2.3.1. Persecution

Stowell cites as an example of intervention to prevent persecutionof nationals of another country the French occupation of Syria in1860-1861. The French intervened in Syria to prevent religious per-secution as Turkey as the territorial sovereign could not. But thiswas based on a Protocol of 1860 signed by France, Turkey, theUnited Kingdom, Russia and Germany. Turkey was in fact forced tosign this. Stowell also refers to the persecution of Jews in Romaniaand Russia, and Armenians in Turkey, and the diplomatic interven-tions by the United States, the United Kingdom and France 297.

2.2.3.2. Oppression

Stowell refers to the US diplomatic intervention in Irish affairs in1948 as an example 298. In 1830 when the Poles rose in revolt, theRussians suppressed the revolt brutally. The United Kingdom andFrance, even if, mildly, protested against the oppression.

2.2.3.3. Uncivilized wars

Violations of laws and customs of war particularly during civilwars may call for intervention by foreign powers. An example wasthe collective intervention of the United Kingdom, France and Russiain the civil war in Greece in 1827. In 1875 and 1876, the Balkanswere in turmoil. The British agent described Turkish outrages inBosnia, Herzegovina and Bulgaria as “the most heinous crimes thathad stained the history of the century” 299. The French and the Ger-man consuls in Salonica had been murdered. Servia and Montenegrowere up in arms. Russia, Austria and Germany decided to intervene,

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300. Ibid., 137-138.301. Ibid., p. 154 : “In many instances the great and highly civilized states

have interposed to assure for their nationals a better treatment than certain back-ward states were according their own nationals.”

302. Ibid., p. 162 : Stowell refers to two instances : (1) concurrent representa-tions made by the United Kingdom and the United States to Belgium during1906-1909 on behalf of the aborigines in the Congo (Stowell, p. 179), (2) US-UK representation to Peru against Putumayo atrocities (including bonded labourand slave trade) on “mild, docile, inoffensive and childlike” Indian tribes (sodescribed in a 1912 report of the American representative to his government —Stowell, p. 191) in the rubber districts of Peru in 1907-1913 — when the matterwas revived by the British with the Americans in 1913 after a visit on the spotby the US and UK consuls together (p. 195),

“For some reason not stated in the correspondence, the US Department ofState at that time was unwilling to cooperate with Great Britain in under-taking a humanitarian intervention which would have had a salutary effectupon Peru and other countries which, in violation of international law, con-

produced the Berlin Memorandum on 13 May 1975, and asked theUnited Kingdom, France and Italy to join in. But the Disraeli gov-ernment in the United Kingdom refused to participate. Encouragedby the UK moral support, the atrocities against Christians continued.In July 1876, Servia and Montenegro declared war on Turkey. AndRussia mobilized troops along its borders with Turkey. The greatpowers met again in London and drew up a proposal for Turkey tofollow, but the United Kingdom made a reservation, following whichTurkey did not accept the London Protocol. Russia declared war onTurkey. It cited the atrocities on Christians and refusal by Turkey toaccept the reform proposals as the reasons for the war. The UnitedKingdom of was course critical of Russia for not allowing more timeto Turkey, and for not consulting other powers in the Concert ofEurope. Bulgarian atrocities brought Gladstone out of retirement ; inthe next elections Disraeli got defeated.

In 1849, Sicily revolted against the Crown of Naples, and the kingof Naples despatched armed forces to Messina and Palermo. Thebombardment of the two towns was followed by widespread acts ofviolence and cruelty. The French and the English fleets intervenedand forced an armistice 300.

2.2.3.4. Injustice

This is a broad ground that includes “extraordinary crimes” suchas cruel regicides, persistent abusive treatment, violations of con-stitutionalism, refusal to grant favoured treatment for aliens 301, andtreatment of aborigines 302.


done and protect the perpetrators of atrocities upon defenseless aborigines.”(Stowell, p. 195.)

The atrocities on the aborigines were the cumulative result of criminal negli-gence of Peruvian and British concerns involved in the rubber trade and con-trolled the district, with total government apathy).

303. Ibid., p. 200.304. Stowell, pp. 203-204.305. Ibid., p. 205.306. Ibid., fn. 96.

2.2.3.5. Slave Trade

Stowell cites two instances of intervention. (1) In 1862-1864 theBritish Government intervened to prevent the importation into Peruof Polynesians as labourers under conditions of extreme cruelty andslavery by the traders and plantation owners by launching expedi-tions into the Polynesian islands. The Peruvian Government under-took to stop the practice 303. (2) In 1888-1889, Britain and Germanyinstituted a pacific blockade of the coasts of Zanzibar, generallystated to have had the purpose of preventing the exportation ofslaves. However, what really happened was that there was a rebel-lion against the Sultan’s authority, under the influence of the slave-dealers, and that Britain and Germany decided to assist the Sultanand mount the blockade along the coasts of his continental domin-ions in order to cut off the importation of munitions of war to theinsurgents and incidentally to put a stop to the exportation ofslaves 304. The legal basis of war derived from the Act of Brussels,relative to the African Slave Trade 1890.

2.2.3.6. Humanitarian asylum

Stowell notes that asylum was one of the means of carrying outhumanitarian intervention 305. He recognizes two possibilities 306 :(1) Fugitive slaves — In 1876, British public opinion was stirredon learning that the British naval officers had been instructed toreturn to the local authorities a fugitive slave seeking asylum ina ship under the British flag. The Disraeli Government appointeda Royal Commission on Fugitive Slaves that recommended a widediscretion to the naval officers, but said

“In the exercise of this discretion, the officer should beguided, before all things, by considerations of humanity. When-ever in his judgment humanity requires that the fugitive should

126 V. S. Mani

307. Ibid., p. 210, quoting from UK Parliamentary Papers, 1876, Vol. 28,Report of the Royal Commission on Fugitive Slaves, p. xviii. There was, how-ever, a dissenting view of three Commissioners, Sir Robert Phillimore, ProfessorMountague Bernard and Sir Henry S. Maine, but the majority of the Commis-sion did not agree with it, because, according to it, that view was “neither prac-tical nor desirable”. For, even if Britain did not recognize slavery, a British shipvisiting a foreign coast must respect the local law. The eminent dissenters feltstrongly that the officer who gave an asylum to a fugitive slave would violateneither international law nor the local law to which he could not be consideredto be subject. The dissenters observed, inter alia :

“Where the execution of the local law would be plainly repugnant tohumanity or justice, the sovereign with whose commission the ship sailscannot reasonably be held bound to instruct his officers to enforce the law,or permit it to be enforced, on board of her. He may rightly instruct themnot to enforce it there, and not to permit it to be enforced.”

The dissenters said further :“It is a general assumption, on which governments must habitually act,

that the laws of civilized states, framed to secure public order and privaterights, will not so operate as to be in conflict with humanity or justice. . . .Where British subjects are interested, this country deems it no infringementof an international obligation to insist, against the local law, on its ownview of what justice or humanity demands, and even, if need be, to exactredress by force. Where no British interest is involved, the British Govern-ment has the right to say at least that the authority delegated by it to its offi-cers shall not be used to do what is plainly inhuman or unjust.” Stowell,pp. 213-215.

308. Ibid., p. 242.309. Ibid., p. 243.

be retained on board, as in cases where the slave has been, or isin danger of being, cruelly used, — he should retain such fugi-tive.” 307

(2) Political Refugees — In August 1848, the Duke of Parma, whoselife was threatened, was received at Civita Vechia in Italy on aBritish warship Hecate. The same month, the British admiral orderedHMS Bulldog to the same port to receive the Pope, should the com-mons render it desirable for the Pope to seek refuge on board. Dur-ing the revolution in Greece in 1862, King Otho and his queen weregiven protection on the British frigate Scylla, while a member of hiscabinet and his family, on another British vessel, the Queen, and sev-eral persons were sheltered on the French warship Zenobie 308. Dur-ing the Franco-German war of 1871, Britain was again ready tocarry the Pope safely to England. Had the Pope accepted the offer, itwould have resulted in an intervention “to prevent any danger to theperson and dignity of the head of the Roman Catholic Church” 309.On the other hand, US policy has been not to exercise a right togrant asylum, but to give, in appropriate cases, temporary resi-


310. Ibid., p. 248.311. Ibid., p. 252.312. Ibid., pp. 258-269.313. Augustus Granville Stapleton, Intervention and Non-Intervention : or,

the Foreign Policy of Great Britain from 1790 to 1865, J. Murray, London,1866, pp. 265-266. See Stowell, p. 276.

dence/shelter 310. Soon after the disturbances in Vera Cruz in 1912,the Mexican federal forces moved in and suppressed the rebels andtook into custody General Diaz. A year later Diaz and two of hisfriends sought asylum on board the US warship the Wheeling. TheSecretary of State Bryan advised the Secretary of the Navy that inconformity with the US policy of not claiming a right of asylum inits legations and vessels, Diaz and friends could only be grantedtemporary refuge, until they found another ship to take them awayfrom Mexico 311.

2.2.3.7. Foreign commerce

Stowell identifies three categories of situations for application ofintervention to protect foreign commerce : (1) Regulation of ForeignShipping — Legislative enactments to compel foreign States toadopt for their vessels regulations to protect the lives of passengersand guarantee the humane treatment of all seamen. The British Mer-chant Shipping Act 1876 imposed a heavy penalty on a ship, whetherBritish or foreign, for violating the law. The American Seamen’s Actof 1915 followed suit. (2) Denial of Transit in violation of local law.Such a right was provided in the US Prohibition Act, but this wasreviewed in the light of protests from the United Kingdom and Italy.(3) Prohibition of entry — The same American prohibition lawauthorized such prohibition of foreign ships 312. Stowell also citesStapleton who argued against permitting slave-grown sugar fromCuba at par with sugar from “our West Indian colonies” — whichhad ruined “our” colonies — to enter English markets 313.

While Stowell is entitled to interpret the traditional law as hefinds it — one may or may not agree with him —, one finds that heseems to rely on quite a mix of State practice of the nineteenth cen-tury, part of which involving actual use of force, part not involvinguse of force, and still a part relying on treaty rights. On issues likeslave trade, one doubts whether it should be considered a valid Statepractice when a State seeks to prohibit slave trade, although not longago it was itself an active participant in promoting slave trade. Is it

128 V. S. Mani

314. Such policy of exclusion of the views of the scholars from developingcountries on the part of a majority of the Western scholars is still very muchprevalent to this day. A look at most scholarly works from the West suffices toprove this point. There indeed is an attitude of academic apartheid among mostwestern “scholars”.

315. Carlos Calvo, Le droit international théorique et pratique, Vol. I, 5thed., 1896, Arthur Rousseau, Paris (1st ed., 1868), at pp. 266-267.

316. Ibid., pp. 278-279.

that the old freedom of commerce in slaves has now given place toprohibition of slave trade (that had at any rate reached a point of satu-ration) ? If so should not similar changes be recognized in allaspects of international law ? Further, practice of how many States isneeded to establish or change a rule of law ? Evidently, Stowell, likemany other publicists, has been eclectic in his reliance of practiceof some States (rather than others) to give rise to legal rules onthe international plane.

2.2.4. Legal prohibition of intervention

During the heydays of the “Euro-centric” traditional internationallaw, there, indeed, were a few strong dissenting voices heard fromthe Latin American continent. Carlos Calvo of Argentina stands outas a consistent critique of that law, often totally ignored in the West-ern literature on international law 314. In his celebrated book on inter-national law, Calvo deals with Intervention in the context of “Inde-pendence and Conservation (Preservation) of States”. He asks thequestion squarely : “But if independence of States and the rights thatflow from it are absolute, on what principles shall one base theinterventions ?” 315

After examining the opinions of publicists like Heffter, Grotius,Vattel, Fiore, G.-F. Martens, Wheaton, Kluber, Kant, Bello, DeCussy, Creasy, Travers Twiss, Phillimore, Bluntschli, Guizot, Arntz,H. Strauc (who in varying degrees recognized intervention as justifi-able), Seebohm, Rossi, Woolsey, Wolff, Verge, Casanova, CarnazzaAmar, De Laveleye, Funck Brentano and Sorel (favouring non-inter-vention), the conclusion that Calvo arrives at is that there is a con-siderable divergence of opinions among the publicists on the issue.Some approve of intervention, others condemn it, and repudiate it ;some consider it as a right, some attribute to it the idea of a duty ;others recognize it as a simple fact of international life, some “abrutal fact, having its place in history, born of certain necessitiesand reborn in certain identical circumstances” 316.


317. Ibid., p. 279.318. Ibid., p. 135.319. Ibid., p. 348.

Calvo’s considered view is :

“Right or duty, no author has furnished us with tenable pos-tulates on the basis of which one can base fixed or preciserules. . . . The multiplicity of appreciations that they presentand the divergence that we see indicated in their opinions, suf-ficiently demonstrate the difficulty that presents itself to thepurely theoretical discussion of the right of intervention.” 317

Calvo refers to a letter by Lord John Russell to The Times of2 September 1876. The letter said, no one dare

“recommend to our ambassador to Berlin or at Saint-Petersburgto intervene in the administration of justice in Prussia or inRussia. But Turkey is one exception to all the diplomatic rulesthat govern our relations with foreign powers.” 318

So, there was the principle of non-intervention governing relationsbetween Britain and other foreign powers, but excluding Turkey.(While Calvo was not interested in probing deeper, one could in thesame vein ask the question : Why this exception ? A historical hang-over of Crusades ? Or was it that intervention could come handy tohelp the “Sick Man of Europe” to keep his date with destiny, soonerrather than later ?)

After examining a number of European interventions in LatinAmerica, Calvo remarks : “it is impossible to discover one soleserious and legitimate reason that can justify to a certain pointthese European interventions in the internal affairs of America” 319.Indeed, he ought to know this — he belongs to that Continent.

A comprehensive evaluation of a large number of instances ofinterventions in the seventeenth and eighteenth centuries leads Calvoto conclude :

“From the historical exposé of intervention and the doctrinesdeveloped by the interpreters of international law, it results thatintervention as well as non-intervention have been consideredas principles of the law of nations ; the discussion staysuniquely on the question which of the two is the rule. . . . [Withthe exception of relations of the European powers with

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320. Ibid., p. 351.321. Ibid.322. Yearbook of the International Law Commission, 1949, Vol. I, pp. 91-92.

Turkey], the system of non-intervention appeared generally toprevail in the political relations of States between them.” 320

Calvo clarifies that the principle of non-intervention does notexclude “the right of nations to appeal for help from other states . . .for defending their independence or for retrieving their autonomyfrom under a foreign domination” 321. This is concomitant of theprinciples conditioning the independence and conservation of States.Calvo feels that the principle of non-intervention is fundamental andcritical in assuring the independence and conservation of States,insulating them from the policies of aggrandizement followed by bigpowers.

While participating in the debates of the International Law Com-mission on Article 5 (the duty of non-intervention) of the draftDeclaration on the Rights and Duties of Sates, Jesus Maria Yepes ofColombia said that the Latin American position with regard to inter-vention was the result of events which had taken place during thenineteenth century and the first three decades of the twentieth cen-tury. During that period, the Latin American countries had been thevictims of a series of unilateral and unjustified interventions by alarge number of European nations and by the United States. Hequoted as an example the intervention by France and the UnitedKingdom in Argentina and Uruguay ostensibly for the purpose ofprotecting their nationals and the peaceful blockade of Venezuela bythe United Kingdom in 1902. He also mentioned the United Statesintervention in Mexico in 1836, 1845, 1848 and 1849, which had ledto an unjust war during which Mexico had lost some of its richestprovinces. That intervention had been carried out in the name of thedoctrine of “manifest destiny” 322.

Reflecting a similar view, Vladimir M. Koretsky, the first memberof the former Soviet Union in the International Law Commission,while participating in the same debates, pointed out :

“Non-interventionist principles had always been supportedby the smaller countries. Nevertheless, some sixty years earlierin the 1890’s Burgess had contended that it was the duty ofAnglo-Saxons to establish law and order wherever the people


323. Ibid., pp. 70-71.

native to an area were unable to do so. In the interests of civi-lization it was therefore the duty of the Anglo-Saxon to inter-vene in the international affairs of a nation or a people so thatlaw and order would reign supreme ; intervention and the use offorce were therefore completely justified.” 323

What emerges from the above analysis of State attitudes and prac-tice of the sevententh-nineteenth centuries as interpreted by diversepublicists is that no clear authority existed even in traditional inter-national law to anoint a right or duty of “humanitarian” interventionas a legal right or a duty. If anything, “humanitarian” interventionhas been resorted to by the big powers as an opportunistic policy,mainly in pursuit of their respective national interests and foreignpolicy goals. There has been rampant abuse of the policy, and henceAmos’s strong suggestion that such external interventions must inprinciple be collective, a collectivity of States — by this suggestion,he in fact raises the issue of who shall have the authority to decideand ensure proper application of “humanitarian” intervention.Indeed, he lived at a time when there existed no international organi-zation of a global character, mandated with global jurisdictionalcanvas and global functions, but had to rest content with what besthe could do with the then prevalent international system. Nor did hehave to worry about the contemporary issue of how broad-based theso-called “collectivity” of the intervening States should be, in viewof the repetitive performances of “collective unilateralism” — a“coalition of the willing” clustered around or at the instance of thesole surviving superpower.

2.2.5. Implications of traditional doctrines for traditional interna-tional law

The burden of this chapter is two-fold. First it endeavours toexamine the diverse prominent philosophical strands in the ancientcivilizations such as those of Asia, the Islamic and Christian tradi-tions on the justifiability of war and circumstances justifying it. Evi-dently, the predominant concern of these strands has been to circum-scribe the otherwise unrestrained “right” of States to go to war in theunruly international state of nature and hence the “just war” doctrine

132 V. S. Mani

as initially conceived. However, in the context of religious rivalriesafter the rise of Christianity and Islam, the term “just war” receiveda pre-eminent religious tenor and colour. Slowly, however, after theonset of the Westphalian system of sovereign States, a regime ofinternational law and relations came into existence in Europe. Thisinitiated a process of secularization of State system and the rulesgoverning it, thus secularizing the just war doctrine as well limitingthe right to go to war to circumstances justifying self-defence,response to an injury or for humanitarian reasons.

A second focus of this chapter has been to examine the responseof traditional international jurisprudence and State practice to suchlimitations. The study in the process reveals three major doctrinalresponses, one recognizing the continued relevance of the traditionallimited justifications for war, including the right to intervene for“humanitarian” reasons, a second denying international law any roleat all to decide on issues of permissibility of such interventions, anda third, a typical Latin American assertion of an absolute principle ofnon-intervention. On the other hand, the State practice — the prac-tice of the great powers — was essentially one of open exhibition ofdisdain to any constraining legal rules, even when sometimes theysought at times to justify an intervention on moral or humanitariangrounds. Thus the cumulative effect of such a situation in the tradi-tional international law was that while States resorted to unilateralinterventions, the law was ambivalent on their legality — such prac-tice of powerful States did not necessarily establish any categoricalrule in favour of humanitarian intervention. But this was only to beexpected of the seventeenth, eighteenth and nineteenth century sys-tem of international relations, where the relations between Stateswere rather rudderless and the Concert of Europe of great powerspresided over the affairs of the world, giving no voice to smallerpowers. The relations between great powers themselves were dic-tated by considerations of power equilibrium (alternating betweenpolicies of non-intervention and interventionism), where law had norole to play, nor did the international relations of that era provide anymechanism in the nature of international organization to ensureinternational public censor.


CHAPTER III

RESPONSE OF THE CONTEMPORARYINTERNATIONAL LAW

The response of the contemporary international law is examinedprincipally in terms of the evolution of international institution as anew actor sui generis on the international plane, the normative orderof the United Nations (the global institution par excellence) andmodern international law, peremptory norms of modern internationallaw, and the challenge of the new doctrines of “humanitarian” inter-vention.

3.1. The United Nations as an Actor in International Relations

The role of the United Nations will be examined in terms of (1) adoctrinal perspective on international institutions as a genre, (2) theemergence of the United Nations as a watershed in the historicalprocess of the evolution of international organization.

3.1.1. International institutions : a doctrinal perspective

The doctrinal perspective herein attempted encompasses twofacets, namely, the process of international organization in the con-text of plurality of competing forces, both centrifugal and centri-petal, and the nature and extent of “autonomy” that the internationalorganization enjoys.

3.1.1.1. Organizing in the vortex of plurality of competing forces

It is axiomatic that the process of international organization beganwith the onset of the sovereign State system. Kant, we have seen,has advised us that the progress from the international state of natureto a state of perpetual peace is not necessarily the establishment of aworld State, but a realization of peaceful coexistence of States andco-operation in mutuality of interests striving towards a condition ofhuman welfare, both nationally and internationally.

In view of the fact that the contemporary State system has itsroots in Europe rather than the ancient civilizations of Asia, Africa

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324. In some ancient civilizations, such as the Indian, it is difficult to saywhether the transformation took place precisely in this order. There is evidenceto show that even during the Vedic period, powerful kingdoms coexisted withindependent republican States (or at least communities) some of which appear tohave enjoyed some degree of democratic governance. See, e.s., A. S. Altekar,State and Government in Ancient India, Motilal Banarsidass Pub, Delhi, 1949,1997 reprint, Chap. VI, “Republics”, at pp. 109-138.

or Latin America, the seeds of this system alongside those of inter-national organization were sown in the Peace of Westphalia 1648.“International constitutionalism” in terms of formal institutionalmechanisms, however, took shape much later, in the form ofbilateral, regional and international institutions.

Constitutionalism within a national community is generally iden-tified with a pyramidal normative and institutional, usually formal,structure of governance. The structure might have evolved over timecorresponding to the demands of a community in search of a systemof governance mandated to provide it and its individual membersrelative safety and security from forces inside and outside it. Soon,even as such communities continued to subsist, or changed andregrouped seeking to find some common identity of their respectivemembers, such as nationhood, the mandate of the structure of gover-nance transformed — it now focused on human welfare throughsocial welfare. This dominant expectation of welfare from gov-ernance caused havoc in most communities. Monarchies and dicta-torships were overturned and some communities began to practisedemocracies 324. Over time States expanded territorially, broke up,regrouped, often gave way to new States, new forms of governance.

As in a community of individuals, the international community ofStates constantly experiences a tension between certain centripetaland centrifugal tendencies. The tension is dictated by the multipleinteractions between the plurality of interests within a national com-munity and the plurality of interests transcending national bound-aries at different levels. Basic to staying together of a national com-munity is the collective decision to pursue consensually selectedcommon goals through a consensually evolved system of gover-nance that by and large recognizes the right of self-determination ofthe people. The bulk of the individuals recognize that the right ofself-determination of each of them must be subsumed in the collec-tive right of the community. The integrity of the process and institu-tions of governance is a function of that recognition. It is a functionof faith of the individuals on the achievement of their right of self-

determination through achievement of collective good. However,there is always an operational gap between the normative and insti-tutional structure of governance and the level of social and humanwelfare resulting from this structure. There is an on-going tensionbetween the norm and its realization on the ground. Should the pro-cess of tension cross a threshold point, the trust of the individuals onthe community institutions and norms breaks down, and “chaos” fol-lows, regrouping of individuals takes place, another attempt at estab-lishing a new normative and institutional order of governance takesshape. The process goes on.

What are these centripetal and centrifugal tendencies in a commu-nity that play havoc with the normative and institutional structuresof governance ? At the outset, it must be recognized that it is difficultto characterize for all time to come any tendency as “unifying” or“divisive” per se. A feature of federalism, for instance, couldpreserve the integrity of a nation at one point in time, but couldcontribute to its breakdown at another. Indeed, these forces changeresponding to time and space.

The above perception of the dynamic tension between centripetaland centrifugal tendencies is in fact more easily demonstrable inrespect of the nature and functioning of international institutions,whether intergovernmental or non-governmental. All internationalinstitutions, both intergovernmental and non-governmental, reflect alevel of crystallization of the forces in the international communitythat promote creation of varied levels of formal institutional frame-works. The progression from informal set-up to a formal institutionalmechanism is typified by the Commonwealth which in 1965 decidedto set up some skeletal administrative set-up giving it some sem-blance of an institutional form. So has been the case of the SouthAsian Association for Regional Co-operation (SAARC). Such insti-tutions illustrate the pronounced hesitation of national communitiesto evolve formal institutional mechanisms to steer their commonoperational projects. Indeed, all this represents a stage in the processof international organization, a process whereby certain goal valuescommonly shared by the members of the international communitydictate expression through formal institutions. Quite possibly, thepresent State system must have undergone a similar, if not the same,process of consolidation — or at least coincidence of interests ofindividuals and groups over millennia. The loosely knit 13 colo-nies eventually became the United States, in spite of the fact that

136 V. S. Mani

some of the participants at the 1789 constitutional convention atPhiladelphia did at that time find that they were in a “strange land”.The progress of constitutionalism in America further integrated thecountry giving American nationalism a new identity and thetraumatic experience of the Civil War further cemented the inter-individual and inter-State bonds.

3.1.1.2. International institution as an “autonomous” actor

The above perception of international institutions informs theirperformance in the global scenario. A global international organiza-tion, such as the United Nations, evidently underscores in a largemeasure the nature and structure of the international “community”and the problems it faces in evolving generally agreed world ordergoals, and the institutional frameworks through which it seeks toachieve those goals. At least three points of perspective may bemade here. First, in a world of sovereign States, neither the UnitedNations (or for that matter any international organization) nor theregulatory framework it seeks to implement can truly beautonomous. Sovereign equality, peaceful co-existence, good faithand international co-operation are no doubt at the foundation ofinternational law and organization. In a generally understood legalorder, legal norms prompt compliance and behavioural restraint onthe part of the subjects mainly in two ways : one, by a sense of dutyto comply, or, two, by a cost-benefit (expectation of advantage or thedetriment of punishment) analysis of compliance/non-compliance.As a general rule, both forms of restraints are rudimentary amongthe members of the international community. And they are as goodas being absent in situations of self-defined “vital” interests of mem-bers, particularly those of the more powerful ones. As Hoffmannpoints out,

“The trouble with international law [and, we may add, withinternational organization] is, each time the more importantinterests of the members are in play (1) that the nature of thegroup rules out the first form of constraint, for . . . the interna-tional milieu cannot practice the ethics of law alone ; it has, atbest, to find a compromise between those ethics and the ethicsof combat, between Kant and Machiavelli. Only a group inwhich violence is effectively outlawed can afford to be guidedby Kant alone ; (2) that the second form of constraint . . . does


325. See Stanley Hoffmann, “International Law and the Control of Force”, inKarl W. Deutsch and Stanley Hoffmann, eds., The Relevance of InternationalLaw : Essays in Honor of Leo Gross, Schenkman Publishing, Cambridge, Mass.,1968, pp. 21-46, at pp. 25-26.

326. See the Amnesty International Report of 1998 (United States of Ameri-can Rights for All 1998, pp. 2-3) castigating the United States for “a persistentand widespread pattern of human rights violations”. The report has been notedin Sean D. Murphy, “Contemporary Practice of the United States Relating toInternational Law”, American Journal of International Law, Vol. 99 (1999),pp. 657-659. In its first ever campaign against a Western country, the AI claimsthat the US authorities, notes Murphy, “failed to prevent repeated violations ofbasic human rights : the right to freedom from torture and cruel, inhuman ordegrading treatment, the right to life and the right to freedom from arbitrarydetention”. AI says the majority of the victims of custodial crimes “have beenmembers of racial or ethnic minorities . . .”. “US authorities persistently violate

not always coincide with the imperatives of international law[and organization], i.e., calculations of power and commands oflaw, instead of converging, tend to live on separate planes ;(3) that coercion — through ‘self-help’ — again has oftennothing to do with the enforcement of law.” 325

Hoffmann is in fact alluding to the volatile nature and level ofintegrity of international community core values. Thus the natureand effectiveness of both international law and organization are afunction of coincidence of wills of States, Gregory Tunkin said longago at the height of the Cold War. There is no guarantee for thestrength and stability of this state of coincidence. This conditions notonly the legendary gap between the normative order (the promise)and ultimate compliance (the voluntary performance) — a phe-nomenon obtaining in all legal order —, but also the “tentative”nature of “agreement” on both the form and substance of the inter-national normative order itself. States remain the final individualarbiters, at any point in time, to determine how much of power ofrestraint they consider themselves to have conceded to the worldorder. After all, they retain the vital functions of global governance,including “enforcement” of international norms they “agree” on.

Second, while State sovereignty has suddenly become a muchmaligned term in the West since the 1990s, the current Westerndebate points to only a partial story of absolutism and expansionismof the historically evolved concept of sovereignty in terms of abuseof State authority resulting in gross violations of human rights, par-ticularly in small States (the prevalent human rights deprivations insome of the great countries are, of course, not considered “gross”enough to render their sovereignty abhorrent 326), yet claiming pro-

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the fundamental human rights of people who have been forced by persecution toleave their countries and seek asylum.” IA report further says :

“International human rights standards exist for the protection of allpeople throughout the world, and the USA has been centrally involved intheir development. . . . While successive US governments have used theseinternational human rights standards as a yardstick by which to judgeother countries, they have not consistently applied those same standardsat home.”

For a critique of the first US report to the Human Rights Committee, see Upen-dra Baxi, “ ‘A Work in Progress ?’ — The United State Report to the UnitedNations Human Rights Committee”, Indian Journal of International Law,Vol. 36, 1996, pp. 34-53.

327. “The State has sovereign rights ; and those who manipulate it will toooften cause it to be used for the protection of existing rights. The two get iden-tified ; the dead hand of effete ancestralism falls with a resounding thud on theliving hopes of to-day.” Harold J. Laski, Studies in the Problem of Sovereignty,first pub. 1917, 1997 reprint published by Routeledge, London, New York,Chap. I on “Sovereignty of the State”, at p. 22.

tection under an absolutist concept of sovereignty. Without takingaway the human rights thrust of the debate (as there is some truth init : the very functional justification for a State’s claim to sovereigntyis its responsibility to strive for the welfare of its people), it must bepointed out that the question is not simply whether the Westphalianconcept of absolute sovereignty should cease to be acceptable. Infact, the so-called absolute sovereignty of small or weak countriesceased to be operational ages ago, ever since the Concert of Europe,ever since the great powers decided to run the world affairs the waythey wanted, with little or no regard for what the small States said orfelt. In other words, the sovereignty of the latter never mattered,whereas the sovereignty of the great powers subsumed and tran-scended that of the small countries in every situation in which thetwo came in direct conflict.

Viewed in terms of transnational interests of dominant groups inpower in these days of transnationalism, it is logical — even if,indeed, highly inequitable — that the transnational interests of thedominant groups in a powerful State should persuade those rulinggroups to utilize all the power available with the State machinery toprevail over other States 327.

Laski wrote during the 1930s :

“The sovereignty of the great state today is a technique forthe protection of its imperialism. That imperialism is the out-come of its own internal relations which, given the distribu-tion of effective demand within its boundaries, is driven to the


328. Harold J. Laski, A Grammar of Politics, 3rd ed., 1934, 1997 reprint,Routledge, London, New York, p. xxi.

329. Hence the propensity of the United States, the sole superpower, to uni-lateralism. A recent (yet pre-Iraq war of 20 March 2003) study identifies the fol-lowing issue areas in respect of which “US predilections for unilateralbehaviour” are the strongest over the years : international law, the UnitedNations, nuclear policy, international monetary co-ordination, and the environ-ment. On the issue of peacekeeping, the United States “vacillates between mul-tilateral and unilateral strategies”. In the area of human rights, the United Statesis a party to many multilateral human rights regimes, “although the US Senatequalified US commitments by attaching reservations”. “Moreover the UnitedStates remains outside several important human rights regimes.” See David M.Malone and Yuen Foong Khong, eds., Unilateralism and US Foreign Policy :International Perspectives, Lynne Rienner, Boulder, London, 2003, p. 422.

330. Speaking at a joint session of the US Congress on 13 October 1949,India’s Prime Minister Jawaharlal Nehru said :

“we have achieved political freedom but our revolution is not yet completeand is still in progress, for political freedom without the assurance of theright to live and to pursue happiness, which economic progress alone canbring, can never satisfy a people. Therefore, our immediate task is to raisethe living standards of our people, to remove all that comes in the way ofthe economic growth of the nation.” (Available at http ;//www.indianem-bassy.org/indu...us/nehru_congress_Oct_13_1949.htm.)

competitive search for markets abroad in order to realise profit.Its sovereignty is the protective armament of that adventure.The international law [and the international organization, onemight add] that it recognises is, therefore, always hamperedand frustrated by the logical requirements of imperialism.It cannot part with the control of any vital function, the scaleof its armament, the right to make war, its hold on coloniesand spheres of influence, its power over tariffs, currency,migration, labour conditions, because to do so is to threaten,internally, the relations of production its sovereignty exists tomaintain.” 328

Thus the sovereignty of great powers is one of “creeping” character,transcending their political or territorial boundaries, but dictated bythe interests of the dominant groups in those countries 329. It assertsitself, holding the entire world of small powers to ransom. The smallpowers today hold their sovereignty rather zealously for several rea-sons. One, most of them have emerged independent after a sustained,often bloody, freedom struggle. Two, now that they have won theirpolitical independence, they still have to continue fighting for theireconomic independence 330, including protection from the “creep-ing”, expansionist economic sovereignty of the great countries.Three, this struggle coupled with the urgency of economic develop-

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ment demands international co-operation, not predatory interference,from the developed countries, particularly the great powers.

Third, the small countries well realize that the modern concept ofsovereignty is issue-based. Hence their dependence on internationallaw and organization, not just for their own security, but moreimportantly because they need them as instruments conditioning andcatalyzing their development through international co-operation. Infact, the relevance of or dependence on international law and orga-nization are inversely proportionate to the military and economicmight of a State. The less powerful a State is, the more is its relianceon international law and organization. As Dag Hammarskjöld said in1960, it is the small powers which need the United Nations, not thegreat ones. In an interface between multilateralism and unilateralism,the unilateralism of the great powers holds sway, unless of coursethey decide to pursue a course of enlightened unilateralism. Some ofthe small countries may have failed to live up to the demands ofgood governance and realization of human rights, both of whichrequire considerable economic resources. However, the “more fortu-nate” members of the international community have on their partgrossly failed to live up to their commitments of international co-operation (Articles 55 and 56 of the United Nations Charter). Theirfailure to promote international transfer resources has been one ofthe principal contributory factors to occurrence of the phenomenonof “failed States” in the “developing” parts of the world. Havingpatently failed to live up to their Charter commitments, these power-ful States now resort to unilateral use of force on the ground of“humanitarianism”. Indeed, the label of “humanitarian intervention”has become a convenient façade for the powerful to pursue theirhegemonic goals in gay abandon. Thus, the sovereignty of thepowerful subsumes and is far greater than that of the weak.

An international organization founded on the vortex of thedynamic clash of sovereignties of great powers is also expected toplough through it, often surrendering itself to their mercy. Veryclearly, as Inis Claude Jr. remarked some years ago, it is a rudderlessship thrown into the troubled waters of history, commanded by asuccession of men, each of whom has his own idea of where to go.This is the principal phenomenon that conditions the transience ofcoincidence of State sovereignties, and often leads to a perception of“fragmentation” of the international system — the so-called “frag-mentation” of international law and international organization.


331. It is good to quote a celebrated antagonist of international organization,Hans J. Morganthau, Politics among Nations : The Struggle for Power andPeace, Scientific Book Co., Calcutta, Indian ed. of 4th ed., 1969, p. 264.

“By the end of the Thirty Years’ War, sovereignty as supreme power overcertain territory was a political fact, signifying the victory of the territorialprinces over the universal authority of emperor and pope, on the one hand,and over the particularistic aspirations of the feudal barons, on the other.”Morganthau, op. cit., p. 299.

332. See Leo Gross, “The Peace of Westphalia 1648-1948”, AJIL, Vol. 42,1948, pp. 20-41, also reprinted in Leo Gross, International Law in the TwentiethCentury, New York, 1969, pp. 25-46. See also Richard A. Falk, “The Interplayof Westphalia and Charter Conception of International Legal Order”, in CyrillBlack and Richard A. Falk, The Future of International Legal Order, PrincetonUniversity Press, Princeton, NJ, 1969, Vol. I, pp. 32-70.

333. The Treaty of Westphalia (Osnabruck), 24 October 1648, chapeau.334. E.g., the dispute settlement mechanisms, predominantly arbitration tri-

bunals under the Jay Treaty, 1794, between the United States and Britain.

3.1.2. Emergence of the United Nations

The process of international organization began with the estab-lishment of the sovereign State system in the seventeenth century. Itis customary to accept that if a historical benchmark is sought totrace the origin of the contemporary international organization, it isthe Peace of Westphalia, 1648. It is generally recognized that thePeace of Westphalia “brought the religious wars to an end and madethe territorial state the cornerstone of the modern state system” 331.Strange as it may seem, it simultaneously embodied the seeds of thefuture international organization 332. The European powers that signedthe Peace swore “In the name of the most holy and individual Trinity”,that they had been driven by “Thoughts of universal Peace” 333,first gave rise to bilateral institutions, such as those for settlement ofdisputes concerning rivers, boundaries and private claims 334.

On the international plane, there have been three strands ofdevelopments. First was the development of functional internationalorganizations like the Universal Postal Union and the InternationalTelegraph Union (which in 1935 became the InternationalTelecommunication Union). The Westphalian system, recognizingthe principle of equality of sovereign States, was soon superimposedby the Concert Europe system. If the former found expression ininternational gatherings like the Hague Peace Conferences, the latterdominated the affairs of Europe and the world — it even partitionedAfrica, sitting in Berlin in 1885. Both these trends produced the twoprincipal organs of the League of Nations and later the correspond-

142 V. S. Mani

335. Some of the materials used for this part are drawn from V. S. Mani, “SixDecades of the United Nations — An Indian Perception”, Indian Journal ofInternational Law, Vol. 44, 2004, pp. 1-74, at pp. 2-9.

ing organs of the United Nations, the General Assembly and theSecurity Council.

The United Nations is the prime example of a modern interna-tional intergovernmental institution. Christened by President F. D.Roosevelt of the United States as “The United Nations Organiza-tion” at its inception, it lost the last word, “Organization”, some-where down the road. Did this anticipate what was to come over theyears ? Did the United Nations end up being merely a “standing con-ference of States”, now only to be a “plaything” at the hands of thepowerful ? In which case, what “advance” did it make, except havingacquired some fixed assets in Geneva, Vienna, Bangkok and suchother places, besides of course New York ? Or is it an organizationthat “now you see and now you don’t” ? Indeed, it is a mix of real-ism and idealism at once. It is an association of States whose rulingelites may or may not represent the vast majority of the people intheir respective nations. Article 1 (4) of the UN Charter (“the Con-stitution for the international community” ?) perceives its role to pre-eminently lie in being a centre for harmonization of national action.Has it been able to fulfil this “minimalist” role ? Or do the otherobjectives laid down in Article 1, such as maintenance of interna-tional peace and security and protection and promotion of humanrights, tend to impose on it a larger-than-life role, as it were, to stepinto the role of an international humanitarian intervener ? Theanswers perhaps lie in understanding the nature of the UnitedNations and its day-to-day response to the currents and cross-currents of international relations 335.

3.1.3. The United Nations : a mix of idealism and “realism”

On the opening day of the San Francisco Conference on Interna-tional Organization on 25 April 1945, President Harry S. Truman ofthe United States reminded the participating national delegations oftheir mission :

“You members of this Conference are to be the architects ofthe better world. In your hands rests our future. By your laborsat this Conference, we shall know if suffering humanity is toachieve a just and lasting peace.


336. http://www.trumanlibrary.org/whis.../large/sf_conference/un_sf7-1.htm.337. Available at the Yale Avelon Project, “A Decade of American Policy”,

wysiwyg;//13http;//www.yale.edu/ lawweb/avalon/decade/decad029.htm.

We must make certain, by your work here, that another warwill be impossible . . .

With ever-increasing brutality and destruction, modern war-fare, if unchecked, would ultimately crush all civilization. Westill have a choice between the alternatives : the continuation ofinternational chaos or the establishment of a world organizationfor the enforcement of peace.

It is not the purpose of this Conference to draft a treaty ofpeace in the old sense of that term. It is not our assignment tosettle specific questions of territories, boundaries, citizenshipand reparations.

This Conference will devote its energies and its labors exclu-sively to the single problem of setting up the essential organi-zation to keep the peace. You are to write the fundamentalcharter.” 336

The leader of the mightiest nation then said :

“While these great states [‘which had to muster the forcenecessary to defeat the conspiracy of the axis powers to domi-nate the world’] have a special responsibility to enforce thepeace, their responsibility is based upon the obligations restingupon all states, large and small, not to use force in internationalrelations, except in the defense of the law. The responsibility ofthe great states is to serve, and not to dominate the peoples ofthe world . . . The essence of our problem here is to providesensible machinery for the settlement of disputes amongnations. Without this, peace cannot exist. We can no longer per-mit any nation, or group of nations, to attempt to settle theirarguments with bombs and bayonets.”

The presidential Proclamation of the United Nations Charter andStatute of the International Court of Justice issued by Truman on31 October 1945 proclaimed and made public the UN Charter andthe ICJ Statute “to the end that the same and every article andclause thereof may be observed and fulfilled with good faith, on andfrom” 24 October 1945, “by the United States of America and bythe citizens of the United States of America and all other personssubject to the jurisdiction thereof” 337.

144 V. S. Mani

338. GAOR, 1st Plenary Mtg., London, Thursday, 10 January 1946, at pp. 40-41.

339. Ibid., p. 42.340. Prime Minister Nehru at the UN General Assembly, 3 October 1960.

Available at http://www. Indianembassy.org/policy/Disarmament/disarm4.htm.

Addressing the inaugural plenary meeting of the UN GeneralAssembly in London, British Prime Minister Clement Atlee, empha-sized on the rule of law in world affairs and asserted :

“The United Nations Organization must become the over-riding factor in foreign policy.

. . . [G]reat nobles and their retainers used to practice privatewar in disregard of the authority of the central government. Thetime came when private armies were abolished, when the ruleof law was established throughout the length and breadth ofthis island.

What has been done in Britain and in other countries on asmall scale has now to be effected throughout the wholeworld.” 338

Atlee also underscored the fact that “the constitution of the newOrganization is essentially realist in that it provides for the sanctionof force to support the rule of law” 339.

However, the drafting of the UN Charter was pre-eminently anexercise of down-to-earth people wedded to the national intereststhey represented. Thus, although “[t]he United Nations took birthon a note of high idealism embodied in the noble wording of theCharter”, Pundit Jawaharlal Nehru, independent India’s first PrimeMinister, remarked on the floor of the General Assembly in 1960 :

“there was also a realization of the state of the post-war worldas it was. Therefore, provision was made in the structure of theorganization to balance certain conflicting urges. There werepermanent members of the Security Council and there was pro-vision for unanimity amongst the great powers. All this was notvery logical. But it represented certain realities of the world asit was and because of this, we accepted them.” 340

Although India is recognized as a “founding member” of theUnited Nations, the Indian delegation that participated in the SanFrancisco Conference on International Organization (UNCIO) didnot represent the voice of the independent India — independence


341. More on this, see M. S. Rajan, “India and the Making of the UN Char-ter”, International Studies, New Delhi, Vol. 12, 1973, pp. 430-461, at pp. 434-435. Mrs. Vijayalakshmi Pundit (Nehru’s sister, and a future — 1953 — Presi-dent of the General Assembly) denounced the British-appointed Indiandelegation at the venue of the Conference as lacking “the slightest representativecapacity”. Rajan, op. cit., Professor Rajan also wrote a sequel to this essay. Seehis “India and the Making of the UN Charter-II”, International Studies, Vol. 36,1999, pp. 3-16.

342. Jawaharlal Nehru’s speech on the All India Radio, 7 September 1946,The Hindu (Madras), 9 September 1946, reprinted in Surjit Mansingh, ed.,Nehru’s Foreign Policy, Fifty Years On, India International Centre & MosaicBooks, New Delhi, 1998, pp. 19-24, at p. 21.

343. There are many in India who describe Nehru as an idealist, and hence blame him for taking the Kashmir issue to the UN Security Council in1947, without adequately assessing the implications of Cold War politics thatbedevilled the functioning of the Council at that time.

came only in 1947 341. In fact, the world representation in theUNCIO was still grossly lopsided. Of its original 50 members,17 were from Europe, North America and Oceania, 20 were LatinAmerican countries, 9 Asian and 4 from Africa (of which one hadthe White minority government). Did the UN Charter evolved in1945 truly reflect the aims and aspirations of the vast unrepresentedmultitudes of peoples of Asia and Africa then under the colonialyoke ?

Be that as it may, many of the ideals embodied in the UN Charterwere largely shared by the people of India and the rest of the devel-oping world — freedom and human dignity, peace, international co-operation, and an equitable international economic and social orderof human welfare. Making his first radio broadcast, as the Vice-President of the Interim Government of India, Jawaharlal Nehru, thearchitect of the independent India’s foreign policy, proclaimed :

“We believe that peace and freedom are indivisible and thedenial of freedom anywhere must endanger freedom elsewhereand lead to conflict and war. We are particularly interested inthe emancipation of colonial and dependent territories andpeoples and in the recognition in theory and practice of equalopportunities for all peoples . . . We seek no domination overothers and we claim no privileged position over other peoples. . . The world, in spite of its rivalries and hatreds and innerconflicts, moves inevitably towards closer co-operation offree peoples and no call or group exploits another.” 342

More as a pragmatist than an idealist 343, Nehru emphasized the

146 V. S. Mani

344. Nehru’s inaugural address at the establishment of the Indian Society ofInternational Law on 29 August 1959, reprinted in Indian Journal of Interna-tional Law, Vol. 1, 1960-1961, pp. 509 ff.

345. Nehru, Proceedings of the Annual Conference of the Indian Society ofInternational Law, 1963, pp. 4 ff, at pp. 4-5.

346. Ibid., at p. 5.347. Footnote 344, supra, at p. 7.348. Ibid., at p. 8. Nehru echoed these views when he addressed the UN

General Assembly on 3 October 1960. He said :“During these past fifteen years, the United Nations has often been criti-

cised for its structure and for some of its activities. There criticisms havesome justification behind them. But, looking at the broad picture, I think we

role of international law and of the United Nations to facilitate it. Animportant goal of international law, according to him, was to pro-mote “understanding of peace between nations”, friendly relationsamong nations, elimination of war, peaceful settlement of disputesand international co-operation 344. He was concerned that while inter-national law had considerably expanded, its effectiveness had not inequal measure. It was a function of commitment to and acceptanceof rule of law by all nations, big and small — a function of dis-armament and an acceptable international order and internationalauthority 345. “There is not much of a choice left between some inter-national order, international authority, and the ever present danger ofa major war between nations”, Nehru said 346. The United Nations, inNehru’s perception, reflected “a very noble attempt to bring theworld into some scheme of international law. The Charter of theUnited Nations is a very fine and inspiring document — I mean theobjectives and ideals that it sets before itself.” 347

Responding to the criticism that the United Nations had not livedup to its ideals, he remarked :

“That criticism is both justified and unjustified — justifiedbecause it is true and unjustified because the United Nationshas only to function in the world as it is. It cannot function insome rarefied atmosphere, which is away from the world . . .Nevertheless, here is something, which keeps this ideal of somekind of world order, the international law applied to the worldbefore us. It is true that in practice it is not applied, in the opin-ion of many, as justly and as equitably as it ought to be. Greatinterests pull the United Nations, this way or that . . . groups ofnations pull it in various directions. It may be so, but the idealis there and that itself is a great gain.” 348


can definitely say that the United Nations has amply justified its existenceand repeatedly prevented the recurrent crises from developing into war.It has played a great role, and it is a little difficult now to think of thistroubled world without the UN. If it had defects, they lay in the worldsituation itself which inevitably it mirrored. If there had been no UnitedNations today, our first task would be to create something of that kind. Ishould like, therefore, to pay my tribute to United Nations as a whole,even though I might criticize some aspects of it from time to time.” http://www.indianembassy.org/policy/Disarmament/disarm4.htm.

349. The students of international organization are well aware of such criti-cisms cast on the League. But, as Prothero rightly remarked, “it is not theLeague of Nations that failed, it is the nations of the League”.

Now, 45 years later, is our assessment of the United Nations anydifferent, even after the two wars of the twenty-first century ? Per-haps not, in a general way. India, like many other non-great powers,does believe that the organization is becoming rather too intrusive ofsmall States’ sovereignty, as an international humanitarian inter-vener.

3.1.4. The normative order of the United Nations Charter

The normative order of the Charter of the United Nations is dealtwith against a brief normative historical backdrop, the evolution ofinternational human rights law, the normative network of sovereignequality of States, non-use of force and non-intervention, and theinstitutional mechanism of the United Nations.

3.1.4.1. A historical perspective

It is axiomatic that the establishment of the United Nations in1945 was dictated by the inexorable logic of momentous events thatprecipitated a great war, such as the Second World War. The out-break of the war represented a certain “failure” of its immediate pre-decessor, the League of Nations 349. A number of factors ensured theimpotence and the eventual downfall of the League, despite the earlysuccesses that it tasted — the policy of isolationism of the UnitedStates, the treatment meted out to the Soviet Union, the exclusion ofa number of small States from Latin America, the imposition of a“dictated peace, a Carthaginian peace” (the famous words of LordKeynes) on war-devastated Germany, alienation and isolation ofJapan, despite its being a victorious power in the First World War,rise of ruthless dictatorships in Germany and Italy, the British policy

148 V. S. Mani

350. For an authentic book on the League of Nations, see F. P. Walters, A His-tory of the League of Nations, 2 vols., Royal Institute of International Affairsand Oxford University Press, London, 1952. Walters was Deputy Secretary-General of the League.

of appeasement, and so on 350. The war also revealed certain seriousvalue gaps in the international system, that now forced the interna-tional community to repair.

Doctrinally, however, as the successor to the League of Nationsthe United Nations represents both a continuum as well as the nextstep in the evolution of international organization. The legal order ofthe League of Nations was in fact revolutionary. To begin with, itrepresented an attempt to bring in the whole gamut of internationalrelations within the scope of work of an international organization.The League’s legal competence encompassed all issues of war andpeace, and its Covenant provided for a mechanism of dispute settle-ment, and this comprehensive canvas was itself novel to an interna-tional organization. For the first time in the history of the world, warbecame a matter of concern of the whole League, the whole mem-bership of an international organization — a sharp contrast, indeed,to the traditional international relations that had recognized the rightof States to go to war with each other and also recognized that warwas a business exclusively for the warring parties to deal with, con-ceding no right or role to third parties (neutrality), unless of coursethey themselves decided to join the war as belligerents and face theconsequences of such intervention. The League’s mandate also cov-ered, for the first time in history, matters of social and economicdevelopment.

Thus, it subscribed to the view that peace is a function of thecomprehensive whole of international relations, including social andeconomic development of the humankind.

Keeping the above in view, the League embodied a normative andinstitutional order. Its normative order was unique. It was foundedupon a bundle of obligations that the League members undertook tocomply with (but, more often than not, failed to, bringing the wholeedifice crashing down).

The obligations of members included the following : to strive tooutlaw war ; to disarm themselves down to a point necessary fortheir national security ; to protect the territorial integrity and politicalindependence of all States ; to exercise the friendly right to invoke


the institutional order of the League in case of war between twoother States ; to strive to settle disputes through peaceful means,preferably through international arbitration, the Permanent Court ofInternational Justice, or the Council or the Assembly of the League ;to abide by the decisions/recommendations of these dispute settle-ment bodies ; to cease hostilities forthwith the moment any of thesepeaceful methods became operational, until after three months ofpronouncement of a decision ; to regard all violations of disputesettlement provisions of the League Covenant as automatically con-stituting an aggression ; to take measures (including economicsanctions, and if necessary, the use of armed force) against therecalcitrant State ; to respect the supremacy of the Covenant obli-gations (with one exception — the Monroe doctrine !) ; and to co-operate in international economic and social matters.

In order that State compliance with the above obligations be moni-tored, and if necessary the sanctioning and enforcement measures betriggered, the League, perhaps for the first time in the history ofinternational organization, formally institutionalized both the ele-ments of the Westphalian system and the Concert of Europe system— the Assembly, the most representative of the League organs, mani-fested the former, and the Council, the smaller executive organ, thelatter, assuming perhaps that both the strands in the process of inter-national organization would work in tandem with each other. Boththese organs, however, had only the power to make recommenda-tions, leaving the compliance monitoring and enforcement measuresto the good sense of the big powers operating whether inside or out-side the League (it was a different story that the big powers rarelyused their good sense to the cause of the Covenant). The essentialfeatures of the normative and institutional order of the League ofNations did not yet ensure both the illegality and impracticality ofwar. As an eminent commentator on the legal aspects of the useof force on the international plane observes :

“There were innovations [in the League Covenant], ofcourse, and these took the form of procedural constraintson resort to war. But, provided the procedures foreseen inArticles 11 to 17 were exhausted, resort to war was permissible.This appeared to be the intention of the draftsmen in spite ofthe provisions of Article 10, according to which there was anobligation by members to respect and preserve as against exter-

150 V. S. Mani

351. Ian Brownlie, Principles of Public International Law, 6th ed., OxfordUniversity Press, Oxford, New York, 1st Indian ed., 2004, at p. 697. Brownlie’sseminal work in this field remains his International Law and the Use of Forceby States, Oxford, 1963 : many of the conclusions of this highly perceptive studyon use of force in the realm of modern international law remain untainted of thesubsequent developments in international relations.

352. The issue whether the 1928 General Act is a dead letter “legally” hasbeen raised before the International Court of Justice at least in four cases so far :the case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India),Nuclear Tests cases (Australia v. France and New Zealand v. France) ICJPleadings, Nuclear Tests cases, Vol. II, p. 348, the Trial of Pakistani Prisonersof War case (Pakistan v. India), ICJ Pleadings, at p. 143, the Aegean Sea Con-tinental Shelf case (Greece v. Turkey) ICJ Reports 1978, p. 17. The Courtdecided in the Aegean Sea case that it should not pronounce on this point,because of the possible implications for the relations of other States. On thisissue, see V. S. Mani, “The Atlantique Case between Pakistan and India beforethe ICJ”, Journal of the Indian Law Institute, Vol. 42, 2000, pp. 56-73.

nal aggression the territorial integrity and existing indepen-dence of all members of the League.” 351

Attempts at strengthening the normative and institutional of theLeague began as soon as the League came into existence, thanksmainly to the French quest for security in Europe. These led to thedrafting of the Geneva Protocol of 1924. The draft Geneva Protocolwas a big event in the evolution of international organization — itsought to institutionalize the compliance monitoring and enforce-ment measures. But the protocol fell through when a change of gov-ernment in Britain ensured its death — Britain did not want to takeup the burden of making the League any more effective than it was.Indeed, on second thoughts, it decided to ensure the League to con-tinue to remain toothless. As luck would have it, however, when theUN Charter was being drafted in 1945, the ideas embodied in thedraft Geneva Protocol were dusted out and incorporated, mutatismutandis, in what was to become Chapter VII of the Charter today,so critical to our discussion on “humanitarian” intervention.

The League of Nations prompted two more seminal normativedevelopments, both in 1928. One was the adoption of the GeneralAct of Peaceful Settlement of International Disputes, which endeav-oured to link the obligation to settle disputes through peaceful meansmore firmly with the League Council and the new Permanent Courtof International Justice. However, this became a dead letter, at leastpolitically 352, upon the fall of the League in 1946, and an attempt bythe UN General Assembly to revive it in 1949 did not attract thefascination of the nations of the post-Second World War. The second


353. “Article I : The High Contracting Parties solemnly declare in the namesof their respective peoples that they condemn recourse to war for the solution ofinternational controversies, and renounce it as an instrument of national policyin their relations with one another.”

354. “Article II : The High Contracting Parties agree that the settlement orsolution of all disputes or conflicts of whatever nature or of whatever originthey may be, which may arise among them, shall never be sought except bypacific means.”

355. Brownlie, Principles, footnote 351, supra, p. 698.

development, far more significant to the evolution of modern inter-national law, was the conclusion of the Treaty of Paris. Bearing along and imposing title, “A Treaty for the Renunciation of War as anInstrument of State Policy”, the treaty was first negotiated betweenFrance and the United States, and then kept open for wider partici-pation. The treaty for the first time in any international instrumentadopted by States embodies twin principles of unexceptional charac-ter — the principle of outlawry of war 353 and the principle of peace-ful settlement of disputes 354. Soon after its conclusion betweenFrance and the United States, it was almost universally participatedin by the then international community 355. Some of the parties to thePact made reservations in respect of their right of self-defence. Thecontribution of the Pact to the normative order of the United Nationshas been extremely critical. The first principle of the Pact heraldedthe norm of prohibition of force now embodied in Article 2 (4) of theUN Charter, the second the norm of peaceful settlement of disputesin Article 2 (3).

The United Nations Conference on International Organization(UNCIO) met during the last days of the Second World War andimmediately thereafter at San Francisco at the initiative of the BigFour. Although the Charter was thrashed out principally on the basisof the Dumbarton Oaks proposals by the Big Four, the few smallpowers that participated in the conference — mainly the Latin Amer-ican States, often backed by Canada and Australia — ensured veryclose examination of the normative and the institutional order for thenew international organization that they were giving shape to.Indeed, the UN Charter was an immediate international communityresponse to the war. It represented an attempt to prevent future wars,and also an attempt to resurrect and place on a high pedestal all thatthe war stood for on the side of the Allied and Associated Forces —hence the highlights on human rights, and self-determination. Simul-taneously, however, the small countries, particularly of Latin America,

152 V. S. Mani

356. See, e.g., Friendly Relations Declaration : resolution 2625 (XXV) of24 October 1970, and the preambular paragraphs of the Universal Declaration ofHuman Rights, and those of the Human Rights Covenants of 1966.

insisted on the incorporation in the Charter of the principles ofnon-use of force (including a definition of aggression) and non-inter-vention, and also sought to ensure inviolability of their territorialintegrity and political independence even as the international com-munity as a whole set on course to provide some “teeth” to the neworganization, largely on the basis of the draft Geneva Protocol of theLeague era. Evidently, the UNCIO had to contend with a variety ofoverlapping and at times conflicting claims to normative legitimacyto be embodied in the new Charter.

The UN Charter, thus approved by the 50 States members of theimmediate post-Second World War international community, came toembody the following principal features : the normative aspects ofthe Charter are embodied in Articles 1 and 2 and the institutionalaspects in the rest of the Charter. Although the Charter labels Article 1provisions as the “Purposes” of the United Nations and Article 2provisions as the “Principles”, in the practice of the Organization,the provisions of Article 1 have been liberally relied on for givingshape to some of the basic principles of modern international law,e.g. human rights, self-determination and international co-opera-tion 356.

The normative structure of the United Nations is thus governed bythese Purposes and Principles. Many of these Principles havereceived formulation through the practice of the United Nations. The1970 Friendly Relations Declaration came to embody the consensualformulations of seven “basic principles” of modern international law,namely, non-use of force, non-intervention, peaceful settlement ofinternational disputes, sovereign equality, good faith, equal rightsand self-determination and international co-operation. The last para-graph of the Declaration refers them to be the “basic principles” ofinternational law. To these the broad range of human rights law hasbeen added thanks mainly to the Universal Declaration of HumanRights and other subsequent Declarations and treaties on humanrights for whose adoption the UN General Assembly has been singu-larly instrumental.

In the context of “humanitarian” intervention, we shall nowidentify a few perspectives on the international concern for human


rights as well as the legal order governing the resort to use of force,including intervention.

3.1.4.2. Evolution of human rights law

The organic bond between the individual and the State is perhapsas old as the State system itself. Indeed, the emergence of the UnitedNations in 1945 manifests, inter alia, the high point of concern ofthe post-Second World War international community for promotionand protection of human rights the world over. The history of inter-national relations reveals a slow emergence of an international focuson human rights, particularly since the mid-nineteenth century. Thisfocus eventually sharpened and the agenda of human rights came tothe fore towards the end of the Second World War, culminating inthe provisions of the UN Charter on human rights. The Charterembodies promotion and protection of human rights in Articles 1, 13and 55-56 as one of the prime objectives of the Organization. How-ever, the makers of the Charter never intended to establish an inter-national jurisdiction (in contradistinction to international concern)for the purpose, either in total replacement or in supersession of theprimary objective and preoccupation of State as a political and socialinstitution. They never intended to abdicate their inane responsibilitytowards their individual constituents.

Given the decentralized nature of the contemporary internationalsystem of sovereign States, the enforcement/implementation of inter-national human rights norms, like all other international norms, islargely left to individual States, which are the units of the inter-national community. This state of things has its rationale stemmingfrom a number of factors. First and foremost, most human welfare-centric theories of the origin of State, such as those of Locke,Rousseau, Laski and Gandhi, which at the same time underscorevalues of democracy and participatory government, entrust and man-date the State system with the task of constantly seeking and securingthe condition of human welfare within the society. This task is bestpursued at the level of and within each national society and by theinstrumentalities evolved by the genius of that society, whose func-tioning is made accountable to that society by its own methods ofsocial audit or rules of legitimacy. Pursuit of human welfare is, inthe ultimate analysis, primarily and predominantly the function ofthe members of each national society and the institutions they estab-lish to that end. The legitimacy of the institutions of State is thus a

154 V. S. Mani

function of the degree of fulfilment of their mandate, i.e., the pursuitof human welfare by these institutions and the manner in which it isachieved. The “myth” of sovereignty is created to permit, insulate(from external interference), and encourage each national society todevelop itself the way it would like, harnessing to that end theresources available to it the best way it deems fit. It seeks to protectand promote the right of the people of each State to self-determina-tion, political, economic, social and cultural. It brooks no interfer-ence from other national societies. No national society — howeverpowerful it may be — can arrogate itself to claim a “divine” right toimpose its will on another society. Hence the famous Gandhian dic-tum : “Good government is no substitute for self-government.” Thisis self-determination in action.

Additionally, human welfare is also a function of the culturalinstitutions in a society. And societies differ from one another intheir perception of the cultural content of human welfare. Manyancient societies, such as the Oriental, as a general rule, perceivehuman rights as the product of intra-societal socio-cultural relations,which are primarily based on a web of mutuality of duties woveninto these relations at various levels — inter-individual, intra-family,inter-family, intra-clan and inter-clan, and finally societal. The sonowes duties to his father and the rest of his family, the father owesduties to him and the rest of the family, and thus each member of afamily owes duties to others in the family — and the resultant total-ity of family relations seek to protect the welfare of the individual asthey promote the welfare of the whole family. There should be noneed for anyone to assert his/her rights ; they are there for individualand collective enjoyment, without even demanding them. In sharpcontrast, in the Oxidental societies individuals probably have toassert their rights all the time as there is less emphasis on duties.

In other words, universality of human rights concepts must beunderstood, taking into account certain divergencies of perceptioninane in each national society. Even as the international instrumentson human rights began taking shape since the Universal Declaration,there have been divergencies of views at different levels. First wasthe divergence concerning the issue of priority between civil andpolitical rights on the one hand and economic, social and culturalrights on the other. Second was the issue of emphasis between indi-vidual rights and group rights. Third is the issue of human rightsuniversalism versus cultural relativity in conprehension and imple-


357. This provision prohibits a State party to make any derogation fromArticles 6 (right to life), 7 (right against torture), 8 (right against slavery), 11(right against imprisonment for contractual debts), 15 (right against ex post factocriminal law), 16 (right to recognition as a person), and 18 (right to free-dom of thought, conscience and religion).

mentation of human rights. In the contemporary internationalcommunity, therefore, barring certain irreducible minimum of corerights emanating from the right to life and personal liberty (asrecognized by Article 4 (2) of the International Covenant on Civiland Political Rights, 1966) 357, it will be difficult to seek universalityof acceptance and application of the entire gamut of specific humanrights worldwide. While genuine international co-operation to pro-mote human welfare is welcome, and is, indeed, mandated pursuantto Article 1 (3), and Articles 55 and 56 of the UN Charter, dictatorialinterference in the way in which a State should seek to achieve theseobjectives within its national society is not. Compliance of humanrights then is at its core an issue of availability of resources, some-thing that the developing countries lack, and for that reason it isiniquitous to claim universal standards of application of all humanrights, without contributing substantially to the international trans-fers of such essential resources on which to build on a human rightscompliant society. Thus, international concern for the human rightssituation in a country does not automatically confer on any State ora group of States, or even on an international organization such asthe United Nations, international jurisdiction to take coercive actionin respect of that situation, as the provisions of the Charter tookshape.

Very soon, however, a number of international instruments onhuman rights came into existence, beginning with the UniversalDeclaration of Human Rights. Also, following the jurisprudence ofthe Nuremberg and Tokyo International Military Tribunals, conceptslike the “crime of genocide” and the “crimes against humanity”came into existence. While the crime of genocide is indeed one ofthe crimes against humanity, it came to be treated on a separateplane, being perhaps the most heinous of such crimes. This explainswhy the international community came up with a separate conven-tion for the prevention and punishment of the crime of genocide in1948, even as it adopted the Universal Declaration of Human Rights,almost simultaneously. The Genocide Convention has been of far-reaching significance. Although it did not apply to some of the most

156 V. S. Mani

358. See Article 5 (1) (a) read with Article 6 of the Rome Statute, 1998.359. See Article VI of the Genocide Convention.

serious wars of the post-war world, including the Vietnam War (forreasons of the Cold War that paralysed the functioning of the Secu-rity Council), it began to be applied with much vigour to some of thesituations of genocide that arose since 1990s, and also now providesjurisdiction for the new International Criminal Court 358.

A claim to legality of “humanitarian” intervention in some of therecent instances of interventions has been based on Article 1 of theGenocide Convention, which states :

“The Contracting Parties confirm that genocide, whethercommitted in time of peace or in time of war, is a crime underinternational law which they undertake to prevent and topunish.”

The argument is that this provision casts on States parties a legalobligation to prevent and punish the crime of genocide anywhere inthe world. Such an argument, it would seem, would be far-fetched,as the original intention of the draftsmen of the convention was toimpose such an obligation on States parties within their respectivenational jurisdictions. Hence the provision in Article V requiringStates parties to enact, in accordance with their respective Constitu-tions, the necessary legislation to give effect to the provisions of theconvention, “and, in particular, to provide effective penalties for per-sons guilty of genocide or any other acts enumerated in Article III”.Indeed, such legislation must provide for persons charged with geno-cide or any other acts enumerated in Article III to “be tried by acompetent tribunal of the State in the territory of which the act wascommitted . . .” 359.

3.1.4.3. Legal order governing use of force

In the practice of States in their relations with one another thenormative distinctions among these functions are difficult to main-tain, as more often than not individual State interests eclipse thesedistinctions and inhibit their performance. Yet the existence of aninternational community with certain community objectives such asminimization, if not elimination, violence, and maximization ofsocial and economic welfare, through certain evolving, generally


360. See UN General Assembly Declaration on Friendly Relations, resolution2625 (XXV), 24 October 1970.

accepted, basic precepts of international behaviour such as the prin-ciples of non-use of force, non-international, peaceful settlement ofdisputes, sovereignty, good faith fulfilment of international obliga-tions, self-determination and human rights, and international co-operation 360, is equally a reality. That there are gaps between thisnormative order of things and State conduct does not readily dimin-ish either the social or the jural value of the normative order ; theexistence of gaps between the norm and the conduct of the subject isnot peculiar to international system, but pervades every system oflaw. The problem is compounded by the overlapping claims to com-pliance as well.

While the concepts of sovereignty and sovereign equality came tobe recognized as norms of traditional international law, the consen-sual recognition of the norms of non-use of force and non-interven-tion has been a rather recent development, despite the Latin Ameri-can contribution to their evolution even before the adoption of theCovenant of the League of Nations. The Latin American strife toassert these norms even against the big powers of the nineteenth andearly twentieth centuries has been legendary. This notwithstanding,the traditional international law at least at the normative level upheldsovereignty and sovereign equality, but in the same breath alsorecognized the Clausewitz doctrine that war was the continuation ofpolicy through “other means”. The concept of self-preservation washandy indeed, which was in fact an extension of the principle ofsovereignty. Self-preservation also extended to the preservation val-ues the big powers believed in — this was indeed the Metternichsystem in continuum. When these values changed, as change tookplace from despotic monarchy to representative government, therationale for intervention in the affairs of small yet sovereign Statesalso underwent a qualitative change. At any rate, protection ofnationals abroad, if necessary with force, could be justified eitherunder self-preservation (nationals being an organic extension of aState) or under “humanitarian” intervention. And mercifully, the tra-ditional law did not recognize the concept of abuse of rights, despitethe jurisprudential logic that rights are correlative of duties, and thatrights must be enjoyed in due regard to the rights of other States.

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In the traditional Eurocentric international system, the dividingline between use of force and an act of intervention was almost non-existent, as almost every instance of intervention was backed by thethreat or use of force.

The Drago doctrine raised by Argentina in the first decade of thetwentieth century represented the first assertion of the principle ofnon-use of force, even if it was confined to addressing the questionof redemption of contractual debts from the debt-ridden countries bythe great powers. This doctrine was a precursor of the modern-dayprinciple of non-use of force. However, it would appear thatArti-cles 15 and 16 of the Pact of Bogotá have had a more directimpact on the UN Charter in the formulation of the principle ofnon-use of force and the principle of domestic jurisdiction whichindirectly gives effect to the non-intervention principle.

As States have accepted the principle of non-use of force, the useof force against a recalcitrant State being an international commu-nity function, is centralized, to be presided over by the SecurityCouncil. Yet the lack of political will and mutual suspicions on thepart of the big powers which dictated the course of the drafting ofthe UN Charter at San Francisco in 1945 have not allowed this nor-mative order to be foolproof. The veto provision and the requirementof Article 43 agreements have been the principal villains of thepiece. The veto provision in Article 27 ensures that (1) no action canbe taken in the face of opposition of a permanent member of theCouncil (a great power), and (2) none can indeed be taken against agreat power itself or any other State enjoying the protection of agreat power. This then has been the extent to which a marriagebetween the Westphalian system representing sovereign equality ofall States and the Concert of Europe system ensuring the greatpowers enjoy a status unequal with the small powers.

Yet, in terms of the international normative order, four peremptorynorms are widely recognized to govern State conduct, namely,sovereign equality, non-use of force, non-intervention, and goodfaith, each complementing and strengthening each other. More par-ticularly, the principle of non-intervention is sought to be renderedeffective by the other three principles.

3.1.4.3.1. Sovereign equality

The principle of non-intervention has not been explicitly for-mulated in the Charter of the United Nations. However, it is


361. UNCIO, Documents, Vol. VI, p. 457.362. The Declaration on Principles of International Law concerning Friendly

Relations and Co-operation among States in Accordance with the Charter of theUnited Nations. Resolution 2625 (XXV), 24 October 1970 was adopted byacclamation.

363. See operative paragraph 3 (the concluding paragraph) of the Declarationon Friendly Relations.

364. Resolution 2625 (XXV), 6th principle, second paragraph. For study ofthis principle, see R. P. Anand, “Sovereign Equality of States in InternationalLaw”, Recueil des cours, Vol. 197, 1986, pp. 9-228.

generally recognized that the principle flows from the provisionsof Article 2 (7) on domestic jurisdiction, further strengthened by theprinciple of sovereign equality under Article 2 (1).

The 1945 San Francisco Conference on International Organizationunderstood the principle of sovereign equality to contain the follow-ing elements :

(1) that States are juridically equal ;(2) that each State enjoys the rights inherent in full sovereignty ;(3) that the personality of the State is respected, as well as its terri-

torial integrity and political independence ; and(4) that the State should, under international order, comply faithfully

with its duties and obligations 361.

These have not been further expanded by the UN General Assem-bly through its 1970 Friendly Relations Declaration 362 (whereby theAssembly proclaimed sovereign equality, non-use of force, non-intervention and good faith, along with three other principles of theCharter to “constitute basic principles of international law” 363). TheDeclaration states that :

(a) States are juridically equal ;(b) each State enjoys the rights inherent in full sovereignty ;(c) each State has the duty to respect the personality of other States ;(d) the territorial integrity and political independence of the State are

inviolable ;(e) each State has that the right freely to choose and develop its

political, social, economic and cultural systems ;(f) each State has the duty to comply fully and in good faith with its

international obligations and to live in peace with other States 364.

Provisions of (b), (c), (d) and (e) above have a clear bearing onthe principle of non-intervention, as these are the basic values thatthe non-intervention principle seeks to espouse.

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365. Ibid., 1st principle.366. This provision has been inserted in addition to the non-intervention

paragraph immediately preceding it.

3.1.4.3.2. Non-use of force

(a) The norm

The principle of non-use of force has also received elaboration inthe Friendly Relations Declaration 365. While leaving out the questionwhether the term “force” is limited to armed force or whether itencompasses other forms of coercion as well, the Friendly Relationsformulation of the principle of non-use of force identifies not onlythe principal prohibited acts of direct threat or use of force, but alsoindirect use of force. Yet, the ninth preambular paragraph of theDeclaration recalls the duty of States to refrain in their internationalrelations from military, political, economic or any other form ofcoercion aimed against the political independence or territorialintegrity of any State 366. In accordance with the rules of interpreta-tion contained in Article 31 (2) of the Vienna Convention on the Lawof treaties, 1969, this preambular paragraph indicates that the Decla-ration recognizes the principle of non-use of force encompassing notonly acts involving armed force but all other forms of coercion aswell. This is the position adopted by an overwhelming number ofStates, chiefly the developing countries.

The normative order of non-use of force enshrined in the UNCharter comprises the general, yet absolute, prohibition of the threator use of force — the jus cogens on use of armed force — and twosets of permissible rules authorizing/allowing unilateral resort toforce.

Article 2 (4) of the Charter proclaims :

“All Members shall refrain in their international relationsfrom the threat or use of force against the territorial integrityand political independence of any state, or in any mannerinconsistent with the Purposes of the United Nations.”

(b) Enforcement action by the Security Council

Both categories of permissible situations of resort to force areprovided for in Chapter VII, namely Article 42 and Article 51.


367. Dumbarton Oaks Proposals, Chap. II, para. 4, cited in Leland M.Goodrich, Edvard Hambro and Anne Patricia Simons, Charter of the UnitedNations : Commentary and Documents, Columbia University Press, New Yorkand London, 3rd and rev. ed., p. 44.

368. Goodrich, Hambro and Simons, op. cit., pp. 44-45, citing UNCIO, Docu-ments, Vol. VI, pp. 342-346.

369. Ibid., p. 51.370. General Assembly resolution 2625 (XXV) 24 October 1970, first prin-

ciple, 4th paragraph.

Article 42 is central to the Security Council’s powers of authorizingenforcement action, i.e., a Security Council “action with respect tothreats to the peace, breaches of the peace and acts of act of aggres-sion”. Indeed, the Council’s authority to take action for preservationof international peace and security is the very purpose of the prohi-bition of force postulated in Article 2 (4), and therefore it is not anexception to the norm, but integral to its effectiveness. Unilateralresort to force is forbidden because the most powerful organ of theinternational community, the Security Council, is empowered andmandated to use force on behalf of the community.

The Dumbarton Oaks Proposals included among the principles ofthe new organization, the principle that “All members of the organi-zation shall refrain in their international relations from the threat oruse of force in any manner inconsistent with the purposes of theOrganization.” 367 According to Goodrich, Hambro and Simons :

“The phraseology was intended to achieve not only a maxi-mum commitment of members, but also and more particularlyto give the Security Council guidance combined with wide dis-cretion in the interpretation and application of its responsibili-ties for the maintenance of international peace and security.”

At San Francisco, the Sponsoring States agreed to include“against the territorial integrity or political independence of anystate” in Article 2 (4), “in response to the demand of the smallerstates that there should be some assurance that force would not beused by the more powerful states at the expense of the weakerones” 368. A later issue that cropped up in this regard was whetherterritorial integrity encompassed territorial inviolability 369. However,this came to be settled in the formulation of prohibition of force inthe Friendly Relations Declaration 1970, which now provides :“Every State has the duty to refrain from the threat or use of force toviolate the existing international boundaries of another State . . .” 370

162 V. S. Mani

371. Goodrich, Hambro and Simons, op. cit., p. 51. Goodrich et al. refer toUN doc. S/459, 1 August 1947 in which the Council called upon parties (Nether-lands, and Indonesian liberation movement) “to cease hostilities forthwith”.Similarly, in resolution 1514 (XV), 14 December 1960, the famous Declarationon Decolonization, the General Assembly sought “to apply the same restraint tothe use of force for putting down revolutionary disturbances in colonial areasthat Article 2 (4) places on the use of force in international relations”.

372. Goodrich, Hambro and Simons, op. cit., pp. 50-51.373. Ibid., p. 52. Thus in the Korean situation, the Council, by its resolution

(adopted in the absence of the USSR), recommended that members of the UnitedNations “furnish such assistance to the Republic of Korea as may be necessaryto repel the armed attack and to restore international peace and security in thearea” (UN doc. S/1511, 27 June 1950). The competence of the General Assem-

On the other hand, it has been pointed out, the term ‘”interna-tional relations” does not automatically insulate domestic use offorce from international concern. The Security Council by its deci-sions

“strongly implied that it found a threat to, or breach of, inter-national peace to exist. It thereby took the view that even adomestic use of force might have such international conse-quences as to justify appropriate measures of restraint.” 371

Under Article 2 (4) threat or use of force cannot be employed “inany other manner inconsistent with the Purposes of the UnitedNations”. Can force then be unilaterally resorted to if it were “con-sistent with the Purposes of the United Nations” ? Goodrich, Hambroand Simons find :

“Consistency ‘with the Purposes of the United Nations’ is arequirement that lends itself to a wide range of possible inter-pretations, depending upon whether one adopts a generous orrestrictive view of what these purposes are.” 372

Thus, could a State mount a “humanitarian” intervention, justify-ing it on ground of its pursuit of human rights, one of the Purposesof the United Nations ? A State cannot on its own, unilaterally, deter-mine what constitutes a purpose of the United Nations and mount aforcible action to rectify a situation in another State, without theauthorization of the Security Council, which has the sole compe-tence to decide on mounting a use of force on behalf of the interna-tional community. According to Goodrich, Hambro and Simons :“There is general agreement [emerging from the UN practice] thatthe use of force is legitimate provided it is authorized by a compe-tent United Nations organ.” 373


bly to legitimize use of force by member States came up sharply for the firsttime in the context of Uniting for Peace resolution 377 (1950) when, countrieslike the United Kingdom and Colombia argued that the Assembly in exercise ofits “residual responsibility” could “recommend military measures that memberscan in any event take in the exercise of the right of self-defense underArticle 51” (ref. statements of Younger (United Kingdom), and Urrutia (Colom-bia), GAOR, 5th sess, 1st cmtee, 360th mtg., 12 October 1950, paras 4, 71-73).

374. Ibid., p. 54. Reference is to UN doc. SCOR, 11yr, 749th mtg., 30 Octo-ber 1956, p. 3 and 7512st mtg., 31 October 1956, p. 7.

375. Ibid., pp. 54-55, quoting Delegate of Columbia, GAOR, 1st EmergencySpecial Sess., 562nd Plen. mtg., 1 November 1956, p. 15.

The learned commentators, however, point out :

“In a number of instances, claims have been made that theuse of force is justified by the legitimate nature of the objec-tives sought. The argument is, in effect, that no other means areavailable for achieving desirable purposes. The plea of self-help is a somewhat legalistic statement of the same argument.In the Suez Canal case in 1956, the United Kingdom sought tojustify its military intervention on the ground that the fightingbetween Israel and Egypt threatened freedom of navigationthrough the Canal, on which British economic life was depen-dent.” 374

Members of the United Nations have been overwhelmingly of theopinion, however, that the appropriate procedure to use is the peace-ful means provided by the Charter, and that “the use of force orarmed intervention to secure rights, even lawful rights, has beenstrictly prohibited unless order by the Security Council. . . . Nocountry may take the law into its own hands.” 375

The organizational action under Chapter VII is also expected to beassisted by regional organizations in appropriate cases. Thus,Article 53 under Chapter VIII mandates a complementary role forregional organizations in the area of enforcement action. It autho-rizes the Security Council to utilize regional arrangements or agen-cies for enforcement action “under its authority”. “But”, it warns,“no enforcement action shall be taken under regional arrangementsor by regional agencies without the authorisation of the SecurityCouncil . . .”

(c) Right of self-defence

The other permissive situation — other than action authorized bythe Security Council — is in recognition of the need to permit uni-

164 V. S. Mani

376. E.g., Section 96 of the Indian Penal Code, 1860 : “Nothing is an offencewhich is done in exercise of the right of private defence.” Section 97 providesfor the right of private defence of body and property.

377. The ICJ in the case of Legality of the Threat or Use of NuclearWeapons, ICJ Reports 1996, p. 226, at p. 244, p. 263, emphasized the lawfulnessof the use of force in self-defence.

lateral use of force by States in case of emergencies, against anarmed attack — this must have arisen from the common criminallaw concept of exclusion of criminal liability in case of actions takenin “private defence” or “in self-defence”, should an individual be leftto protect himself, his family members or property, from any immi-nent danger, without any opportunity to await the protection of theState to arrive 376. Indeed, once the State authorities appear on thescene to restore law and order, this right of private defence ceases.Also, the quantum or nature of force used to ward of the dangershould be proportionate — to be determined in terms of the actualcontext in which the force was used in private defence. As an excep-tion to the general principle of prohibition of force, it must berestrictively interpreted, so as not to render ineffective the absolute-ness of the prohibition and the institutional action in consequenceof it.

Article 51 — the sole exception to the general and absolute pro-hibition of force contained in Article 2 (4) 377 — provides as follows :

“Nothing in the present Charter shall impair the inherentright of individual and collective self-defence if an armedattack occurs against a Member of the United Nations, until theSecurity Council has taken measures necessary to maintaininternational peace and security. Measures taken by the Mem-bers in the exercise of this right of self-defence shall be imme-diately reported to the Security council and shall not in anyway affect the authority and responsibility of the SecurityCouncil under the present Charter to take at any time suchaction as it deems necessary in order to maintain or restoreinternational peace and security.”

This provision highlights two elements, namely, the “inherent”right of self-defence (individual or collective), and the role ofthe Security Council. The right of self-defence as recognizedin Article 51 has three aspects : (1) the right of self-defence is“inherent” in every State ; (2) it encompasses both individual and


378. ICJ Reports 1986, p. 14, at p. 94.379. Ibid., p. 103.

collective self-defence ; and (3) it is available only against an armedattack.

(i) Scope of self-defence

The implication of the right of self-defence being “inherent” wasexplained by the International Court in the Nicaragua case (1986) :

“The Court therefore finds that Article 51 of the Charter isonly meaningful on the basis that there is a ‘natural’ or ‘inher-ent’ right of self-defence, it is hard to see how this can be otherthan of a customary nature . . .” 378

However, lawfulness of a defensive response to an armed attackwould depend upon “the observance of the criteria of the necessityand proportionality of the measures taken in self-defence” 379. Thecelebrated customary law authority in this regard is the Carolineincident, 1837, between the United States and Britain. In his letter inreply to the then British Ambassador Henry Fox (who defended theincursion of British forces into the US territory as a pre-emptive actof self-defence), US Secretary of State Daniel Webster made thefollowing classic statement :

“It will be for that Government [the British Government] toshow a necessity of self-defence, instant, overwhelming, leav-ing no choice of means, and no moment for deliberation. It willbe for it to show also, that the local authorities in Canada, —even supposing the necessity of the moment authorized them toenter the territories of the United States at all — did nothingunreasonable or excessive ; since the act, justified by the neces-sity of self-defence, must be limited by that necessity, and keptclearly within it. It must be shown that admonition or remon-strance to the persons on board the ‘Caroline’ was impracti-cable, or would have been unavailing ; it must be shown thatdaylight could not be waited for ; that there could be no attemptat discrimination between the innocent and the guilty ; that itwould not have been enough to seize and detain the vessel ; butthat there a necessity, present and inevitable, for attacking herin the darkness of night, while moored to the shore, and whileunarmed men were asleep on board, killing some and

166 V. S. Mani

380. Webster’s letter of 24 April 1841, in reply to Fox’s letter of 12 March1941, in Kenneth E. Shewmaker, ed., The Papers of Daniel Webser : DiplomaticPapers, Volume 1, 1841-1843, University Press of New England, 1983, pp. 62,67-68, quoted by Neta C. Crawford, “The Best Defense”, Boston Review : APolitical and Literary Forum, available at http://www.bostonreview.net/BR28.1/Crawford.html, pp. 1-16. See also, the Caroline case in John Bassette Moore, ADigest of International Law, Washington, DC, Vol. 2, pp. 409, 412.

381. ICJ Reports 1996, p. 226, para. 86.382. ICJ Reports 1986, p. 14, at p. 103.

wound[ing] others, and then drawing her into the current abovethe cataract, setting her on fire, and, careless to know whetherthere might not be in her the innocent with the guilty, or theliving with he dead, committing her to a fate which fills the ima-gination with horror. A necessity for all this the governmentof the United States cannot believe to have existed.” 380

The first two sentences remain oft-quoted as an authority for legiti-mate invocation of the right of self-defence against imminent dangerunder international customary law.

The International Court has in its jurisprudence also highlightedthe need for compliance with the rules of international humanitarianlaw as an additional criterion. In the Legality of the Threat or Use ofNuclear Weapons case, it held that the principles of internationalhumanitarian law “permeates the entire law of armed conflict andapplies to all forms of warfare and to all kinds of weapons, those ofthe past, those of the present and those of the future” 381.

The right of self-defence encompasses both individual and collec-tive rights. “An attack against one is an attack against all” membersof the Club. Collective self-defence is now recognized under the UNCharter. The Security Council took note of it in its resolution 661(1990) by making explicit reference to the “inherent right of indi-vidual or collective self-defence, in response to the armed attack byIraq against Kuwait”, even if in a preambular paragraph. In theNicaragua case, the International Court observed :

“Since the existence of the right of collective self-defence isestablished in customary international law, the Court mustdefine the specific conditions which may have to be met for itsexercise, in addition to the conditions of necessity and propor-tionality to which the Parties have referred.” 382

Searching for these additional conditions, the Court said :

“In the case of individual self-defence, the exercise of this


383. Ibid., at pp. 103-104.384. Ibid., at p. 105.385. Ibid., p. 103.

right is subject to the State concerned having been the victim ofan armed attack. Reliance on collective self-defence of coursedoes not remove the need for this . . . There is no rule of cus-tomary international law permitting another State to exercisethe right of collective self-defence on the basis of its ownassessment of the situation. Where collective self-defence isinvoked, it is to be expected that the State for whose benefitthis right is used will have declared itself to be the victim of anarmed attack.” 383

Further on, the Court concluded on a survey of the law, that “therequirement of a request by the State which is the victim of thealleged attack is additional to the requirement that such a Stateshould have declared itself to have been attacked” 384.

In other words, the exercise of the right of individual self-defenceis conditioned by (1) the necessity — armed attack, (2) the rule ofproportionality, and (3) observance of the international humanitarianlaw. The exercise of the right of collective self-defence has two otheradditional requirements to comply with : (1) a state victim of anarmed attack, and (2) a request from that state for assistance.

What constitutes an “armed attack” ? There was some discussionon this question in the Nicaragua case. The Court observed :

“There appears now to be general agreement on the nature ofthe acts which can be treated as constituting armed attacks. Inparticular, it may be considered to be agreed that an armedattack must be understood as including not merely action byregular armed forces across an international border, but also‘the sending by or on behalf of a State of armed bands, groups,irregulars or mercenaries, which carry out acts of armed forceagainst another State of such gravity as to amount to’ (interalia) an actual armed attack conducted by regular forces, ‘or itssubstantial involvement therein’.” (Refer to Article 3 (g) of theDefinition of Aggression, UN General Assembly resolution3314 (XXIX).) 385

“But the Court does not believe that the concept of ‘armedattack’ includes not only acts by armed bands where such acts

168 V. S. Mani

386. Ibid., pp. 103-104.387. Ibid., p. 104.388. Opinion of the Department of Foreign Relations of Mexico concerning

the Dumbarton Oaks Proposals for the Creation of a General International Orga-nization, UNCIO, Vol. 3, Restricted doc. 2, G/7(c), 23 April 1945, p. 66.

occur on a significant scale but also assistance to rebels in theform of the provision of weapons or logistical or other sup-port.” 386

Further, “It is also clear that it is the State which is the victim of anarmed attack which must form and declare the view that it has beenso attacked.” 387

Article 51 right of self-defence is, however, narrower than theright under customary law. It is confined to an armed attack underArticle 51, whereas in the Webster Note, it need not be so.

(ii) Role of the Security Council

The linkage between self-defence and Chapter VII of the UNCharter is three-fold. One, a State invoking the right of self-defenceis required to report to the Security Council “immediately”. Two, theright stays in place “until the Security Council has taken measuresnecessary to maintain international peace and security”. Three,

“Measures taken by Members in exercise of this right ofself-defence . . . shall not in any way affect the authority andresponsibility of the security Council under the present Charterto take at any time such action as it deems necessary in order tomaintain or restore international peace and security.”

3.1.4.3.3. Non-intervention

Endeavouring to strengthen Article 2 (4) prohibition, Mexicopushed for an addition to that provision at the San Francisco Con-ference in 1945 : “No State has the right to intervene, directly orindirectly, and whatever be the reason, in the domestic or foreignaffairs of another.” 388 Mexico further stated that it

“would condemn any State acting on its own authority to inter-vene in the internal affairs of another State. It would not pre-clude action taken on behalf of the Community of States andwith the mandate of a competent agency of the Community of


389. Minutes of the 16th Five-Power Informal Consultative Meeting on Pro-posed Amendments, San Francisco, 6 June 1945, Foreign Relations of theUnited States, Washington, DC, Vol. 1, 1945, p. 1176, at p. 1187.

390. This Declaration was recognized to embody only a political, not legal,principle of non-intervention, by some of the Western countries, such as theUnited Kingdom and the United States.

States, in the event that conditions prevailing in a State’s terri-tory should be found to menace international peace and order”.

This evidently led to the formulation of the principle of non-intervention now embodied in Article 2 (7). Lord Halifax of Britainlater commented on the effect of Article 2 (7) as follows : “Whena situation threatened the peace it would cease to be essentiallywithin the domestic jurisdiction and all powers would revert to theSecurity Council.” 389

Although Article 2 (7) of the UN Charter specifically applies tothe relation between member States and the United Nations and notto inter-State relations, what is prohibited for an organization ofStates is, a fortiori, prohibited for States themselves. This logic wasaccepted by the General Assembly when it formulated the principleof non-intervention in the Friendly Relations Declaration. TheFriendly Relations Declaration, following the 1965 Declaration onInadmissibility of Intervention 390, and before it, Articles 15 and 16of the Pact of Bogota, 1948, embodies the following general formu-lation of the principle :

“No state or group of states has the right to intervene,directly or indirectly, for any reason whatever, in the internal orexternal affairs of any state. Consequently, armed interventionand all other forms of interference or attempted threats againstthe personality of the state or against its political, economicand cultural elements, are in violation of international law. Nostate may use or encourage the use of economic, political orany other type of measures to coerce another state in order toobtain from it the advantages any kind. Also, no state shallorganise, assist, foment, finance, invite or tolerate, subversive,terrorist or armed activities directed towards the violent over-throw of the regime of another state or interfere in civil strife inanother state.

The use of force to deprive peoples of their national identityconstitutes a violation of their inalienable rights and of theprinciple of non-intervention.

170 V. S. Mani

391. Resolution 2625 (XXV), 3rd principle.392. ICJ Reports 1949, p. 35. See also Ian Brownlie, International Law and

the Use of Force by States, Oxford, 1963, pp. 288-289.393. ICJ Reports 1986, p. 14, at p. 19.394. Ibid. See also ibid., pp. 22.

Every state has an inalienable right to choose the political,economic, social and cultural systems, without interference inany form from another state.

Nothing in the foregoing paragraphs shall be construed asaffecting the relevant provisions of the Charter relating to themaintenance of international peace and security.” 391

The importance of the principle of non-intervention and closelinkages between the principles of sovereign equality, non-use offorce and non-intervention have received international judicialrecognition. In the Corfu Channel case, a case that arose against thebackdrop of the Cold War, the International Court of Justice, whilechastising Great Britain for forcible use of minesweepers to clean upthe Corfu Channel, remarked significantly :

“The Court can only regard the alleged right of interventionas the manifestation of a policy of force, such as has, in thepast, given rise to most serious abuses and such as cannot,whatever be the present defects in international organization,find a place in International Law. Intervention is perhaps lessadmissible in the particular form it would take here, for fromthe nature of things, it would be reserved for the most powerfulStates and might easily lead to preventing the administration ofinternational justice.” 392

The case concerning Military and Paramilitary Activities in andagainst Nicaragua, involved, inter alia, the Nicaraguan claim “thatthe United States, in breach of its obligations under general andcustomary international law, has intervened and is intervening inthe internal affairs of Nicaragua” 393. There were also claims byNicaragua that the United States violated and was violating the prin-ciple of non-use of force and the sovereignty, territorial integrity orpolitical independence of Nicaragua, “including all intervention,direct or indirect, in the internal affairs of Nicaragua” 394. Whileevaluating these claims, the International Court recognized thecustomary law basis of the principles of non-use of force and non-


395. Ibid., pp. 99-100.396. Ibid., p. 106.397. Ibid., p. 108.

intervention as evidenced by both State practice and opinio juris.And the Court said :

“This opinio juris may, though with all due caution, bededuced from, inter alia, the attitude of the Parties and the atti-tude of States towards certain General Assembly resolutions,and particularly resolution 2625 (XXV) . . . The effect of con-sent to the text of such resolutions cannot be understood asmerely that of a ‘reiteration or elucidation’ of the treaty com-mitment undertaken in the Charter. On the contrary, it may beunderstood as an acceptance of the validity of the rule or set ofrules declared by the resolution by themselves.” 395

Thus the Court relied on the Friendly Relations Declaration as aproof of acceptance by States of the principles of non-use of forceand non-intervention and extended its application to the particularaspects of these principles. On non-intervention, the Court said :

“The principle of non-intervention involves the right ofevery sovereign State to conduct its affairs without outsideinterference ; though examples of trespass against these prin-ciples are not infrequent, the Court considers that it is part andparcel of customary international law. As the Court hasobserved : ‘Between independent States, respect for territorialsovereignty is an essential foundation of international relations’(ICJ Reports 1949, p. 35) and international law requires politi-cal integrity also to be respected.” 396

Speaking in the context of the Nicaraguan claims, the Courtdeclared :

“A prohibited intervention must accordingly be one bearingon matters in which each State is permitted, by the principle ofState sovereignty, to decide freely. One of these is the choice ofa political, economic, social and cultural system, and the for-mulation of foreign policy. Intervention is wrongful when ituses methods of coercion in regard to such choices which mustremain free ones.” 397

The Court recognized that where the element of coercion also

172 V. S. Mani

398. Ibid.399. Ibid., p. 109.

involved a threat or use of force, it might violate simultaneouslyboth non-intervention and non-use of force.

Again in the context of non-intervention, the Court in the samecase dealt with the following specific operational issues which havea direct bearing on our discussion of humanitarian intervention :

10(1) Does a State have a general right to intervene, directly orindirectly, with or without armed force, “in support of aninternational opposition in another state whose cause appearedparticularly worthy by reason of the political and moral valueswith which it was identified” ? 398

10(2) Can a State claim a right to use force, as part of the right ofself-defence against another State in response to the latter’swrongful action, which did not constitute an “armed attack” ?

10(3) When does “humanitarian aid” become intervention ?10(4) Do actions of economic nature, such as cessation of economic

aid to the target State, reduction of import quota of a commo-dity imported from that State, or a trade embargo against thatState, amount to violations of the rules of non-intervention?

10(5) Can a State intervene in the affairs of another State at therequest of a group opposing the Government in that State ?

10(6) Can there be collective counter-measures against a State inresponse to its wrongful acts ?

10(7) Does a State have a right to intervene in the affairs of anotherState on the ground that the latter has established a governmentof different ideology, a totalitarian (Communist) dictatorship?

10(8) Or on the ground that the target government committedbreaches of its “solemn commitments to its people” ?

10(9) Or on the ground that the government of the latter violatedhuman rights ?

1(10) Or on the ground of excessive militarization by the latterState ?

The Court’s answers to these questions, again in the context of theNicaraguan claims were as follows :

11. “The court . . . finds that no such general right of intervention insupport of an opposition within another State, exists in contem-porary international law.” 399


400. Ibid., p. 110.401. Ibid., p. 124.402. Ibid., p. 125.403. Ibid., p 126.404. Ibid., p. 108.

12. “[T]he lawfulness of the use of force by a State in response to awrongful act of which it has not itself been the victim is notadmitted when this wrongful act is not an armed attack. In theview of the Court, under international law in force today —whether customary international law or that of the UnitedNations system — States do not have a right of ‘collective’armed response to acts which do not constitute an ‘armedattack’.” 400

13. “There can be no doubt that the provision of strictly humanitar-ian aid to persons or forces in another country, whatever theirpolitical affiliations or objectives, cannot be regarded as unlaw-ful intervention, or as in any other way contrary to internationallaw.” 401 An essential feature of truly humanitarian aid is that itis given “without discrimination” of any kind. In the view of theCourt, if the provision of “humanitarian assistance” is to escapecondemnation as an intervention in the international affairs of aState, not only must it be limited to the purposes hallowed in thepractice of the Red Cross, namely “to prevent and alleviatehuman suffering”, and “to protect life and health and to ensurerespect for the human being” ; it must also, and above all begiven without discrimination to all in need in the air-receivingState, not merely to a certain faction or group 402.

14. The actions of economic nature such as the cessation of eco-nomic and aid, reduction of import quota and unilateral tradeembargo may not as such constitute “a breach of customary-principle of non-intervention” 403, unless it is shown that theydirectly bear upon “matters in which each State is permitted, bythe principle of State sovereignty, to decide freely” ; and that theelement of coercion is involved therein 404.

15. The principle of non-intervention “would certainly lose its effec-tiveness as a principle of law if intervention were to be justifiedby a mere request for assistance made by an opposition group inanother state . . . Indeed, it is difficult to see what would remainof the principle of non-intervention in international if interven-tion, which is already allowable at the request of the government

174 V. S. Mani

405. Ibid., p. 126.406. Ibid., p. 127.407. Ibid., p. 133.408. Ibid., p. 131.409. Ibid., p. 135.

of a State, were also to be allowed at the request of the opposi-tion.” 405

16. “While an armed attack would give rise to an entitlement to col-lective self-defence, a use of force of a lesser degree cannot . . .produce any entitlement to take collective counter-measuresinvolving he use of force.” Wrongful acts not amounting to anarmed attack, “could only have justified proportionate counter-measures on the part of the State which has been the victim ofthese acts . . . They could not justify counter-measures taken bya third state . . .” 406

17. “[A]dherence by a State to any particular doctrine does not con-stitute a violation of customary international law ; to hold other-wise would make nonsense of the fundamental principle of Statesovereignty, on which the whole of international law rests, andthe freedom of choice of the political, social, economic and cul-tural system of a State . . . The Court cannot contemplate thecreation of a new rule opening up a right of intervention by oneState against another on the ground that the latter has opted forsome particular ideology or political system.” 407

18. The so-called solemn commitments in question undertaken bythe Nicaraguan Government in this case “are questions ofdomestic policy . . . A State’s domestic policy falls within itsexclusive jurisdiction, provided of course that it does not violateany obligation of international law. Every State possesses a fun-damental right to choose and implement its own political, eco-nomic and social systems.” 408

19. While a State might “form its own appraisal of the situation asto respect for human rights” in another State, “the use of forcecould not be the appropriate method to monitor or ensure suchrespect. With regard to the steps actually taken [in this case], theprotection of human rights, a strictly humanitarian objective,cannot be compatible with the mining ports, the destruction ofoil installations, or again with the train, arming and equippingof” the armed bands in the State accused of human rights viola-tions. 409


410. Ibid.411. Even the dissenting judges, namely Judges Sir Robert Jennings, Shigeru

Oda and Stephen Schwebel chiefly argued either that the Court had no jurisdic-tion to deal with the case in view of the US Declaration under the optionalClause, or its conclusions were wrong on facts.

10. “[I]n international law there are no rules, other than such rulesas may be accepted by the State concerned, by treaty or other-wise, whereby the level of armaments of a sovereign State canbe limited, and this principle is valid for all States withoutexception.” 410 Thus the level of militarization in a country doesnot per se justify intervention by another.

Evidently, most judges of the Court in the Nicaragua case in1986 have not diverged from the above statements of the law in anysignificant respects 411.

It would appear from the above that the International Court has inthe Nicaragua case supported the following postulates of interna-tional customary law in respect of the alleged right of humanitarianintervention :

(1) All exceptions to the principles of non-use of force and non-intervention must be restrictively interpreted.

(2) Intervention in the form of self-defence is permissible as acounter-measure to an armed attack, provided it conforms to thecustomary law requirements such as proportionality, promptnessand absence of alternative choice of means besides respect forinternational humanitarian law.

(3) In all other situations coercive intervention, not involving use ofarmed force, as a counter-measure to a wrongful act which doesnot amount to an armed attack, is only permissible in conformitywith the principles of proportionality and reasonableness. Yet itcannot be resorted to by third States not victims of the wrongfulact.

International law permits rendering of “humanitarian assistance”provided it is in conformity with the ICRC principles of alleviationof human suffering and protection of life, and the test of non-discrimination in the distribution of the relief measures to the needy.(The question of permissibility of coercion, whether or not amount-ing to armed force, to back up the humanitarian assistance was notdiscussed by the Court. But it would seem that the objectives of thehumanitarian assistance could not be fully achieved without the co-

176 V. S. Mani

412. Nuclear Tests, ICJ Reports 1974, p. 268, para. 46 ; p. 473, para. 49.413. Border and Transborder Armed Actions (Nicaragua v. Honduras), Juris-

diction and Admissibility, Judgment, ICJ Reports 1988, p. 69, at p. 105.414. Asylum case, Judgment, ICJ Reports 1950, p. 284.415. Electronica Sicula S.p.A. (ELSI), Judgment of 20 July 1989, ICJ Reports

1989, p. 15, at pp. 76-77. The Court in this case examined the context in whicha government functionary exercised his powers “in an attempt to do somethingabout a difficult and distressing situation”.

416. Tammes (Netherlands) : GAOR, 20th sess, 6th cmtee, 874th mtg., 12 Novem-ber 1965, para. 12, cited in Goodrich, Hambro and Simons, footnote 367, supra, p. 41.

operation of the target State. More importantly, the burden of theCourt rulings in this case is to prohibit all unilateral resort to forcewhatever be its objectives.)

The State practice of even those few powerful States who haveoften resorted to “humanitarian” intervention does not amount to ageneral legal recognition of a of a unilateral right of humanitarianintervention as an exception to the principle of non-intervention.

3.1.4.3.4. Good faith

Article 2 (2) of the UN Charter embodies the principle of goodfaith fulfilment of Charter obligations by member States. Goodfaith has been one of the bedrock principles of international law,strengthening the concept of international obligations.

“The principle of good faith is”, as the International Court hasobserved, “one of the basis principles governing the creation andperformance of legal obligations.” 412 But it is a secondary obligationto strengthen a primary obligation : “it is not in itself a source ofobligation where none would otherwise exist” 413.

Arbitrariness is not so much something opposed to a rule of law,as something opposed to the rule of law. This idea was expressed bythe Court in the Asylum case, when it spoke of “arbitrary action”being substituted for the rule of law” 414. It is a wilful disregard ofthe due process of law, an act, which shocks, or at least surprises, asense of juridical propriety 415.

“Good faith” means“first, objectivity in the self-interpretation by States of acceptedobligations, and secondly, self-restraint by States in the appli-cation of rules which, although not positively accepted by indi-vidual States, [flow] from custom and reason.” 416

Thus, good faith is the hallmark of exercise of rights under the


417. Sir Hersch Lauterpacht, The Development of International Law throughthe International Court, London, 1958, p. 164, quoted in Ian Browlie, Principlesof Public International Law, Oxford, 6th ed., 2003, 1st Indian ed., 2004, atp. 430.

418. Brownlie, op. cit., p. 430.

law. It requires a subject to give due regard to the rights of othersand recognize reasonable limits in the exercise of its rights. Indeed,exceeding these limits is likely to bring the subject to face the claimof abuse of rights from others. There seems to be a marked hesita-tion on the part of many international lawyers to recognize a ruleagainst abuse of rights as such. Brownlie quotes Sir Hersch Lauter-pacht who says :

“There is no legal right, however well established, whichcould not, in some circumstances be refused recognition on theground that it has been abused. The doctrine of abuse of rightsis therefore an instrument which . . . must be wielded withstudied restraint.” 417

Hence, Brownlie :

“In conclusion it may be said that the doctrine is a usefulagent in the progressive development of the law, but that, as ageneral principle, it does not exist in positive law. Indeed it isdoubtful if it could be safely recognised as an ambulatory doc-trine, since it would encourage doctrines as to the relativity ofrights and result, outside the judicial forum, in instability.” 418

Such views, however, tend to recognize the doctrine of absolutismof rights and run against the “due regard to the rights of others” rule.All rights are, indeed, relative, both jurisprudentially as well as opera-tionally. Nor do these views take into account the impact of the juscogens of good faith on the conduct of subjects of international lawin general and in particular contexts. It is therefore submitted thatthere is, indeed, a doctrine against abuse of rights under internationallaw : that is direct consequence of recognition of the jus cogens ofgood faith.

3.1.4.4. Institutional mechanism at the United Nations

The institutional mechanism available under the Charter to seekimplementation of the above principles encompasses essentially the

178 V. S. Mani

General Assembly and the Security Council. But the respective rolesof these organs need to be appreciated against the backdrop of thelegal nature of the United Nations as an international organization interms of its capacity to fulfil the tasks that its founding fathers man-dated it.

3.1.4.4.1. International personality of the United Nations

Soon after the United Nations began functioning, the InternationalCourt of Justice had little difficulty in attributing to the UnitedNations, as an international organization, an international personalitydistinct from its members. It ruled, rather famously, as follows in theReparation case in 1949 :

“The subjects of law in any legal system are not necessarilyidentical in their nature or in the extent of their rights, and theirnature depends upon the needs of the community. Throughoutits history, the development of international law has been influ-enced by the requirement of international life, and the progres-sive increase in he collective activities of States has alreadygiven rise to instances of action upon the international plane bycertain entities which are not States. This development culmi-nated in the establishment in June 1945 of an internationalorganization whose purposes and principles are specified in theCharter of the United Nations. But to achieve these ends theattribution of international personality is indispensable.

The Charter has not been content to make the Organizationcreated by it merely a centre ‘for harmonizing the actions ofnations in the attainment of these common ends’ (Article 1,para. 4). It has equipped that centre with organs, and has givenit special tasks. It had defined the position of the Members inrelation to the Organization by requiring them to give it everyassistance in any action undertaken by it (Article 2, para. 5),and to accept and carry out the decisions of the security Coun-cil, by authorizing the General Assembly to make recommen-dations to the Members, by giving the Organization legalcapacity and privileges and immunities in the territory of eachof its Members, and providing for the conclusion of agreementsbetween the organization and its Members. . . . It must beadded that the Organization is a political body, charged withpolitical tasks of an important character, covering a wide field,


419. Advisory Opinion in the Reparation for Injuries Suffered in the Serviceof the United Nations, ICJ Reports 1949, p. 174, at pp. 178-179.

namely, the maintenance of international peace and security,the development of friendly relations among nations, and theachievement of international co-operation in the solution ofproblems of an economic, social, cultural or humanitariancharacter (Article 1) ; and in dealing with its Members itemploys political means. . . .

In the opinion of the Court, the Organization was intended toexercise and enjoy, and in fact exercising and enjoying, func-tions and rights which can only be explained on the basis ofpossession of a large measure of international personality andthe capacity to operate upon an international plane. It is at pre-sent the supreme type of international organization, and it couldnot carry out the intentions of its founders if it was devoid ofinternational personality. It must be acknowledged that itsMembers, by entrusting certain functions to it, with the atten-dant duties and responsibilities, have clothed it with thecompetence required to enable those functions to be effectivelydischarged.

Accordingly, the Court has come to the conclusion that theOrganization is an international person. That is not the samething as saying that it is a State, which it certainty is not, or thatits legal personality and rights and duties are the same as thoseof a State. Still less is it the same thing as saying that it is ‘asuper-State’, whatever that expression may mean. It does noteven imply that all its rights and duties must be upon the inter-national plane, any more than all the rights and duties of a Statemust be upon that plane. What it does mean is that it is a sub-ject of international law and capable of possessing internationalrights and duties, and that it has capacity to maintain its rightsby bringing international claims.” 419 :

This legal status of the United Nations, important though it is forour consideration of “humanitarian” intervention, must be positedagainst (1) the perceptions of the Organization at its infancy,(2) plurality of interests in the international community, and theproblem of “autonomy” of the Organization, and (3) issues of legalityand legitimacy of organizational actors.

180 V. S. Mani

420. The famous Uniting for Peace resolution, resolution 377 (V).421. ICJ Reports 1962, p. 151, at p. 158.422. Ibid., p. 168.

3.1.4.4.2. The General Assembly

Indeed, the General Assembly played a role during the Cold Warperiod, beginning with the Korean Crisis in 1950-1951, when itassumed the power to determine that in a particular context theSecurity Council had failed to perform its responsibilities under theCharter and, therefore, to make recommendations to member Statesto take collective measures, including use of force, to restore inter-national peace and security 420. Thus began the practice of UN peace-keeping operations. Somewhere along the line, however, the Secu-rity Council too began resorting to this technique. In certain cases, iteven referred matters to the General Assembly to deal with under theUniting for Peace resolution. The legality of the Uniting for Peaceprocedure has always been in doubt — a State unhappy with suchUN “intervention” could always question it. This is so in spite of theruling by the International Court of Justice in the Certain ExpensesAdvisory Opinion. The Court in that case held that the expensesincurred by the Organization peacekeeping operations were legiti-mate expenses of the Organization, as they were incurred in further-ance of operations that “were intended to carry out the Purposes ofthe United Nations” 421. The Court held :

“The primary place ascribed to international peace and secu-rity is natural, since the fulfilment of the other purposes will bedependent upon the attainment of that basic condition. Thesepurposes are broad indeed, but neither they, nor the powersconferred to effectuate them, are unlimited. Save as they haveentrusted the Organization with the attainment of these com-mon ends, the Member States retain their freedom of action.But when the Organization takes action which warrants theassertion that it was appropriate for the fulfilment of one of thestated purposes of the United Nations, the presumption is thatsuch action is not ultra vires the Organization.” 422

Dealing with the objections based on the alleged lack of compe-tence of the General Assembly to authorize action for peacekeepingoperations, the Court said, this argument took one to the internalplane of the Organization. It observed :


423. Ibid.424. Article 24 (1) of the UN Charter.425. Article 24 (2) of the UN Charter.426. Article 25 of the Charter.427. Article 33 (2) of the Charter.428. Article 33 (1) of the Charter.

“If the action was taken by the wrong organ, it was irregularas a matter of that internal structure, but this would not neces-sarily mean that the expense incurred was not an expense of theOrganization. Both national and international law contemplatecases in which the body corporate or politic may be bound, asto third parties, by ultra vires act of an agent.” 423

2.1.4.4.3. The Security Council

Issues of use of force, or forcible intervention in the affairs ofother States attract the role of the Security Council, most naturally.The Council, the executive organ of the Organization, manifests theConcert of Europe strand of the contemporary international relations.For this reason, it has been politically natural for the UN Charter toascribe to the Security Council the central role in the maintenance ofinternational peace and security. “In order to ensure prompt andeffective action by the United Nations”, the Member States haveconferred upon the Council “primary responsibility for the mainte-nance of international peace and security” 424, which it shall carry out“in accordance with the Purposes and Principles of the UnitedNations. The specific powers granted to the Security Council for thedischarge of these duties are laid down in Chapters VI, VII, VIII,and XII” of the Charter.” 425 Article 24 thus lays down the generalduties, powers and specific frame of their exercise under the Charter.To give effect to this framework of these organizational powers,duties and responsibility, the Charter embodies an undertaking of theMember States “to accept and carry out the decisions of the SecurityCouncil in accordance with the present Charter” 426.

Chapter VI is generally on “Pacific Settlement of Disputes”recognizing, on the one hand, the freedom of parties to settle theirdisputes through peaceful means, but at the same time granting a rolefor the Council, “when it deems necessary” to “call upon the partiesto settle their disputes by such means” 427. Evidently, this applies toa dispute “the continuance of which is likely to endanger the main-tenance of international peace and security” 428, and not to all dis-

182 V. S. Mani

429. Article 35 of the Charter.430. Article 34 of the Charter.431. Article 36 of the Charter.432. Article 37 of the Charter.433. Article 38 of the Charter.434. For more on this, see V. S. Mani, “The Role of Law and Legal Con-

siderations in the Functioning of the United Nations”, Indian Journal of Inter-national Law, Vol. 35, 1995, pp. 91-118, at pp.106-107.

435. Article 36 (2) of the Charter : “The Security Council should take intoconsideration any procedures for the settlement of the dispute which havealready been adopted by the parties.”

putes. The role of the Council under this Chapter also encompasses,(1) taking cognizance of any dispute or a situation, when brought inby any State, whether a member or a non-member of the UnitedNations 429, (2) enquiring into a dispute or a situation “which mightlead to international friction or give rise to a dispute” endangeringthe maintenance of international peace and security 430, (3) recom-mending (to the parties) “appropriate procedures and methods ofadjustment”, “at any stage” of the dispute or situation 431, and(4) taking up a dispute compulsorily referred to the Council byparties on failure on their part to settle it under Article 33 432. Allthis, however, shall not inhibit the freedom of the Council to“make recommendations to the parties with a view to a pacificsettlement of the dispute”, “if all the parties so request” 433.

Does the Council, under Chapter VI, have power to force either adispute settlement means or a solution of a dispute upon partieswithout their consent ? It is submitted that the Council does not havethat power under Chapter VI, nor does it have an unqualified man-date to interfere with any procedures for the settlement of a dispute,which has already been adopted by the parties to it 434. The travauxpréparatoires of the UN Charter at UNCIO reveal that during dis-cussion on what came to be Article 36 (2) of the Charter 435, Turkeyhad proposed the following provision : “Nevertheless, recommenda-tions made by the Security Council must not interfere with legal pro-cedures in the case of a dispute which has already been submittedfor legal settlement.” At the 10th meeting of Committee III/2, thedelegate of Turkey explained that the purpose of his amendment wasto ensure that the Security Council would not intervene in a case,which was being heard by the International Court of Justice. If thedispute developed into a threat to the peace in the meantime, thenthe Council could intervene, but otherwise there should be no inter-ference in the judicial proceedings. Peru supported Turkey’s pro-


436. Hans Kelsen, The Law of the United Nations, New York, 5th print, 1966,pp. 405-407, footnote 1, citing UNCIO documents.

437. Article 39 of the Charter.438. Article 40 of the Charter.439. Article 41 of the Charter.440. Article 42 of the Charter.

posal. South Africa, the United Kingdom and the United States tookthe position that the Security Council would only interfere, if thedispute amounted to a threat to the peace, or was likely to endangerinternational peace and security. The US delegate added that theTurkish amendment did not purport to place any restriction on theaction of the Council in such a case, but that “it meant that if a dis-pute were being satisfactorily handled by the Court and there was nothreat to peace, then there should be no interference by the Council”.The Turkish delegate agreed with this interpretation. The result wasArticle 36 (2) of the Charter. Explaining this provision, the SummaryReport of the Committee III/2 stated :

“According to this article, the Security Council, in makingrecommendations in accordance with the first sentence, mustdetermine whether or not the parties had already adoptedpacific procedures. If so, the Council would not ordinarily callupon them to adopt such procedures or make recommendationsfor employment of other designated procedures.” 436

Evidently, the founders of the Charter wanted to ensure great respectfor the autonomy of parties underscored in Article 33 of the Charterand stressed that this should be a healthy inhibiting factor on theSecurity Council’s “freedom of action” under Chapter VI.

Chapter VII enables the Security Council to take enforcementaction, i.e. “action with respect to threats to the peace, breaches ofthe peace, and acts of aggression”. It confers upon the SecurityCouncil a very wide discretion (a) to determine whether a situationamounts to a threat to the peace, breach of the peace or an actof aggression 437, (b) to call upon parties to observe provisionalmeasures, pending resolution of the situation 438, (c) to decide onemployment of sanctions short of use of armed force 439, and (d) totake action involving use of armed force 440. In order to enable theSecurity Council to perform its functions under this chapter, memberStates have undertaken to make available to the Council, “on its calland in accordance with a special agreement or agreements, armed

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441. Article 43 of the Charter.442. Goodrich, Hambro and Simons, footnote 367, supra, p. 52.443. See Nicaragua (Preliminary Objections), ICJ Reports 1984, p. 433. See

also Lockerbie (Preliminary Objections), ICJ Reports 1992, pp. 22 and 134(Judge Ni), 26 and 138 (Judge Lachs), 139 and 140-141 (Judge Shahabuddeen),33 and 35 and 143 and 145 (Judge Bedjaoui), 53-66 and 163-176 (Judge Weera-mantry), 73-74 (Judge Ranjeva), 100-106 and 205-211 (Judge ad hoc El-Kosheri).

444. In the words of Judge Weeramantry in the Lockerbie cases (ProvisionalMeasures), “The duty is imperative and the limits are categorically stated.” SeeICJ Reports 1992, pp. 61 and 171. As Bentwich and Martin, two early commen-tators of the Charter, point out,

“The Security Council must act in accordance with the Purposes andPrinciples laid down in Articles 1 and 2. It has wide discretion, but no arbi-trary powers. It must respect the sovereignty of Member States, especiallyin matters which are domestic. It must respect the principle of equal rightsand self-determination of peoples . . . When force is used, the Council mustsee that the territorial integrity and political independence of States do notsuffer. But within the limits of these and the other fundamental Purposesand Principles, the Security Council is a free agent.”

Norman Bentwich and Andrew Martin, A Commentary on the Charter of theUnited Nations, London, 1950, p. 62.

In the Namibia case, Judge Fitzmaurice said in his dissenting opinion that“The Security Council is as much subject to it [international law] (for the UnitedNations is itself a subject of international law) as any of its individual memberStates are.” ICJ Reports 1971, p. 294.

forces, assistance, and facilities, including rights of passage” 441.Under Article 53, the Council may even call upon a regional organi-zation to assist it in this regard, although the latter cannot mean anenforcement action without the prior authorization of the former.

Goodrich, Hambro and Simons rightly point out that

“the question remains whether the United Nations organ thatpurports to authorize the use of force has acted in accordancewith the Charter, and whether [a] member state is acting in con-formity with a United Nations decision” 442.

Yet this discretion has to be judiciously exercised for at least fourreasons : First, the Council has only primary, not exclusive, respon-sibility for maintenance of international peace and security 443. Thereare other organs of the United Nations, such as the General Assem-bly and the International Court of Justice, which may play a com-plementary role. Second, it must carry out its responsibility in accor-dance with the purposes and principles of the United Nations(included in these is the requirement of compliance with interna-tional law and justice) 444. Third, the obligation of member States tocomply with the Security Council’s decisions is not unqualified, but


445. It is well known that this provision was shifted from among the originalDumbarton Oaks Proposals on the peaceful settlement of disputes by the Secu-rity Council, to Article 2 on principles of the Charter : see Goodrich, Hambroand Simons, footnote 367, supra, p. 61.

stays in place if the decisions in question are “in accordance with thepresent Charter”. Finally, the obligation to comply with the use offorce decisions under Article 42 does not concretize as against aState, which has not concluded an Article 43 special agreement withthe Council. In the absence of such an agreement, participationin any enforcement action involving use of armed force is merelyvoluntary.

An additional, yet cardinal, factor that must inhibit the SecurityCouncil’s discretion under Chapter VII of the Charter is the follow-ing principle embodied in Article 2 (7) :

“Nothing contained in the present Charter shall authorize theUnited Nations to intervene in matters which are essentiallywithin the domestic jurisdiction of any State or shall require theMembers to submit such matters to settlement under thepresent Charter ; but this principle shall not prejudice the appli-cation of enforcement measures under Chapter VII.”

Article 2 (7) seeks to ensure simultaneous and effective obser-vance of two goal values, namely the principle of non-intervention,and the peace enforcement in appropriate cases by the Organization.The cumulative effect of Article 2 (7) is that the principle of non-intervention must be respected not only in inter-State relations butalso in the relations between States and the organs of the UnitedNations, provided that it would be no bar to an enforcement actionby the Security Council under Chapter VII. The proviso renderingpermissible an enforcement action under Chapter VII even affectinga matter which is essentially within the domestic jurisdiction of aState, is an exception to the general principle of non-intervention,and as an exception it must be restrictively interpreted. This indeedwas the intention of the draftsmen at San Francisco, as borne out byboth the wording of Article 2 (7) as well as its travaux préparatoires.

In the first place, it must be noted that Article 2 (7) commences withthe words: “Nothing contained in the present Charter shall . . .”. Thisclearly indicates that one of the guiding principles of the interpretationand application of the entire Charter by any organ of the United Nationsis the principle of non-intervention 445. Secondly, the drafting history of

186 V. S. Mani

446. UNCIO, document 1074, 1/2/76, p. 3.447. UNCIO, document 976, 1/1/40, p. 1.448. Kelsen notes :

“According to the amendment suggested by the sponsoring governmentsof San Francisco Conference the second sentence of Article 2, paragraph 7,should read as follows : ‘but this principle shall not prejudice the applica-tion of Chapter VIII, Section B (of the Dumbarton oaks Proposals, nowChapter VII of the Charter)’. Under this provision recommendations underArticle 39 were possible. In order to exclude such recommendations, upon

the Charter shows that the San Francisco Conference was sensitiveto the concern expressed by States for preservation of their domesticjurisdiction even as they were launching an international organizationwith coercive powers to maintain and restore international peace andsecurity. At least two illustrations of this may be cited from the draftingrecords. During discussion of the conditions for admission of newMembers, a question arose as to the eligibility for membership ofStates whose regimes had been established with the help of militaryforces of countries that waged war against the United Nations:

“The Committee1/2 [of the San Francisco Conference] consid-ered the difficulties which would arise in evaluating the politicalinstitutions of States and feared that the mention in the Charter ofa study of such a nature would be a breach of the principle of non-intervention, or if preferred, of non-interference.” 446

More importantly, the discussion of Article 2 (7) itself highlightedthe concern of States for balancing the coercive powers of the Secu-rity Council with domestic jurisdiction of states. As Committee 1/1reported,

“Nearly all speakers agreed in recognizing that the object ofhe paragraph was to uphold two principles : (1) Explicit recog-nition of the rule that there should not be undue interferencewith the domestic jurisdiction of the several states ; and (2) thatthe performance by the Security Council of its functions for themaintenance of peace and security should be assured.” 447

The draftsmen of the Charter were aware that the formulation “theapplication of enforcement measures under Chapter VII” referred toin Article 2 (7) was narrower than the term “the application of Chap-ter VII”. In other words, only the enforcement measures, and not recom-mended measures, of the Security Council under Chapter VII enjoy theimmunity from the bar of domestic jurisdiction 448. As Goodrich,


a motion of the Australian Delegation, the words ‘application of Chap-ter VIII, Section B’ were replaced by the words : ‘enforcement measuresunder Chapter VIII, Section B’.”

Hans Kelsen, footnote 436, supra, p. 787, fn. 2, referring to UNCIO doc. 969,1/1/39. Kelsen also notes that the Report to the President on the Results of theSan Francisco Conference by the Secretary of State of the United States, p. 44,contains the statement that the provision prohibiting the intervention of theOrganisation is so phrased “as to exclude the interference that the SecurityCouncil might make a recommendation to a state concerning the way in which adomestic question should be settled”. Kelsen, op. cit.

449. Goodrich, Hambro and Simons, footnote 367, supra, p. 292.450. S.S. “Wimbledon”, Judgment, 1923, PCIJ, Series A, No. 1, p. 25.

Hambro and Simons clarify, the Council’s actions under Articles 41 and42 are exempt from the “domestic jurisdiction” clause, but this excep-tion does not extend to all actions by the Council under Chapter VII 449.

3.2. Peremptory Norms of International Lawand Obligations erga omnes

In the S.S. “Wimbledon” case, one of its first cases, the PermanentCourt of International Justice held:

“The Court declines to see in the conclusion of any Treatyby which a State undertakes to perform or refrain to perform aparticular act an abandonment of its sovereignty. No doubt anyconvention creating an obligation of this kind places a restric-tion on the exercise of sovereign rights of the State, in thesense that it requires them to be exercised in a certain way.” 450

The Court was examining the German argument that the Treaty ofVersailles 1919 placed restrictions on Germany’s international obli-gations relating to its neutrality in respect of a contemporaneous warin Poland. The Court held that Germany must give effect to its treatyobligations as against such customary law obligations.

Since then, the emergence of the concept of jus cogens or theperemptory norms of international law has been the one importantnormative development that would contribute to the further evolu-tion of a truly global legal framework. A valuable contribution ofthe International Law Commission, the concept now embodied inArticle 53 of the Vienna Convention on the Law of Treaties envisionsa framework of international law presided over by a set of peremptorynorms, whose validity derives from the bedrock of the generalacceptance of their special “higher” status by the international com-munity of States. Although Article 53 limits their applicability only

188 V. S. Mani

451. Manfred Lachs, “Development and General Trends of International Lawin Our Time”, Recueil des cours, Vol. 169, 1980, pp. 9-377, at p. 201.

452. Ibid., at p. 211.453. See UN General Assembly resolution 2625 (XXV) of 24 October 1970.

to determine the validity or nullity of treaty provisions militatingagainst these peremptory norms, it can a priori be argued that sincetreaties represent joint or co-ordinate acts of States, by the underly-ing logic of Article 53, jus cogens shall determine the validity orotherwise of all acts of States, whether collective, or unilateral. Theyshall equally determine the validity of the conduct of all subjects ofinternational law — the international organizations, non-governmen-tal organizations and transnational corporations. Perhaps, jus cogensare the first stepping-stones of international constitutionalism.

To say this is not to ignore the formidably gigantic boulders thatlie along the path. To Judge Manfred Lachs, the concept of juscogens has been “one of the most fascinating chapters of contempo-rary international law — one which, more than any other, reflects therelationship between the freedom of action of States and the limita-tions imposed upon them by the law” 451. “An important achievementit is, and a serious challenge to the positivist approach to contempo-rary international law.” 452 There are many questions that remain tobe answered by the international community in a definitive manner,questions that the International Law Commission shunned to answer,or did not gather enough courage even to attempt to answer. Howdoes one identify jus cogens ? How are they different from lesserprinciples, and still lesser rules — should their birth tend to give usa feeling of rearrangement of the various rules and principles into apyramidal structure ? What are the jus cogens of each branch ofinternational law, such as the human rights law, the humanitarianlaw, the law of international organization, the law of internationaltransport, the international trade law, the international economic law,the law of disputes settlement, the international space law, the inter-national environmental law, and so on ? To what extent do the UNCharter principles, the principles of Friendly Relations 453, contributeto the making of jus cogens, and of international constitutionalism ?Are jus cogens any different from principles and rules imposing onsubjects of international law, obligations erga omnes ?

As one of the commentators observes, there is a well-recognized

“trend to apply it [jus cogens] beyond the law of treaties, in


454. Gennady M. Danilenko, “International Jus Cogens : Issues of Law-Making”, European Journal of International Law, Vol. 2, No. 1, http://www.ejil.org/journal/Vol2/No1/art3.html.

455. Nicaragua case, ICJ Reports 1986, p. 14, at p. 100.456. Yearbook of the ILC, 1966, Vol. II, p. 247.457. Ibid., Vol. I, pp. 20-21, observations of the Government of Luxemburg.

particular in the law of state responsibility. . . . The growingacceptance of the jus cogens doctrine is also reflected in theincreased reliance on specific peremptory rules in the officialargumentation of governments” 454.

The International Court of Justice regarded the principle of non-useof force as being “a conspicuous example of a rule of internationallaw having the character of jus cogens” 455.

It is of interest to note the considerations that shaped the Inter-national Law Commission’s decision to formulate what is nowArticle 53 of the Vienna Convention on the Law of Treaties, 1969.The draft Article 50 of the ILC final draft articles on the Law ofTreaties 1966, entitled the “Treaties conflicting with a peremptorynorm of general international law (jus cogens)” provided as follows :

“A treaty is void if it conflicts with a peremptory norm ofgeneral international law from which no derogation is per-mitted and which can be modified only by a subsequent normof general international law having the same character.”

The Commission’s Commentary on this provision said :

“The view that in the last analysis there is no rule of inter-national law from which States cannot at their own free willcontract out has become increasingly difficult to sustain,although some jurists deny the existence of any rules of juscogens in international law, since in their view even the mostgeneral rules still fall short of being universal. The Commissionpointed out that the law of the Charter concerning the prohibi-tion of the use of force in itself constitutes a conspicuousexample of a rule in international law having the character ofjus cogens.” 456

The Commission also noted that only one Government 457 haddenied the existence of the norms, while a few others had questionedthe advisability of the provision without a proper adjudicatory mech-anism. Thus it concluded that “to-day there are certain rules from

190 V. S. Mani

458. Footnote 456, supra.459. Sir Robert Jennings and Sir Arthur Watts, eds., Oppenheim’s Interna-

tional Law, Longman : London, 9th ed., 1992, Vol. I, Part I, p. 8.460. Footnote 456, supra, p. 23.461. Ibid.462. Footnote 456, supra, p. 248, para. 3, of the Commentary. ICJ regarded

the principle of non-use of force as being “a conspicuous example of a rule ofinternational law having the character of jus cogens” (Nicaragua case, ICJReports 1986, p. 14, at p. 100).

which States are not competent to derogate at all by a treaty arrange-ment, and which may be changed only by another rule of the samecharacter” 458. Yet, as Oppenheim observes :

“The content of the category of ius cogens remains to beworked out in the practice of states and in the jurisprudence ofinternational tribunals. In this connection it is important thatArticle 66 of the Vienna Convention on the Law of Treatiesprovides for the judicial settlement of disputes concerning theapplication and interpretation of Articles 53 and 64.” 459

Some of the views of the developing countries at the Commissionhave been of special relevance. In the view of the United ArabRepublic of Egypt delegation, “the recognition of the notion of juscogens by the Commission marks the transition from the classicalinternational law to the modern law of the United Nations” 460. TheUruguayan delegation noted “that up to that date, Article 103 consti-tutes the most far-reaching legal text applicable to the question, andthat it establishes a hierarchy of norms in international law” andnow, the provision on jus cogens represented

“a substantial advance over Article 103 of the Charter, in that itnot only recognizes the existence of peremptory norms, butalso provides a penalty for derogation from them in the form ofthe nullity of a treaty” 461.

As the International Law Commission’s Commentary notes, thedebates in the Commission threw up a number of examples oftreaties violating jus cogens — a treaty contemplating unlawful useof force contrary to the Charter, or contemplating performance ofany other act criminal under international law, or contemplating orconniving at commission of acts such as slave trade, piracy or geno-cide, “in suppression of which every State is called upon to co-oper-ate”, or violating human rights, equality of States, or the principle ofself-determination 462. However, the Commission thought it inadvis-


463. Ibid.464. Ibid., pp. 247-249.465. Nicaragua (Merits), ICJ Reports 1986, p. 14, at pp. 199-200 : separate

opinion.

able to engage in an examination of such treaties in extenso or evenenumeration of principles that qualify for the status of jus cogens :

“The Commission decided against including any examplesof rules of jus cogens in the article for two reasons. First, themention of some cases of treaties void for conflict with a ruleof jus cogens might, even with the most careful drafting, leadto misunderstanding as to the position concerning other casesnot mentioned in the article. Second, if the Commission wereto attempt to draw up, even on a selective basis, a list of therules of international law which are to regarded as having thecharacter of jus cogens, it might find itself engaged in aprolonged study of matters which fall outside the scope of thepresent articles.” 463

Yet, the ILC debates have revealed a number of norms qualifyingto be recognized as jus cogens. They include non-use of force, pro-hibition of criminal acts under international law, prohibition of actssuch as trade in slaves, piracy and genocide, obligation to observehuman rights, sovereign equality of States and the principle of self-determination 464. In the Nicaragua case, Judge Sette-Camara (ofBrazil) observed :

“I firmly believe that the non-use of force as well as non-intervention — the latter as a corollary of equality of States andself-determination — are not only cardinal principles of custom-ary international law but could in addition be recognized asperemptory rules of customary international law which imposeobligations on all States” 465.

Despite their reservation on the clarity of “the application andeffect of rules of ius cogens in areas other than that of treaties”, thecurrent editors of Oppenheim tend to take the view that the conse-quences of jus cogens, logically, encompass the following :

“Presumably no act done contrary to such a rule can be legiti-mated by means of consent, acquiescence or recognition ; nor isa protest necessary to preserve rights affected by such an act ;

192 V. S. Mani

466. Oppenheim, footnote 459, supra, p. 8.467. Separate opinion in Application of the Convention on the Prevention and

Punishment of the Crime of Genocide, Provisional Measures, Order of 13 Sep-tember 1993, ICJ Reports 1993, p. 325, pp. 439-441.

468. Barcelona Traction case, ICJ Reports 1970, p. 32, paras. 33, 34, 35.

nor can such an act be justified as a reprisal against a priorillegal act ; nor can a rule of customary international law whichconflicts with a rule of ius cogens continue to exist or subse-quently be created (unless it has the character of ius cogens, apossibility which raises questions — to which no firm answercan yet be given of the relationship between rules of iuscogens, and of the legitimacy of an act done in reliance on onerule of ius cogens but resulting in a violation of another suchrule).” 466

Equally, jus cogens has implications for determination of thevalidity of acts of international organizations as well. As Judge adhoc Elihu Lauterpacht has put it,

“The concept of jus cogens operates as a concept superior toboth customary international law and treaty. The relief whichArticle 103 of the Charter may give the Security Council incase of conflict between one of its decisions and an operativetreaty obligation cannot — as a matter of simple hierarchy ofnorms — extend to a conflict between a Security Council reso-lution and jus cogens.” 467

Evidently, every jus cogens principle, by virtue its being aperemptory norm, carries with it a broad range of concomitant obli-gations (“dos” and “don’ts”) for States and other subjects of interna-tional law, some readily discernible, some concretizing only in termsof a context, and some others evolving as the norm evolves. At anyrate, these are obligations in rem, valid in favour of the internationalcommunity. As the International Court explained in the BarcelonaTraction 468 case,

“33. When a State admits into its territory foreign invest-ments or foreign nationals, whether natural or juristic persons,it is bound to extend to them the protection of law and assumesobligations concerning the treatment to be afforded them.These obligations, however, are neither absolute nor unquali-fied. In particular, an essential distinction should be drawn


469. Institute of International Law, Yearbook, Editions A. Pedone, 1989,Vol. 63, Part II, Session of Santiago de Compostela, 1989, Deliberations of theInstitute during Plenary Meetings on “Protection of Human Rights and the Prin-ciple of Non-intervention in the Domestic Concerns [‘les affaires intérieures’]of States”, at p. 257.

between the obligations of a State towards the internationalcommunity as a whole and those arising vis-a-vis another Statein the field of diplomatic protection. By their very nature, theformer are the concern of all States. In view of the importanceof the rights involved, all States can be held to have a legalinterest in their protection ; they are obligations erga omnes.

34. Such obligations arise, for example, in contemporaryinternational law, from the outlawing of acts of aggression andof genocide, as also from the principles and rules concerningthe basic rights of a human person, including protection fromslavery and racial discrimination. Some of the correspondingrights of protection have entered into the body of general inter-national law (Reservations to the Convention on the Preventionand Punishment of the Crime of Genocide, Advisory Opinion,ICJ Reports 1951, p. 23) ; others are conferred by internationalinstruments of a universal or quasi-universal character.”

Do violations of erga omnes obligations, such as those relating torespect for human rights, legally authorize every State to resort touse of force, on its own, on behalf of the international community ?According to Ian Sinclair, a former legal advisor to the BritishGovernment,

“The recognition of obligations erga omnes did not in itselfpresent any problem, the real question concerned the conse-quences which follow from recognition of these obligations. Itwas clear that the obligations were incumbent on every State,but did this mean that every State had a right to act upon anyviolation ? He had some doubts about this.” 469

The reason, indeed, is that unilateral use of force is circumscribed bythe modern international law (including the UN Charter) even whileit recognizes and holds aloft the principles of the jus cogenscategory. This circumscription is justified particularly because theinternational community has established an international organizationto monitor and evolve procedures for dealing with such violationson its own terms.

194 V. S. Mani

470. Judge Lachs, footnote 451, supra, p. 341, fn. 796.471. East Timor (Portugal v. Australia), ICJ Reports 1995, p. 90, at p. 102.

For an argument in favour of the Court’s jurisdiction on the basis of individual-ization of erga omnes obligations, see the dissenting opinion by Judge Weera-mantry :

“An erga omnes right is, needless to say, a series of separate rights ergasingulum, including inter alia, a separate right erga singulum against Aus-tralia, and a separate right erga singulum against Indonesia. These rights arein no way dependent one upon the other. With the violation by any State ofthe obligation so lying upon it, the rights enjoyed erga omnes becomeopposable erga singulum to the State so acting.” Ibid., pp. 172-173.

Yet, one is sure, the eminent judge would not use the same argument in supportof a legal right or obligation to “humanitarian” unilateralism.

472. See footnote 468, supra, para. 91.

While the International Court in its Barcelona Traction rulingrecognized the existence of obligations erga omnes, Judge Lachswarns us : “there is a long way from the dictum of the Court and toactio popularis” 470. No wonder, in the East Timor case the Interna-tional Court ruled :

“In the Court’s view, Portugal’s assertion that the right ofpeoples to self-determination, as it evolved from the Charterand from United nations practice has an erga omnes character,is irreproachable. . . . It [the principle of self-determination ofpeoples] is one of the essential principles of contemporaryinternational law. However, the Court considers that the ergaomnes character of a norm and the rule of consent to jurisdic-tion are two different things.” 471

If the erga omnes obligations do not permit actio popularis byindividual or a group of States on behalf of the international com-munity, a legal right to resort to unilateral use of force to enforcethese obligations on behalf of that community is a far cry. It may beof interest that the International Court in the Barcelona Traction caseitself remarked with specific reference to obligations erga omnes inrespect of human rights :

“With regard more particularly to human rights, to whichreference has already been made in paragraph 34 of this Judg-ment, it should be noted that these also include protectionagainst denial of justice. However, on the universal level, theinstruments which embody human rights do not confer onStates the capacity to protect the victims of infringements ofsuch rights irrespective of their nationality.” 472


473. Yearbook of ILC, 1949, Vol. 1, p. 51.

The obvious implication is that where there exists internationalmonitoring mechanisms over an erga omnes obligation, there is norole for individual States to act as “international policemen”. Somuch for the legal claim of “humanitarian” intervention as a specialright of unilateralism for enforcement of a jus cogens or an orgaomnes obligation.

Georges Scelle, while participating in the International Law Com-mission’s debates on its future work programme, had in factsuggested that “the regulation of the employment of an internationalpolice force should be one of the chief preoccupations of theCommission, that specific rules should be established for that mostdangerous executive function . . .” 473.

On the basis of the Report of its 8th Commission on the Protec-tion of Human Rights and the Principle of Non-intervention in Inter-nal Affairs of States, the Institut de droit international adopted thefollowing resolution in 1989, when the world was just on the brinkof transition into a new world order dominated by a single super-power :

“The Institute of International Law,

Recalling its Declarations of New York (1929) on ‘Interna-tional Human Rights’ and of Lausanne (1947) on ‘The Funda-mental Human Rights as a Basis for Restoring InternationalLaw’ as well as its Resolutions of Oslo (1932) and Aix-en-Provence (1954) on ‘The Determination of the ‘ReservedDomain’ and its Effects’ ;

Considering,That the protection of human rights as a guarantee of the

physical and moral integrity and of the fundamental freedom ofevery person has been given expression in both the constitu-tional systems of States and in the international legal system,especially in the charters and constituent instruments of inter-national organizations ;

That the members of the United Nations have undertaken toensure, in co-operation with the Organization, universal respectfor and observance of human rights and fundamental freedoms,and standing of these rights and freedoms is of the highest

196 V. S. Mani

importance for the full realization of this undertaking, hasadopted and proclaimed the Universal Declaration of HumanRights on 10 December 1948.

That frequent gross violations of human rights, includingthose affecting ethnic, religious and linguistic minorities, causelegitimate and increasing outrage to public opinion and impelmany States and international organizations to have recourse tovarious measures to ensure that human rights are respected ;

That these reactions, as well as international doctrine andjurisprudence, bear witness that human rights, having beengiven international protection, are no longer matters essentiallywithin the domestic jurisdiction of States ;

That it is nonetheless important, in the interest of maintain-ing peace and friendly relations between sovereign States as wellas in the interest of protecting human rights, to define more pre-cisely the conditions and limitations imposed by internationallaw on the measures that may be taken by States and interna-tional organizations in response to violations of human rights,

Adopts the following Resolution :

Article 1

Human rights are a direct expression of the dignity of thehuman persons. The obligation of States to ensure their obser-vance derives from the recognition of this dignity as pro-claimed in the Charter of the United Nations and in the Uni-versal Declaration of Human Rights.

This international obligation, as expressed by the Interna-tional Court of Justice, is erga omnes ; it is incumbent uponevery State in relation to the international community as awhole, and every State has a legal interest in the protection ofhuman rights. The obligation further implies a duty of solidar-ity among all States to ensure as rapidly as possible the effec-tive protection of Human rights throughout the world.

Article 2

A State acting in breach of its obligations in the sphere ofhuman rights cannot evade its international responsibility byclaiming that such matters are essentially within its domesticjurisdiction.


Without prejudice to the functions and powers which theCharter attributes to the organs of the United Nations in case ofviolation of the obligations assumed by the members of theOrganization, States, acting individually or collectively, areentitled to take diplomatic, economic and other measurestowards any other State which has violated the obligation setforth in Article 1, provided such measures are permitted underinternational law and do not involve the use of armed force inviolation of the Charter of the United Nations. These measurescannot be considered an unlawful intervention in the internalaffairs of that State.

Violations justifying recourse to the measures referred toabove shall be viewed in the light of their gravity and of all therelevant circumstances. Measures designed to ensure the col-lective protection of human rights are particularly justifiedwhen taken in response to especially grave violations of theserights, notably large-scale or systematic violations, as well asthose infringing rights that cannot be derogated from in any cir-cumstances.

Article 3

Diplomatic representations as well as purely verbal expres-sions of concern or disapproval regarding any violations ofhuman rights are lawful in all circumstances.

Article 4

All measures, individual or collective, designed to ensurethe protection of human rights shall meet the following con-ditions :

(1) except in case of extreme urgency, the State perpetratingthe violation shall be formally requested to desist beforethe measures are taken ;

(2) measures taken shall be proportionate to the gravity of theviolation ;

(3) measures taken shall be limited to the State perpetuatingthe violation ;

(4) the States having recourse to measures shall take intoaccount the interests of individuals and of third States, aswell as he effect of such measures on he standard of livingof the population concerned.

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474. Footnote 469, supra, resolution adopted on 13 September 1989.

Article 5

An offer by a State, a group of States, an international orga-nization or an impartial humanitarian body such as Interna-tional Committee of the Red Cross, of food or medical suppliesto another State in whose territory the life or health of the popu-lation is seriously threatened cannot be considered an unlawfulintervention in the internal affairs of that State. However, suchoffers of assistance shall not, particularly by virtue of themeans used to implement them, take a form suggestive of athreat of armed intervention or any other measure of intimida-tion ; assistance shall be granted and distributed without dis-crimination.

States in whose territories these emergency situations existshould not arbitrarily reject such offers of humanitarian assis-tance.

Article 6

The provisions of this Resolution apply without prejudice tothe procedures prescribed in matters of human rights by termsof or pursuant to the constitutive instruments and the conven-tions of the United Nations and of specialized agencies orregional organizations.

Article 7

It is highly desirable to strengthen international methods andprocedures, in particular methods and procedures of interna-tional organizations, intended to prevent, punish and eliminateviolations of human rights.” 474

It is important to note that the Institute has not changed its basicstand on the issue, even after the so-called “morally legitimate”NATO intervention in the former Yugoslavia.

3.3. Rights and Duties of States

A traditional, yet still acceptable, concept of a State as a subject ofinternational law is that it is “an entity capable of possession inter-national rights and duties and having the capacity to maintain its


475. Reparation for Injuries case, ICJ Reports 1949, p. 179.476. Ian Brownlie, Principles of Public International Law, Oxford University

Press, Oxford, 6th ed., 2003, Indian ed., 2004, p. 58.477. Friedmann was quoting Philip C. Jessup, A Modern Law of Nations,

1948, p. 17.478. Wolfgang Friedmann, Changing Structure of International Law, 1964,

p. 213.479. Ricardo J. Alfaro, “The Rights and Duties of States”, Recueil des cours,

Vol. 93, 1959, pp. 91-201.

rights by bringing international claims” 475. While there are diverseentities claiming international personality on this test, it is generallyagreed that States are the primary subjects of international law.Brownlie 476 approvingly quotes Friedmann’s oft-quoted statement :

“The basic reason for his position is, of course, that ‘theworld is to-day organised on the basis of the co-existence ofStates, and that fundamental changes will take place onlythrough State action, whether affirmative or negative’ 477. TheStates are the repositories of legitimated authority over peoplesand territories. It is only in terms of State powers, prerogatives,jurisdictional limits and law-making capabilities, that territoriallimits and jurisdiction, responsibility for official actions, and ahost of other questions of co-existence between nations can bedetermined. . . . This basic primacy of the State as a subject ofinternational relations and law would be substantially affected,and eventually superseded, only if national entities, as politicaland legal systems, were absorbed into a world state.” 478

Following the municipal jurisprudence, a traditional way of look-ing at international law has been in terms of rights and obligations ofStates. Notwithstanding the diverse inaccuracies attendant on thisperception of law, it does focus on issues of relativity of rights andduties as well as issues of State responsibility and liability uponbreach of duties. Quite possibly this was the rationale for the ILC tohave taken up a study of the Rights and Duties of States in the veryfirst year of its existence alongside State responsibility.

Recardo J. Alfaro (later Judge Alfaro) was appointed Rapporteurby the Commission for this study. Indeed, he brought with him to theCommission his rich ideas on the subject.

Subsequently, Judge Alfaro has had occasion to elaborate on hisperception of the rights and duties of States in international law inhis Hague lectures of 1959 479. According to him, there are

200 V. S. Mani

480. Ibid., p. 98.481. Ibid.482. Lassa Oppenheim, International Law, Vol. I, 8th ed., by Sir Hersch

Lauterpacht, Cambridge, 1955, para. 143, p. 325.

“four essential attributes inherent in and inseparable from theconception of the State, namely : sovereignty, independence,equality and self-preservation. It is from these attributes thatemanate all the rights and competencies that the State can exer-cise. Because the State is independent, it has the right to livefree from external control and to have its independencerespected by the other States. Because it is equal to all otherStates it is entitled to be treated in every respect upon a footingof equality and to perform all the acts and do all the thingsother States legally perform and do within the internationalcommunity. Finally, because the State exists it possesses theright to preserve, protect and develop its existence.” 480

From the above four essential attributes of a State, all its rightsand obligations under international law flow.

“From the attribute of sovereignty emanates the right torespect, which is correlative with the duty of each State torespect the sovereignty of all the other States. From that sameattribute flows the right of jurisdiction in all its multifariousaspects : jurisdiction over the territory and all things within it ;jurisdiction over citizens and aliens alike ; the power to legis-late, to administer justice, to enforce the law, to maintain pub-lic order. So close is the connection between the jurisdictionalpower and its source that it is not infrequent to see sovereigntyconfused or identified with jurisdiction, whereas the latter is inreality the offspring of the former. Jurisdiction strikes the mindas the most tangible manifestation of sovereignty, but the Stateexercises jurisdiction because it is sovereign.” 481

Judge Alfaro then quotes a passage from Oppenheim in support ofhis view that jurisdiction is a direct and immediate emanation ofsovereignty : “As all persons and things within the territory of aState fall under its territorial supremacy, each State has jurisdictionover them.” 482

Judge Alfaro stresses the attribute of independence, because it

“implies the fundamental principle of non-intervention. For if


483. Alfaro, footnote 479, supra, p. 102.484. Ibid., p. 103.485. Ibid., p. 104. According to Judge Alfaro, in Gilbert Gidel’s (“Droits et

devoirs des nations : La théorie classique des droits fondamentaux des Etats”,Recueil des cours, Vol. 1925, pp. 537-599) view, among the European jurists,Christian Wolff was the first author who gave us “a complete system of therights and duties of States”. Ibid., p. 123.

In his work of 1787-1789, first published in French in 1802 (finally publishedin English in 1843), a proposal made by Jeremy Bentham was that “the Interna-tional Code [he was proposing to codify the existing the customary law] wouldbe a collection of the duties and rights of the Sovereign toward every otherSovereign”. Ibid., p. 133.

independence consists in the competency of the State to governitself without subjection to or interference by any other State, itis self-evident that the State possesses the right to have its inde-pendence respected by all other States and hence not to permitintervention in its government by any one of them. This right iscorrelative with the basic duty of every State not to interfere inthe affairs of any other State. In other words, non-interventionis restricted or suspended in the same measure as interventionoccurs and endures.” 483

Judge Alfaro does not deny that sovereignty, independenceequality and self-preservation are also rights. But they are basicallyattributes of a State, as they are

“inherent in or consubstantial with the State, and . . ., conse-quently they are the supreme, original, primary, premordial,basic, innate, essential, permanent, necessary and fundamentalrights of the State. This last term ‘fundamental’ is understoodto incorporate all the acceptations of the preceding adjectives,as in fact, it is the one generally used to qualify those rightswithout which it is impossible for the State to exist or for themind to conceive it.” 484

In fact, Judge Alfaro considers the four attributes of a State to beat once the four “fundamental Rights” of the State. He finds himself“unable to conceive [of] a State divested of the four rights of inde-pendence, sovereignty, equality and self-preservation or of any oneof them” 485.

A typical Latin American jurist, Judge Alfaro quotes CarlosCalvo :

“One of the essential rights inherent in the sovereignty and

202 V. S. Mani

486. Alfaro, ibid., p. 97, quoting Carlos Calvo, Le droit International theo-rique et pratique, 5th ed., 1896, Vol. I, para. 208, p. 352.

487. Ibid., p. 103.

the independence of States is that of self-preservation. Thisright is the first of all absolute or permanent rights and servesas the fundamental foundation for a great number of accessory,secondary or occasional rights.” 486

But, Judge Alfaro warns :

“The right of self-preservation must not be confounded withthe so-called ‘right of necessity’, repudiated by world publicopinion, legal as well as popular. The right of self-preserva-tion must be understood in the light of Article I of the Decla-ration of the Rights and Duties of Nations adopted by theAmerican Institute of International Law : ‘Every nation has theright to exist, and to protect and to conserve its existence ; butthis right neither implies the right nor justifies the act of theState to protect itself or to conserve its existence by the com-mission of unlawful acts against innocent and unoffendingStates.’ 487

There were intense debates at the International Law Commissionon Judge Alfaro’s Report. No doubt, much of the discussion focusedon the duty of non-intervention. Participating in the debates overdraft Article 5 (duty of non-intervention) of the Draft Declaration onRights and Duties of States, Georges Scelle of France

“emphasized the difference between an intervention by oneState and a collective intervention by an international organiza-tion. The right of intervention by one State was a negation ofindependence and as such should be excluded. If, however, allinterventions were excluded, the result would be anarchy. In aninternational community it was impossible to let one State gobeyond its own rights and violate international law. Every Statemust be able to denounce before the competent internationalorganization the illegal acts of other States. The principle ofintervention by an international organization was extremelyimportant to the organization of international government.Article 5 neglected that most important aspect of the question.A State should have the right to ask the United Nations to


488. Yearbook of ILC, 1949, Vol. I, p. 89.489. Ibid., p. 97.490. Ibid., p. 91.491. Ibid., p. 90.

consider the opportunity of a collective intervention in a givencase. That was the purpose of international organisation.” 488

Scelle further emphasized :

“If any real progress was to be made in international law, theidea of legitimate intervention must be given up and replacedby the taking of steps to initiate collective intervention by theinternational organization concerned. The State which formerlywould have intervened should denounce to the competent inter-national organization the failure of another State to complywith its obligations. The idea that a State could make itself thejudge of another State should be abandoned and it should beagreed that it would leave the decision to the internationalorganisation. If some such formula were not adopted interna-tional anarchy would result.” 489

Koretsky of the Soviet Union pointed out : “The action envisagedin Chapter VII of the Charter was not intervention.” He demanded“an unconditional declaration of the principle of non-interven-tion” 490.

Roberto Cordova (Mexico) remarked :

“The actions of the United Nations which derived from theCharter should not be called intervention but punitive action orsome similar phrase, as the ‘word intervention’ had a veryrestricted and confined connotation.” 491

The difference between self-preservation and self-defence wasalso highlighted :

“The right of self-preservation engenders the right of self-defence with which it is frequently identified. The identity,however, does not exist [between the two concepts]. The dif-ference between the two concepts is clear ; self-preservation isthe abstract, objective, permanent right of the State to maintainand to develop itself within the international community. Self-defence, derived from the former, is the concrete, subjective,

204 V. S. Mani

492. Ibid., pp. 102-103. Calvo :“One of the essential rights inherent in the sovereignty and the indepen-

dence of States is that of self-preservation. This right is the first of all abso-lute or permanent rights and serves as the fundamental foundation for agreat number of accessory, secondary or occasional rights.”

To him, it constitutes

“the supreme law of nations from which flows the constituent duty ofnations to protect its citizens, and its society not only from external aggres-sion, but in performance of its moral obligations towards its memberswhich constitute the very objective of its institution”. Calvo, footnote 486,supra, para. 208, pp. 352-353.

Evidently, Calvo’s self-preservation [“the right of conservation”] is similar tothe modern day national self-determination.

493. Footnote 488, supra, pp. 70-71.494. Yearbook of ILC, 1949, Vol. II, pp. 286-290.

eventual and transitory right of the State to use force in order torepel an attack against its integrity and its sovereignty.” 492

There was, however, no agreement among the members of theInternational Law Commission on whether any useful purposewould be served by drafting an instrument codifying rights andduties of States. Koretsky on his part vehemently objected to pro-ceeding with the codification because he felt that “the draft Declara-tion really contemplated the problems of the Western hemisphereand could not be applied to the whole of the globe”. It was “anattempt to extend American interrelationships to the rest of theworld”. He also remarked :

“Non-interventionist principles had always been supportedby the smaller countries. Nevertheless, some sixty years earlierin the 1890’s Burgess had contended that it was the duty ofAnglo-Saxons to establish law and order wherever the peoplenative to an area were unable to do so. In the interests of civi-lization it was therefore the duty of the Anglo-Saxon to inter-vene in the international affairs of a nation or a people so thatlaw and order would reign supreme ; intervention and the use offorce were therefore completely justified.” 493

Finally, the Commission adopted a Draft Declaration on Rightsand Duties of States 494, and disposed off the item from its agenda.

The Draft Declaration proclaimed in the first preambular para-graph : “Whereas the States of the world form a community gov-erned by international law.” And in the third,


“Whereas a great majority of the States of the world haveaccordingly established a new international order under theCharter of the United Nations, and most of the other States ofthe world have declared their desire to live within this order.”

The draft then formulated the following rights and duties of States :

— right to independence (Art. 1) ;— right to jurisdiction (Art. 2) ;— duty of non-intervention (Art. 3) ;— duty not to foment civil strife in the territory of another State

(Art. 4) ;— right to equality in law (Art. 5) ;— duty “to treat all persons under its jurisdiction with respect for

human rights and fundamental freedoms, without distinction asto race, sex, language, or religion” (Art. 6) ;

— duty “to ensure that conditions prevailing in its territory do nomenace international peace and order” (Art. 7) ;

— duty to settle disputes peacefully (Art. 8) ;— duty “to refrain from resorting to war as an instrument of

national policy, and to refrain from the threat or use of forceagainst the territorial integrity or political independence ofanother State, or in any other manner inconsistent with interna-tional law and order” (Art. 9) ;

— duty “to refrain from giving assistance to any State which is act-ing in violation of Art. 9, or against which the United Nations istaking preventive or enforcement action” (Art. 10) ;

— duty “to refrain from recognizing any territorial acquisition byanother State acting in violation of Art. 9” (Art. 11) ;

— right “of individual or collective self-defence against armedattack” (Art. 12) ;

— duty “to carry out in good faith its obligations arising fromtreaties and other sources of international law, and it may notinvoke provisions in its constitution or its laws as an excuse forfailure to perform this duty” (Art. 13) ;

— duty “to conduct its relations with other States in accordancewith international law and with the principle that the sovereigntyof each State is subject to the supremacy of international law”(Art. 14).

In the “Guiding Considerations” the International Law Commission

206 V. S. Mani

495. Ibid., at p. 290.496. Oppenheim, footnote 456, supra, p. 428.497. Ibid., p. 430.498. Ibid., p. 432.

observed, “The articles of the draft Declaration enunciate generalprinciples of international law.” 495

3.4. “New” Humanitarian Doctrines : Towards a New“Higher” Law of Human Rights ?

This section considers (1) the western discourse on contem-porary international law in terms of exceptions overshadowing therule, (2) Schermer’s anti-sovereignty thesis and (3) Tesón’s pseudo-Kantian philosophy of international law.

3.4.1. Western discourse on contemporary international law

A brief analysis of some of the post-war Western doctrine revealsa dangerous tendency to legitimize “humanitarian” intervention. Dis-cussion of international law doctrine is usually based on referencesto State practice to prove or disprove the existence and extent ofa rule of international customary law in terms of Article 38, para-graph (1), of the Statute of the International Court of Justice, whichdefines international customary law “as evidence of a generalpractice accepted as law”.

The current editors of Oppenheim, start with this statement :

“That intervention is, as a rule, forbidden there is no doubt.Its prohibition is the corollary of every state’s right tosovereignty, territorial integrity and political independence.” 496

To the learned editors, the term “intervention” has a stricter mean-ing than understood in ordinary parlance. According to this meaning,

“intervention is forcible or dictatorial interference by a state inthe affairs of another state calculated to impose certain conductor consequences on that other state” 497.

“It must be emphasised that to constitute interventionthe interference must be forcible or dictatorial, or otherwisecoercive, in effect depriving the state intervened against controlover the matter in question.” 498

This indeed, is the test to determine whether an act of a Statedirected against another is intervention.


499. Ibid., p. 435.500. Ibid., p. 436.501. This is in addition to the preliminary question whether action permis-

sible under a treaty can at all be classified as “treaty-based intervention”, asit is based on an agreement under which both parties agree that one of themcould take armed action in the territory of another.

Since intervention to be prohibited has to be coercive or dictato-rial, rendering of assistance by a State on a request by another isexcluded from the prohibition. The examples cited in Oppenheim ofsuch legal rendering of assistance upon request are the following :British armed assistance for Muscat and Oman in 1957, British andAmerican armed assistance (respectively) to Jordan and Lebanon in1958, British armed assistance to Uganda, Kenya and Tanganyika in1964 and Zambia in 1965, American armed assistance to the Repub-lic of Vietnam during the Vietnam conflict, French armed assistanceto Chad in 1968, 1969 and 1983, and to Zaire in 1978, German com-mando action against a hijacked aircraft at Mogadishu Airport in1977 with the consent of Somalian authorities, landing of American,French and Italian forces in Beirut in 1982, Indian armed assistanceto Sri Lanka under an agreement of 1987 and to the Maldives in1988. In these instances “no unlawful intervention was involved”,say the editors of Oppenheim 499. Yet they guardedly note the possi-bility of abuse, by fabrication of requests for assistance or by arequest being made by an alleged Government having only limited,temporary and precarious authority, being real. “Whether a request isto be regarded as genuine can only be determined in the light of theparticular circumstances.” 500 Such questions have been raised inrespect of the Soviet interventions in Hungary in 1956, in Czecho-slovakia in 1966 and in Afghanistan in 1979, and the United Statesintervention in Grenada in 1983 and in Panama in 1989 (to arrestGeneral Noriega).

In fact the legitimacy of some of the instances of “lawful assis-tance” such as the United States intervention in Vietnam cited aboveby Oppenheim are open to serious question on the basis of the exis-tence of a genuine request or consent on the part of the host State, orthe legitimacy of the State authority to make such request or to givesuch consent, or else the coercion that produced such request or con-sent. Oppenheim recognizes the validity of a treaty-based consent,but there have been situations in which such a treaty-based rightof intervention has been questioned 501. Thus participating in the

208 V. S. Mani

502. Rossides (Cyprus), CAOR, 20th sess. I Cmtee., 1404th mtg., p. 309.503. Ibid. See further V. S. Mani, footnote 1, supra, Chap. II, Part IV.504. Oppenheim, footnote 459, supra, p. 439.505. Ibid.506. Although Oppenheim warns that this right is likely to be abused, he

cites, inter alia, the following interventions in this respect : the UK and Frenchlanding of forces in Egypt in 1956, US landing of forces in Lebanon in 1958,landing of Belgian forces in the Congo in 1960, landing of Belgian and USforces at Stanleyville in the Congo in 1964 “to rescue persons being held byrebels as hostages”, US intervention in the Dominican Republic in 1965, landing

Friendly Relations debates in the context of the principle of non-intervention, Cyprus argued that intervention sought to be justifiedin accordance with treaty rights was one of the “most sinisterforms”, “concealed under a cloak of supposed legality” 502. Suchtreaties are often imposed on a newly independent State during inde-pendence negotiations. The validity of such treaties could, therefore,be open to question whether on the basis of Article 2 (4) of the UNCharter or any jus cogens such as self-determination and sover-eignty. The danger looming large over such treaties or arrangementsof prior consent is that one of the parties relying on the rule of pactasunt servanda may be encouraged to commit acts of intervention byforce, thereby creating situations threatening peace 503.

Dealing with “circumstances, which may justify intervention”,Oppenheim says : “Exceptionally, a state may be justified in inter-vening in the affairs of another state.” 504 Apart from the rule ofrestrictive application of this exception to the general principle ofnon-intervention, Oppenheim cites three specific limitations on thisexceptional resort to intervention : (a) compliance with the non-useof force principle, (b) the rule of proportionality, and (c) exhaustionof other peaceful means/remedies. According to Oppenheim,

“The practice of states does not yet permit the conclusionthat intervention in strictly limited cases and in a manner notinconsistent with the Charter of the United Nations is necessar-ily excluded. It is a practice which is open to abuse, and it isimportant that the use of force raises issues that are justiciablebefore international tribunals.” 505

Oppenheim in this respect takes note of the following reasons givenby states justifying their acts of intervention in the affairs of otherstates :

— A State’s right to protect its citizens abroad 506.


of Israeli commandos at Entebbe Airport in Uganda in 1976 to free passengers(mostly of Israeli nationality) from a hijacked aircraft, and the US interventionin Grenada in 1983. See, ibid., pp. 440-441. To this list could be added theTanzanian support for the overthrow of Idi Amin of Uganda in 979 : althoughTanzania itself did not specifically invoke such a right, its action has beeninterpreted as such by many.

507. Ibid., p. 442.508. Ibid.509. Ibid., footnote 17. Brownlie, footnote 392, supra, pp. 338-342, comes to

the conclusion that it is “extremely doubtful whether a right of humanitarianintervention still survives”.

510. See footnote 459, supra, p. 443.511. Ibid., pp. 443-444.512. Ibid., p. 443, fn. 18.

— The right of humanitarian intervention.— The right of self-defence.— The right to assist a colonial people.— As a treaty right.

While an act of intervention for protection of nationals abroadmay have some “humanitarian” elements to buttress its claim forlegitimacy, the question of a general right of humanitarian interven-tion must arrest our attention here. The argument is that if violationsby a State of human rights of its own nationals should “shock theconscience of mankind, the matter ceases to be the sole concern tothat state and even intervention in the interest of humanity might belegally permissible” 507. Oppenheim notes that “a substantial body ofopinion and of practice” supports this position 508. Apparently, onlyone author, Brownlie, is identified to hold the opposite view 509.Oppenheim is, however, careful in recognizing that “the fact that,when resorted to by individual states, it may be — and has been —abused for selfish purposes tended to weaken its standing as a law-ful practice.” 510 But it quickly adds : “That objection does not applyto collective intervention.” The growing involvement of the interna-tional community in this regard, Oppenheim feels, “diminishes anyneed for states to retain or exercise an individual right of humanitar-ian intervention” 511. Reiterating its counsel of caution, Oppenheimstresses time and again : “If humanitarian intervention is ever to bejustified, it will only be in extreme and very particular circum-stances.” 512

The “crucial considerations are likely to include whether there isa compelling and urgent situation of extreme and large-scale human-itarian distress demanding immediate relief” ; the incapability or

210 V. S. Mani

513. Ibid. But immediately following this statement, Oppenheim quotes theG-7’s London Declaration of 1991 to illustrate that the coercive actions taken bya few nations led by the United States against the alleged Iraqi treatment of theKurds had the stamp of legitimacy of the international community. But does itso illustrate ? Is G-7 “the international community” ?

unwillingness of the territorial State to meet the situation ; the inabil-ity of the “competent organs of the international community” (inter-national organizations) to respond effectively and quickly enough ;the absence of practical alternatives to intervention ; the likelihood ofactive resistance by the territorial State, and the limited nature of theaction taken.

“In short, it would have to be a peaceful action (which neednot exclude it being carried out by military personnel) in acompelling emergency, where the transgression upon a state’sterritory is demonstrably outweighed by overwhelming andimmediate considerations of humanity and has the general sup-port of international community.” 513

The manner of treatment of the subject by such an eminentauthority as Oppenheim clearly assumes that the statements of lawcontained therein are based on the tests laid down for recognition ofinternational customary law rules. Under Article 38 (1) (b) of theStatute of the International Court of Justice, for a rule to constitutepart of international customary law it must be based on not onlyState practice but also opinio juris. As already noted, according tothe International Court, the formulations of the principles of non-useof force and non-intervention embodied in the Friendly RelationsDeclaration, 1970, reflect at once a codification of the modern Statepractice as well as opinio juris, the subjective element of the Statepractice indicating the jural recognition by States of the bindingcharacter of those principles. In this respect, the Court’s endeavourto distinguish between mere State practice and State practice accom-panied by opinio juris is very relevant. Noting that “there have beenin recent years a number of instances of foreign intervention for thebenefit of forces opposed to the government of another State”(which was an aspect of the case before the Court), the InternationalCourt of Justice observed in the Nicaragua case :

“It [the Court] has to consider whether there might be indi-cations of a practice illustrative of belief in a kind of generalright for States to intervene, directly or indirectly, with or with-


514. ICJ Reports 1986, p. 108.515. ICJ Reports 1969, p. 44.516. Ibid., p. 109, emphasis added.

out armed force, in support of an international opposition inanother State, whose cause appeared particularly worthy byreason of the political and moral values with which it was iden-tified. For such a general right to come into existence wouldinvolve a fundamental modification of the customary law prin-ciple of non-intervention.” 514

Relying on its previous exposition of the tests to determine cus-tomary law based on state practice in the North Sea ContinentalShelf cases 515, the Court stated that :

“The significance for the Court of cases of State conductprima facie inconsistent with the principle of non-interventionlies in the nature of the ground offered as justification. Relianceby a State on a novel right or an unprecedented exception to theprinciple might, if shared in principle by other States, tendtowards a modification of customary international law. In facthowever the Court finds that States have not justified their con-duct by reference to a new right of intervention or a new excep-tion to the principle of its prohibition. The United Statesauthorities have on some occasions clearly stated their groundsfor intervening in the affairs of a foreign State for reasons con-nected with, for example, the domestic policies of that country,its ideology, the level of its armaments, or the direction of itsforeign policy. But these were statements of international pol-icy, and not an assertion of rules of existing international law. 516

Many of the instances cited in Oppenheim and other publicistsinvolving a claim of a “legal”, unilateral right of intervention areindeed of doubtful validity for this reason alone. It is not necessaryto look for consistency of practice, as that virtue is hard to come bywith humans and human institutions such as a State. But what is rele-vant is the evidence of “generality of practice” in support of a rulebacked by opinio juris. All other instances of State practice areeither mere aberrations or clear violations of the law. Among therecent instances of unilateral right of intervention, the Tanzanian useof force against the Idi Amin regime of Uganda alone appears tohave been acquiesced in by the international community without

212 V. S. Mani

517. Henry G. Schemers, “The Obligation to Intervene in the DomesticAffairs of States”, in Astrid J. M. Delissen and Gerard J. Tanja, eds., Humani-tarian Law of Armed Conflict : Challenges Ahead : Essays in Honour of FritsKalshoven, Dordrecht, 1991, pp. 583-594.

518. Ibid., p. 583.519. Ibid., p. 584.

protest. Yet that it amounted to intervention not permitted under theprinciple of non-intervention as formulated in the Friendly RelationsDeclaration, there is no doubt whatever. All this notwithstanding, itmust be said that Oppenheim’s statement of exception to the rule isfairly restrictive, circumspect, and sensitive to the possibility ofabuse by States. The cumulative effect of the Oppenheim restate-ment, however, is that it is slanted in favour of the few powerfulStates (and their satellites) which will with impunity exploit such anexception to the rule to their advantage, and to that extent it frus-trates the objectives of the general principle of non-intervention.

3.4.2. A New “Higher” Law of Human Rights : Towards an Obliga-tion to Intervene

We consider two modern publicists here representing this view.Both wrote towards the end of the Cold War, Henty Schermers andFernando Tesón.

3.4.2.1. Henry G. Schermers

Speaking from the vantage point of the “new world order”, HenryG. Schermers calls for a change in regard to the principle of non-intervention in the context of humanitarian law 517. Schermers startswith the statement that “one of the challenges of humanitarian law inthe years to come is the problem of enforcement” 518. And shouldenforcement of international humanitarian law be made obligatoryon the part of States, he says, there would be a conflict of obliga-tions, in view of the principle of non-intervention. Non-interventionprinciple emerged from the “theory of unlimited national sover-eignty” which in fact meant “uncontrolled power for the domesticgovernment governments”. The historical developments by earlytwentieth century made it clear that “it was no longer possible toregard states as completely sovereign” 519. Slowly a process of“internationalization” came to affect the external aspects of Statesovereignty, although its effect on internal aspects of sovereignty


520. Ibid., p. 585 ; emphasis added.521. Ibid., p. 588.522. Ibid.523. Ibid.524. Ibid., 590.

was small. The internal sovereignty “was carefully protected”, underthe garb of domestic jurisdiction as illustrated by Article 15 (8) ofthe Covenant of the League of Nations and Article 2 (7) of the Char-ter of the United Nations — except for the recognition of a limita-tion to it, namely the competence of the UN Security Council toadopt enforcement measures under Chapter VII of the Charter.“Also, after the admission of the newly independent states, theUnited Nations underlined the full sovereignty of states to act withintheir domestic affairs as they pleased.” 520 See, for example, theGeneral Assembly resolutions 2131 (XX) of 21 December 1965 and2625 (XXV) of 24 October 1970, Schermers points out.

In fact, according to Schemers, the general principle of non-inter-vention along with the “inalienable right” of a State “to choose itspolitical, economic, social and cultural systems, without interferencein any form by another State” recognized in the General assemblyresolutions 2131 (XX) and 2625 (XXV), protects the Governmentsof States and their “right to stay in power”. Schermers interprets the“inalienable right” referred to in these resolutions to mean : “EveryGovernment which has full control over a state has the right to stayin power, however bad its activities may be.” 521 This rule of self-preservation made by Governments, not by courts or parliaments ofpeoples, must be questioned, he says.

Schermers recognizes that the principle of non-intervention is“strongly embedded in international law”, but asks : “should thatremain so ?” 522 The principle must be reviewed, as its theoreticalbasis, i.e., absolute sovereignty no longer exists, and States are nolonger fully sovereign and international law is no longer a legal sys-tem applicable only to the relations between states” 523. Non-inter-vention and the right of a Government to stay in power are outdated,according to Schermers. The obligations under modern internationallaw must be corrected. “In particular situations there may be aninternational obligation to intervene.” 524

Schermers does not underestimate the problems of application ofsuch an obligation, in view of the possibilities of abuse. Hence histhree rules :

214 V. S. Mani

525. Ibid.526. Ibid.527. Ibid., p. 591.528. Ibid.529. Ibid., pp. 592-593.

— Hegemonial intervention within a power bloc to undo a changeof government in a State that no longer conforms to the acceptedideology should not be permitted.

— No intervention serving the “power politics” of another Stateshould be permitted.

— “[I]t should be objectively established that the domestic situationin the country concerned is contrary to the rules of internationallaw.” 525

But Schermers is confident that “though still weak and undevel-oped, or present society has the institutions which can overcomethese obstacles” 526. The institutions that he has in mind are the Secu-rity Council, the General Assembly and the International Court ofJustice. The approval from these institutions is necessarily timetaking. “Speedy intervention is dangerous intervention.” 527 Yet,“Effective intervention in particular in urgent cases, may well meanmilitary intervention.” 528 In other cases, other methods of interven-tion such as international sanctions should be pressed into service asappropriate.

Finally, Schermers’ conclusions :

— The protection of fundamental human rights is no longer amatter solely within the jurisdiction of each individual State.The international community bears responsibility.

— The international responsibility entails a right, in extreme caseseven a duty, to intervene when States severely infringe humanrights.

— As any intervention has long been prohibited under internationallaw, the necessary legal rules on intervention are underdevel-oped.

— Governments being the natural enemy of intervention, such rulesmust be developed in non-governmental fora. There is a task forthe academic community. 529

As a long-time Member of the European Commission of HumanRights, Schemers’s views deserve most serious consideration, as his


530. See supra, pp. 112-129, Sections 2.2.1, 2.2.2 and 2.2.3.

concern for human rights is beyond reproach. It must also be notedthat he recognizes the principle of non-intervention to be part of lexlata : but the substance of his proposal de lege ferenda is that theinternational community must have a right, and in extreme cases, aduty to intervene in the domestic affairs of a State for protection andenforcement of human rights. Such justifiable intervention may mostappropriately be resorted to by international organization, althoughhe does not unequivocally rule out the possibility of unilateral inter-vention by States.

However, Schemers’s views must be most strongly questioned inso far as they relate to a “right and duty of intervention” for protec-tion of human rights. A scrutiny of his views must bear upon hisunderstanding of the evolution of the principle of non-intervention,the problems of enforcement of human rights, and the reliability ofStates and State institutions in implementation of human rights.

His statement that the concept of non-intervention arose from thetheory of absolute sovereignty of States is historically correct, inview of the Eurocentric origins of international law. But the factremains that the big powers violated it repeatedly with gay abandonwhether driven by the considerations of balance of power or theMetternich system of “legitimacy”, or else preservation and expan-sion of colonialism, to such an extent that even a few of the so-called eminent European international jurists took the view thatintervention as a subject lay outside the scope of internationallaw 530. Indeed, the traditional concept of sovereignty is beingincreasingly eroded in view of the expanding international concernfor matters which were until recently solely within the domesticjurisdiction of States. But it is important to note that Statesovereignty in the post-Second World War world has received a newmeaning, chiefly thanks to the fact of co-existence of States withdiverse social, political and economic systems, many of whomemerged independent from European colonialism, in many casesafter a sustained struggle against the administering power. To the“new” States, sovereignty means more than a “chastity belt”, but ashield to protect themselves, their right of self-determination andpolitical independence, their socio-economic systems (which havebeen so ruthlessly exploited until recently), and their national iden-tity and personality. Further, that the very expansion of international

216 V. S. Mani

community’s concern for things which had been insulated from tra-ditional international law, has taken place by deliberate exercise ofsovereignty by the members of the international community, seemsto have been overlooked by Schermers and other “internationalists”.This expansion has taken place in order to stress the need for inter-national co-operation and harmonization of national action, withinthe meaning of Article 1 (4) of the UN Charter. Where co-operationis envisaged, dictatorial intervention is not morally and legally justi-fiable. What has expanded is international “concern” and not inter-national “jurisdiction” in respect of implementation of human rights.The argument that sovereignty and non-intervention merely help theGovernments to stabilize their power base and do not serve the inter-national concern for human rights is, therefore, wide off the mark.Respect for sovereignty and non-intervention are two cornerstonesof international peace in the contemporary world.

Schermers’s point about enforceability being cardinal to the effec-tiveness of humanitarian law must be answered in terms of the fun-damental distinction between the jural character of the law and itsenforceability which is more a sociological, rather than a legal prob-lem. And the law enforcement mechanism must correspond to thelevel of integration of community values. It has been the experienceof domestic communities that the mere existence of a formal lawenforcement mechanism does not necessarily ensure satisfactoryimplementation of the law.

Has the international community achieved an adequate level ofintegration of values to warrant an international human rightsenforcement mechanism even in the shape of a right or a duty to inter-vene ? The answer must be in the negative. A few conceptual pointsabout the international human rights law would be relevant here.First, while there are certain “non-derogable” fundamental humanrights setting a minimum international standard of conduct forStates, beyond this irreducible minimum the levels of implementa-tion of human rights by States vary greatly. Second, this and the con-ceptual distinction made between the civil and political rights, andeconomic, social and cultural rights allow States to pursue their ownpriorities and evolve their own methods of human rights implemen-tation, taking into account their respective economic capabilities andcultural genius of their peoples. Third, the critical problem of humanrights implementation is that the State is the most notorious violatorof human rights. Therefore, in the ultimate analysis the State system


531. Fernando R. Tesón, Humanitarian Intervention : An Inquiry into Lawand Morality, Transnational Publishers, Inc., Irvington-on Hudson, New York,2nd ed., 1996, first ed., 1988.

532. Ibid., p. 3.

is by definition ill suited to be entrusted with the responsibility ofhuman rights implementation. This equally holds true of any of theexisting alternatives on the international place, as all of them reflectand is masterminded by the state system and the goal values it rep-resents. This explains the politics of human rights, and of interven-tion. Beyond the promotion of normative development of humanrights, the existing inter-governmental institutions cannot be expec-ted, impartially effectively and without discrimination, to enforcehuman rights.

3.4.2.2. Fernando R. Tesón

Tesón is another “humanitarian” scholar of the 1980s 531. By thenhuman rights had become firmly entrenched in the foreign policylanguage of the great powers trained against the specifically targetedsmall States.

Tesón’s theory is based on three what may be called elements,namely : (1) need for a philosophy of international law, (2) customand moral theory, (3) moral argument for humanitarian interventionand a moral framework for humanitarian intervention

He begins with the statement :

“It is almost commonplace to say that international legal dis-course suffers from a congenital tension between the concernfor human rights and the notion of state sovereignty — two ofthe pillars of international law. A most pressing challenge ofour times is to solve that tension. Nowhere is the tensionbetween principles more dramatic than where governmentsabuse their power and mistreat persons to such an extent thatour normal intuitive moral reaction is to come to the rescue ofthe victims.” 532

Tesón posits two “horns of the dilemma” that confront the inter-national community :

“May states unilaterally intervene by force in order to put anend to serious human rights violations ? Or should statesinstead absolutely abide by the prohibition of the force

218 V. S. Mani

533. Ibid., p. 4.534. Ibid., p. 5.535. Ibid.536. Ibid.

embodied in article 2 (4) of the United Nations Charter, andthus refrain from intervening in such cases ?”

This is the first horn of his dilemma that “opens the door for unpre-dictable and serious undermining of world order”.

“The second horn of the dilemma entails the seeminglymorally intolerable proposition that the international commu-nity, in the name of the non-intervention principle, is impotentto combat massacres, acts of genocide, mass murder andwidespread torture.” 533

Tesón’s thesis is that “forcible action to stop serious human rightsdeprivations is permitted by international law, properly understood”.This he attempts to establish by showing that “the best interpretationof relevant treaty materials and state practice is that humanitarian inter-vention is consistent with the present international legal order” 534.

He defines humanitarian intervention as the

“proportionate transboundary help, including forcible help, pro-vided by governments to individuals in another state who arebeing denied basic human rights and who themselves would berationally willing to revolt against their oppressive govern-ment”.

He argues, “a recognition of the right of humanitarian intervention ismandated by an appropriate normative theory of international rela-tions” 535. He examines “in detail” current doctrinal analysis of theUnited Nations Charter (Chapter 7) ; post-1945 State practice (Chap-ter 8) ; and the recent Nicaragua decision by the International Courtof Justice (Chapter 10). His purpose, in his own words,

“is to suggest, once all the pieces are put together, that the bestinterpretation of the available materials commands the conclu-sion that states possess a right to intervene to help victims ofserious human rights deprivations” 536.

While moral philosophy is “now routinely part of the debates inother areas of the law”, Tesón’s complaint is that


537. Ibid., pp. 7-8.538. Ibid., pp. 9-10

“International law writing, however, remains well behind thetimes. It appears to be immersed in a theoretical frameworkinformed by a mixture of ‘realism’ and old-fashioned posi-tivism that unjustifiably excludes independent moral analysis.The participants in the legal debate put almost no moral argu-ments forward for or against humanitarian intervention. Thisseems to focus exclusively on the issue of whether statepractice of the UN Charter permits or forbids humanitarianintervention.”

“International lawyers have confined themselves to arguingwithin narrow theories of law-finding and legal interpretation. . . .As a result, the controversy has been articulated as one betweentwo competing principles of positive international law — the prin-ciple that states should refrain from the use of force and the prin-ciple that individuals are entitled to fundamental human rights.” 537

Tesón adopts “three methodological assumptions” suggested bymodern “rights” philosophers. First, an

“ethical inquiry is aimed at finding moral principles to whichall rational agents would give allegiance. Second, we cannot becompletely sure that a particular moral principle or intuitionwhich we have on reflection accepted is correct, and so wemust be ready to revise the principle or intuition in case ofdisharmony. Third, moral reasoning is a necessary ingredient oflegal reasoning.” 538

In Tesón’s scheme of things, a discussion of humanitarian inter-vention is particularly apt to illustrate the philosophical under-pinnings of international law :

“[B]ecause the legal principles and rules that deal withhuman rights and the use of military force are not just techni-cal, or morally neutral precepts. Instead, they speak to some ofour most basic moral principles, convictions and intuitions. Onthe one hand, the legal norms in question are inextricablylinked with our notions about the justice or injustice of war. Onthe other hand, our interpretation of those norms reflects theplace we are willing to accord to basic human rights in interna-

220 V. S. Mani

539. Ibid., pp. 12-13.540. Ibid., p. 14.541. Ibid., p. 15.542. Ibid., pp. 101-115.

tional relations. The way we think about those issues is alsoclosely linked to, and dependent upon, our notions about theconditions of moral legitimacy of states and governments. Con-sequently, unless we can make a plausible case for the exis-tence of a moral right of nations to wage war in defense ofhuman rights, no ‘purposive’ interpretation of article 2 (4) ofthe United Nations Charter will be convincing or indeed possi-ble. Purposive interpretation is interpretation in the light ofvalues, and so no display of state practice will be sufficient toprove the case for humanitarian intervention unless we canshow that such instances are not to be regarded simply as vio-lations of international law, and that can only be done by artic-ulating the values that inform the ‘purpose’ of the applicablerule or principle. There are strong philosophical reasons forregarding instances of humanitarian intervention as justi-fied.” 539

“To sum up : I suggest that, at least in the areas of use of force andhuman rights, the determination of ‘custom’ in international law pre-supposes a value judgment”, Tesón proclaims 540.

Tesón’s main attack seems to be on a value-based (i.e., based onhis preferred values) interpretation of the bases of international law— treaties and the corpus of international customary law :

“State practice thus remains a central touchstone of interna-tional legal reasoning. But international lawyers — and inter-national courts — cannot solve the dilemma posed by humani-tarian intervention by a purported value-free analysis of statepractice and treaty texts. State practice and treaty texts must beinterpreted. And that can only be done by confronting the moralproblems prescribed by the uneasy relationship between humanrights and state sovereignty.” 541

In Chapter 5 of his study (“Utility, Rights, and HumanitarianIntervention”), Tesón deals with possible philosophical argumentsagainst humanitarian intervention 542. He deals with (1) “utilitarian-ism of rights”, (2) the danger of abuse, and (3) foreigner’s lack of


543. Ibid., pp. 102-108.544. Ibid., p. 109.545. Oscar Schachter, “Legality of Pro-democratic Invasion”, American Jour-

nal of International Law, Vol. 78, 1984, pp. 645-650, at p. 649.546. Tesón, footnote 531, supra, p. 109, footnote 21.547. Ibid., p. 113.

knowledge. On the first objection, the argument, according to him, isthat humanitarian intervention will result in loss of life and depriva-tion of human rights to many innocent people. Tesón’s reply is thatthat is unintentional, but necessary to ensure the human rights of thelarger community. He cites in support of his point analogies of poli-tical violence of a revolution against an oppressive government,and the war against the Nazis 543.

Tesón’s response to the second, “danger of abuse” objection is :“this is an empirical rather than a principled claim” 544, i.e., this isbased on an assessment of past practice rather than on the principleas such. Also, commenting on Schachter’s fear of possibility ofabuse 545, Tesón contends :

“But the right of humanitarian intervention is no more‘unlimited’ than, say, the right to self-defense. Both of coursecan be abused, but legally and morally both rights are articu-lated as capable of exercise under certain conditions. States thatdo not respect the constraints of humanitarian intervention areguilty of aggression, just as are those states that do not respectthe constraints of article 51 of the UN Charter.” 546

Against the argument that accusation of abuse results if interventionhas a collateral or hidden agenda, Tesón’s reply is :

“If we are concerned with human rights we should look mostprimarily at whether the intervention has rescued the victims ofoppression, and whether human rights have subsequently beenrestored. The intervenor must also employ means that are con-sistent with the humanitarian purpose.” 547

“The true test is whether the intervention has put an end tohuman rights deprivations. That is sufficient to meet therequirement of disinterestedness, even if there are other, non-humanitarian reasons behind the intervention. . . . Humanitarianintervention is thus justified not because the motives of the inter-vening government are pure, but because ‘its various motives

222 V. S. Mani

548. Ibid., Tesón quotes from Michel Walzer, Just and Unjust Wars : A MoralArgument with Historical Illustrations, Basic Books, New York, 1977, p. 105,who, dealing with the Bangladesh war, describes it as a humanitarian interven-tion.

549. Ibid., pp. 114-115.550. Ibid., pp. 117-129.551. Ibid., p. 121.552. Ibid., p. 122.

converge . . . on a single course of action that [is] also thecourse of action called for by [the victims of oppression]’.” 548

On the third objection, namely, foreigner’s lack of knowledge,Tesón says the assumption is unwarranted. Often cases of humanrights suppression are better known outside a country than inside.For example, during the first two years of the military dictatorship inArgentina (1976-1983), the people inside the country knew verylittle about the murders, kidnappings, disappearances, imprisonmentsand tortures meted out to the political opponents of the rulingregime. But many outside the country knew of them 549.

In Chapter 6 of his book 550, Tesón lays down four ground-rulesfor a moral framework for humanitarian intervention :

(1) “From an ethical standpoint, governments are, internationallyand domestically, mere agents of the people. Consequently, theirinternational rights derive from the rights of the individuals whoinhabit and constitute the state.”

(2) “A justifiable intervention must be aimed at dictators for the pur-pose of putting an end to human rights violations.”

(3) “Humanitarian intervention is governed by the interplay of theprinciples of proportionality and restoration of human rights.” 551

“Military intervention, as a remedy against human rights viola-tions, should only be resorted to when all peaceful means havefailed or are likely to fail. . . . By the same token, the interven-tion should be as surgical as possible : to be morally acceptableit must be narrowly aimed at the delinquent government and itsmilitary supporters, and not at the general population.” 552 Alsothe human rights violations must be “serious enough to justifyforeign intervention”. They should correspond to two dimen-sions : “Quantitatively, human rights deprivations must be exten-sive, although they need not reach genocidal proportions. Quali-tatively, only the violation of basic civil and political rights


553. Ibid., p. 123.554. Ibid., p. 124.555. Ibid., pp. 125-126.556. Ibid., p. 126.557. Ibid., p. 129.

warrants humanitarian intervention.” But “where the violation ofhuman rights is not systematic, force should not be used. Viola-tions of human rights may occur even in democratic societies.The test, however, is whether human rights violations are suffi-ciently widespread and pervasive as to justify classifying thatsociety as a repressive state.” 553 (Tesón is not willing to confinehumanitarian intervention to cases of genocide, enslavement andmass deportation, however. “Why only those cases and not others?Why should self-determination have priority over freedom fromterror, torture, or suppressed speech ?” 554 Tesón feels that “for-eign intervention to protect socio-economic rights in stateswhere civil and political rights are observed violates the territo-rial integrity and political independence of those states. The onlyexception, more apparent than real, is where the governmentwilfully fails to take action to prevent the starvation or death bydisease of the population. Intervention then is justified. But thiscan best be described as a case of violation of the right to life. Inmost cases . . . it is the safeguarding of civil and political rights,and not of a particular pattern of wealth distribution, that legiti-mises governments.” 555)

(4) “The victims of oppression must welcome the intervention.” 556

Summing up,

“Put it simply, noninterventionism is a doctrine that stronglysupports the international status quo ; it is, therefore, blind tothe moral dimension of politics. Such a view cannot possiblyhave a place in an ethical theory of international law rooted inhuman rights.” 557

Tesón, in our view, is the most aggressive of current generation oftheorists who propound a general theory of international law justify-ing “humanitarian” intervention. Tesón’s basic thesis, that Kant per-ceives the fundamental connectivity between international justiceand domestic justice, is probably a correct understanding of Kant.That does not, however, validate the philosophic superstructure thatTesón builds thereon. In an erudite critique of Tesón’s analysis,

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558. Patrick Capps, “The Kantian Project in Modern International LegalTheory”, European Journal of International Law, 2001, Vol. 12, pp. 1003-1025,at p. 1006.

559. Ibid., p. 1007.560. Ibid.561. Ibid., p. 1010.562. Ibid.563. Ibid., p. 1013.

Patrick Capps observes that “at two particular points Tesón’s work isproblematic” 558 !

“The first argument concerns the methodological point :Tesón does not, in sufficient detail, engage in a discussion ofKant’s method. Without doing this, it is difficult to stake aclaim for the validity of the Kantian thesis in the face of scep-ticism. The second argument is substantive. Tesón grosslyneglects the critical move in Kant’s philosophy from interna-tional morality to international law, and hence advances askewed and idiosyncratic view of Kantian jurisprudence.” 559

To Capps, to consider the validity of a particular method, we needto address two questions : “(a) how are we to gauge the validity of aparticular a priori concept of international law (b) how should a par-ticular concept of international law be related to empirical reality ?”Tesón, according to Capps, “does not attempt to justify the theoreti-cal basis of his claims which are based on the validity of Kant’ssupreme moral principle — the categorical imperative — and thisleaves his theory open to attack . . .”. Secondly, regarding (b), “therelationship between Tesón’s conception of international law andempirical reality is ambiguous” 560. Tesón assumes, and does notexplain why, the Kantian categorical imperative “ should be consid-ered the non-arbitrary viewpoint upon which to premise a concept ofinternational law” 561. Capps emphasizes that “empirical reality issomething that cannot be neutrally apprehended, and that a priorijudgments of significance are presupposed by accounts of it” 562.

On the second aspect of his critique of Tesón (relativity of inter-national law to Kantian empirical reality), Capps highlights twobasic judgments underlying a theorist in relating to reality : one, ajudgment of relevance and the other a judgment of importance, ofempirical facts explaining the reality 563. (Indeed, identification ofwhat constitutes an empirical fact can itself be problematic, andoften subjective). Thus for instance, Tesón has not been able to


564. Ibid., 1010.565. Ibid., p. 1014.566. Ibid., p. 1025.567. Ibid.

explain, “why exactly the categorical imperative (the supreme moralprinciple) should be considered the non-arbitrary viewpoint uponwhich to premise a concept of international law” 564.

A more devastating criticism of Tesón, however, is that

“Tesón trivializes and leaves highly underdeveloped a key— if not the central — move in Kant’s philosophy of law andinternational law. This is the move from the unilateral moralreason to omnilateral reason. If this argument follows, it isquestionable whether Tesón, in the vast majority of hisbook, is referring to Kant’s conception of international law atall. This argument is made by reference to Tesón’s argumentin favour of intervention by states to secure humanitarianobjectives.” 565

Capps in conclusion recapitulates his two main criticisms ofTesón :

“First, it needs to consider the validity of the categoricalimperative as a moral principle. Without this, the validity of hisapproach to international law, which is based upon this prin-ciple, lacks foundations. Secondly, Tesón appears to side stepor trivialize the central core of Kant’s legal philosophy, whichconcerns the move from the state of nature to internationallegal order. Without this, Tesón appears at times to be anapologist for the unilateral activities of states and this is some-thing that Kant would firmly reject.” 566

Capps thus feels that, “while Tesón’s work is a worthwhile analysisof Kant’s ideas about the moral standing of states in a state of nature,it does not represent a developed account of Kant’s conception ofinternational law”. It should move “towards a theory of institutionsrooted in legitimate constitutional principles and procedures whichwill permit the effective application of the categorical imperative inthe relations between states” 567.

One may add a few more criticisms of Tesón : First, Tesón justifiesunilateral use of force by a State on two grounds : (1) just causeand (2) legitimacy of government taking action. Just cause encom-

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passes two kinds of situations : one, a situation when a State has toprotect its own citizens against foreign aggression (self-defence),and the other, when it has to protect the citizens of a target Stateagainst human rights violations by that State (humanitarian interven-tion). Evidently, critical to this argument is the legitimacy of theState taking action. The main condition attached to determination oflegitimacy is respect for human and democratic rights. A State,according to Tesón is illegitimate if the government is a dictator-ship, or if the State is rife with civil war. These situations allowunrestrained unilateralism.

Second, his focus for intervention is violation of civil and politi-cal rights. When it comes to violations of economic, social and cul-tural rights, he would justify intervention only in cases of systematicstarvation deaths (closest to his civil and political preoccupations),and not in others. He ignores the point that situations for interven-tion arise because the basic socio-economic conditions congenial forlack of good government exist leading to such gross violations ofhuman rights. While the UN Charter mandates the developed Statesto promote human rights by joint and separate action, this can onlybe done through substantial transfers of resources to potential targetsof intervention, to ensure international distributive justice takesplace. The so-called right or duty to intervene fails to answer thisobligation to be carried out in good faith. Recognition of thisright/duty to intervene amounts to delayed justice and it prescribes await for gross violations of human rights occur in a target countryand then to strike. In this sense such a right /duty to intervene makesa mockery of the Charter-based principles of international co-opera-tion. And, how come promotion of economic and social rights is amatter of territorial integrity and political independence of states, butthat of civil and political rights is not ?

Third, Tesón’s reading and interpretation of State practice permiteclectic application of humanitarian intervention. All that he says isthat if the effect of a given intervention is good for human rights,notwithstanding the “collateral” motives of the intervenor, the inter-vention must be legitimate. The pro-sugar lobby in the United Statespatterned the US attitude towards the “liberation” of Cuba in 1898,and a pro-agriculture lobby patterned it to the decision to hold on tothe Philippines post-liberation. The need to avenge the attempt on acurrent President’s father’s life, control over petroleum and profi-teering by Haliburton patterned the US attitude towards Saddam


Hussein. How come no action against Saudi Arabia, and other“friendly” yet undemocratic regimes ?

While both Schermers and Tesón have taken such a high “moral-ist” stand in support of “humanitarian” intervention, neither hasraised his voice when in every actual political context in which a bigpower has claimed a right or duty to “humanitarian” interventionsince 1990, but has violated every norm of humanitarian law ofarmed conflict. Is it that the end justifies the means ? How can anintervention that engages in an ugly, indiscriminate, and often sus-tained exhibition of brutal force upon an alien people be “humani-tarian” simply because the intervenor claims so ? And how many“honest” “humanitarian” interventions have we had since that date inwhich the people in the target country have welcomed the interven-tionist forces with open arms and showers of rose petals ? The truthhas always been (through the past centuries) and still is that no inter-venor has ever been so downright “selfless” to be a “kind-heartedgunman” — as Brownlie may describe him in his characteristicallybiting satire — as to be restrained in his conduct by “moral persua-sions” of international humanitarian law, once he is so deeply movedby his intense sense of pseudo-Kantian categorical imperative (what-ever be the original dictates of a true Kantian empirical reasoning).Schachter’s warning of abuse of such rights/duties of intervention isborne out by the attitudes of the powerful States. In an era of inter-national organization, there has to be someone to determine thelegitimacy of things, someone other than the interventionist gunman— no one can be a judge of his own cause : that is against the basictenets of natural justice. Perhaps Kant would have said so, were healive today.

The final criticism one would like to make of Tesón is that he mixesKant’s “is” and “ought” together, and his prescription of transitionfrom one to the other, of which Kant is so intensely conscious.Perhaps, it is always a “clever-by-half” contention that what I thinkis the law, State practice and international public opinion notwith-standing, that I interpret State practice according as what I think thelaw should be. Thus, by a stroke of his pen, Tesón seems to say thatthe law has already changed, that the sovereign State does not existany longer, the great powers (whose immense sovereignty is inher-ently philanthropic : and we know how much of resources that theyhave so generously and voluntarily transferred to the developingcountries for the cause of nurturing human rights, even according to

228 V. S. Mani

568. Speaking against the background of Bosnia and Herzegovina andKosovo, Pope John Paul II in Message of His Holiness Pope John Paul II for theCelebration of the World Day of Peace 1 January 200 (even while arguing infavour of “a renewal of international law and international institutions, arenewal whose starting-point and basic organising principle should be the pri-macy of the good of humanity and of the human person over every other con-sideration” : para. 12), said :

“11. Clearly, when a civilian population risks being overcome by theattacks of an unjust aggressor and political efforts and non-violent defenceprove to be of no avail, it is legitimate and even obligatory to take concretemeasures to disarm the aggressor. These measures however must be limitedin time and precise in their aims. They must be carried out in full respectfor international law, guaranteed by an authority that is internationallyrecognised and, in any event, never left to the outcome of armed interven-tion alone.

The fullest and the best use must therefore be made of all the provisionsof the United Nations Charter, further defining effective instruments and modesof intervention within the framework of international law. In this regard,the United Nations Organisation itself must offer all its Members States anequal opportunity to be part of the decision-making process, eliminatingprivileges and discriminations which weaken its role and credibility.”

The papal messages available on the Vatican websites ; emphasis added.

their own ever-revisable promised targets !) shall decide who breaksthe law of human rights, having decided what that law is/should be,and that then they may decide according to their momentary whimsand fancies when and how to bombard which country and at whattime, and that whatever they decide must be in accord with the“modern” just war doctrine, as they have a divine right and a duty todecide so. In this pursuit of the ultimate, “categorical moral impera-tive” of freedom and humanity, they are above the current state-cen-tric, decentralized system of international law and organization (thatincludes the International Court, should it stand in the way), but inperfect accord with the “new”, “real” and “purposive” interpretationof rules of international law that gives a licence to them to transcendthat system at will on their own individual judgments of theimmorality of situations obtaining in the target State. This is whatTesón grants to the great powers almost as a divine right/duty —“divine” because the great powers have been divinely chosen for thetask, endowed as they are with enormous economic and militaryresources —, with his pseudo-Kantian façade unveiled. It is a taskspecially carved out for the great powers, because small “powers”(without their support, open or tacit) are physically incapable of exer-cising this right/duty. Furthermore, the exercise of this right/dutyitself is a “secular categorical imperative” as it is above all criti-cisms, whether domestic or international, whether from the Pope 568


or from any other spiritual pontiff recognized by millions over theglobe — as the United States-United Kingdom invasion of Iraq hasrevealed.

In this chapter we have sought to examine the response of thecontemporary international law to the continued challenge of“humanitarian” intervention. This we have pursued in terms of por-traying the normative order of the United Nations and the moderninternational law, the peremptory norms of international law anderga omnes obligations, the relevance of traditional vantage point ofRights and Duties of States in the light of the modern law, and the“new” “humanitarian” re-statements of the non-intervention prin-ciple. The last is a mix of both a legal and a moral claim of legiti-macy for unilaterlism in “sheep’s clothing”. It encompasses thecurrent voice of the much-edited old master, Oppenheim, and twohumanitarian theorists. An attempt has been made to respond tothese new claims of “humanitarian” interventionists to legitimacyof such a right or a duty.

The next chapter endeavours to look at some of the issues thrownupon by recent interventions, in terms of the contemporary interna-tional law based on the UN Charter. Are there limits to unilateral useof force by States ?

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CHAPTER IV

UNILATERALISM OF “HUMANITARIAN”INTERVENTION

The phenomenon of unilateral “humanitarian” intervention byStates is examined in this chapter in terms of the issues of burden ofproof of legality of unilateral action in international law, and legalityand objectives of unilateral “humanitarian” intervention. The latterset of issues is looked at from the perspectives of two of the mostrecent interventions, namely the invasion of Afghanistan 2001 andthe invasion of Iraq 2003.

4.1. Issues of Burden of Proof of Legality of Unilateral Resortto “Humanitarian” Intervention

Unilateral acts of States have a unique place in international law.On the one hand, cumulation of a general pattern of unilateral actsmay evidence the existence or a change of a rule of internationalcustomary law, provided they display the objective element of gen-erality of practice of States and the subjective element of acceptanceby those States the requirement of such practice as law — tests laiddown by Article 38 (1) (b) of the Statute of the International Courtof Justice while describing international customary law. On theother, all other acts of State are either permissible or prohibitedunder international law. In so far as they prohibited under interna-tional law, they constitute violations of the law.

Issues of burden of proof arise in contexts, namely, generalburden of proof of legality of a unilateral act, and burden of proofof legality vis-à-vis jus cogens.

4.1.1. General burden of proof of legality of a unilateral act

Permissibility and the prohibited character of a unilateral act isusually determined in terms of its context and the State concernedhas the obligation to ensure that its acts are permissible underinternational law. The International Court of Justice has ruled in theAsylum case in 1950 :

231

569. ICJ Reports 1950, pp. 276-277.570. ICJ Reports 1951, p. 116, at p. 132.571. Ibid.

“The party which relies on a custom . . . must prove that thiscustom is established in such a manner that it has become bind-ing on the other party . . . that the rule invoked . . . is in accor-dance with a constant and uniform usage practised by theStates in question, and that this usage is the expression of aright appertaining to the State granting asylum and a dutyincumbent on the territorial state. This follows from Article 38of the Statute of the Court which refers to international custom‘as evidence of general practice accepted as law’.” 569

In the Anglo-Norwegian Fisheries case, the Court held the verynext year on the validity of a typically unilateral act with interna-tional dimensions :

“The delimitation of sea areas has always an internationalaspect ; it cannot be dependent merely upon the will of thecoastal State as expressed in its municipal law. Although it istrue that the act of delimitation is necessarily a unilateral act,because only the coastal State is competent to undertake it, thevalidity of the delimitation with regard to other States dependsupon international law.” 570

Would the absence of precise technical rules in international lawimply non-amenability of a unilateral act of a State to critical assess-ment under international law ? The Court ruled in the immediatelypreceding sentence :

“It does not at all follow that, in the absence of rules havethe technically precise character . . ., the delimitation under-taken by the Norwegian Government in 1935 is not subject tocertain principles which make it possible to judge as to itsvalidity under international law.” 571

These rulings in the Fisheries case establish that :

(1) Every state has a duty to ensure that its unilateral act in questionis permitted under a relevant rule of international law, and has aburden, vis-à-vis the international community, to establish thelegal permissibility of the act ;

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572. S.S. Lotus, PCIJ, Series A, No. 10, 1927, p. 67.573. In fact, in terms of the facts and circumstances of the Lotus case, the

PCIJ was merely stressing the need for evidence of both permissive and pro-hibitive rules to determine the international validity of an act of a State, ratherthan emphasizing the absolutist interpretation of freedom of action on the part ofa State. This is evident from the Court’s emphasis on the territorial limitation ofa State’s jurisdiction. See, ibid., pp. 18-19. The Court in that case examined theevidence adduced by both France and Turkey, before finally accepting Turkey’scontention that there were no prohibitive rules of international law invalidatingthe unilateral assumption of criminal jurisdiction by Turkey over French offi-cials of a French vessel accused of criminal negligence. In view of this, it is pos-sible argue that the ruling quoted above was an obiter dictum, without which theCourt’s decision in that could have stood the ground. With that statement, theCourt perhaps over-generalized the rule relating to validity of unilateral acts.

(2) Absence of precise technical rules to determine the permissi-bility of an act does not provide an escape route for the stateconcerned from this obligation.

It is not widely appreciated that the Court’s above rulings have asignificant effect in terms of the contemporary international law :they have tilted the scales decisively away from the positivistic pre-dispositions in which the traditional, pre-Charter, international lawhas been embedded. These rulings have in effect upset the blindlypro-sovereignty emphasis of the traditional international law, so typi-cally symbolized by the famous Lotus ruling of the Permanent Courtof Justice, the illustrious predecessor of the present Court : “Restric-tions on independence of States cannot be presumed.” 572

This statement has generally been interpreted 573 to mean thatStates have unfettered freedom to do anything until and unless it isproved that its freedom is somehow curtailed by some rule of inter-national law that it has itself accepted. Under the Lotus rule thereis a presumption of validity of unilateral acts and anyone who daresto challenge the validity has the burden to prove invalidity of theact concerned. The Fisheries case has now turned the burden ofproof around — it now demands of every unilateral actor to ensurethat its act is indeed not contrary to the law and prove to the inter-national community that its act is permitted under internationallaw. No longer has the international community a burden to provethat a unilateral act was in fact violative of a rule of internationallaw.

The subsequent trend in the international jurisprudence has beenfairly clear. In the Nationality Decrees in Morocco and Tunis case,the Permanent Court upheld the domestic jurisdiction claim in


574. PCIJ, Series B, No. 4, 1923, p. 24.575. (Liechtenstein v. Guatemala), ICJ Reports 1955, pp. 20-21.

respect of determination nationality of an individual, even whileholding that :

“The question whether a certain matter is or is not solelywithin the jurisdiction of a state is an essentially relative ques-tion : it depends upon the development of international rela-tions. Thus, in the present state of international law, questionsof nationality are, in the opinion of the Court, in principlewithin this reserved domain.” 574

On the other hand, in the Nottebohm case, the International Courtdemanded of a State espousing a private claim to show that its grantof nationality to the private claimant, though essentially a domesticsovereign matter for the State to determine, was based on some“genuine link” between it (i.e., the State granting the nationality) andthe individual who was thus conferred the nationality, for the pur-pose of jus standi before the Court 575.

4.1.2. Burden of proof of validity of unilateralism and jus cogens

The burden of proof of a unilateral actor is doubly heavy now, inview of the existence of jus cogens presiding over the relevantbranch of the law, since logical and contextually operative rulescould readily be deduced from the peremptory general principle,without waiting for citations of evidence of specific consent of theactor to be bound by a rule. This has been made still heavier, whenthe impugned act directly goes against a jus cogens itself. This evendenies the weight of a deviant act to be considered to give rise to anew rule. On the implications of a deviant unilateral act on a rule oflaw, the International Court held in the Nicaragua case :

“186. It is not to be expected that in the practice of Statesthe application of the rules in question [emanating from theprinciples of non-use of force and non-intervention] shouldhave been perfect, in the sense that States should haverefrained, with complete consistency, from the use of force orfrom intervention in each other’s internal affairs. The Courtdoes not consider that, for a rule to be established as customary,the corresponding practice must be in absolutely rigorous con-formity with the rule. In order to deduce the existence of cus-

234 V. S. Mani

576. (Nicaragua v. United States), ICJ Reports 1986, p. 14, at p. 98.577. Ibid., p. 108 ; emphasis added.578. Ibid., pp. 108-109.

tomary rules, the Court deems it sufficient that the conduct ofStates should, in general, be consistent with such rules, and thatinstances of State conduct inconsistent with a given rule shouldgenerally have been treated as breaches of that rule, not as indi-cations of the recognition of a new rule. If a State acts in a wayprima facie incompatible with a recognized rule, but defends itsconduct by appealing to exceptions or justifications containedwithin the rule itself, then whether or not the state’s conduct isin fact justifiable on that basis, the significance of that attitudeis to confirm rather than to weaken the rule.” 576

Dealing with the issue of whether intervention in support of anopposition within a target State is permissible in support of a goodpolitical and moral cause, the Court examined the state of interna-tional law. It said :

“It has to consider whether there might be indications of apractice illustrative of belief in a kind of general right forStates to intervene, directly or indirectly, with or without armedforce, in support of an internal opposition in another State, whosecause appeared particularly worthy of the political and moralvalues with which it was identified. For such a general right tocome into existence would involve a fundamental modificationof the customary law principle of non-intervention.” 577

“In considering the instances of the conduct above described[the Court said] the Court has to emphasize that, as wasobserved in the North Sea Continental Shelf cases, for a newcustomary rule to be formed, not only must the acts concerned‘amount to a settled practice’, but they must be accompaniedby the opinio juris sive necessitatis. Either the States takingsuch action or other States in a position to react to it, must havebehaved so that their conduct is

‘evidence of a belief that this practice is rendered obligatoryby the existence of a rule of law requiring it. The need forsuch a belief, i.e., the existence of a subjective element, isimplicit in the very notion of the opinio juris sive necessi-tatis.’ (ICJ Reports 1969, p. 44, para. 77).” 578


579. Ibid., p. 109.580. Ibid.

Explaining it’s approach to interpreting State practice apparentlyinconsistent with a rule of international law, the Court observed :

“The significance for the Court of cases of State conductprima facie inconsistent with the principle of non-interventionlies in the nature of the ground offered as justification. Relianceby a State on a novel right or an unprecedented exception to theprinciple might, if shared in principle by other States, tendtowards a modification of customary international law. In facthowever the Court finds that States have not justified their con-duct by reference to a new right of intervention or a new excep-tion to the principle of its prohibition. The United Statesauthorities have on some occasions clearly stated their groundsfor intervening in the affairs of a foreign State for reasons con-nected with, for example, the domestic policies of that country,its ideology, the level of armaments, or the direction of its for-eign policy. But these were statements of international policy,and not an assertion of rules of existing international law.” 579

In the result, the Court found that “no such general right of inter-vention, in support of an opposition within another State, exists incontemporary international law” 580.

It is evident from the above that when a principle of internationallaw is identified, the legality of any deviation from it must meet theobjective and subject tests of establishment of a rule of internationalcustomary law.

4.2. Legality and Objectives of Intervention

The post-1990 world has witnessed a number of “humanitarian”interventions in which the intervenors — usually great powers —have sought to justify their intervention on a heady combination of avariety of objectives with some “humanitarian” objectives liberallythrown in (it is well known that there has been no known case of“humanitarian” intervention that pursued purely and exclusively“humanitarian” objectives). These objectives include the following :

1. Individual and collective self-defence — often made elastic to

236 V. S. Mani

581. One case of misinterpretation has been India’s action in Bangladesh. Itis widely claimed in the West that this was pre-eminently an instance of“humanitarian” intervention. While everyone has a right to have his own per-ception of things, we in India do know that the dynamics of India’s relationshipwith Pakistan were at the core of India’s action, not the gross violations ofhuman rights then prevalent in the erstwhile East Pakistan. And Pakistan gaveIndia the causus bellum — it formally declared war on India and bombarded itsmany cities near the border. India did use the issues of human rights violationsand the large-scale movement of refugees into its territory, chiefly as “jurypoints”, never as legal points. In law it was a war of self-defence on the part ofIndia, and it remained so in origin as well as in its prosecution. If the end of thewar produced a free Bangladesh, that was incidental and coincided with India’sdefence interests : yet it is arguable that this result could be justified in terms ofthe principle of proportionality. On Bangladesh war, see generally, V. S. Mani,“The 1971 War on the Indian Sub-Continent and International Law”, IndianJournal of International Law, Vol. 12, 1972, pp. 83-99. In this article the authordid argue that India’s action could be justified, among other grounds, on theground of support for a national liberation movement — but that is under theprinciple self-determination, and no recognition of a right of “humanitarian”intervention. Self-determination is indeed a facet of human rights, but it has adistinct identity of its own.

include “threats to national security” (present, imminent, or in theforeseeable future), and action against terrorism.

2. Enforcing international institutional sanctions — the role of aself-appointed policeman.

3. Response to violation of erga omnes obligations.4. General human rights objectives — the phantom phrase that

encompasses anything from protection or forcible installation ofWestern-style democracy, protection of human rights, and protec-tion of the intervenor’s nationals — Brownlie’s “Kind-heartedGunman”.

5. Prevention of proliferation of weapons of mass destruction.6. Regime change, when the current regime, according to the inter-

venor’s judgment, presents any one or more of the above causes belli.

What follow here are two cases of intervention that occurred atthe dawn of the third millennium, namely, invasions of Afghanistanand Iraq. There are two reasons why these were picked up ratherthan getting into the entire chronological instances of “humanitar-ian” intervention. First, these were the two prominent interventionsthat took place at the dawn of the third millennium AD. Second, othersthat occurred chiefly during the Cold War era have been over-researched (even if often misinterpreted) 581. Both these cases presentunwieldy bundles of causes and justifications for use of force byforces of “collective unilateralism” cloaked by multiple layers ofostensible claims of humanitarianism.


582. See generally, V. S. Mani “ISAF in Afghanistan : A Study in ‘Nursing’after a ‘Humanitarian’ Surgery”, Indian Journal of International Law, Vol. 45,2005, at pp. 17-41.

583. Starting with the nineteenth century, the 2001 war was the Fifth AfghanWar being fought by foreign powers for the control of Afghan affairs — count-ing the three Anglo-Afghan Wars (1839-1842, 1878-1880 and 1921-1923) andthe Soviet occupation of Afghanistan (1979-1989).

4.3. Invasion of Afghanistan 2001

4.3.1. Introduction 582

The Afghans, despite the diversity of their racial roots, are a proudpeople, and historically, no foreign power has been able to subjugatethem for a long time. This was true of Alexander the Great, Akbarthe Great, the British (having fought and “won” three 583 “AfghanWars”), and, indeed, the Soviets. None of these invaders were eversuccessful in establishing their total control over the entire countrywhose rugged topography itself makes it nearly impossible to becontrolled from one power centre.

The “war against international terrorism” made the already dis-credited Taliban regime of Afghanistan a ready target of the UnitedStates ire. The result was the US-UK joint attack on Afghanistanwith the overwhelming air power of the new invaders all but pulver-ized anything it targeted, whether deliberately or “by mistake”.

In the aftermath of a series of carpet bombings, this awesomeshow of air power gave way to an “International Security AssistanceForce” (ISAF) and the return of a number of UN agencies to “nurse”the country back to “normalcy”. While at the outset one could easilysay that the process of nursing the country back to “normalcy” ismore of a moral rather than a legal question, it is important to lookat the legality of the process and of the entire circumstances that ledto it. For, legitimacy is cumulation of both legal as well as moralconsiderations. Indeed, the presence of “foreigners” in a country dic-tating the course of events in that country must have some legality intheir support, so that the new regime set up by them becomes a legiti-mate and acceptable regime.

4.3.2. 9/11 and aftermath

On the morning of 11 September 2001, three hijacked civilian air-craft on US domestic flights were diverted ; two of them rammed

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584. Resolution 1368 (2001), 12 September 2001.

against the World Trade Center twin towers in New York and thethird against the Pentagon building. The WTC towers imploded andwent down in a huge fire and a cloud of debris, piles of mangled metaland mortar, and dust, killing in the process thousands of innocenthuman beings, not only American nationals, but also nationals ofsome 60 nations. A fourth hijacked aircraft crashed in Pennsylvania,killing all the passengers and crew. This was one of the most heinousterrorist attacks on innocent human lives. Evidently, considerablemeticulous advance planning had preceded these incidents. And thatmakes the mass killings a crime against humanity. The entire human-ity sincerely commiserated with the United States. The expression ofsympathy of the international community at the United States’s hourof agony was instantaneous, outpouring, intense, overwhelming andunanimous. There was a universal consensus that 9/11 represented aheinous attack on humanity at large. (Indeed, this was not the firsttime that a country has been attacked by such a heartless face of ter-rorism — India lost some 30,000 innocent men, women and childrenat the altar of terrorism in the 1990s when the majority of the coun-tries of the world did not care to take note, let alone commiserate. Butthen it was now different as the superpower itself was hit, and com-miserations had to be special, not only that the sad occasion demandedit, but the United States itself would have expected it — rememberPresident Bush’s “you are either with us or against us” speech.)

With the 11 September attacks began the Fifth War on Afghan-istan. President George Bush most unfortunately called it a “crusade”.

On 12 September, both the General Assembly and the SecurityCouncil of the United Nations adopted resolutions which stronglycondemned the acts of terrorism, and asked the member States“urgently” to co-operate “to bring to justice the perpetrators, orga-nizers and sponsors of the outrages of 11 September 2001”, and incombating terrorism worldwide. They stressed that “those respon-sible for aiding, supporting or harbouring the perpetrators, organizersand sponsors of these acts will be held accountable”. Additionally,the Security Council resolution expressed “its readiness to take allnecessary steps to respond to the terrorist attacks of 11 September2001, and to combat all forms of terrorism, in accordance with itsresponsibilities under the Charter of the United Nations” 584.


585. See Lord Russell-Johnston, President of the Parliamentary Assembly,published in the Frankfurter Allegemeine, 10 October 2001, http://stars.coe.fr/President/Russell/Speeches/FrankfurterAllegemeine_ October 3002_E.htm.

586. Bhasmasura was a demon in the Indian mythology who practized severepenance to please Lord Shiva, who, immensely pleased with him, granted aboon that whomever, or whatever, Bhasmasura touched on the head, wouldinstantly turned into ashes. But, at long last, Bhasmasura decided to turn towardsShiva himself !

NATO promptly declared that the 11 September attacks amountedto an armed attack against a member of the Alliance within the ambitof Article 5 of the Treaty of Washington, 1949, its basic constitution,and that, therefore, all other members of the Alliance were entitled/obliged to respond as the Alliance might deem fit. The Europeannations responded through many of their common regional institu-tional mechanisms, initially accepting the possibility of a militaryaction, “provided that any such action was approved by the UNSecurity Council, that it clearly defined its objectives, and that itavoided targeting civilians, and was generally conducted in confor-mity with international law” 585. But they were subsequently broughtin line with NATO. This was of course to be expected because mostof the prominent European States were members of the Alliance, andat any rate the United Kingdom had already committed itself to anyaction that the United States might consider appropriate to meet thesituation.

The contemporaneous debates at the United Nations generallysupported action through the United Nations against the 11 Septem-ber terrorists and those who harboured them.

Countries like France, China and many others aired views to thiseffect.

The United States was understandably quite shaken by the terror-ist attacks, and decided to respond, predictably, with a heavy hand. Itprobably least expected that Osama bin Laden, one of its own origi-nal creations, would now turn around and do a “Bhasmasura” 586 tothe Creator Himself.

Given this psyche of the United States in respect of al-Qaeda atleast since the attacks on its African embassies in 1998, one is notsure whether there were any prior consultations with other countries,outside the NATO Alliance, or, if there were, how wide and howmuch, before the United States set the agenda of the war, and initiatedeach step in pursuit of the agenda, leaving others merely to fall inline behind the leader.

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4.3.3. Economic and other sanctions and US demands on the Tali-ban

At his first presidential address to the nation, President Bushdeclared war on the 11 September terrorists and those who har-boured them. On 20 September, in his address to the joint sitting ofCongress he said that investigations implicated Osama bin Ladenand his al-Qaeda organization, which had also been responsible forattacks on American embassies in Tanzania and Kenya and forbombing of the USS Cole in the recent past. He declared that

“The American response to terrorism is being fought athome and abroad through multiple operations including : diplo-matic, military, financial, investigative, homeland security andhumanitarian actions.”

He then proclaimed : “Every nation, in every region, now has adecision to make. Either you are with us, or you are with the terror-ists.” Towards the end of his speech, the President put to the Talibanfive demands (which were “not open to negotiation”) : (1) deliver to the US authorities all al-Qaeda leaders, (2) release all foreignnationals held hostage, (3) protect journalists, diplomats and aidworkers, (4) close immediately and permanently every terrorist train-ing camp, and (5) give the United States full access to training campsto make sure that they have ceased to operate.

On 23 September, President Bush signed Executive Order 13244,pursuant to the US laws including the law on terrorism, blocking theassets of the terrorist organizations and others who support them,and prohibiting transactions by Americans with terrorists and thosewho support them. The Order annexed a list of 27 terrorist organiza-tions, including al-Qaeda (besides Harakat-ul Mujahidin and Jaish-I-Mohammed) targeted by it.

The Security Council adopted a resolution on 28 September ask-ing all States to (a) prevent and suppress the financing of terroristacts ; (b) criminalize the wilful provision or collection, by anymeans, of funds by their nationals or in their territories to be used forcommission of terrorist acts ; (c) freeze without delay funds and otherfinancial assets or economic resources of persons who commit, orattempt to commit, terrorist acts or participate in or facilitate thecommission of such acts ; and (d) prohibit any persons within theirterritories from making any resources or services for the benefit of


587. Resolution 1373 (2001), 28 September 2001.588. The Security Council was merely reiterating its constitutional responsi-

bilities including its powers to take enforcement action. This it has done on thegeneral issue of combating international terrorism as well — see paragraph 6 ofthe Council resolution 1269 (1999) of 19 October 1999.

terrorists or those who abet them 587. The resolution also asked allStates to refrain from giving any support to terrorist acts, to takenecessary steps to prevent the commission of terrorist acts againstother States ; to deny safe haven to terrorists or their supporters andto ensure them to be brought to justice. It further provided for theconstitution of a Council Committee to monitor implementation ofthe resolution, calling upon all States to make reports within 90days. Finally, the Council expressed “its determination to take allnecessary steps in order to ensure the full implementation of this reso-lution, in accordance with its responsibilities under the Charter” 588

and decided, “to remain seized of this issue”. It must be emphasizedthat the resolution was adopted by the Council acting under Chap-ter VII of the UN Charter (which empowers the Security Council totake enforcement action against a threat to the peace, breach of thepeace or act of aggression). The Charter provides, vide Article 25read with Article 48, that “decisions” of the Council of this nature,taken in accordance with the Charter, shall be binding on all memberstates of the United Nations.

4.3.4. US military response

Not having received any compliance report from the Taliban onits 20 September demands, the United States supported by theUnited Kingdom, began nocturnal bombing of Afghanistan on7 October. A number of other countries, including the NATO Allies,provided logistical support and other facilities for the US-led mili-tary action. The bombing has been heavy and relentless, and it stillcontinued in the southern parts of Afghanistan, even after the defeatand withdrawal of the Taliban-al-Qaeda regime from most parts ofthe country. How much has been the civilian damage/injury/casualtycaused by the high intensity carpet-bombing or other force usedin Afghanistan by the United States and how much of it has been“collateral” within “permissible” limits (or “mistakes” committedinadvertently) or has exceeded the limits set by the principles ofinternational humanitarian law (IHL), will depend on objective evi-

242 V. S. Mani

589. See SG/SM/7985 of 8 October 2001.590. Press statement by the President of the Security Council vide UN doc.

AFG/152, SC/7167, of 8 October 2001.

dence to be evaluated at the end of the war, and not on the basis ofthe type of claims the belligerents make against each other in everywar. It would appear, however, that a large International Red Crossstorage facility well stocked with medicines and other humani-tarian aid materials was among the civilian targets destroyed by thebombing. Also, the role played by a CIA operative in the killing ofsome 300 Taliban PoWs in Mazar-e-Sharif raised a question markover the US claim of compliance with IHL principles.

The day after the American bombing began, UN Secretary-General Kofi Annan made a gratuitous Press statement to the effectthat the American action must be seen in the context of the SecurityCouncil’s determination to combat, by all means, the threats to inter-national peace and security caused by terrorist acts, and that theCouncil also had reaffirmed the inherent right of individual or col-lective self-defence in accordance with the UN Charter 589. The sameday the Security Council met at the request of the representatives ofthe United States and the United Kingdom. The Council took note oftheir letters whereby they claimed that the military action was takenin accordance with the inherent right of individual and collectiveself-defence, pursuant to Article 51 of the UN Charter 590. From thelegal viewpoint, however, nothing much can be read into the Coun-cil Presidential statement, either in support of or in opposition to theclaim of self-defence — absence of opposition to the claim wasclearly due to the voting politics in the Council. For the same reason,the presidential statement cannot be seen as the Council’s acquies-cence into the validity of the claim. Thus the Council’s position didnot constitute a clear, explicit endorsement of the legality of self-defence action by the US-UK forces.

4.3.5. The United Nations role in forging transitional arrangementsfor Afghanistan

As the Taliban was fast losing control of most part of Afghanistanand the Northern Alliance was moving in to take its place, the UNSecurity Council decided to play a role in bringing about normalcyand governance in Afghanistan. Thus the heads of delegations of the


591. Resolution 1378 (2001), 14 November 2001.592. UN doc. S/2001/1154.

six immediate geographical neighbours of Afghanistan (Pakistan,China, Tajikistan, Uzbekistan, Turkmenistan, and Iran) along withthose of the United States and Russia (i.e. “six plus two”) met at theUnited Nations Headquarters, at the instance of the UN Secretary-General and adopted a declaration on 12 November. Following this“Six plus Two” declaration, the Security Council adopted a resolu-tion on 14 November welcoming the declaration and expressing itssupport for the “efforts of the Afghan people to establish a new andtransitional administration leading to the formation of a govern-ment”, that should be “broad-based, multi-ethnic and fully represen-tative of all the Afghan people”, based on respect for human rightsof all Afghan people “regardless of gender, ethnicity or religion”,and for Afghanistan’s international obligations (including thoserelating to combating of terrorism and illicit drug trafficking), andthat should facilitate the urgent humanitarian assistance and thereturn of refugees and internationally displaced persons. It calledon “all Afghan forces to refrain from acts of reprisal” and to“adhere strictly” to human rights and International HumanitarianLaw (IHL) obligations. The resolution also asserted that “the UnitedNations should play a central role in supporting the efforts of theAfghan people to establish urgently such a new transitional adminis-tration 591.

Subsequently, week-long negotiations were held at Bonn among23 representatives of four Afghan groups — excluding the Talibanand a few others. It goes to the credit of the tenacity and diplomaticskill displayed by Lakhdar Brahimi, the elderly and widely respectedSpecial Representative of the UN Secretary-General, that he couldpersuade this heterogeneous group of Afghans, with centuries of fac-tional fights and civil wars behind them, into accepting an “Agree-ment on Provisional Arrangements in Afghanistan Pending theRe-establishment of Permanent Government Institutions”. All theAfghan representatives participating in the conference, with Brahimias a witness, signed the Agreement on 5 December 592. The SecurityCouncil endorsed the Bonn Agreement on 6 December. Councilresolution 1383 (2001) called upon all Afghan groups to implementthe Agreement in full and co-operate with “the Interim Authority,which is due to take office on 22 December 2001”.

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593. See, generally, V. S. Mani, “International Terrorism : A Quest for Inter-national Legal Controls”, International Studies, New Delhi, Vol. 40, No. 1, Jan-uary 2003, pp. 41-67. See also V. S. Mani, “Future Strategies in the War againstTerrorism and Proliferation of Weapons of Mass Destruction : An Indian Percep-tion”, Indian Journal of International Law, Vol. 44, 2004, pp. 221-259.

594. ICJ Reports 1949, p. 4, at p. 22.595. Resolution 2625 (XXV), 1970.596. Resolution 3314 (XXIX), 1974.597. Resolution 42/22, 1987.598. Resolution 49/60, 1994.

4.3.6. International law issues through the Afghan war

Four principal groups of legal issues thrown up by the currentAfghan war are addressed here. They are : (1) the existing legalframework for combating international terrorism, (2) legality of uni-lateral use of force by the United States backed by some otherStates, (3) the role of the UN Security Council in respect of theUS action, and (4) the machinery to bring the terrorists and theircollaborators to justice.

4.3.6.1. Existing framework on control of internationalterrorism 593

4.3.6.1.1. General international law

Under general international law there are enough principles ren-dering international terrorism illegal and States swear by them, inspite of the reality that most of them have telltale skeletons in theircupboards. In the Corfu Channel (Merits) case (1949) the Interna-tional Court of Justice spoke of “every State’s obligation not toallow knowingly its territory to be used for acts contrary to the rightsof other States” 594. In its efforts at codification of international law,the UN General Assembly adopted by consensus at least four impor-tant resolutions, namely, the 1970 Friendly Relations Declaration 595,the 1974 Declaration on Definition of Aggression 596, the 1987 Dec-laration on the Enhancement of the Effectiveness of the Principle ofNon-use of Force 597, and the Declaration on Measures to EliminateInternational Terrorism 598, all of which proscribe all acts of interna-tional terrorism. The Friendly Relations Declaration stated the prin-ciple as follows :

“Every State has the duty to refrain from organising, insti-gating, assisting or participating in . . . terrorist acts in another


599. UN General Assembly Resolution 2625 (XXV), 1970, formulation of theprinciple of non-use of force, ninth paragraph confirmed by the ICJ as part ofgeneral international law in the Nicaragua case, ICJ Reports 1986, p. 14, atp. 101.

600. Tokyo Convention on Offences and Others Acts Committed on BoardAircraft 1963, the Hague Convention for the Suppression of Unlawful Actsagainst the Safety of Civil Aviation 1970, the Montreal Convention for the Sup-pression of Unlawful Acts against the Safety of Civil Aviation 1971, MontrealProtocol for the Suppression of Unlawful Acts of Violence at Airports ServingInternational Civil Aviation 1988, Rome Convention for the Suppression ofUnlawful Acts against the Safety of Maritime Navigation 1988, Rome Protocolfor the Suppression of Unlawful Acts against the Safety of Fixed PlatformsLocated on the Continental Shelf 1988, Montreal Convention on the Marking ofPlastic Explosives for the Purpose of Detection 1991, UN Convention on thePrevention and Punishment of Crimes against Internationally Protected Persons,including Diplomatic Agents 1973, UN Convention against the Taking ofHostages 1979, IAEA Vienna Convention on the Physical Protection of NuclearMaterial 1980, UN Convention for the Suppression of Terrorist Bombings 1998,and UN Convention for the Suppression of the Financing of Terrorism 1999.

601. Arab Convention 1998, OIC Convention 1999, European Convention1977, OAS Convention 1987, SAARC Convention 1987, and CIS Convention1999.

602. UN Convention on Mercenaries 1989, UN Convention and Supplemen-tary Convention on Illicit Trafficking in Narcotic Drugs and Psychotropic Sub-stances 1988-1990, and Palermo Convention on Transnational Organized Crime2000.

State or acquiescing in organised activities within its territorydirected towards the commission of such acts, when the actsreferred to in the present paragraph involve a threat or use offorce.” 599

Through many such declarations and other resolutions, the inter-national community of States recognizes a clear legal ban on inter-national terrorism, and an obligation on the part of States tocriminalize, in their respective internal laws, all terrorist acts, directand indirect participation in them, and support for them.

4.3.6.1.2. Treaty framework

The treaty framework for combating terrorism is quite broad-based. There are at least twelve global treaties 600, seven regionaltreaties 601, and three related global treaties 602. Both Afghanistan andthe United States are parties to the aviation terrorism treaties of1963, 1970 and 1971. The latter is a party to the first ten of thetwelve global treaties on terrorism referred to above, but not to the1998 Convention on Terrorist Bombing and the 1999 Convention onTerrorist Financing (negotiated at the initiative of the United States).

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603. This is done basically following the principles of exercise of State juris-diction, namely, territoriality (where the offence was committed), nationality(the State of nationality of the offender), protective principle (the State whosepolitical, or economic system, or security needs to be protected), passive per-sonality (the State whose national or property was the target of the crime), anduniversality (where the offence is an international crime such as crimes againsthumanity, genocide, and war crimes.).

604. For instance, in the Lockerbie case both the United States and the UnitedKingdom refused to hand over to Libya the evidence they claimed they had intheir possession, when Libya expressed its readiness to prosecute the two Libyansuspects. They manipulated the Security Council to issue sanctions against itand then armtwisted Libya into submitting the suspects to be tried by a Scottishcourt, which sat in the Netherlands. The rights of Libya under the 1971 MontrealConvention were clearly compromised. So was the treaty-ordained role of theInternational Civil Aviation Organization, the supervisory body for treaty com-pliance. On the other hand, Pakistan either refused to prosecute/extradite hijack-ers of Indian aircraft over the years or prosecuted them but imposed on themtoken sentences.

There are two major problems with this treaty framework. One,they do not address the totality of terrorist acts with any comprehen-sive normative or institutional framework. Each of them focuses ona specific category of terrorist acts or devices. As a result none ofthem specifically covers the type of 11 September attacks (save theaircraft hijacking part of them).

Second, the role of most of these treaties is limited. They mainlyseek to achieve five things. First, they identify the specific categoryof terrorist acts in its focus and make them offences. Second, theyrequire each State party to incorporate them into its national criminallaws. Third, they recognize States or categories of States that areentitled to exercise their respective national criminal jurisdictions toapprehend the alleged offender and to prosecute him 603. Fourth, theyseek to impose an obligation on the State in custody of the allegedoffender either to extradite him to another State requesting his extra-dition or itself “submit the case to its competent national authoritiesfor the purpose of prosecution”. (Indeed, this is a little short of awatertight straightforward obligation to extradite or prosecute.)Fifth, they impose a clear obligation on a State party to render allpossible assistance to the prosecuting State, including delivery ofany evidence or other information in its possession.

Some of these treaties, however, stand violated or are renderedineffective by States, including those which pretend to uphold themand use them in support of their unilateral action 604.

On the other hand, bilateral extradition treaties can only be effec-tive in a co-operative atmosphere between the parties to them.


Between Afghanistan and the United States, however, there has beenno extradition treaty in force. Further, the Taliban regime was notexactly friendly with the United States to oblige it voluntarily withhanding over Osama bin Laden to it.

4.3.6.2. Legality of unilateral force

Evidently, the situation arising from the 11 September attackscalled for use of armed force, in view of the Taliban’s obduraterecalcitrance (assuming that the United States was in possessionof evidence that would stand judicial scrutiny). Does it justify uni-lateralism on the part of the United States and its NATO Allies ?

Under the UN Charter all threat or use force is prohibited in inter-national relations against the territorial integrity or political indepen-dence of any State. As seen already, the Charter recognizes only twopermissible uses of force : one, use of force by the Organization(Security Council) on behalf of the international community, andtwo, the right of each State to individual and collective self-defence.Under the scheme of the Charter the Security Council alone can pre-side over the UN collective security system. Decisions on a threat tothe peace, a breach of the peace or an act of aggression, identifica-tion of the recalcitrant party, evaluation of evidence against thatparty, the nature and intensity of coercive response to be applied andso on are expected to be made impartially and on the basis of impar-tial, non-eclectic criteria. They cannot be allowed to be made uni-laterally by any one State or a few States. But, on the contrary, this isprecisely what the Security Council has done in this case. In the pro-cess, both the Council as well as the United States lost a chance ofimpartial verification of the evidence against Osama bin Laden andthe Taliban, a necessary element in the imputation of responsibilityfor the 11 September attacks.

The right of self-defence under Article 51 of the Charter is avail-able against an armed attack. It is subject to the principle of propor-tionality of response and observance of the principles of interna-tional humanitarian law. It is also subject to an obligation to reportto the Security Council. Upon receipt of such a report, it is for theCouncil to decide on further measures (including enforcementaction) to restore international peace and security.

In the present case, it is submitted that the justification of self-defence was not available to the United States and its allies, not

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605. See for instance Jawaharlal Nehru’s inaugural address at the establish-ment of the Indian Society of International Law on 29 August 1959, reprinted inIndian Journal of International Law, Vol. 1, 1960-1961, p. 7.

because there was no “armed attack” within the meaning ofArticle 51 — we have no difficulty in construing 9/11 attacks asamounting to an armed attack, for that was what they were contex-tually —, but because it could not be invoked in a situation when theSecurity Council was already in the picture. Indeed, the Afghansituation has been before the Council since 1993. So is the issue ofinternational terrorism being a threat to international peace andsecurity. In every resolution on either of these issues, the Councilhas as of habit decided, “to remain seized of the matter”. Further,specifically in respect of the 11 September attacks, its resolutionsrepeatedly expressed the Council’s readiness to fulfil its Charterresponsibilities, and its decision to remain seised of the issue. Ifthat were so, the only legitimate course open for the United Stateswas to ask the Council to fulfil its Charter responsibilities. Indeed,the Council could have invoked its awesome powers of use of forceon its own, or even at the initiative of the Secretary-General underArticle 99. The United States and its allies started the carpetbombing of Afghanistan a good three weeks after the 12 Septemberresolution of the Council, and a week after its 28 September “earth-shaking” resolution (falling in line with President Bush’s ExecutiveOrder on terrorist funds and support systems). This they did despitethe worldwide up-welling of sympathy for the United States, and aclear possibility of mustering a strong consensus for a SecurityCouncil action exactly the way the United States would have wanted.They may have chosen unilateralism to stay clear of any obligationof international accountability, and also to foreclose their freedomof military action from being inhibited by the constitutional require-ments of the United Nations.

If the United States could not in law resort to the right of self-defence, then NATO’S original claim for legitimacy of collectiveself-defence under Article 5 of the Washington Treaty 1949 wouldautomatically fall through. Added to this, NATO congenitally suffersfrom a dubious legality of status. It cannot at once be both a collec-tive defence organization as well as a regional organization underthe supervision of the Security Council. This is an old criticism thatthe former non-aligned countries used to raise consistently duringthe days of the Cold War 605. For, a regional organization is not


606. Anja Manuel and P. W. Singer, “Arming Kabul, Disarming Cabals”,foreignaffairs.org — author update, 22 September 2004.

legally competent to resort to force except with the approval of theSecurity Council vide Article 53 of the Charter.

The Taliban regime has been largely discredited in the eyes of theworld community for the gross violations of human rights that it per-petrated on its own citizens, especially women. But what triggeredthe invasion was not these violations, but 9/11 and the subjectivejudgment of the intervenors on the basis of evidence they claimedthey had in their possession attributing responsibility for 9/11 toTalibans.

The International Security Assistance Force is left with the mostunenviable task of bringing the security situation in Afghanistanunder control, yet leaving the United States-led forces operate inde-pendently as their own masters, often rendering the ISAF’s missiondifficult, if not impossible, to achieve. One of the reasons why thesecurity situation in Afghanistan has not discernibly improved isbecause

“Washington’s single-minded focus on the fight against alQuaeda and Taliban remnants while neglecting broader Afghansecurity issues . . . US military forces are as involved in localpolitics and civil affairs as ever, and the short-term re-equip-ment of certain militias could destabilise an already tenuousprocess and prolong US deployment in the region. For itsown sake and that of the international community at large,Afghanistan merits more than the scant attention it receivestoday.” 606

4.3.6.3. Bringing the terrorists and their collaborators to justice

The Security Council has proclaimed time and again that as partof nursing a humanitarian situation back to normalcy, there is a needto provide for a mechanism for redressal of past grievances and fora justice delivery system for the purpose. If the Yugoslavian casewere to be taken as a precedent, one expected the Security Councilto create yet another UN War Crimes Tribunal. That was not to be.Instead, the “humanitarian” invaders decided to go it alone. On13 November, President Bush signed a “Military Order” for “the deten-tion, treatment and trial of non-citizens in the war on terrorism”.

250 V. S. Mani

This order would establish Military Commissions to try and punishany person who was not a citizen of the United States, if the USPresident determined that “there is reason to believe that such indi-vidual, at relevant times” is or was a member of al-Qaeda, engagedin or abetted terrorist acts “that have caused, threaten to cause, orhave as their aim to cause, injury to or adverse effects on the UnitedStates, its citizens, national security, foreign policy, or economy”, orhas harboured such a person. The Secretary of Defence has beengiven full authority to any action, as he may think necessary to giveeffect to the Order, including appointment of military commissionsand setting down their rules of procedure.

“Any individual subject to this order shall, when tried, betried by military commission for any and all offences triable bymilitary commission that such individual is alleged to havecommitted, and may be punished in accordance with the penal-ties provided under applicable law, including life imprisonmentor death.”

Rules of evidence before the military commission were to bedetermined by the commission itself by applying “a reasonableman’s” test. The Order prohibits disclosure of State secrets except toauthorized persons and provides for in camera trials. It reserves tothe military tribunals “exclusive jurisdiction with respect to offencesby the individual” subject to the Order who “shall not be privilegedto seek any remedy or maintain any proceeding” in any court of heUnited States, or state court, or any foreign court, or any interna-tional tribunal.

The Military Order was based on a finding of the existence of an“extraordinary [national] emergency”, and President Bush signed itin his capacity as the Commander in Chief of the US armed forces.

The issuance of the order raised considerable controversy in theUnited States. The major criticism was that the order aimed to set upkangaroo courts for non-citizens with no civilized rules of evidence,no right of appeal, and no recourse to ordinary courts under the pro-tection of the US Constitution. Another criticism was that the Presi-dent had no power to create military courts, as all constitutionalpower to create courts, civil or military, are exclusively vested inCongress. It has also been argued that the American war inAfghanistan was unconstitutional, as US Congress had not formallyratified it within 70 days of initiation.


607. See Rick Montgomery, “Call for military tribunals raises more than afew good questions”, Kansas City Star, 1 December 2001, http:/www.kcstar.com/item/pages/home.pat,local/ 3acd2d7a.co1.html. He refers to the StateDepartment’s most recent report on human rights abuses, in which the depart-ment condemned tribunals in Peru because they lacked “openness, fairness anddue process”. According to the department, Sudan’s military courts “do not pro-vide effective appeal from a death sentence”. And Egypt “deprived hundreds ofcivilian defendants of their right to be tried by a civilian judge”.

The Military Order would not apply to American nationals, evenif they had worked for al-Qaeda or any other terrorist outfit, as theywould have a constitutional right to be tried by US courts accordingto due process of law. Discrimination has been writ large in theentire process. The recent intervention of the US Supreme Courtappears to have had some salutary effect, but not much.

Critics have also pointed out the double standard implicit inthe institution of these military commissions by the US President.When it came to employment of similar tribunals in other countries,the US State Department would readily express its unhappiness withthem 607.

Internationally most acceptable way would have been for States toestablish an ad hoc international tribunal to try everyone who partici-pated in the perpetration of 11 September attacks and who violatedthe laws and customs of war. The trial should be according to theinternational standards of fair trial as embodied in the 1998 RomeStatue for the International Criminal Court.

An acceptable redressal mechanism capable of dispensing justiceto past deprivations of justice by the Taliban regime, is a sine quanon of empowerment of the new United Nations-sponsored regimein Afghanistan with claims to legitimacy.

This is not the first time, however, that the United States hasresorted to unilateral use of force in combating terrorism, invoking aright of self-defence spiced with humanitarian arguments. It has done soeven for much smaller terrorist incidents. On the night of 10-11 Octo-ber 1985, the United States forcibly intercepted over the eastMediterranean an Egyptian aircraft, which was ferrying the hijackersof the Archille Lauro and diverted it to a NATO base in Sicily.Defending the US action the then US Secretary of State George Schultzsaid at the National Defence College on 15 January 1986:

“It is absurd to argue that international law prohibits fromcapturing terrorists in international waters or airspace, from

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608. Quite possibly, the ulterior motive for the bombing of Libya was toeliminate Colonel Gaddaffi.

609. Hans van Ginkel and Ramesh Thakur, “An International Perspective onGlobal Terrorism”, UN Chronicle Online Edition, Vol. XXXVIII, No. 3, 2001.

attacking them on the soil of other nations, even for the pur-pose of rescuing hostages ; or from using force against statesthat support, train, and harbor terrorists or guerrillas.”

Similarly, the United States launched a bombing raid on Libya on15 April 1986, alleging the involved of Libya in an attack on mem-bers of the US armed forces in a West Berlin nightclub, and justify-ing it on grounds of self-defence. Needless to say that the US actionwas grossly disproportionate to terrorist damage caused in WestBerlin in which only one US serviceman had died and some 50 hadbeen injured 608.

Combating terrorism, the way it is being done in Afghanistan andelsewhere by countries like the United States and Israel, is indeed asure way to perpetuate the cycle of spawning terrorists. The seeds ofterrorism, like those of war, are sown in the minds of men, and thatis where sustained efforts at combating terrorism must begin andremain focused — that calls for a “humanitarian” intervention of adifferent sort, not of Patriots and Tomahawks.

In a late 2001 issue of the United Nations Chronicle, two distin-guished authors remarked :

“In looking for underlying causes [of terrorism], Americansshould ask why they rouse such fanatic hatred in would beterrorists. Is all of it the price they have to pay for being theworld’s most successful, powerful and wealthy nation ? Or cansome of it at least be muted by adopting policies that are moremeasured and tempered in dispensing justice more evenly ?Fanaticism feeds on grievance and grievance is nurtured bydeeply felt injustice. Terror is the weapon of choice of thosewho harbour the sense of having been wronged, who are tooweak to do anything about it through conventional means, andwho are motivated to seek vengeance by other means.”

Hence the wise counsel : “Anger is a bad guide to policy, forgovernments as for terrorists : revenge is indeed a dish best servedcold.” 609

Additionally, the “humanitarian invaders” and other foreigners


610. UN Secretary-General’s Report on the Humanitarian Implications ofMeasures adopted by the Security Council resolutions 1267 (1999) and 1333(2000) on the territory of Afghanistan under Taliban control — UN doc.S/2001/1215 of 18 December 2001, para. 8.

611. See, generally, V. S. Mani, “Is an attack on Iraq legal ?”, The Hindu,New Delhi, 4 September 2002, Edit-page 10 : http://www.thehindu.com/2002/09/04/stories/2002090400041000.htm ; V. S. Mani, “A War to Enforce Disarma-ment ?”, The Hindu, New Delhi, 20 March 2003, Edit-page 10 : http://www.thehindu.com/2003/ 03/20/stories/2003032000381000.htm 20/03/2003.

now in Afghanistan (whether UN workers or NGOs) have to comeface to face with one formidable task on the ground — namely,confidence building with the common Afghan citizens. For, untilrecently, these hapless beings were bombarded with anti-UnitedNations propaganda. The Taliban had for a decade mounted a sus-tained and

“active public information campaign within Afghanistanagainst the United Nations sanctions regime. They condemnedthe measures and blamed them for the deterioration in theprevailing human rights situation. That campaign involvedTaliban-controlled radio, newspapers and mosques” 610.

The issues of legality of use of force matter, because they bearupon the legality and legitimacy of presence of foreign troops inAfghanistan, in the Afghan eyes.

4.4. Invasion of Iraq 2003 611

The stage was being set for the United States to take unilateralmilitary action against Saddam Hussein, soon after the 9/11 tragedyjust half way through the Afghan invasion. The US Defence Secre-tary, Donald Rumsfeld, alleged that fleeing al-Qaeda terrorists fromAfghanistan had found refuge in Iraq. He was of the opinion thatPresident Saddam Hussein of Iraq was possibly aware of this. Hewas reported to have said : “In a vicious, repressive dictatorship thatexercises near-total control of its population, it is very hard to ima-gine that the Government is not aware of what is taking place in thecountry.” (He would not, of course, extend the same logic to other,“friendly” military dictatorships !)

Addressing a National Convention of the American Veterans ofForeign Wars on 26 August 2002 the US Vice-President, DickCheney, conceded : “Intelligence is an uncertain business, even inthe best of circumstances.” Yet, he was convinced that,

254 V. S. Mani

“simply stated, there is no doubt that Saddam Hussein now hasweapons of mass destruction. There is no doubt he is amassingthem to use against our friends, against our allies, and againstus. And there is no doubt that his aggressive regional ambitionswill lead him into future confrontations with his neighbours —confrontations that will involve both the weapons he has today,and the ones he will continue to develop with his oil wealth.”

“The risks of inaction are far greater than the risk of action”, hethundered to the enthusiastic applause of the war veterans.

President, George W. Bush, in a televised address to his nation on17 March 2002 declared : “Saddam Hussein and his sons must leaveIraq within 48 hours. Their refusal to do so will result in militaryconflict commencing at a time of our choosing.” This ultimatum wasthe US response to its failure to get a United States-United King-dom-Spanish draft resolution through the UN Security Council.

According to the United States and the United Kingdom, the pre-vious Council resolutions on Iraq, including resolutions 661 and 678(1990) and 687 (1991), already embodied adequate legal basis forany use of force against Iraq. Evidently, they did not want to give theCouncil an opportunity to specify what action it would take, as thatwould have deprived them of their so-called “right” to unilateralmilitary action. The Bush ultimatum specifically invoked resolu-tions 678 and 687.

4.1.1. Issues of legality of unilateral use of force against Iraq

The numerous statements emanating from the US Governmentsince late 2002 and in particular in the first few weeks of 2003 asalso the Bush ultimatum have thrown up a wide range of justifica-tions for unilateral use of force. They include the right of individualand collective self-defence, the right of individual self-defence, theright or the duty to enforce international sanctions, the right ofaction to prevent and punish international terrorism, and the right to“humanitarian” intervention and the duty to liberate the people ofIraq from the clutches of a ruthless dictatorship.

4.1.1.1. Right of collective self-defence

The right of collective self-defence of Kuwait was specificallyrecognized by the Security Council resolution 661. The resolution


612. Also, there is a view that the initial authorization itself was of doubtfullegality. See, e.g., V. S. Mani, “Six Decades of the United Nations — An IndianPerception”, Indian Journal of International Law, Vol. 44, 2004, pp. 1-73, atpp. 63-64.

reaffirmed “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, inaccordance with Article 51 of the Charter” and asked all States “totake appropriate measures to protect assets of the legitimate Govern-ment of Kuwait”. Resolution 678 (1990) authorized “Member Statesco-operating with the Government of Kuwait” — a euphemism forthe then United States-led 28-nation multinational force — “to useall necessary means to uphold and implement” Security Council reso-lutions and “to restore international peace and security in the area”.

But this authorization cannot continue to be operational 12 yearshence, merely on the basis of the alleged violations by Iraq of theobligations imposed on it by the Council through its various subse-quent resolutions. Under Article 51 of the Charter, the right of col-lective self-defence had long ceased to have its legal basis, once theSecurity Council stepped in and authorized the forcible push back ofthe Iraqi invasion of Kuwait that took place in March-April 1991.

Both resolutions 661 and 678 of 1990 were adopted by the Secu-rity Council specifically for the purpose of securing Iraq’s with-drawal from Kuwait and upon withdrawal, the use of force autho-rization ceased to exist. The Council did not issue — and consti-tutionally could not have issued — any such authorization for all timeto come, to be unilaterally activated by one or a group of a few Statesat will 612. Resolution 687 of 1991, adopted after the Iraqi withdrawal,imposed on Iraq a broad range of devastating disarmament obliga-tions, with the Council opting “to remain seized of the matter and totake such further steps as may be required for the implementation ofthis resolution and to secure peace and security in the area”.

4.1.1.2. Individual self-defence

A second basis for unilateral resort force by the United States andthe United Kingdom against Iraq was self-defence. But underArticle 51 of the UN Charter, military action in self-defence mustrespond to an armed attack. As many as four grounds were on dif-ferent occasions claimed in support of the legality and legitimacyunilateral action by the United States.

256 V. S. Mani

One, Iraq had been shooting at US and British aircraft over thetwo “no-fly zones” over Iraq and hence the several retaliatory airstrikes by the United States and the United Kingdom over the yearssince March 1991 when these zones were established. The legalbasis of these “no-fly zones” was claimed to be the Council resolu-tion 688 of 5 April 1991. This resolution, adopted not under Chap-ter VII, condemned the repression by the Iraqi Government of itsKurdish population, which amounted to a threat to internationalpeace and security. In fact, the establishment of these zones was aunilateral act by the United States-United Kingdom, a clear violationof Iraqi sovereignty, and no specific authority flowed from theCouncil resolution or general international law, but now justified bythe intervenors on the basis of the need for protection of the Kurdsin the north of Iraq and the Shias in the south who were found bythe Council to have been persecuted by the Saddam Hussein regime.It was, indeed, open to the Council, in appropriate cases, to authorizethe establishment of such demilitarized zones and to authorize theuse of force, should such zones be violated by the territorial State. Inother words, the establishment of the no-fly zones was illegal per seand no right of self-defence would arise in defence of an originallyillegal situation, or illegal “occupation” of a foreign territory.

Two, the attempted attack on Bush Senior justified armedresponse. But the right of self-defence is only available against an“armed attack” and the response has to be sufficiently “immediate”,leaving no choice of other means and as short a time as the contextallows for deliberation. Was the attack on a former president an“armed attack” inviting a “defensive” invasion ? The United Statescould not have waited for a decade to elapse before it decided tomount an armed response to an incident that took place so long ago.And, indeed, the armed response was grossly and overwhelminglydisproportionate to the attack on the former president.

A third ground was the suspected linkages of Iraq with al-Qaeda,the international terrorist organization that was behind the 11 Sep-tember terrorist attacks on the United States. This ground of self-defence against Iraq could only be tenable on verifiable proofs —not just allegations and innuendos, as the subsequent events proved— of definite, clearly attributable, connection between Iraq and al-Qaeda in relation to the 11 September attacks — that many al-Qaedaoperatives, driven out of Afghanistan, had now found safe havens inIraq illustrating Saddam Hussein’s complicity in promoting inter-


national terrorism. The subsequent revelations of “intelligencebungling”, if anything, roundly disproved this allegation.

A fourth justification of self-defence offered was the so-calledright of pre-emptive attack. The American argument was that Iraq,under Saddam Hussein, had amassed over time stockpiles of deadlyweapons of mass destruction, delivery systems, and subsystems, thatthese would surely be deployed against the United States and thattherefore the United States had a right to take pre-emptive action toprevent this eventuality. The Dick Cheney argument ran thus : the his-tory of Saddam Hussein’s “conduct” did not give any scope for hopeof reversion to good demeanour. The United States should not repeatthe mistake it had made during the second World War in ignoring themagnitude of the danger that it had faced from a growing militaris-tic Japan, until it received, unexpectedly, a devastating blow, whensuddenly Japan carried the war to the Pacific by attacking PearlHarbour, a stronghold of the United States, even though the UnitedStates had not become a party to the war. “What we must not do inthe face of a mortal threat is give in to wishful thinking or wilfulblindness”, said Cheney. So, “do not wait until the ‘monster’ hitsyou with nuclear weapons or other weapons of mass destruction”,the US Vice-President seemed to say. Thus, immediate militaryaction and a regime change in Iraq were in order. This argument waslegally flawed in two respects. First, the use of force in self-defencewas justified only in case of an armed attack, not in case of aperceived security threat, which did not even amount to “imminentdanger”. Second, effecting a regime change was not the functionof an outside power ; it is inane in the Iraqi people’s inherent rightto self-determination.

The issue of WMD had been central to the work of the UNinspectors led by Hans Blix and Mohammed El-Baradei and tangibleresults were being achieved and regularly reported to the Council. Atany rate, the argument of a “possible Pearl Harbour” does not fit inwith the scenario of a right of self-defence against an armed attack,or even a pre-emptive right against an “imminent” attack. On thecontrary, the invasion of Iraq by the United States-United Kingdomestablished the clear possibility of wanton abuse of the so-calledright of pre-emptive attack as a free licence for unrestrained andwhimsical unilateral use of force by the mighty against the weak,and did violence to the UN Charter scheme of international com-munity action through the instrumentality of the Security Council.

258 V. S. Mani

613. ICJ Reports 1986, p. 14, paras. 255, 258.

How does a grossly subjective threat perception as part of pursuit offoreign policy objectives amount to an actual threat the “imminence”of which should prompt defensive invasion and regime change ?Subsequent official revelations from both the United States and theUnited Kingdom showed with ample clarity to the entire world thatthere was not a shred of hard evidence of WMD stockpiles with theSaddam Hussein regime and that these stockpiles, if they hadexisted, were destroyed as long ago as 1998.

Forcible intervention to effect a regime change was roundly con-demned by the International Court of Justice in the Nicaragua case 613.

4.1.1.3. Unilateralism in enforcement of international obligationsarising from Security Council decisions

The Security Council had, acting both in camera and in open sit-tings, adopted wide-ranging resolutions pursuant to its broad powersof enforcement action under Chapter VII of the UN Charter. Resolu-tion 678 of 30 November 1990, inter alia, authorized “memberStates cooperating with the Government of Kuwait”, i.e., the 28-member multinational group led by the United States that hadmounted the offensive against Iraq in response to its invasion ofKuwait, “to use all necessary means to implement Security Councilresolution 660 (1990) and all subsequent relevant resolutions and torestore international peace and security in the area”. It was wellknown that “necessary means” included the use of military force bythe United States-led multinational group as and when determinableby that group (which the Cuban representative had promptly charac-terized as “a virtual declaration of war”).

Could this resolution have been used as the basis for further mili-tary action against Iraq ? Obviously not. Its purpose was to vacatethe Iraqi invasion of Kuwait and resolve related issues. As alreadystated above, while one may have serious legal reservations aboutthe Security Council’s constitutional power to delegate uncondition-ally its plenary powers (to employ armed forces on behalf of theorganization) to a selected group of States to be exercised withoutany accountability to the Council, this authorization expired whenthe objectives of vacating the Iraqi aggression were achieved byApril 1991. Hence, the all-pervasive Council resolution 687 of


5 April 1991, which laid down the framework for shearing Iraq of allpotential for weapons of mass destruction, chemical and biologicalweapons, and delivery systems, under international supervision. Vio-lations, if any, of the obligations imposed on Iraq by this and othersubsequent resolutions would call for remedial action solely by theCouncil acting under Chapter VII.

Furthermore, attempts were made by the United States, the UnitedKingdom and Spain to persuade the Council in February-March2003 to authorize forcible action against Iraq, in recognition of theoverwhelming legal view that the previous resolutions of the Coun-cil required a specific determination by it of the need to authorizeuse of force for the enforcement of the obligations flowing fromthese resolutions. The objective of the draft joint three-power resolu-tion was precisely to obtain such a determination and authorizationfrom the Council. However, the draft resolution was withdrawn inthe face of staunch opposition. Tabled ten days in advance of Presi-dent Bush’s arbitrary deadline of 17 March, the draft resolutionsought the Council to decide that “Iraq will have failed to take thefinal opportunity afforded by resolution 1441 (2002)”. Such a deci-sion was in fact anticipated by resolution 1441 which called for avariety of reports from Iraq, the UN inspectors, and the UN Secre-tary-General within various time limits and anticipated decision(s)by the Council on “the need for compliance with all of the relevantCouncil resolutions in order to secure international peace and secu-rity”. But the United States-United Kingdom-Spanish efforts provedfutile particularly in view of the insistence by the majority of theP-5s of the Council on requirement of completion of investigationsby the Hans Blix-led UN inspection team, as a precondition forauthorization of use of force. The other members of the Councilthus decided to await the logical conclusion of the team’s efforts atmonitoring the existence or non-existence of the alleged stocksof weapons of mass destruction in Iraq. The constitutional prerogativeto enforce the obligations imposed on a State by its previous resolu-tions remains exclusively with the Council. In view of all this, theunilateral action by the United States-United Kingdom outside theframework of the Charter was both premature and illegal. No legiti-mate authority had authorized the United States and its allies to sit injudgment over such violations to the exclusion of the Council, and“enforce” the obligations imposed by the Council, on its behalf,when the Council itself refused to seek such enforcement.

260 V. S. Mani

Organizational interposition has a dual advantage. One, a claim ofgross violations of international obligations erga omnes could, andshould, be subject to multilateral appraisal. Two, responses to themwould have better chances of international legitimacy and account-ability at the hands of the organs of the international community,unless the intervenor is individually and directly affected by thebreach of such obligations (in which case the retaliatory action mustbe generally proportionate to the adverse effects of the breach). Theinternational community institutions must deal with breach of obli-gations imposed by the international community, and if they are notwell equipped for the task, the members of the international commu-nity should pool their resources to enable these institutions to act ineach case. The ban on unilateral use of force in international rela-tions under Article 2 (4) of the Charter is absolute and near total,except in case of self-defence.

4.1.1.4. Obligation to prevent and punish international terrorism

By now the contemporary international law seems to impose anobligation on every State to “prevent and punish” acts of interna-tional terrorism. But would it imply a right to unilateral resort tomilitary force ? The obligations in respect of “preventing and pun-ishing” criminal acts of terrorism are obligations to be implementedwithin the territorial jurisdiction of a State. The aviation-related anti-terrorism conventions have designated the Council of the Interna-tional Civil Aviation Organization as the monitoring organ in respectof those conventions. The maritime transport-related treaties on ter-rorism have designated the International Maritime Organization tobe the monitoring body. Ever since the UN Security Council recog-nized international terrorism as a threat to international peace andsecurity, evidently within the meaning of Article 39 of the UN Char-ter, logically it should be for the Council to determine violations ofterrorism-related obligations and authorize appropriate enforcementmeasures. In other words, there is an international organizationalregime put in place in respect of international terrorism. Therefore,by no stretch of the imagination could a duty to “prevent” terrorismimply a duty to “take unilateral military action” against another Stateunder the façade of enforcement of international terrorism-relatedinternational obligations.

At any rate, since the adoption by the Security Council of resolu-


614. The resolution, adopted by the Security Council in the wake of 9/11,“Acting under Chapter VII of the Charter of the United Nations” asks States totake a number of measures to prevent and suppress the financing of terroristacts, imposes on them a wide range of obligations : not to foment or abet suchacts, to take necessary steps to prevent their commission, to forewarn, to denysafe havens, to afford “one another greatest measure of assistance”, to put inplace necessary border controls, to exchange information, etc. It also establishesan anti-terrorism committee of the Council to monitor compliance with the reso-lution. Finally, the Security Council, “Decides to remain seized of this matter”— see S/RES/1373 (2001).

tion 1373 on 28 September 2001 614, the Council alone is competentto authorize military action under its direct control against a recalci-trant State. No State can claim a unilateral right to use force againstanother State on the pretext of combating terrorism, unless it acts inself-defence, in which case the conditions of the right of self-defenceapply.

4.1.1.5. “Humanitarian” intervention

And then was a bunch of justifications of “humanitarian” charac-ter. These were of two categories. One bore upon the oppressivenature of the Saddam Hussein’s regime to the people of Iraq : thatthe regime had the worst record of protection of human rights, thatthe Kurds in the north of Iraq and the Shias in the south wereoppressed and subjugated, that the Ba’ath party spread and sustaineda reign of terror, and the mass graves unearthed after the US-UKinvasion of Iraq proved all this. The second sought to justify every-thing else on humanitarian grounds. The defence of American peoplefrom certain future WMD and terrorist attacks — should Americabe a “sitting duck” until such attacks occurred ? —, evil designs ofSuddam Hussein for the people of Israel, possible future use ofWMDs against other peoples, and so on. Obviously these could notbe serious, “humanitarian” arguments.

The above claims ignore both certain relevant facts that con-tributed to the human rights situation in Saddam Hussein’s Iraq aswell as the applicable international law in respect of human rightsviolations. For one thing, they ignore the negative contribution madeby the Security Council sanctions against the people of Iraq, and itwas well recognized that these sanctions affected the health of theentire generation of Iraqi children who were deprived of essentialneeds of life including life-saving drugs during the period of sanc-tions — one single precedent that will for ever continue to stare the

262 V. S. Mani

615. ICJ Reports 1970, p. 32, para. 91.

United Nations in its face whenever it seeks to claim humanitarian-ism in support of its actions. For another, it has been pointed outabove, the International Court, even while identifying some of thebasic erga omnes obligations of States vis-à-vis international com-munity in the Barcelona Traction case, it simultaneously held :

“However, on the universal level, the instruments whichembody human rights do not confer on States the capacity toprotect the victims of human rights irrespective of their nation-ality.” 615

In other words, where the international community has put inplace a monitoring mechanism for protection of human rights, noState can claim a divine right to “humanitarian” intervention. Finally, the Bush statement of 17 March 2003 claimed with impunity :“The United States of America has the sovereign authority to useforce in assuring its own national security.” The sovereignty argu-ment is the hallmark of total bankruptcy of international legality andlegitimacy. Anything can be “justified” on ground of sovereignty,unless one recognizes — and the United States does not — thatnational sovereignty is subject to law. And this is not the first timethe United States has raised it on the international plane.

The second Bush war, like the first in Afghanistan, was neitherbased on the rule of law nor had any sanction of international legiti-macy, but driven by pure greed and caprice over the naturalresources of a developing country.

In a world of today, there can never be purely “humanitarian”intervention by States. Unilateralism or “collective unilateralism” indiscretionary use of force by powerful States or States backed bythem would only result in situations that perpetuate gross violationsof human rights in target territories, unless the intervenor is preparedto transfer in a sustained manner adequate resources to the targetsociety after the “surgical operation”. Both Afghanistan and Iraqhighlight the worst-case scenarios, should the international commu-nity permit such wanton use of “humanitarian” intervention, by thegreat powers, leaving international organizations, the organs of thecommunity, powerless, hapless onlookers and with a considerablyeroded claim to international legitimacy and effectiveness.


616. Article 39 :“The Security Council shall determine the existence of any threat to the

peace, breach of the peace, or act of aggression and shall make recom-mendations or decide what measures shall be taken in accordance withArticle 41 and 42, to maintain or restore international peace and security.”

CHAPTER V

“HUMANITARIAN” ACTION BY THE UNITED NATIONS

5.1. Institutional Mechanism for Use of Force underthe UN Charter

The institutional mechanism for community authorization of useof force under the UN Charter comprises the Security Council andthe General Assembly.

5.1.1. The Security Council (and whatever little left of the GeneralAssembly)

5.1.1.1. Charter framework

As already briefly referred to above, the essential institutional mech-anism authorizing use of force on behalf of the international communityis found in Chapter VII, since the Security Council has the “primaryresponsibility” for maintenance of international peace and security.Under it, Article 39 empowers the Security Council to identify a situa-tion endangering international peace and security as a threat to thepeace, a breach of the peace or an act of aggression. Indeed, it is oftendifficult to distinguish between a threat to the peace and a breach of thepeace. This factor and the international politics conditioning its decisionin each case have prevented the Council so far from making a specificjudgment under Article 39 616, and it would rather make a general invo-cation of Chapter VII in its mandatory resolutions : “Acting underChapter VII.” Such general invocation of Chapter VII, however, doesnot clarify the nature of obligations that a Security Council resolutionencompasses. Because not every Council resolution gives rise to obliga-tions on the part of member States. Article 39 contemplates both recom-mendations as well as decisions by the Council. Under Article 40, theCouncil may “call upon” States to comply with provisional measures,

264

617. Although Article 42 talks only of the Council taking “action” in employ-ing use of force, Article 44 clarifies that it is a decision, but that participation init is voluntary in the absence of an Article 43 special agreement undertakingspecial obligations to contribute to the use of force on behalf of the UnitedNations.

618. Article 25 : “Members of the United Nations agree to accept and carryout the decisions of the Security Council in accordance with the presentCharter.”

619. Article 48 :“1. The action required to carry out the decisions of the Security Coun-

cil for the maintenance of international peace and security shall be taken byall the Members of the United Nations or by some of them, as the SecurityCouncil may determine.

2. Such decisions shall be carried out by the Members of the UnitedNations directly and through their action in the appropriate internationalagencies of which they are members.”

whereas under Article 41 the Council may decide on “sanctions” to beimposed “to give effect to its decisions” and “may call upon theMembers of the United Nations to apply such measures”. Use of forceauthorized by the Security Council is a “decision” of the Council underArticle 42 617. But under Articles 25 618 and 48 619 only “decisions” of theCouncil are binding on member States.

It is well known that there have been two major problems thatprevented the Security Council from exercising its constitutionalmandate under Chapter VII. One is the veto provision in Article 27of the Charter. An enforcement action by the organization is, by defi-nition, a substantive matter that requires the “concurrence” of all thefive permanent members of the Security Council. As noted already,this requirement has been watered down by the subsequent UN prac-tice to “absence of objection” by any permanent member. Yet eachof the permanent members retains the power to “block” an organiza-tional enforcement action any time it desires to.

The second is the absence of Article 63 special agreements.Article 43 subjects the obligation of member States to participatein the Security Council authorized enforcement (armed) action toobligations specifically undertaken by each of them in respect oftheir contribution to the UN force so authorized. In other words, inthe absence of any Article 43 special agreement, there is no obliga-tion to participate in the UN enforcement action.

A basic conceptual as well as operational problem with the UNsystem of enforcement action under Chapter VII is that it is not man-dated to perform the functions of a true sanctioning process. In an


620. ICJ Reports 1962, p. 167.621. Ibid., p. 168.

ideal system, the community authorizes the process, through a com-munity organ, against a deviant member. Chapter VII of the Charterdoes not go so far. It only empowers the Security Council to take“action with respect to threats to the peace, breaches of the peaceand acts of aggression”, that, too, for restoration or maintenance ofinternational peace and security. The Council is not constitutionallyempowered to determine if some State or other entity has violatedinternational law, and if so what punishment to mete out. An ideal inter-national sanctioning process must be so constitutionally empoweredand mandated. An international sanctioning system ought tofunction exactly the way the sanctioning system functions under thenational legal order, where the sanctioning process is institution-alized and the organs of government, including the judiciary, giveeffect to it, acting on behalf of the society. Alas ! The Chapter VIIsanctioning process evidently falls too short of the situation.

Furthermore, the institutional responses to field situations areoften guided by the United Nations appreciation of its constitutionalmandates. But how critical should be the role of the Purposes andPrinciples of the UN Charter in triggering, guiding and legitimizinga UN action, including a “humanitarian” action ?

As seen already, in the Certain Expenses case, the InternationalCourt was called upon to determine whether expenses incurred incertain peacekeeping operations were “expenses of the Organiza-tion” within the meaning of Article 17 (2) of the Charter. In order todetermine this, the Court said, “[S]uch expenditures must be testedby their relationship to the purposes of the United Nations.” 620

It further laid down a rule of presumption in favour of an organi-zational action :

“when the Organization takes action which warrants the asser-tion that it was appropriate for the fulfilment of one of thestated purposes of the United Nations, the presumption is thatsuch action is not ultra vires the Organization” 621.

The dissenting opinion of Judge Winiarski in that case, however,pointed to the limitation of that approach :

“The Charter has set forth the purposes of the UnitedNations in very wide . . . terms. But . . . it does not follow, far

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622. Ibid., p. 230.623. Goodrich, Hambro and Simons, footnote 367, supra, p. 28.

from it, that the Organization is entitled to seek to achievethose purposes by no matter what means. The fact that an organof the United Nations is seeking to achieve one of those pur-poses does not suffice to render its action lawful. The Charter,a multilateral treaty that was the result of prolonged and labori-ous negotiations, carefully created organs and determined theircompetence and means of actions.

The intention of those who drafted it was clearly to abandonthe possibility of useful action rather than to sacrifice the bal-ance of carefully established fields of competence, as can beseen, for example, in the case of the voting in the SecurityCouncil. It is only by such procedures, which were clearlydefined, that the United Nations can seek to achieve its pur-poses.” 622

Judge Winiarski’s caveat could not apply to the issue of peace-keeping operations because the Security Council was not the only“means” prescribed by the Charter, as its responsibility in respect ofinternational peace and security is “primary”, but not exclusive.Therefore the prescribed “means” would include the General Assem-bly as well. Yet, Judge Winiarski’s caveat has, often, expressed itselfas an “impediment” to prompt international action to a humanitariansituation.

Goodrich, Hambro and Simons point to another area that givesrise to difficulties in organizational action, in respect of elicitingState support. For example, they point to the differences in thephraseology used in different provisions of the Charter on the use offorce by the organization. Article 1 (1) speaks of “effective collec-tive measures” to describe the measures to be taken for the preven-tion and removal of threats to the peace, and of suppression of actsof aggression. Articles 39, 41 and 42 speak of “measures” to betaken by the Security Council. Article 2 (7) refers to “enforcementmeasures” under Chapter VII, Article 50 “preventive or enforcementmeasures”, and Article 5 “preventive or enforcement action” 623.

Another example : Article 1 (2) employs the phrase “based onrespect for the principle of equal rights and self-determination ofpeoples” was proposed by the Sponsoring Powers at San Francisco


624. Ibid., p. 30, citing UNCIO, Documents, VI, p. 455.625. Resolution 421 (V) of 4 December 1950.626. Resolution 1341 (XIII), 12 December 1958627. Resolution 1803 (XVII).628. Goodrich, Hambro and Simons, footnote 367, supra, p. 35.

at the suggestion of the Soviet Union. In recommending the draft,the report of the technical committee had conveyed its understandingthat

“the principle of equal rights of peoples and that of self-deter-mination are two complementary parts of one standard of con-duct : that the respect of that principle is a basis for the devel-opment of friendly relations and is one of the measures tostrengthen universal peace ; that an essential element of theprinciple in question is a free and genuine expression of thewill of the people” 624.

But in the final analysis, the meaning of the term “self-determina-tion” was left unresolved. The General Assembly in 1950 recognizedself-determination as a fundamental human right 625. It is now part ofthe common Article 1 of the human rights covenants. Later, in 1958,the General Assembly recognized that the right of peoplesand nations to self-determination includes permanent sovereigntyover natural resources 626. This led to the adoption of the Decla-ration on the Permanent Sovereignty over Natural Resources in1962 627.

Goodrich, Hambro and Simons further reveal that the doctrinalcontroversy over human rights and domestic jurisdiction existed atSan Francisco, with the provisions of the Charter carrying it forward,without resolving it. With specific reference to Article 1 (3) on pro-motion of human rights being one of the organizational objectives,there have been two sharp views. One, that the provision commitsthe Organization only to promote co-operation between members,and does not obligate a member to recognize one or the other ofhuman rights, as the member’s freedom of choice is protected underArticle 2 (7). Two, notwithstanding Article 2 (7), Article 1 (3) readwith Articles 55 and 56, places an obligation on members to respecthuman rights and fundamental freedoms, that the Assembly mayconsider alleged violations of rights, and that members are requiredto co-operate with the General Assembly in carrying our its recom-mendations by the terms of Article 56 628.

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629. The examination here generally follows the landscape, but not necessar-ily, the conclusions, of Thomas Franck. See Thomas Franck, Recourse to Force :State Action against Threats and Armed Attacks, Cambridge University Press,Cambridge, United Kingdom, 2002).

630. Minutes of the16th Five Power Informal Consultative Meting on Pro-posed Amendments, San Francisco, 6 June 1945, Foreign Relations of theUnited States, Vol. 1, 1945, p. 1176, at pp. 1186-1187.

631. Minutes of the 63rd Meeting of the United States Delegation, San Fran-cisco, 4 June 1945, Foreign Relations of the United States, Vol. 1, 1945, p. 1137,at p. 1142.

632. Franck, footnote 629, supra, pp. 24-31.633. Ibid., p. 23.

5.1.1.2. Some UN practice : an interpretation 629

All State practice, including the practice of the international orga-nization — which reflects the collective State attitude at any relevanttime — has evolved ad hoc, over time. When a State acts it respondsto a situation ad hoc. Indeed, a range of factors conditions its deci-sions, but one doubts whether these factors include the fear of build-ing up a kind of a practice by some States in aggressive pursuit oftheir respective foreign policy goals that should be detrimental to thecore values of humankind. States have voted for organizationalaction with a clear intent not to create any precedent.

At UNCIO 1945, there was some perception of the relationshipbetween the internal developments within a country and interna-tional peace and security. Andre Gromyko of Russia, for instance,felt : “there might be such an internal transformation in a State as toinvolve a danger to the maintenance of international peace and secu-rity [and] the Security Council should be free to take the necessarymeasures” 630. Arthur Evatt, Australian Foreign Minister, evenpointedly raised the question to US Secretary Stettinius, Chairman ofUNCIO : “whether it was not proper for the Organization to interferein the domestic concerns of any state in a case where that state mightbe persecuting its Jewish population, for example” 631.

According to Thomas Franck, the UN practice of “uncoupling Article42 from Article 43” began with the Korean case in 1950632. He observes:

“the adaptive capacity of the Charter has functioned dramaticallyand controversially to fill the vacuum created by Article 43’s non-implementation. This is no small feat. The gradual emancipationof Article 42 as a free-standing authority for deploying collectiveforce, ad hoc, has prevented the collapse of the Charter system inthe absence of the standby militia envisioned by Article 43.” 633


634. Ibid., p. 25.

The instances, Franck cites, where the Security Council autho-rized use of force under Article 42, without bothering about Article 43,are 634 :

11. Resolution 82 of 25 June 1950 — Korean war : ground forces by10 States, naval units by 8, and air units by 5.

12. Resolution 143 of 13 July 1960 — Congo : to facilitate the with-drawal of Belgian troops from Katanga.

13. Resolution 221 of 9 April 1966 — Southern Rhodesia : autho-rized the British navy to enforce UN sanctions against the IanSmith regime.

14. S/RES.660, 678 of 1990 — Iraq-Kuwait : 678 requesting mem-ber States to “use all necessary means” to vacate Iraqi aggres-sion from Kuwait.

15. Resolution 794 of 3 December 1992 — Somalia : “use allnecessary means” (unanimous) ; UNOSOM I had 37,000 and IIhad 30,000 military personnel. UNOSOM II under the control ofthe UN Secretary-General. (When the 1992 resolution wasadopted, there was a clear understanding amongst Council mem-bers that it would not be regarded as a precedent.)

16. Resolution 940 of 31 July 1994 — Haiti : “use all necessarymeans”.

17. Resolution 743 of 21 February 1992 — Yugoslavia : UNOROFOR.18. Resolution 836 of 4 June 1993 — Extension to Bosnia.19. Resolution 958 of 19 November 1994 — Extension to Croatia.10. Resolution 929 of 22 June 1994 — Rwanda : authorizing France

to use “all necessary means”.11. Resolution 1101 of 28 March 1997 and Resolution 1114 of

19 June 1997.

Hence Franck concludes :

“The drafters of the Charter, as we have seen, did not envis-age such Council-mandated use of force in the absence of anArticle 43-based military capability. There is no reason, how-ever, why the Council’s responses to aggression cannot beunderstood as a creative use of Article 42, severed from andunencumbered by the failed Article 43. . . . Textually,Article 42 can stand on its own feet and it now may be said

270 V. S. Mani

635. Ibid., p. 26. However, Article 43 is capable of encompassing ad hocagreements as well.

636. Ibid., p. 50.637. Ibid., p. 52.

to do so as a result of Council practice. This practice, more-over, while not anticipated by the drafters, does no violence totheir architecture.” 635

On the right of self-defence under Article 51 of the Charter,Franck has this to say :

“Nevertheless, Article 51 as drafted does not sanction con-tinuation of the use of force by states in self-defence after theCouncil has taken measures. It is only by subsequent practicethat the potential coexistence of collective measures with thecontinued measures in self-defence has become acceptedpractice.” 636

One may, however, disagree with Franck on this reading of the UNpractice. For one thing, there is no Security Council pronouncementto justify this conclusion. For another, such practice, if in existence,is a clear violation of Article 51, whereby the right of self-defenceceases from the moment the Security Council takes measures.

Franck notes from the UN practice 637 :

“Five kinds of justifications stand out, each based on [whathe regards as] a ‘creative’ interpretation of Article 51 :

1. the claim that a State may resort to armed self-defence inresponse to attacks by terrorists, insurgents or surrogatesoperating from another State ;

2. the claim that self-defence may be exercised against thesource of ideological subversion from abroad ;

3. the claim that a State may act in self-defence to rescue orprotect its citizens abroad ;

4. the claim that a State may act in self-defence to anticipateand pre-empt an imminent armed attack ;

5. the claim that the right of self-defence is available toabate an egregious, generally recognized, yet persistentlyunredressed wrong, including the claim to exercise a rightof humanitarian intervention.”


638. Ibid., pp. 53-68.639. Ibid., p. 75.640. 4 Blatch. 451 (1860), p. 454, quoted in Franck, op. cit., p. 76.

For claim (1), Franck cites (1) Israel-Egypt 1956 (Israel arguingself-defence against decade-long cross-border provocations by Pales-tinian Fedayeen), (2) OAS-Dominican Republic 1960 (Venezuela’scomplaint against Trujillo dictatorship of the Dominican Republic oftrying to assassinate its president and overthrow the Government ;OAS condemned the Dominican “intervention and aggression” andapplied countermeasures ; the Security Council noted the OASaction), (3) Israel-Lebanon 1980 (Israel : to protect its citizensagainst terrorist attacks ; General Assembly condemned its “aggres-sion”), (4) United States-Nicaragua 1980-1986, (5) Turkey-Iraq 1995(Turks pursuing Kurdish insurgents into Iraq) 638.

On claim (2), Franck concludes :

“The practice makes clear that there has been no support forinterpreting Article 51 to permit a right to use force in self-defence against states exporting ideologies through militant butnon-military means.” 639

On claim (3), Franck begins with a reference to Durand v. Hollinsin which the US Circuit Court of Appeal held :

“Under our system of government, the citizen abroad is asmuch entitled to protection as the citizen at home. The greatobject and duty of government is the protection of the lives,liberty and property of the people comprising it, whetherabroad or at home ; and any government failing in the accom-plishment of the object, or the performance of the duty, is notworth preserving.” 640

The issue was the US President’s constitutional authority, withoutobtaining a Congressional declaration of war, to order a naval bom-bardment of San Juan del Norte (Greytown) in Nicaragua, as reprisalagainst those of its inhabitants who “had perpetrated acts of violenceagainst the US nationals and their property”.

US interventions in the Dominican Republic 1965, Grenada1983, and Panama in 1989, claimed objective was to protect the USnationals, but ended in change of regime. Each has been an illegalintervention.

272 V. S. Mani

641. In this case, Franck notes, Israel quoted D. P. O’Connell saying“Article 2 (4) . . . should be interpreted as prohibiting acts force against

the territorial integrity and political independence of nations, and not toprohibit use of force which is limited in intention and effect to the pro-tection of a State’s own integrity and its nationals’ vital interests, whenthe machinery envisaged by the United Nations Charter is ineffective in thesituation.” International Law, 2nd ed., 1970, p. 304.

Franck deals with Belgium interventions in the Congo in 1960and 1964, Turkey’s in Cyprus in 1964, United States in the Domini-can Republic in 1965, Israel in Uganda in 1976 641, United States inGrenada in 1983 (roundly criticized as it was political rather thanhumanitarian ; there was no danger to US nationals), United States inEgypt in 1985-1986 (when Palestinian terrorists hijacked an Italiancruise liner, the Achille Lauro, and murdered an American passenger.Egyptian authorities later negotiated the release of the ship and itspassengers in return for allowing the hijackers to fly to Tunis on anEgyptian aircraft. US planes intercepted that flight forcing it to landat a NATO base in Italy and apprehended the terrorists), UnitedStates in Libya in 1986 (US air and naval force entered the Gulf ofSidra in the Mediterranean in defiance of Libya’s claim of closedsea, Libya responded with surface-to-air missiles and the despatch ofan armed patrol boat. The United States bombed the missile sites andsank the boat. On 4 April, a bomb attributed to Libyan agentsexploded in a Berlin night club frequented by US soldiers, killingthree including two US and injuring 229 including 79 US. Ten dayslater, the United States in “self-defence” mounted attacks on variousLibyan military targets causing civilian and military casualties.),United States in Panama in 1989, US attack on Iraqi intelligenceheadquarters in 1993 (after the alleged assassination attempt on Presi-dent George Bush by Iraqi agents in Kuwait, United States firedmissiles at Iraqi headquarters, and reported to the Security Councilas an exercise of self-defence under Article 51. Washington claimedthat the attack had been made only after having concluded that therewas no reasonable prospect that new diplomatic initiatives or ecopressure could influence the Iraqi Government), United States inAfghanistan and Sudan in 1998 (7 August 1998 terrorists attacks onUS embassies in Nairobi, Kenya and Dar-es-Salaam, Tanzania. On21 August, the United States, using cruise missiles, attacked a phar-maceutical plant in the Sudan and bombed a base in Afghanistanallegedly used as a training camp by Osama bin-Laden, and reported


642. Franck, footnote 629, supra, p. 96.643. Ibid., p. 76.644. Ibid., pp. 134-173.

to the Security Council under Article 51. Evidence adduced againstOsama was, according to Franck, credible, that against pharmaceuti-cal was not) 642.

Franck also refers to the use of force by Egypt in 1978, when,after the assassination of an Egyptian cabinet minister in Nicosia byArab gunmen suspected to belong to the Abu Nidal group and thecapture of a number of hostages in the Nicosia Hilton Hotel, Egyp-tian commandos entered Cyprus without permission and evenengaged the Cypriot security men in a gun battle. Ultimately theguerrillas surrendered to Cypriot authorities and were placed ontrial. Egypt claimed self-defence of its citizens abroad.

On claim (4), Franck’s finding is :

“When the facts and their political context are widely seen towarrant a pre-emptive or deterrent intervention on behalf ofcredibly endangered citizens abroad, and if the UN itself, forpolitical reasons, is incapable of acting, then some use of forceby a state may be accepted as legitimate self-defence within themeaning of Article 51.” 643

It is needless to say, we totally disagree with Franck on this inter-pretation of Article 51.

On claim (5), Franck deals with 644 India in Bangladesh in 1971,Tanzania in Uganda in 1978, Vietnam in Kampuchea in 1978-1979,France in the Central African Empire in 1979, France, the UnitedKingdom and the United States in Iraq (Kurds) in 1991, ECOWASin Liberia and Sierra Leone in 1989-1999, NATO in Yugoslavia(Kosovo) in 1999. Indeed, arraigning of some of the instances suchas India and Tanzania and the legality of others are disputable.

Examining the recent United Nations practice of tolerating a kindof freedom of action on the part of the regional organizations,Franck thinks that the “ancient monopoly” of the Security Council tobe the sole presiding deity in respect of use of force on behalf of theinternational community seems to be lately thinning down. Thus, hesays :

“The ECOWAS intervention in Liberia and Sierra Leone canbe said to have demonstrated the reticent UN system’s increas-

274 V. S. Mani

645. Ibid., p. 162.646. On Nato strikes in Kosovo in 1999, India said in the UNSC :

“The attacks against the Federal Republic of Yugoslavia . . . are in clearviolation of Article 53 of the Charter . . . Among the barrage of justifica-tions we have heard, we have been told that the attacks are meant to preventviolations of human rights. Even if that were to be so, it does not justifyunprovoked military aggression. Two wrongs do not make a right.” SeeSCOR, 54, 3988th mtg., 24 March 1999, p. 16.

647. See generally V. S. Mani, footnote 612, supra, at pp. 58-70.648. M. S. Rajan notes that A. Appadorai, an eminent Indian commentator of

his time (during the drafting of the UN Charter), made “the acutely perceptive

ing propensity to let regional organizations use force, evenabsent specific prior Security Council authorization, when thatseemed the only way to respond to impending humanitariandisasters. While both interventions were eventually ratified andadopted by the Council — first in the form of resolutions ‘com-mending’ them, and then by decisions making the UnitedNations a partner in those operations — such ex post factoapproval effectively reinterprets the text of Article 53.” 645

And this is so, says Franck, notwithstanding the fact that some of thedeveloping countries, like India, once in a while make noisy objec-tions to such UN-tolerated regional action 646.

The entire thrust of the Franck argument seems to be that the con-temporary events under international law and organization tends toopen up slowly towards recognizing a right of humanitarian inter-vention. Much of this thesis results from organizational decisionsmade possible by the political arm-twisting of the members of theSecurity Council at the instance of the great powers and the resultantviolations of the Charter provisions and the basic principles of natu-ral justice by the Council — impartiality, fair play, non-selectivityand uniformity in application of standards. This has also resultedfrom non-availability of necessary resources in the hands of theCouncil. Further, many of Franck’s instances of unilateral resort toforce are, to say the least, controversial.

5.1.2. Problems of Security Council-sponsored UN peace actions 647

It is well known that the collective security system under the Char-ter assumes unanimity among great powers to function effectively,and that it will not operate against a great power. More often thannot, unanimity among great powers has been a myth 648. The post-


point” that the assumption of continuing harmony among the great powers “istoo insecure a foundation for such a great experiment in history as DumbartonOaks really is”. See Rajan, “India and the Making of the UN Charter”, Interna-tional Studies, New Delhi, Vol. 12, 1973, pp. 430-461, at pp. 432-433.

649. Harding F. Bancroft, “Can the UN Become a Collective Security Orga-nization ?”, Department of State Bulletin, Vol. XXIV, No. 619, 14 May 1951,p. 772, cited in Goodrich, Hambro and Simons, footnote 367, supra, at p. 122.For a critical Indian study of UN collective security mechanism in concept andin operation during the Cold War period, see K. P. Saksena, The United Nationsand Collective Security, DK Publishers, Delhi, New York, 1974.

650. Resolution 377 (V) of 3 November 1950. The resolution stipulated, interalia :

“if the Security Council, because of lack of unanimity of the permanentmembers, fails to exercise its primary responsibility for the maintenance ofinternational peace and security in any case where there appears to be athreat to the peace, breach of the peace, or act of aggression, the GeneralAssembly shall consider the matter immediately with a view to makingappropriate recommendations to Members for collective measures, includ-ing in the case of a breach of the peace or act of aggression the use ofarmed force when necessary, to maintain or restore international peace andsecurity”.

Charter “practice” of the United Nations has further watered downthe requirement of “concurrence” of the P-5 to mean absence of anegative vote (not including abstention and absence) of one of ormore of them. Almost throughout the Cold War, the Security Councilremained paralysed because of the veto by one or other of the P-5s.Throughout the Cold War, the great powers followed their politicalagendas mostly outside the United Nations. Thus the Vietnam Warthat raged for two decades never figured on the agenda of the UnitedNations. The Security Council, understandably, failed to deal withmany a great power intervention (usually known as “hegemonic” or“ghetto” interventions), thanks to its congenital disability.

In this state of affairs, the original Charter framework of collec-tive security transformed itself into one for “collective measures”reminiscent of the League days and led to the emergence of the con-cept of UN peacekeeping operations authorized first by the GeneralAssembly in 1950, with the Security Council subsequently joiningin. In 1950 the concept was to reflect the “essential elements of acollective security system”, namely, “the means of determiningaggression, an organism to put collective measures into operation,military forces in readiness to carry out those measures, and someapparatus to perfect the methods for coordinating collectiveaction” 649. This was the basis of the Uniting for Peace Resolutionadopted in the context of the Korean situation 650. It also provided

276 V. S. Mani

651. For a conceptual exposition of this, see his Introduction to the AnnualReport of the Secretary-General on the Work of the Organization, 16 June 1960-15 June 1961, GAOR, 16th Session, Supplement 1A, reproduced as Dag Ham-marskjöld, “Two Differing Concepts of United Nations Assayed”, InternationalOrganization, Vol. 15, 1961, pp. 549-565. As for the Charter basis for peace-keeping operations, he is reported to have said that between Chapter VI andChapter VII there was an “invisible Chapter VI-A”, or “Chapter VI ”.

652. For a widely recognized study of some of these operations, see RosalynHiggins, United Nations Peacekeeping 1946-1967 : Documents and Commen-tary, Oxford University Press, London.

653. Certain Expenses case, ICJ Reports 1962, p. 151.654. General Assembly resolution 1854-A (XVII) of 19 December 1962.

the basis for many subsequent UN peacekeeping operations, theprincipal ones during the Cold War period being the Suez crisis in1956, Lebanon 1958, and the Congo 1960. Conceptualizing peace-keeping operations authorized by the General Assembly in the late1950s, Secretary-General Dag Hammaskjöld argued that the organi-zation existed more for the small countries than for the great powers,and that it was important to insulate crises occurring among thesecountries from the great power politics and de-escalate them so thatpeace could be restored with ease 651. The Congo crisis exposed thefragility of the basic premise of his concept — that it was possible toisolate or insulate a situation from the clash of big power interests.

These early peacekeeping operations had evolved some specialfeatures of their own 652. They were launched on the basis of the vol-untary co-operation of the troop-contributing countries ; they wereparticipated in by countries mostly “neutral” or non-aligned, in anycase to the exclusion of great powers ; they operated with the consentof the host countries ; they were to “keep the peace”, and not to useforce except in self-defence, and so on. The last principle gave wayin the Congo situation. Soon, the United Nations learnt the hard waythat it was not advisable to mount a peacekeeping operation unlessadequate funding was forthcoming. In 1962, the International Courtupheld the constitutionality of peacekeeping operations and ruledthat expenses incurred in respect of the peacekeeping operationswere legitimate expenses of the Organization within the meaning ofArticle 17 (2) of the Charter 653. Even while the General Assemblyendorsed the Court’s opinion, it was clear that there was a significantminority which differed with it, and that even among the protago-nists there was a diversity of interpretations of the Court’s ruling 654.Many members of the Assembly insisted on the ability to pay as aprinciple, some on the principle of voluntarism, and the Soviets on


655. More on this see Goodrich, Hambro and Simons, footnote 367, supra,pp. 157-165.

656. For incisive critiques of the post-1990 peacekeeping, see C. S. R.Murthy, “United Nations Peacekeeping in Intra-state Conflicts : EmergingTrends”, International Studies, New Delhi, Vol. 38, 2001, pp. 207-227 (see alsohis “Change and Continuity in the Functioning of the Security Council Since theEnd of the Cold War”, International Studies, Vol. 32, 1995, pp. 423-439) ; aninterview with Lt. Genl. (retd.) Satish Nambiar, “Warriors of Peace : Should theIndian Soldier Shed His Blood for the UN ?”, at website http://www.rediff.com/news/2000/jun/29un.htm ; Rosalyn Higgins, “Peace and Security : Achievementsand Failures”, European Journal of International Law, Vol. 6, 1995, pp. 445-460, and her “The UN Security Council and Use of Force”, in Hazel Fox, ed.,The Changing Constitution of the United Nations, BIICL, London, 1997, pp. 43-54.

657. On many of these changes, see Rahmatullah Khan, “United NationsPeace-keeping in International Conflicts — Problems and Perspectives”, MaxPlanck Yearbook of United Nations Law, Vol. 4, 2000, pp. 543-581 ; Jasjit Singh,“United Nations Peace-Keeping Operations : The Challenge of Change”, IndianJournal of International Law, Vol. 35, 1995, pp. 77-89 ; K. P. Saksena, Reform-ing the United Nations : The Challenges of Relevance, Sage, New Delhi, 1993.

658. Available at website file :///Pl/word/UNSGReportonAfrica1998.htm.

the principle that the cost of repressing aggression must be borne bythe aggressor 655. Thus the problem of financing the peacekeepingoperations always inhibited one crisis after another ever since.

In the post-Cold War era, the Security Council was expectedto play its constitutional role to the hilt, as it took over the peace-keeping functions, almost to the exclusion of the General Assembly.There have been some successes for the UN peacekeeping opera-tions, but failures seem to be more apparent on record. In fact, since1990 the Council has been playing its “constitutional” role inrestoration and maintenance of international peace and securityrather haphazardly in certain cases (both in terms of mandating apeacekeeping operation as well as handling its “progress” on theground), and failing to perform in certain others 656.

Reasons for this unattractive balance sheet are not difficult todiscern. Since 1990, the scope and nature of peacekeeping operationshave considerably changed 657. The UN Secretary-General’s 1998Report on “The Causes of Conflict and the Promotion of DurablePeace and Sustainable Development in Africa” 658 clearly points tothe formidable nature of problems faced by peacekeeping operationsin Africa. The report identifies among the sources of conflict, theCold War support to undemocratic and oppressive regimes, internalfactors such as the serious problems of good governance includingabsence of peaceful means of change of national leadership, lack ofrespect for human rights, and the multi-ethnic character of most

278 V. S. Mani

659. Security Council resolution 1343 (2001) of 7 March 2001 on Liberia-Sierra Leone evidences the Council’s intense awareness of some of theformidable problems a peacekeeping operation faces in Africa. The resolutionsought to deal with the flow of rebel-controlled diamonds from Sierra Leonethrough Liberia with the support of the Liberian Government, armaments flow-ing through Liberia to the rebels in Sierra Leone, movement of funds or finan-cial assets between Liberia and Sierra Leone for the benefit of rebels, use ofLiberian-registered aircraft, and the movement of senior army or governmentofficials or their spouses visiting other countries to facilitate such movements offunds, etc. Resolution 1478 (2003) of 6 May 2003 adds to the embargoes ontrade in and international movement of diamonds, armaments and financialassets, an embargo on logs and timber products from Liberia, and calls upon“all parties to conflict in the region to include disarmament, demobilization andreintegration provisions in peace agreements”. Indeed, many peacekeepingoperations are now additionally mandated to achieve the “trinity” of disarma-ment, demobilization and reintegration. The first two may be far easier to seekthan the third.

660. UN doc. A/47/277-S/24111 (1992).661. See generally Murthy, Lt. Genl. Nambiar and Rosalyn Higgins, foot-

note 656, supra.

States. Many of these factors, whether cumulatively or individually,arising in a given political context, raise greater problems today thanthose faced by “traditional” peacekeeping 659. And hence the addi-tional labels for a UN action — conflict prevention, peace making,and peace building. We have even dropped “keeping” for “UNpeacekeeping operations” — it is just “UN peace operations”. It isunderstandable that each of such different mandates needs to be pur-sued, often simultaneously, in response to a given context.

The challenges of peacekeeping since the 1990s have prompted anumber of endeavours within the United Nations seeking to clarifyor redefine the nature and objectives of a UN action, and study itslogistical and management implications for the Organization and itsmembers. The exercise probably began since the early 1990s, in thecontexts of the Charter Reform and the United Nations Reform, andwas given a push by the first issue of the Secretary-General’sAgenda for Peace 660.

A number of points of criticism may be made on the recent peace-keeping operations under the newfound stewardship of the SecurityCouncil 661. First, most situations that demanded international coer-cive action involved internal conflicts. In certain cases, there was atotal breakdown of internal mechanism of governance, leaving thefield open for bloody conflicts between diverse warring groups. Inmany of these situations, there was no peace to keep ; the peace hadto be forcibly restored at the outset. This, indeed, blurred the earlierdistinction between “collective measures to keep peace” and


662. Security Council resolution 1510 (2003) of 13 October 2003. Nato tookover the command and co-ordination of ISAF in August 2003. See Nato hand-outs.

663. Council resolution 678 (1990) of 29 November 1990.

“enforcement action”. In most cases, the Council routinely adoptedresolutions “acting under Chapter VII” and mostly addressed/tar-geted diverse internal elements in a given situation. Often thisclearly gave the impression on the ground that the UN operation ispartial to one party and against the other, thereby aggravating thecrisis in hand. In the case of Afghanistan, despite the general controlof the country by the Taliban regime, there were continuing internalconflicts which were first refuelled by the outside powers and thencame the US-UK invasion of October 2001. Although the externalpowers succeeded in dislodging the Taliban regime from Kabul, theydid not totally succeed it getting the country rid of the Taliban ele-ments. The reason, indeed, was the lack of co-ordination of militaryobjectives of the UN International Security Assistance Force (ISAF)and UN agencies operating in Afghanistan and the Operation Free-dom Coalition forces that tend to set the military agenda.

Second, the Council responses to such situations were often with-out adequate preparatory work. The post-October 2001 Afghan situa-tion was further complicated by the fact of big power invasionunder a claim of self-defence. The role of the Security Council haslargely been to endorse the 6 + 2 and the Bonn Agreements. In sucha situation, the Council had to change/expand/diversify UN opera-tions in response to developing situations, without relating thechange either to the past or to likely future evolution of the crisis,but often conditioned (or restricted ?) by the presence of the ISAFalongside a multinational force (continuing self-defence ?). In asense, the establishment of ISAF itself was a fait accomplis for theCouncil itself. One, however, feels uneasy that NATO, having invokedits collective defence mandate in the immediate aftermath of 9/11,has since turned itself into a Security Council mandated operationunder the label ISAF 662 — that too, a long way away from its tradi-tional geographical meeting ground, for whatever reason.

Third, a pattern of authorizing the participating nations in a peace-keeping operation to use or take “all necessary means” — a habitthat began to form with the first war with Iraq in 1991 663, and thenslipped into the peacekeeping arena in Somalia (decidedly not to set

280 V. S. Mani

664. Council resolution 794 (1992) of 4 December 1992, para. 10.665. See, e.g., three Bosnia-related resolutions ((a) paragraph 4 of resolution

816 (1993) of 31 March 1993 authorized member States “acting nationally orthrough regional organizations or arrangements to take . . . all necessary mea-sures in the airspace . . .”, (2) paragraph 9 of resolution 836 (1993) of 4 June1993 authorized UNPROFOR to “take the necessary measures, including the useof force” in response to attacks on safe areas and paragraph 10 of the same reso-lution authorized member States “acting nationally or through regional organi-zations or arrangements” to take “all necessary measures, through use of airpower, in around the safe areas” and (3) resolution 908 (1994) of 31 March 1994extending the mandate of the UNPROFOR in the former Yugoslavia, paragraph 8authorizing member States “acting nationally or through regional organiza-tions or arrangements, may take, . . ., all necessary measures to extend close airsupport to the territory of the Republic of Croatia, in defence of UNPROFORpersonnel”), resolution 929 (1994) of 22 June 1994 on Rwanda (paragraph 3, butparagraph 4 stipulates that this authorization would terminate once an expandedUNAMIR is able to carry out its mandate), resolution 940 (1994) of 31 July1994 on Haiti (paragraph 4, but paragraph 5 envisages sending of an advanceteam to facilitate the multinational force and paragraph 8 provided for the ter-mination of both when UNMIH “has adequate force” and “a secure and stableenvironment has been established”), resolution 958 (1994) of 19 November1994 on Croatia (the only decisional paragraph), resolution 1264 (1999) of15 September 1999 on East Timor (but paragraph 10 of this resolution stipulatesthat the multinational force would be in place, until replaced by UN peacekeep-ing operations), resolution 1289 (2000) of 7 February 2000 on Sierra Leone(paragraph 10 authorized, pursuant to Chapter VII, UNAMSIL to take “thenecessary action” to protect its personnel, facilities and equipment, and as faras possible the civilians), resolution 1291 (2000) of 24 February 2000 on Demo-cratic Republic of Congo (paragraph 8 authorized, pursuant to Chapter VII, theexpanded MONUC to take “the necessary action” to protect the UN personnel,their freedom of movement, facilities and equipment), resolution 1305 (2000) of21 June 2000 on peace agreement for Bosnia and Herzegovina (paragraph 11).

666. Security Council resolution 1563 (2004), 17 September 2004, SecurityCouncil resolution 1510 (2003), 13 October 2003, both authorizing “MemberStates participating in ISAF to take all necessary measures to fulfil its mandate”.

667. See Articles 48 and 49 of the Charter.

a precedent) 664 — is by now well entrenched in the Council practiceon peacekeeping operations 665. One finds the pattern continuing inthe case of ISAF as well 666. While it is true that in the absence ofArticle 63 special agreements, participation in Security Councilauthorized operations, including enforcement actions, is voluntary,this does not necessarily imply that the Council should abdicate itsconstitutional responsibility to preside over the operation it autho-rizes 667. Nor does the Charter empower the Council to issue a “blankcheque” to “use or take all the necessary measures” to the partici-pating nations, regional organizations or regional arrangements in anoperation under Chapter VII of the Charter. It is arguable that theCouncil has no power to authorize any nation or a group to exercisethe discretion to decide, without any reference to the Council, if,when, where and how force should be used and forces deployed.


668. See V. S. Mani, “Role of Law and Legal Considerations in the Func-tioning of the United Nations”, in Nigel D. White, ed., Collective Security Law,Aldershot, United Kingdom, 2003, pp. 65-94, being a reprint of the article fromIJIL, Vol. 35, 1955, pp. 91-128. This was the reason why Secretary-GeneralPeréz de Cuéllar is reported to have said that the use of force by the UnitedStates-led multinational forces against Iraq in 1991 was not “UN’s war”. On thegeneral issue of validity of the Security Council’s decisions, see MohammedBedjaoui, The New World Order and the Security Council : Testing the Legalityof Its Acts, Martinus Nijhoff, Dordrecht, 1994, Derek Bowett, “The Impactof Security Council Decisions on Dispute Settlement Procedures”, EuropeanJournal of International Law, Vol. 5, 1994, pp. 89-101.

669. Goodrich, Hambro and Simons cite the example of action taken by OASin respect of the Dominican Republic in 1965, in respect of which the UnitedStates argued that the OAS action was akin to UN action in Cyprus, Congo orthe Middle East. See Goodrich, Hambro and Simons, footnote 367, supra, atp. 366.

This is so, because the Council itself functions, and is expected tofunction, on the authority delegated to it by States parties to theCharter. Authority once delegated, cannot be redelegated 668. The“blank cheques” even with the stipulation that they be used “in co-ordination with the Secretary-General” have not worked well — theyhave left the Secretary-General a hapless spectator to great powerpolitics. They have resulted in total decisional and operational auto-nomy snatched away by the so-called “coalitions of the willing” in thecourse of which neither the Secretary-General nor the Council had anycontrol and had to accept the resultant situations as faits accomplis.

Fourth, this has also led to a blurring of a clear distinctionbetween peacekeeping and enforcement action. The Council quiteliberally “acts under Chapter VII of the Charter” and very often themandate for an operation mixes the elements of both. This leads tolopsided operational priorities, often weaker, inefficient performanceor non-performance of peacekeeping.

Fifth, closely following or overlapping the above trends, is thetrend on the part of the Council in permitting or acquiescing inregional organizations to mount operations within their region, oreven outside the region — as is the case with ISAF —, either ontheir own or alongside the UN presence. When a regional organiza-tion mounts a coercive operation on its own, without authorizationfrom the Council as postulated under Article 53 (1) of the Charter, itcould easily argue that Council authorization was necessary only foran enforcement action and not for a peacekeeping operation 669. Butwhen a hybrid organization like NATO that claims one foot onArticle 51 of the UN Charter and the other on Article 53, the relation-

282 V. S. Mani

670. A Memorandum of Kevin A. O’Brien of Rand Europe, examining a UKForeign and Commonwealth Office Green Paper on Private Military Com-panies : Options for Regulation, concludes that

“As long as governments and commercial companies require armed pro-tection or, indeed, armed military support against a rebel insurgency, PMCs(Private Military Companies) will find a willing market for their skills andcapabilities. . . . Given the current regional instability and chaos, this con-tinued ‘privatisation of peacekeeping’ may become the best option for aDeveloped World unwilling or unable to intervene in the increasing chaosof regional conflict.”

See also his extensive footnote references. UK Parliament, select Committeeon Foreign Affairs Minutes of Evidence, Appendix 3, “Memorandum fromDr. Devin A. O’Brien”, pp. 1-19, available at website http://www.parliament.the-station...2/cmselect/cmfaff/022/2061315.htm. O’Brien notes the various categori-zations and definitions of private army companies in terms of their evolution —mercenaries, private armies/militias/warlords, private (commercial) securitycompanies, private intelligence brokers, and now specialized military companies(operating from South Africa, United Kingdom, United States and Israel), someof whom were even hired by the World Bank, the United Nations and varioushumanitarian NGOs for protection in regional conflict. For a report on the FCOGreen Paper, see BBC News online, 13 February 2002, “Peacekeeping ‘role’ formercenaries”, at http://www.bbc.co.uk/2/hi/uk_news/politics/1817495.stm. In aForeword to the Green Paper, says the BBC News, UK Foreign Secretary statesthat “a strong and reputable private military sector might have a role in enablingthe UN to respond more rapidly and effectively to crises”. Responding to this“consultation paper” Menzies Campbell, Liberal Democrat, raised “issues ofallegiance and the chain of command” if the United Nations could contractpeacekeeping operations to the private sector. The paper itself is reported toraise important concerns about human rights, sovereignty and accountability.The Green Paper was a response to “the Arms-to-Africa affair four years ago,which led to claims that the UK Government had connived with the British pri-vate military company — Sandline International — in the illegal export of armsto Sierra Leone”, explains BBC, ibid.

ship between the Security Council and the organization becomesrather tenuous — an issue of total freedom of action/autonomy ofa collective defence mechanism versus command-control set-up ofthe Security Council.

Sixth, the “decentralization” or the “sub-contracting” in favour ofthe “coalition of the willing” usually organized by one or more ofdominant powers — the direct result of the above trends — tends togive these powers in a multinational force or in a regional forcea decisive say in the formulation of the objectives of an operationas well as its execution on the ground. Strangely, in Afghanistan,two “coalitions” coexist — the NATO-led coalition in the form ofISAF and the United States-led Operation Freedom Coalition. Is“privatization” of peacekeeping operations, then, the next “logical”step 670 ?

To be fair to the Organization, both the Security Council and the


671. Footnote 660, supra.672. UN doc. A/50/60-S1995/1 (1995).673. UN docs. A/55/305 (General Assembly), S/2000/809 (Security Council)

of 21 August 2000.674. Ibid., pp. x-xi.

General Assembly are aware of the complexities of the post-ColdWar challenges to peacekeeping, including the fact that most newsituations involve essentially civil conflict with transborder dimen-sions. Attempts have been made to examine the underlying issues ascomprehensively as possible. The General Assembly has been at thisexercise, particularly since 1965 when the Special Committee onPeacekeeping Operations was set up. Now charged with a compre-hensive review of peacekeeping operations in all its aspects, it pro-vides an active forum for States to exchange views freely on peace-keeping operations. Both the Assembly and the Council have hadoccasions in 1990s to deal with a number of ideas thrown up by theSecretary-General through his 1993 and 1995 reports — the Agendafor Peace 671 and its Supplement 672. As part of the Millennium cele-brations, the UN Secretary-General appointed in March 2000 a10-member high-level expert panel, headed by Lakhdar Brahimi, aformer Algerian Foreign Minister. The panel submitted its report(the famous Brahimi Report) on 17 August 2000 673. The panel wasmandated “to assess the shortcomings of the existing system andto make frank, specific and realistic recommendations for change”.According to its report, “some of the missions of the past decadewould be particularly hard to accomplish”. No homework had beendone to distinguish between peacekeeping and peace-buildingactivities.

“United Nations operations . . . did not deploy into post-conflict situations but tried to create them. In such complexoperations, peacekeepers work to maintain a secure localenvironment while peace-builders work to make that environ-ment self-sustaining. Only such an environment offers a readyexit to peace-keeping forces, making peace-keepers andpeace-builders inseparable partners.” 674

The report reaffirmed that “the consent of the local parties, impar-tiality and use of force only in self-defence should remain thebedrock principles of peacekeeping”. However, the experienceshowed that consent could be manipulated, or otherwise unstable or

284 V. S. Mani

675. Ibid., pp. 9-10.676. Ibid., Annex III, at pp. 54-58677. United Nations Millennium Declaration resolution 55/2 of 8 September

2000, para. 9, second bullet point.678. Council declaration on ensuring an effective role for the Security Coun-

cil in the maintenance of international peace and security, particularly in Africa,resolution 1318 (2000) of 7 September 2000, Annex, para. IV.

679. Council resolution 1318 (2000) of 7 September 2000.680. Ibid., para. II.

unreliable. Thus impartiality — not to be equated with neutrality orequality of all parties irrespective of their unacceptable actions —must remain the hallmark of an operation, said the report 675. Thereport made a wide range of recommendations including those forpreventive action, peace-building strategy, peacekeeping doctrineand strategy, including “clear, credible and achievable mandates”,determining deployment timelines, logistical support and expendi-ture management, integrated mission planning and support, and UNSecretariat reform consequent on these recommendations 676. Boththe Assembly 677 and the Council 678 quickly noted the report andpromised to consider its recommendations “expeditiously”.

On its part, the Security Council has, reminiscent of the League ofNations days, started the practice of despatching its own special mis-sions for on-the-spot enquiry and discussions with regional leaders.Its recent missions to Central Africa and West Africa have been pur-poseful and commendable. The Council has also looked at the issuesat a macro-level as well, evidently prompted by its diverse experi-ences. Meeting at the level of heads of State and Government in2000 in the company of the Millennium Assembly, it adopted a Dec-laration “on ensuring an effective role for the Security Council in themaintenance of international peace and security, particularly inAfrica” 679. The declaration embodies, inter alia, a reaffirmation ofthe determination of all heads of State and Government of the world,to give equal priority to the maintenance of peace and security inevery region of the world, and in view of the particular needs ofAfrica, to give special attention to that region 680. It recognizes theneed to strengthen the UN peacekeeping operations by “adoptingclearly defined, credible, achievable and appropriate mandates”,measures for the security and safety of UN personnel and for pro-tection of the civilian population, taking steps to obtain trained andproperly equipped personnel for the operations, “strengthening con-sultations with troop-contributing countries when deciding suchoperations”, and upgrading the UN capacity for planning, establish-


681. Ibid., para. III.682. Ibid., para. VI.683. Presidential Statement doc. S/PRST/2001/5, 20 February 2001. On the

need to integrate post-conflict peace-building elements, see docs., S/PRST/1999/21 of 8 July 1999, S/PRST/2001/10, of 23 March 2000.

684. See, for instance, Presidential Statements doc. S/PRST/2001/38, of19 December 2001, doc. S/PRST/2002/31 of 31 October 2002.

685. Presidential Statement doc. S/PRST/2000/25, of 20 July 2000.686. Presidential Statement doc. S/PRST/2000/7 of 13 March 2000.

ing, deploying and conducting peacekeeping operations as also pro-vision of “a more up-to-date and sounder foundation for financingpeace-keeping operations” 681. It calls for “international action toprevent the illegal flow of small arms into areas of conflict” anddecides to take “resolute action in areas where the illegal exploita-tion and trafficking of high-value commodities contributes to theescalation or continuation of conflict” 682.

Responding to an open debate on “Peace-building : towards a com-prehensive approach,” the Council recognized that “peacemaking,peacekeeping and peace-building are often closely interrelated”and “this interrelationship requires a comprehensive approach inorder to preserve the results achieved and prevent the recurrence ofconflicts”. Hence the need for including peace-building elements inthe mandates of peacekeeping operations 683. It stressed the need forconstant contact between the United Nations and regional organiza-tion ; indeed, this has been a theme in several of the Council deci-sions 684. In one such decision, the Council clarified that the relation-ship between the United Nations and regional organizations andarrangements in the prevention of armed conflict should be in accor-dance with Chapter VIII of the Charter 685. The Council also notedthat “in some instances the integration of humanitarian componentsinto peacekeeping operations would contribute effectively to theircarrying out their mandate” and stressed on adequate training of thepersonnel 686. Yet with all this doctrinal excursus, when it comes tosetting up a peacekeeping operation in a given political context, theCouncil tends to give in to the dominant powers which dictate howan operation should be planned and mandated and put into operationon the ground and who should head the forces and control theirmission and for how long. That is how the so-called “coalitions ofthe willing” work.

The 2003 Kuala Lumpur Summit of the Non-Aligned countriesmakes quite a few pertinent comments on UN peacekeeping opera-

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687. The Final Document of the XIII Conference of Heads of State or Gov-ernment of the Non-Aligned Movement (NAM), Kuala Lumpur, 24-25 February2003, available at website http://www.nam.gov.za/media/030227e.htm. The docu-ment deals with peacekeeping operations in paragraphs 41 to 51.

688. The words, “on its call and in accordance with a special agreement oragreements” are wide enough to include an ad hoc agreement on each call.

689. The NAM summit, footnote 687, supra, paragraph 49, makes it a pointto underscore NAM’s concern that NAM countries “are insufficiently repre-sented, particularly at professional levels” at the UN Secretariat’s Department ofPeacekeeping Operations”.

tions 687. One, the primary responsibility for maintenance of interna-tional peace and security “resides with the United Nations” and “therole of regional arrangements, in that regard, should be in accordancewith Chapter VII” of the Charter. They “should not in any way sub-stitute the role of the United Nations, or circumvent the full applica-tion of the guiding principles of the United Nations peacekeeping”.Two, the Organization must “avoid selectivity and double standardsin establishing United Nations peacekeeping operations, especially inAfrica”. Three,

“peacekeeping operations should not be used as a substitute foraddressing the root causes of conflict, which should beaddressed in a coherent, well-planned, coordinated and compre-hensive manner, with other political, social and developmentalinstruments”.

Such efforts should continue post-peacekeeping, without interrup-tion. Four, there is a need to plan and manage operations effectively,taking fully into account their individual complexities ; wherenecessary, they should be mounted as rapidly as possible. Five, thevoluntary nature of funding of peacekeeping operations “should notinfluence United Nations Security Council decisions to establishpeacekeeping operations or affect their mandates”. Six, consultationsbetween the troops-contributing countries and the Council should beinstitutionalized, and the Council should ascertain the views of theircountries before and during the formulation of mandates for the opera-tions. While authorizing use of force, the Council should adhereto the provisions of Articles 43 688 and 44 of the Charter. Seven,planning of an operation to be “more and effective” 689, “the troopscontributing countries should be consulted at all stages of a mission”.Eight, the United Nations should help many troops-contributing Non-Aligned countries in overcoming any difficulties they may face logis-


690. United Nations, Preventing War and Disaster : A Growing Global Chal-lenge, United Nations, 1999.

691. Ibid., para. 8, at p. 3.692. Ibid., para. 56, at p. 17.693. Ibid., para. 57, at p. 17.

tically or equipment-wise. Finally, the Non-Aligned Movementemphasizes “the critical importance of timely, efficient, transparentand cost-effective procurement of goods and services in support ofpeace-keeping operations”. It also stresses the “need to ensure greaterUnited Nations procurement from developing countries” through aprinciple of preferential treatment.

5.1.3. Towards a concept of UN “humanitarian” action ?

The role of the international organization in enforcement ofhuman rights deserves separate consideration, particularly in viewof the increasing involvement of the United Nations in civil strife(Somalia, Yugoslavia, Rwanda). The UN Secretary-General, Kofi A.Annan has dwelt on the issue in two of his recent reports. The Intro-duction to the 1999 Annual Report of the Secretary-General on theWork of the Organization 690 addresses itself to “unprecedentedhumanitarian challenges”. The Secretary-General’s main complaintis that “The humanitarian challenge is heightened by the fact that theinternational community does not respond in a consistent way tohumanitarian emergencies” 691. While emphasizing the role of pre-ventive measures in diffusing potential conflict situations, the Secre-tary-General recognizes that even the best of prevention strategiescannot completely eliminate the chances of war. Hence his view :

“It follows that, for the foreseeable future, the internationalcommunity must remain prepared to engage politically — andif necessary militarily — to contain, manage and ultimatelyresolve conflicts that have got out of hand. This will require abetter functioning collective security system than exists at themoment. It will require, above all, a greater willingness tointervene to prevent gross violations of human rights.” 692

“Demonstrable willingness to act in such circumstances willin turn serve the goal of prevention by enhancing deterrence.Even the most repressive leaders watch to see what they canget away with, how far they can tear the fabric of human con-science before triggering an outraged external response.” 693

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694. Ibid., para. 66, at p. 20.695. Ibid., para. 67, at p. 21.696. The Secretary-General’s Report to the Millennium Assembly entitled We

the Peoples : The Role of the United Nations in the Twenty-First Century — UNdoc. A/54/2000, 27 March 2000, para. 215, at p.34.

While expressing his disapproval to unilateral resort to force with-out the authority of the UN Security Council, the Secretary-Generalis also aware of the limitations of organizational action :

“Differences within the Council [on the question of UNintervention in the Kosovo crisis in 1999] reflected the lack ofconsensus in the wider international community. Defenders oftraditional interpretations of international law stressed theinviolability of State sovereignty ; others stressed the moralimperative to act forcefully in the face of gross violations ofhuman rights. The moral rights and wrongs of this complexand contentious issue will be the subject of debate for yearsto come, but what is clear is that enforcement actions withoutSecurity Council authorization threaten the very core of the inter-national collective security system founded on the Charter of theUnited Nations. Only the Charter provides a universally acceptedlegal basis for the use of force.” 694

Besides sovereignty, the Secretary-General also notes otherimpediments to “Security Council action in the face of complexhumanitarian emergencies”. He observes :

“Confronted by gross violations of human rights in Rwandaand elsewhere the failure to intervene was driven more by thereluctance of Member States to pay the human and other costsof intervention, and by doubts that the use of force would besuccessful, than by concerns about sovereignty” 695.

The Secretary-General’s observations in the Introduction to his1999 Report to the General Assembly predictably generated con-siderable heat in the debates at the United Nations. His complaint,however, is that “Although I emphasized that intervention embraceda wide continuum of responses, from diplomacy to armed action, itwas the latter option that generated most controversy in the debatethat followed.” 696 He notes three principal objections that emanatedfrom the debates to the concept of “humanitarian intervention” bythe United Nations : (1) it could become a cover for “gratuitous


697. Ibid., para. 216, at p. 34.698. Ibid., para. 217, at p. 34.699. Ibid., para. 218, at p. 34.700. Ibid., para. 219, at p. 34.

interference in the internal affairs of sovereign States” ; (2) itmight “encourage secessionist movements deliberately to provokegovernments into committing gross violations of human rights inorder to trigger external interventions” ; and (3) there is “little consis-tency in the practice of intervention, owing to its inherent difficul-ties and costs as well as perceived national interests — except thatweak states are far more likely to be subjected to it than strongones” 697.

The Secretary-General recognizes that the principles ofsovereignty and non-interference offer vital protection to small andweak States. But to the critics he poses this question :

“[I]f humanitarian intervention is, indeed, an unacceptableassault on sovereignty, how should we respond to a Rwanda, toa Srebrenica – to gross and systematic violations of humanrights that offend every precept of our common humanity ?” 698

“We confront a real dilemma”, emphasizes the Secretary-General.

“Few would disagree that both the defence of humanity andthe defence of sovereignty are principles that must be sup-ported. Alas, that does not tell us which principle should pre-vail when they are in conflict.” 699

The Secretary-General recognizes that humanitarian interventionremains “a sensitive issue, fraught with political difficulty and notsusceptible to easy answers”. His conviction, however, is that

“But surely no legal principle — not even sovereignty —can ever shield crimes against humanity. Where such crimesoccur and peaceful attempts to halt them have been exhausted,the Security Council has a moral duty to act on behalf of theinternational community. . . . Armed intervention must alwaysremain the option of last resort, but in the face of mass murderit is an option that cannot be relinquished.” 700

In an article published in The Economist in September 1999, KofiAnnan, referred to the experiences of East Timor, and Kosovo, and

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701. Kofi A. Annan, “Two Concepts of Sovereignty”, The Economist,London, 18 September 1999.

702. Ibid.

remarked : “As in Rwanda five years ago, the international commu-nity stands accused for doing too little, too late.” He said :

“Neither of these precedents is satisfactory as a model forthe new millennium. Just as we have learnt that the world can-not stand aside when gross and systematic violations of humanrights are taking place, we have also learnt that, if it is to enjoythe sustained support of the world’s peoples, intervention mustbe based on legitimate and universal principles. We need toadapt our international system better to a world with newactors, new responsibilities, and new possibilities for peace andprogress.” 701

In his view, “State sovereignty, in its most basic sense, is beingredefined — not the least by the forces of globalisation an inter-national co-operation.” 702 He identifies two major changes takingplace in redefining sovereignty. One is the changed perceptionabout States now as “instruments of the service to their peoples”.The other is “a renewed and spreading consciousness of individualrights”. To avoid repeating tragedies of the above nature,

“I believe it is essential that the international communityreach consensus — not only on the principle that massiveand systematic violations of human rights must be checked,wherever they take place, but also on ways of deciding whataction is necessary, and when, and by whom”.

Annan suggests four aspects of intervention, which need to be con-sidered with special care :

“First, ‘intervention’ should not be understood as referringonly to the use of force. A tragic irony of many of the crisesthat go unnoticed or unchallenged in the world today is thatthey could be dealt with by far less perilous acts of interventionthan the one we say this year [1999] in Yugoslavia. . . .”

“Second, it is clear that traditional notions of sovereigntyalone are not the only obstacle to effective action in humani-tarian crises. No less significant are the ways in which statesdefine their national interests. . . . In the context of many of the


703. Ibid.704. ICISS, “The Responsibility to Protect”, Report of the International Com-

mission on Intervention and state Sovereignty, Ottawa, December 2001, p. vii.Co-chaired by Gareth Evans and Mohamed Sahnoun, the other ten members ofthe Commission were : Gisele Cote-Harper, Lee Hamilton, Michael Ignatieff,Vladimir Lukin, Klaus Naumann, Cyril Ramaphosa, Fidel Ramos, CornelioSommaruga, Eduardo Stein, and Ramesh Thakur.

challenges facing humanity today, the collective interest is [orshould be] the national interest.”

“Third, in cases where forceful intervention does becomenecessary, the Security Council — the body charged withauthorising the use of force under international law — must beable to arise to the challenge.”

“Fourth, when fighting stops, the international commitmentto peace must be just as strong as was the commitment to war.In this situation, too, consistency is essential.” 703

One greatly appreciates the high moral concerns of the Secretary-General of the United Nations. Ideally, when gross violations ofhuman rights take place with impunity in one State, the internationalcommunity should step in, promptly take even coercive action, ifneed be, and bring the culprits to book. Alas, such an ideal state ofaffairs does not exist even within a national society. The practicalproblems of apprehending and bringing to book criminals remainunravelled in domestic law in a democratic society, with all themight and majesty of the State and its institutions ! Yet the clarioncall of the Secretary-General must stir the conscience of humankindfor a long time to come. But is that enough to instil the necessarypolitical will in States that matter ?

5.1.4. The so-called “responsibility to protect”

In response to the conceptual and institutional challenges thrown upby the UN Secretary-General Kofi Annan at the General Assembly ses-sions of 1999 and 2000 provoking constructive responses from the inter-national community, the Canadian Government established in 2000 anInternational Commission on Intervention and State Sovereignty. TheCommission was asked to “wrestle with the whole range of questions —legal, moral, operational and political . . .” 704.

Having covered a very wide field in terms of both research aswell as collection of world public opinion, the Report of the Com-

292 V. S. Mani

705. Ibid., pp. xi-xiii.

mission makes a valuable contribution to the international debateportrayed by the Secretary-General’s above “interventions”. The“Synopsis” of the report is as follows 705 :

“The Responsibility to Protect :Core Principles

(1) Basic principles

A. State sovereignty implies responsibility, and the pri-mary responsibility for the protection of its people lieswith the state itself.

B. Where a population is suffering serious harm, as aresult of internal war, insurgency, repression or statefailure, and the state in question is unwilling or unableto halt or avert it, the principle of non-interventionyields to the international responsibility to protect.

(2) Foundations

The foundations of the responsibility to protect, as aguiding principle for the international community of states,lie in :A. obligations inherent in the concept of sovereignty ;B. the responsibility of the Security Council, under

Article 4 of the UN Charter, for the maintenance ofinternational peace and security ;

C. specific legal obligations under human rights andhuman protection declarations, covenants and treaties,international humanitarian law and national law ;

D. the developing practice of states, regional organisationsand the Security Council itself.

(3) Elements

The responsibility to protect embraces three specificresponsibilities :A. The responsibility to prevent : to address both the root

causes and direct causes of internal conflict and otherman-made crises putting populations at risk.

B. The responsibility to react : to respond to situations of


compelling human need with appropriate measures,which may include coercive measures like sanctionsand international prosecution, and in extreme casesmilitary intervention.

C. The responsibility to rebuild : to provide, particularlyafter a military intervention, full assistance with recov-ery, reconstruction and reconciliation, addressing thecauses of the harm the intervention was designed to haltor avert.

(4) Priorities

A. Prevention is the single most important dimension ofthe responsibility to protect : prevention options shouldalways be exhausted before intervention is contem-plated, and more commitment and resources must bedevoted to it.

B. The exercise of the responsibility to both prevent andreact should always involve less intrusive and coercivemeasures being considered before more coercive andintrusive ones are applied.

The Responsibility to Protect :Principles for Military Intervention

(1) The just cause threshold

Military intervention for human protection purposesis an exceptional and extraordinary measure. To bewarranted, there must be serious and irreparable harmoccurring to human beings, or imminently likely to occur,of the following kind :A. large scale loss of life, actual or apprehended, with

genocidal intent or not which is the product either ofdeliberate state action, or state neglect or inability toact or a failed state situation ; or

B. large scale ‘ethnic cleansing’, actual or apprehended,whether carried out by killing, forced expulsion, acts ofterror or rape.

(2) The precautionary principles

A. Right intention : The primary purpose of the interven-tion, whatever other motives intervening states may

294 V. S. Mani

have, must be to halt or aver human suffering. Rightintention is better assured with multilateral operations,clearly supported by regional opinion and the victimsconcerned.

B. Last resort : Military intervention can only be justifiedwhen every non-military option for he prevention orpeaceful resolution of he crisis has been explored, withreasonable grounds for believing lesser measures wouldnot have succeeded.

C. Proportional means: The scale, duration and intensity ofthe planned military intervention should be the mini-mum necessary to secure the defined human protectionobjective.

D. Reasonable prospects : There must be a reasonablechance of success in halting or averting the suffering,which has justified the intervention, with the conse-quences of action not likely to be worse than the con-sequences of inaction.

(3) Right authority

A. There is no better or more appropriate body than theUnited Nations Security Council to authorise militaryintervention for human protection purposes. The task isnot to find alternatives to the Security Council as asource of authority, but to make the Security Councilwork better than it has.

B. Security Council authorisation should in all cases besought prior to any military intervention action beingcarried out. Those calling for an intervention shouldformally request such authorisation, or have the Coun-cil raise the matter on its own initiative, or have theSecretary-General raise it under Article 99 of the UNCharter.

C. The Security Council should deal promptly with anyrequest for authority to intervene where there are alle-gations of large-scale loss of human life or ethniccleansing. It should in this context seek adequate verifi-cation of facts or conditions on the ground that mightsupport a military intervention.

D. Permanent Five members of the Security Council


should agree not to apply their veto power, in matterswhere their vital state interests are not involved, toobstruct the passage of resolutions authorising militaryintervention for human protection purposes for whichthere is otherwise majority support.

E. If the Security Council rejects a proposal or fails todeal with it in a reasonable time, alternative optionsare :II. consideration of the matter by the General Assembly

in Emergency Special Session under the ‘Uniting forPeace’ procedure ; and

II. action within area of jurisdiction by regional or sub-regional organisations under Chapter VIII of theCharter, subject to their seeking subsequent authori-sation from the Security Council.

F. The Security Council should take into account in all itsdeliberations that, if it fails to discharge its responsi-bility to protect in conscience-shocking situations cryingout for action, concerned states may not rule out othermeans to meet the gravity and urgency of that situation— and that the stature and credibility of the UnitedNations may suffer thereby.

(4) Operational principlesA. Clear objectives : clear and unambiguous mandate at all

times, and resources to match.B. Common military approach among involved partners ;

unity of command ; clear and unequivocal communica-tions and chain of command.

C. Acceptance of limitations, incrementalism and gradual-ism in the application of force, the objective being pro-tection of a population, not defeat or a state.

D. Rules of engagement, which fit the operational con-cept : are precise ; reflect the principle of proportion-ality ; and involve total adherence to internationalhumanitarian law.

E. Acceptance that force protection cannot become theprincipal objective.

F. Maximum possible coordination with humanitarianorganisations.”

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A number of comments are called for by this important Report.The very first aspect of this Synopsis of the Report on the Responsi-bility to Protect is that it indicates the doctrinal orientation of theReport — a typical intellectual thesis produced in the din of andthrough the looking glass of the so-called just war traditions. On acloser look, one can easily understand why this doctrinal bias hasbeen preferred. The reason is that it seeks to legitimize the madnessof Yugoslavia, and elsewhere, after the declaration by US PresidentBush of a crusade against (Islamic) terrorism, it seeks to reinstate thejust war justification for future actions of individual States or groupsof them — hence references to humanitarian objective, not being thesole objective of a “humanitarian” intervention. Indeed, the Com-mission was itself dominated by the Western thinking on “regulariz-ing” unilateralism, if cloaked by “humanitarian” objective.

Second — and this closely follows the first —, it legitimizes uni-lateralism outside the framework of the UN Charter system. Indeed,protagonists of unilateralism have argued in gay abandon, that theUN Charter system has long been “archaic”, not in tune with thetime — “the time” meaning, the “New Order” that President Bushthe Senior heralded in 1990, a world order dominated and dictatedby the single superpower. This recognition of unilateralism readilylegitimizes action by the superpower outside the constraints of theCharter system — in other words, the great power can legitimatelychoose the venue for action/authorization, depending on the politicalor military exigency or convenience.

Third, mark the statement : “an intervention to be qualified as a‘humanitarian’ intervention requires only one of the many objectivesof the intervenor to be humanitarian”. This, indeed, lets the cat outof the bag. By this standard, the Afghan invasion was of course a“humanitarian” intervention par excellence because the Talibanregime had a track record of violation of human rights, particularlywomen’s rights. So was the Iraqi invasion, as Saddam Hussein’sregime has had a devastating record of systematic human rightsviolations. But then, there are also dozens of similar oppressiveregimes, some so friendly to the great powers. What about “humani-tarian” intervention in those countries ? “No, indeed. They are ourfriends.”

Fourth, the Report pays lip service to the obligation of thewealthy nations of the international community to assist countries ofthe South well in time and quantity that should help the latter from


slipping into a Somalia, a Rwanda, a Sierra Leone or a Liberia.Where have all the “concrete” promises of international resourcetransfers gone ?

Fifth, the so-called “Responsibility to Protect” advocates that eachState has the primary responsibility to protect its people, that, if itfails, then the Security Council has it, that, if the Council fails,a regional organization has it, and that, if that too fails, other indi-vidual States have it. Two questions arise here. One, is there sucha hierarchy meant to exist in terms of the Report ? One doubts verymuch, for the simple reason that if such a hierarchy is to be followedstrictly, the projected “humanitarian” intervention is likely to beineffective by delay and dilly-dallying by the various organizationsinvolved. Could unilateral action be resorted to according to the exi-gencies of the situation, irrespective of initiatives likely to be takenby an organization ? Two, why is it that this “responsibility to pro-tect” is cast upon the Security Council, which plays and is constitu-tionally mandated to play no role at all in economic and socialdevelopment ? What kind of protection can the Council accord to thecountry concerned after the “surgical” operation ? How wouldresources be harnessed for the purpose, transcending the formidableobstacle of making the principle of international co-operation intoreality — a task that Articles 55 and 56 of the Charter have failed toaccomplish to date ?

Sixth, the Report prescribes very little to ensure compliance withthe basis principles of natural justice — basic principles of the ruleof law in world affairs — impartiality, non-selectivity, fair play, anduniform application of standards.

Finally, is the great issue of moral and legal legitimacy of actionauthorized by an international body such as the Security Council,that grossly ill represents the world community of “We the Peoples”— that excludes by design multitudes of peoples, populous countrieslike India from its membership and thus from its decisional pro-cesses. While the Report, at some innocuous corner, “murmurs” itsapproval to UN General Assembly authorized action, its thrustappears to be in favour of the Security Council. Until this issue isresolved it will remain premature and even partisan to talk about a“Responsibility to Protect” in favour of a UN organ that has lost itsrepresentative character to act for protection of “peoples”.

The Sermon on the Mount such as the Report on the “Responsibil-ity to Protect” does not take into account why the Charter system has

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706. UN doc. A/59/581-S/2004/925, 26 November 2004, pp. 10-11.

failed to be effective. In fact the problem is not exactly the need for asearch for new legitimacy for unilateralism or even “collective uni-lateralism”. In a case where there are serious and systematic violationsof human rights taking place, the Security Council is constitutionallyempowered to consider it as one amounting to a threat to the peace orbreach of the peace, and initiate an organizational enforcement action.However, the past record of the Council leaves much to be desired. Ithas been heavily tainted by selectivity, bias, acquiescence with bigpower interventionism, and near-total marginalization of the interna-tional community outside the 15 members of the Council. A study ofthe past peace operations as portrayed above brings home these points.Here is a small example from the Afghanistan case :

“Mr. Bassiouni identified a number of priority issues forimmediate action, mostly concerning conditions of detention(especially with regard to women and children) ; the illegalnature of the detention of 725 detainees transferred fromShibergan to Kabul a few months ago (and subsequentlyresealed) ; the lack of transparency in and the question of thelegality of the detention of Afghan civilians by the coalitionforces ; the abduction and trafficking of children ; and the needto address the continuing impunity of human rights violators,particularly local commanders.” 706

This is Afghanistan after a “humanitarian” intervention. Any helpfrom the Commissioners of the “Responsibility to Protect” whenthey are called upon to face the rough world of “humanitarian” inter-vention, such as this ?

5.1.5. UN “humanitarian” action and issues of illegality and illegiti-macy

Is an international organization, then, competent to resort tohumanitarian intervention “on behalf of the international commu-nity” ? This question must be examined at both conceptual andjuridical levels. Conceptually, as submitted already, neither the Statesystem nor any international manifestation of that system controlledby States can fully be trusted for impartial, non-discriminatory andeffective implementation of human rights. Every State has skeletons


in its cupboard. Nor can it be an impartial judge of the situationobtaining in another. Historically, morally justifiable humanitarianinterventions have been extremely rare, and more often than not theyhave been tainted by ulterior motives, if not downright mala fides, ofthe intervening States. It is a wishful dream that on the internationalplane, State-controlled international organizations will police humanrights violations, when the State system itself has been unable tocontain its own misuses and abuses of power resulting in such viola-tions.

At the outset, there is the disagreement among the member Stateson when a situation constitutes a “gross violation” of human rights,or one “that shocks the conscience of mankind”, or when it crossesthe threshold point of the territorial State’s responsibility to protect.Those days mention used to be made of two terrible examples,namely, Uganda under Idi Amin and Romania under Ceaucescu —two situations which were universally recognized to have shockedthe conscience of mankind. Yet no international organizationgathered its wits and guts to resort to forcible removal of the dictatorand restore human rights. Now the United Nations has decided totake strong action against the military government of a smallcountry such as Haiti but it has had no intention of doing the sameagainst other dictatorships some of which have so far thrived in thisworld since 1945.

The practice of international action by the United Nations inthis regard reveals that the UN decisions have been vitiated by themaladies of selectivity, if not mala fides, discrimination, excess ofcoercion, and disregard for the views and sensitivities of the peopleto be “assisted”. Having performed commendably in the field ofdecolonization, both the General Assembly and the Security Councilfailed to uphold the right of self-determination of Bangladesh in 1971.The Organization, though pushed to accept the seriousness of thesituation in Namibia and South Africa, chose not to resort tomilitary action, which would have long ago put an end to the grossviolations of human rights in these countries. It was compelled towatch helplessly a number of hegemonial interventions committedby or with the blessings of either of the two superpowers. For thesame reasons, it could not take action in Romania or Afghanistan. Butwhy on earth did it not take action in Uganda ? It did not even con-demn the human rights atrocities there, which even a little-more-than-amorphous organization such as the Commonwealth could. It

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blessed the installation of General Mobutu as the President of theRepublic of Congo, who sowed the seeds of all the trouble and tur-moil that the country is currently reeling with. Since the SecurityCouncil imposed a “Carthaginian Peace” upon Iraq for its illegalannexation of Kuwait in 1990, it had no compunctions in connivingat coercive, unilateral, “humanitarian” assistance to Kurds in Iraq,but not to other Iraqi nationals who have also been reeling under theUN sanctions.

So much for the principle of non-discrimination, the hallmark RedCross principle of humanitarian assistance. For the first time, the UNsoldiers, formerly described as “the soldiers without enemies”, wentto Somalia to fight a battle of attrition and killed civilians, much tothe shock of the common Somali people. With this record of theUnited Nations, one hesitates to trust that Organization to ensure“good governance” everywhere in the world impartially and withoutdiscrimination. Impartiality and domination of the interests of a fewpowerful States cannot go together.

For the same reason, the role of the International Court will bevery minimal in respect of implementation of human rights. TheCourt is indeed fairly impartial, but it is not equipped to deal withhuman rights violations per se, outside its consent-based jurisdictionover States.

On the juridical plane, the competence of international organiza-tion to resort to humanitarian intervention on behalf of the interna-tional community bears upon the constituent legal instrument withinthe four corners of which the organization is required to function.The crucial provisions in the UN Charter in this regard are to beChapter VII, Articles 24 and 25 and Article 2 (7). It must be empha-sized, it would be wrong to interpret the discretion of the SecurityCouncil under Chapter VII to be tantamount to a licence. The Coun-cil’s decisions and actions must be based on facts and circumstancesmaterial for the invocation of Article 39 of the Charter. In otherwords, when there is no shred of material on record in the form ofobjective evidence, providing at least a prima facie justification foraction under Chapter VII, exercise of extraordinary powers by theCouncil thereunder can be legally challenged as l’exces de pouvoirsor abuse of powers. Judge Gros in his dissent in the Namibia casecriticized the Security Council for treating the Namibian situationunder the head of the maintenance of international peace and secu-rity, and stated :


707. ICJ Reports 1971, p. 340.708. Ibid., p. 293.709. Ibid., p. 294. Sir Gerald even went as far as envisaging a situation where

the Security Council “exceeds its competence”. Ibid., p. 295.710. ICJ Reports 1992, pp. 43 and 153.

“That is another attempt to modify the principles of theCharter as regards the powers vested by States in the organsthey instituted. To assert that a matter may have a distant reper-cussion on the maintenance of peace is not enough to turn theSecurity Council into a world government.” 707

Referring to Article 24 specifically, Judge Sir Gerald Fitzmauricesaid in his dissent :

“[The article] does not limit the occasions on which theSecurity Council can act in the preservation of peace andsecurity, provided the threat said to be involved is not a merefigment or pretext.” 708

On the powers of the Security Council, Judge Fitzmauriceasserted that :

“[certain] limitations on the powers of the Security Council arenecessary because of the all too great ease with any acutelycontroversial international situation can be represented asinvolving a latent threat to peace and security, even where it isreally too remote genuinely to constitute one. Without theselimitations, the functions of the Security Council could be usedfor purposes never originally intended . . .” 709

It is important to note that the above observations of Judges Grosand Fitzmaurice were recalled by Judge Bedjaoui in his dissent inthe Lockerbie cases (Provisional Measures) in the context of the con-troversial Security Council resolutions under Chapter VII, when “nosmall number of people may find it disconcerting that the horrificLockerbie bombing should be seen today as an urgent threat to inter-national peace when it took place over three years ago” 710.

Specifically referring to Article 25 in the context of the Lockerbiecases, Bowett, an eminent authority on UN peace operations,remarks :

“The [Security] Council’s decisions are binding only insofaras they are in accordance with the Charter. They may spell out,

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711. D. W. Bowett, “Judicial and Political Functions of the Security Counciland the International Court of Justice”, in Hazel Fox, ed., The Changing Consti-tution of the United Nations, British Institute of International and ComparativeLaw, London, 1997, pp. 73-90. Bowett quotes the ICJ ruling in the Expensescase : The Court said : “when the Organization takes action which warrants theassertion that it was appropriate for the fulfilment of one of the stated purposesof the United Nations, the presumption is that such action is not ultra vires theOrganization” ICJ Reports 1962, at p. 168. In that case, the Court also said : “Inthe legal systems of States, there is often some procedure for determining thevalidity of even a legislative or governmental act, but no analogous procedure isto be found in the structure of he United Nations.”

712. Ibid.713. Ibid., pp. 83-87.714. Rosalyn Higgins, “The UN Security Council and the Individual State”,

ibid., pp. 43-54, at p. 50.

or particularise, the obligations of Members that arise from theCharter. But they may not create totally new obligations thathave no basis in the Charter, for the Council is an executiveorgan, not a legislature. In short, the Council does not have ablank cheque [from the member States].” 711

Hence Bowett’s advice to judicial tribunals including the Interna-tional Court of Justice :

“the Court — or for that matter any other competent judicialbody — should not regard itself as precluded from questioningthe validity of a Council resolution insofar as it affects the legalrights of States” 712.

Bowett even identifies three grounds of review to be excluded :(1) differences in political judgment, (2) evidence of bias, and (3) pro-cedural irregularities. He suggests three grounds on which reviewshould be based 713 : (1) ultra vires, [“The political character of anorgan cannot release it from the observance of the treaty provisionsestablished by the Charter when they constitute limitations on itspowers or criteria for its judgment.” — The International Court saidin Conditions of Admission to the United Nations, ICJ Reports 1948,p. 64] (2) denial of a right to a hearing, and (3) the decision mani-festly defective.

Judge Rosalyn Higgins, an equally eminent authority on UNpeace actions, observes :

“By reason of its illegal conduct, interventions upon thewrongdoing State’s sovereignty are authorised by the SecurityCouncil, as we saw in the establishment of ‘safe havens’ innorth Iraq.” 714


715. Ibid., p. 51.

And she concludes :

“While the UN Charter provides all States are sovereign andequal, the reality is that some have obtained more protectionagainst unlawful uses of force than have others.” 715

Beyond the issues of illegality of the United Nations organs interms of Charter provisions, there are also issues of illegality interms of jus cogens. It would be interesting to examine such issuesin diverse situations, say if thrown up in implementation of theReport on the Responsibility to Protect. The International Court inthe Nicaragua case held that both international customary law andthe Charter law may coexist, even with similar content, as they areparallel regimes. What if action approved by a Charter rule runsagainst a jus cogens ? In other words, until there is sufficient match-ing change effected to jus cogens, the “Responsibility” may not bemuch of jural value. Inconsistency with a jus cogens cannot be curedby Article 102 of the Charter, which cannot legitimize what is illegalunder international law.

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716. See Judge A. Alvarez’s dissent in the Status of South-West Africa case,ICJ Reports 1950, p. 128, at pp. 174-185, at p. 175.

717. Ibid. (original emphasis).

CHAPTER VI

CONCLUSIONS

Judge Alvarez, an early proponent of the developing countries’perspective, put it in 1950, the “new international law” “is the resultand outcome of the great transformations in the life of nations whichhave taken place since the first world war, and mostly after the 1939cataclysm” 716.

“It is new for three reasons : it includes new questions inaddition to traditional questions in a new form ; it rests on thebasic reconstruction of fundamental principles of classicalinternational law, and brings them into harmony with the newconditions of the life of peoples ; finally, it is based on thesocial regime which has appeared, the regime of interdepen-dence, which is taking the place of the individualistic regimewhich has, up to now, provided the basis of both national andinternational life. This new regime has given to what may becalled social interdependence which is taking the place of tra-ditional individualism.” 717

The judge asserted :

“The purposes of the new international law, based on socialinterdependence, differ from those of classical internationallaw : they are to harmonize the rights of States, to promote co-operation between them and to give ample room to commoninterests ; its purpose is also to favour cultural and socialprogress. In short, its purpose is to bring about what may becalled international social justice.”

“To achieve these purposes this law must lay stress on thenotion of obligation of States, not only between themselves,but also toward the international community. It must limit abso-

305

718. Ibid., p. 176 (original emphasis).

lute international sovereignty of States according to the newrequirements of the life of peoples, and must yield to thechanging necessities of that life.” 718

The small countries well realize that the modern concept ofsovereignty is issue-based. Hence their dependence on internationallaw and organization, not just for their own security, but moreimportantly because they need them as instruments conditioning andcatalysing their development through international co-operation. Infact, the relevance of or dependence on international law and orga-nization are inversely proportionate to the military and economicmight of a State. The less powerful a State is, the more is its relianceon international law and organization. As Dag Hammarskjöld said in1960, it is the small powers which need the United Nations, not thegreat ones. In an interface between multilateralism and unilateralism,the unilateralism of the great powers holds sway, unless of coursethey decide to pursue a course of moderation, or enlightened uni-lateralism. Some of the small countries may have failed to live upto the standards of good governance and realization of human rights,both of which require considerable resources. However, the “morefortunate” members of the international community have on theirpart grossly failed to live up to their commitments of internationalco-operation made within the framework of the international organi-zation (Articles 55 and 56 of the UN Charter) or outside it.

As already pointed out, the role of the United Nations may beidentified in terms of the coincidence of interests of States at anygiven point in time on a given issue. The result would of coursemean that one seeks to describe an organization in terms of “Nowyou see, now you don’t.” But then that is the “reality”. Yet, theemergence of international organization is inextricably related to thedynamics of international law. While the international organizationis a creature of international law and governed by it, it in its turnprovides a world forum for the development of the internationalnormative order on which modern international law builds itself. Itprovides a forum facilitating interactions of States, big and small,with a view to achieving “agreements” on what the normative frame-work should be and how the operative rules should be construed. One“danger” of such deliberate “law making” is that States that have

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participated in these “agreements” are expected to accept the law asthey have been instrumental in evolving and comply with it. Tochange such law, we need a fresh “agreement”. Until a fresh agree-ment is reached, the old law persists and any deviation from it con-stitutes a violation of international law. Also, the rule of rebus sicstantibus applies to legal norms at the instance of a few countriesthat find them vexatious or too restrictive.

A re-examination of legality and validity of humanitarian inter-vention in the context of the post-Soviet era of international relationsis quite timely. Traditionally, the claim that humanitarian interven-tion was either permissible under International law or above andbeyond the concern of international law has been frequently made bythe big powers whenever they intervened coercively in the affairs oflesser powers. Instances of intervention on humanitarian groundspure and simple have been extremely rare. Most instances involvingclaims of “humanitarian” intervention have been tainted by politicalmotives and power-political considerations. And the lack of an effec-tive international enforcement mechanism to ensure observance ofinternational obligations by States is often exploited to justify resortto intervention as a sanction applied allegedly on behalf of the inter-national community.

A cursory look at the history of international relations is enoughto reveal that the “facility” of intervention has been repeatedly uti-lized by big powers against small powers. The traditional principleof non-intervention based on the absolute sovereignty theory in factprotected the big powers in their dealings with one another, but wasnot applied in respect of small powers, particularly those of them notbelonging to Europe.

In contrast, the modern concept of non-intervention is based onthe twentieth-century principles of sovereign equality, non-use offorce and equal rights and self-determination of nations. The upsurgeof nationalism that swept the post-Second World War internationalrelations led to the highlighting of the inequalities and inequities ofthe traditional international relations and law, and helped to reorientthe goal values of modern international law. This is amply reflectedin the Friendly Relations Declaration 1970 which embodies consen-sual formulations of seven “basic principles of [modern] interna-tional law”, including those of non-use of force, sovereign equalityand non-intervention. The International Court of Justice has attrib-uted opinio juris to the formulations contained in this Declaration.


Accordingly, under modern international law, there is no place forhumanitarian intervention and contrary views in the Western doc-trine are untenable in terms of State practice and the rulings of theInternational Court. Some Western jurists have also begun contend-ing that there should be a right, and even a duty, to intervene inanother State to ensure “good governance” or to enforce humanrights. This is an ominous trend that must be checked. States are theprincipal violators of human rights and every State has its ownskeletons in its cupboard. Thus they are unworthy of trust to be theguardians of human rights in other States. Added to this are the com-plexities of implementation of diverse human rights, recognizing thevarying economic capabilities and divergent cultural traditions ofeach national society.

While the United Nations is a premier international institutionrepresenting nearly the entire international community, yet being aninter-governmental rather that an “international” organization, it is illsuited as well as ill equipped, morally and politically, to launchhumanitarian interventions to ensure “good governance”, or protec-tion of human rights everywhere. Nor does it have constitutionalpowers to undertake such a responsibility on behalf of the interna-tional community. Moreover, the record of the United Nations,beyond the realm of norm-creation or international policy setting inthe field of human rights, is hardly encouraging. Many of its recentactions and decisions have been flawed by selectivity, unjust dis-crimination, authorization of unwarranted and excessive degree ofcoercion, and indeed, violation of its constitutional parameters. Thereason for this is that powerful States are prone to use the organiza-tion as an instrument of their foreign policies with little respect formoral, constitutional or legal niceties. Prospects of impartial interna-tional enforcement of human rights are bleak so long as this task isentrusted to the State-controlled international institutions.

A streak of silver lining in the otherwise overcast internationalhorizon is the presence of the International Court to arbiter situationsarising between States. The Court has shown a considerable degreeof maturity and impartiality, without compromising its judicial roleeven when faced with the mightiest power on earth. However, inview of its constitutional limitations and contemporary State atti-tudes in respect of its jurisdiction, the Court will continue to haveonly a marginal role to play in the adjudication of situations involv-ing human rights violations. Indeed, the enforcement of its judg-

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ments is yet another matter — it is left to the good sense of theSecurity Council : in other words, we are back to square one.

There are quite a few fundamental questions to answer before theinternational community as represented by the United Nations canlegitimately claim the right to humanitarian intervention. First, theinternational community we are talking of is an international systemof States, and its organ, the United Nations, is a creature of this Statesystem. Human rights are primarily claimable against the State, andgroups or individuals who man the State. If a people cannot maketheir State institutions deliver human rights, how can they expect anexternal agency to get this done ? Second, gross violations of humanrights do not occur overnight. The conditions that lead to them mustbe identified on time and eliminated. More often than not, this taskcalls for mobilization and utilization considerable resources. And, tobe sure, it may not be a one-time affair. Consider this against thebackground of the abject failure of international developmentdecades and international financial organizations to root out povertyfrom the developing countries. Third, very often the root cause of ahuman rights situation in a country might lie deep in history, forexample Yugoslavia and Rwanda (in cases like Rwanda it is oftencontributed to by former colonial powers). This calls for interventionat the emotional level (remember the Preamble to the constitution ofUnesco : “Seeds of war are sown in the minds of men.”) In otherwords, humanitarian intervention as a one-time surgical operationcannot eliminate the causes of human rights violations. The Kosovocrisis presents a telling example of this — in Kosovo, the externalintervention failed to prevent counter-violations of human rights ofthe Serbs by the Kosovar militants, while it claimed to have suc-ceeded in stopping the Serbian atrocities over Kosovars.

Fourth, the contemporary State system does not, as yet, recognizeany international mechanism empowered, and capable, to intervenein the affairs of a State without its consent, however badly that Statemight be conducting its affairs internally. This has been the situationever since the emergence of the modern State system. It may not bea satisfactory state of affairs, but it remains so. The situation can betackled in two ways. One, action should be taken to encouragehome-grown human rights institutions in each State and strengthenthem by mobilizing adequate resources through international co-operation. Two, international responses to emergency humanitariansituations should be based on consensus, and in compliance with the


principles of impartiality, fair play, and uniformity of application ofstandards.

Does the UN Security Council fill in the bill against all this ? It issubmitted that it does not readily, but it should be readied for thismandate, for the Council is the only nearest available internationalorgan which can be made capable of preventing a future Rwanda, evenif it failed to handle the past one. It has had a history of selectivity,partiality, and gross violations of even the time-honoured principlesof natural justice (right of all parties to a situation to be heard, rightto an impartial judgment after being heard). The record of the Coun-cil, particularly since 1990, has been dismal. The reason is not far toseek — it is that the Council is often manipulated to serve the for-eign policy goals of some big powers. Indeed, the Council is power-less in respect of any human rights situation involving any one ofthem (e.g., Chechnya). In other words, constitutionally, the Councilcan only authorize humanitarian intervention against a small power,never against a big power. Yet, the Council can be made to respondto humanitarian situations, provided it is reformed as follows :

11. The Council should be representative of the “We the Peoples ofthe United Nations”. Expand the Council membership to reflectthis need for international legitimacy.

12. The Council should have access to information as far as pos-sible independently of its current mechanism totally dependentof State mechanisms.

13. The Council should be effectively supported in its decisionalprocesses, by the UN human rights agencies, including the Inter-national Committee of the Red Cross, as also by the Economicand Social Council.

14. The Secretary-General must report each “humanitarian” case tothe Council.

15. Such cases must follow a special emergency procedure, on thebasis of the reports from UN human rights bodies and ECOSOC.

16. The permanent members of the Council must not use their vetopower, should two-thirds of the Council express in favour ofaction on behalf of the UN.

17. Decisions must be based on consensus of the members of theCouncil as well as the members of the region affected, and othernations participating in the UN operation.

18. The Council procedure and decisions must conform to principles

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of impartiality, non-selectivity, non-discrimination, fair play,proportionality, and uniform application of standards in eachcase.

19. The humanitarian action, involving use of force on behalf of theinternational community, must be organized by or under thedirect authority of the Security Council.

10. The Military Staff Committee must be put in charge of theoperation. It must function by including its decision-makingprocess all States participating in the operation.

11. The operation must be a blue beret operation in every sense.12. Where regional organizations are involved, they shall not use

force without the authority of the Council. No fait accomplishall be imposed on the international community.

13. Co-ordinate action for post surgical and longer-term recupera-tion and rehabilitation must also include the economic agenciesof the UN along with the Security Council.

We already seen how doctrinally futile and mindlessly dangerousit is to rely on archaic doctrines and concepts like the just war, thatwould only promote the “clash of civilizations” where none exists.What we need is a fresh commitment to benign multilateralism —not the collective unilateralism that seeks to claim a façade of legiti-macy in use of force. Article 2 (4) should be held sacrosanct, andmembers of the United Nations must live up to their commitmentsby supporting UN action against gross violations of human rights,everywhere, by adopting decisions and procedures in conformitywith the lofty principles of impartiality, non-selectivity, fair play anduniform application of standards. A Security Council founded oninternational legitimacy would be well suited for this role. But theCouncil as it stands today lacks international legitimacy ; it remainsto be reformed to be a truly representative community organ.

Finally, Laski’s warning is more relevant today than ever before :

“The sovereignty of the great state today is a technique forthe protection of its imperialism. That imperialism is the out-come of its own internal relations which, given the distributionof effective demand within its boundaries, is driven to the com-petitive search for markets abroad in order to realise profit. Itssovereignty is the protective armament of that adventure. Theinternational law it can recognise is, therefore, always ham-pered and frustrated by the logical requirements of imperialism.


719. Harold J. Laski, A Grammar of Politics, 3rd ed., 1934, London, p. xxi.

It cannot part with the control of any vital function, the scale ofits armament, the right to make war, its hold on colonies andspheres of influence, its power over tariffs, currency, migration,labour conditions, because to do so is to threaten, internally, therelations of production its sovereignty exists to maintain.” 719

Against this mighty Leviathan of sovereignty, the sovereignty ofsmall States will continue to struggle to exist, let alone to assertitself. So will be the autonomy of international organization. Thus,interventions there will be — regardless of their labels.

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