Document(s) 6 of 12

4.1 The "responsibility to protect" implies above all else a responsibility to react to situations of compelling need for human protection. When preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. These coercive measures may include political, economic or judicial measures, and in extreme cases — but only extreme cases — they may also include military action. As a matter of first principles, in the case of reaction just as with prevention, less intrusive and coercive measures should always be considered before more coercive and intrusive ones are applied.

4.2 Tough threshold conditions should be satisfied before military intervention is contemplated. For political, economic and judicial measures the barrier can be set lower, but for military intervention it must be high: for military action ever to be defensible the circumstances must be grave indeed. But the threshold or "trigger" conditions are not the end of the matter. There are a series of additional precautionary principles which must be satisfied, to ensure that the intervention remains both defensible in principle and workable and acceptable in practice.

MEASURES SHORT OF MILITARY ACTION

4.3 The failure of either root cause or direct prevention measures to stave off or contain a humanitarian crisis or conflict does not mean that military action is necessarily required. Wherever possible, coercive measures short of military intervention ought first to be examined, including in particular various types of political, economic and military sanctions.

4.4 Sanctions inhibit the capacity of states to interact with the outside world, while not physically preventing the state from carrying out actions within its borders. Such measures still aim to persuade the authorities concerned to take or not take particular action or actions. Military intervention, on the other hand, directly interferes with the capacity of a domestic authority to operate on its own territory. It effectively displaces the domestic authority and aims (at least in the short-term) to address directly the particular problem or threat that has arisen. For these reasons, and because of the inherent risks that accompany any use of deadly force, the prospect of coercive military action has always raised broader and more intense concerns than has the imposition of political, diplomatic or economic sanctions.

4.5 Although the use of coercive measures short of military force is generally preferable to the use of force, these non-military measures can be blunt and often indiscriminate weapons and must be used with extreme care to avoid doing more harm than good — especially to civilian populations. Blanket economic sanctions in particular have been increasingly discredited in recent years as many have noted that the hardships exacted upon the civilian population by such sanctions tend to be greatly disproportionate to the likely impact of the sanctions on the behaviour of the principal players. Such sanctions also tend quickly to develop holes and deteriorate further over time, not least when they are poorly monitored, as has been almost universally the case. Sanctions that target leadership groups and security organizations responsible for gross human rights violations have emerged as an increasingly important alternative to general sanctions in recent years, and efforts to make such sanctions more effective have drawn increasing attention. A standard exemption for food and medical supplies is now generally recognized by the Security Council and under international law, though the issue of the provision of medical supplies to combatants may sometimes still generate debate.

4.6 Efforts to target sanctions more effectively so as to decrease the impact on innocent civilians and crease the impact on decision makers have been focused in three different areas, military, economic and political/ diplomatic. In all three areas, effective monitoring is crucial if the measures are to have any prospect of being effective.

4.7 In the military area:

• Arms embargoes are an important tool of the Security Council and the international community when conflict arises or is threatened. Such embargoes generally include the sale of military equipment as well as spare parts.

• Ending military cooperation and training programmes is another common, if less strenuous, measure used or threatened by states to bring about compliance with international norms, though results can vary.

4.8 In the economic area:

• Financial sanctions may target the foreign assets of a country, or a rebel movement or terrorist organization, or the foreign assets of particular leaders. Where individuals are targeted, these efforts have increasingly been expanded also to include members of that individual's immediate family.

• Restrictions on income generating activities such as oil, diamonds and logging and drugs, have more and more come to be regarded as one of the most important types of targeted sanctions, because such activities are generally easier to get at than the funds that they generate, and because the profits from such activities are often not just a means to start or sustain a conflict but in many cases the principal motivation for the conflict.

• Restrictions on access to petroleum products can be an important way of restricting military operations, though such restrictions may also have a broad and possibly devastating impact on civilians and the local economy.

• Aviation bans have been used in a number of cases and generally prohibit international air traffic to or from a particular destination.

4.9 In the political and diplomatic area:

• Restrictions on diplomatic representation, including expulsion of staff, while often viewed in the past as primarily of symbolic significance and largely related to the battle for public opinion, have also increasingly come to be seen as a relevant and useful measure in efforts to limit illicit transactions — whether for the sale of illicit commodities such as illegally mined diamonds or drugs or for the purchase of arms and other military related materiel, or with respect to the movement of funds.

• Restrictions on travel, not least to major international shopping destinations, have proved to have some utility when against specific leaders or individuals and their families.

• Suspension of membership or expulsion from international or regional bodies, and the loss this may entail not only of national prestige, but also of technical cooperation or financial assistance countries may receive from such bodies, is another increasingly used tool.

• Refusal to admit a country to membership of a body is a corollary of the foregoing which has sometimes been employed to good effect.

THE DECISION TO INTERVENE

Extreme Cases Only

4.10 In extreme and exceptional cases, the responsibility to react may involve the need to resort to military action. But what is an extreme case? Where should we draw the line in determining when military intervention is, prima facie, defensible?

4.11 The starting point, here as elsewhere, should be the principle of non-intervention. This is the norm from which any departure has to be justified. All members of the United Nations have an interest in maintaining an order of sovereign, self-reliant, responsible, yet interdependent states. In most situations, this interest is best served if all states, large and small, abstain from intervening or interfering in the domestic affairs of other states. Most internal political or civil disagreements, even conflicts, within states do not require coercive intervention by external powers. The non-interference rule not only protects states and governments: it also protects peoples and cultures, enabling societies to maintain the religious, ethnic, and civilizational differences that they cherish.

4.12 The norm of non-intervention is the equivalent in international affairs of the Hippocratic principle — first do no harm. Intervention in the domestic affairs of states is often harmful. It can destabilize the order of states, while fanning ethnic or civil strife. When internal forces seeking to oppose a state believe that they can generate outside support by mounting campaigns of violence, the internal order of all states is potentially compromised. The rule against intervention in internal affairs encourages states to solve their own internal problems and prevent these from spilling over into a threat to international peace and security.

4.13 Yet there are exceptional circumstances in which the very interest that all states have in maintaining a stable international order requires them to react when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale. The Commission found in its consultations that even in states where there was the strongest opposition to infringements on sovereignty, there was general acceptance that there must be limited exceptions to the non-intervention rule for certain kinds of emergencies. Generally expressed, the view was that these exceptional circumstances must be cases of violence which so genuinely "shock the conscience of mankind," or which present such a clear and present danger to international security, that they require coercive military intervention.

4.14 Given this broad international agreement on the need, in exceptional cases of human risk, for coercive military action across borders, the task is to define, with as much precision as possible, what these exceptional circumstances are, so as to maximize the chances of consensus being reached in any given case. What is the precise threshold of violence and abuse or other violation that must be crossed before coercive military force across a national border can begin to be justified? Are there any other criteria which should or must be satisfied before the decision to intervene is made?

Six Criteria for Military Intervention

4.15 It is perhaps not as difficult as it appears at first sight to identify criteria for military intervention for human protection purposes about which people should be able to agree. It is true that there are presently almost as many different lists of such criteria as there are contributions to the literature and political debate on this subject. But the differing length of these lists, and the different terminology involved, should not obscure the reality that there is an enormous amount of common ground to be found when one focuses on the core issues.

4.16 While there is no universally accepted single list, in the Commission's judgement all the relevant decision making criteria can be succinctly summarized under the following six headings: right authority, just cause, right intention, last resort, proportional means and reasonable prospects.

4.17 The element of right authority — who can authorize a military intervention — is a critical one, and deserves a full discussion to itself: it gets this in Chapter 6. The content of the just cause principle — what kind of harm is sufficient to trigger a military intervention overriding the non-intervention principl — is the other question requiring most discussion, and is the subject of the next section of this chapter. The remaining four criteria, each adding a different element of prudence or precaution to the decision making equation, are discussed together in the last section of this chapter.

THRESHOLD CRITERIA: JUST CAUSE

4.18 Calls for intervention for human protection purposes have in the past been made on a wide range and variety of grounds, involving and in response to a wide range of circumstances and conditions, and many different criteria for intervention were suggested during the course of our consultations. The Commission's view is that exceptions to the principle of non-intervention should be limited. Military intervention for human protection purposes must be regarded as an exceptional and extraordinary measure, and for it to be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur.

4.19 In the Commission's view, military intervention for human protection purposes is justified in two broad sets of circumstances, namely in order to halt or avert:

• large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or

• large scale "ethnic cleansing," actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.

If either or both of these conditions are satisfied, it is our view that the "just cause" component of the decision to intervene is amply satisfied.

4.20 It is important to make clear both what these two conditions include and what they exclude. In the Commission's view, these conditions would typically include the following types of conscience-shocking situation:

• those actions defined by the framework of the 1948 Genocide Convention that involve large scale threatened or actual loss of life;

• the threat or occurrence of large scale loss of life, whether the product of genocidal intent or not, and whether or not involving state action;

• different manifestations of "ethnic cleansing," including the systematic killing of members of a particular group in order to diminish or eliminate their presence in a particular area; the systematic physical removal of members of a particular group from a particular geographical area; acts of terror designed to force people to flee; and the systematic rape for political purposes of women of a particular group (either as another form of terrorism, or as a means of changing the ethnic composition of that group);

• those crimes against humanity and violations of the laws of war, as defined in the Geneva Conventions and Additional Protocols and elsewhere, which involve large scale killing or ethnic cleansing;

• situations of state collapse and the resultant exposure of the population to mass starvation and/or civil war; and

• overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.

4.21 In both the broad conditions we identified — loss of life and ethnic cleansing — we have described the action in question as needing to be "large scale" in order to justify military intervention. We make no attempt to quantify "large scale": opinions may differ in some marginal cases (for example, where a number of small scale incidents may build cumulatively into large scale atrocity), but most will not in practice generate major disagreement. What we do make clear, however, is that military action can be legitimate as an anticipatory measure in response to clear evidence of likely large scale killing. Without this possibility of anticipatory action, the international community would be placed in the morally untenable position of being required to wait until genocide begins, before being able to take action to stop it.

4.22 The principles we have specified do not attempt to draw a distinction between situations where the killing or ethnic cleansing is caused by the action — or deliberate inaction — of a state, and those where the state in question has failed or collapsed. In a failed or collapsed state situation, with no government effectively able to exercise the sovereign responsibility of protecting its people, the principle of non-intervention might seem to have less force. But when it comes to the threshold "just cause" issue of determining whether the circumstances are grave enough to justify intervention, it makes no basic moral difference whether it is state or non-state actors who are putting people at risk.

4.23 ;Again, the principles as we have defined them make no distinction between those abuses occurring wholly within state borders, with no immediate cross-border consequences, and those with wider repercussions. This reflects our confidence that, in extreme conscience-shocking cases of the kind with which we are concerned, the element of threat to international peace and security, required under Chapter VII of the Charter as a precondition for Security Council authorization of military intervention, will be usually found to exist. Security Council practice in the 1990s indicates that the Council is already prepared to authorize coercive deployments in cases where the crisis in question is, for all practical purposes, confined within the borders of a particular state.

4.24 While our "just cause" conditions are broadly framed, the Commission also makes clear that they exclude some situations which have been claimed from time to time to justify the coercive use o military force for human protection purposes.

4.25 First, the Commission has resisted any temptation to identify as a ground for military intervention human rights violations falling short of outright killing or ethnic cleansing, for example systematic racial discrimination, or the systematic imprisonment or other repression of political opponents. These may be eminently appropriate cases for considering the application of political, economic or military sanctions, but they do not in the Commission's view justify military action for human protection purposes.

4.26 Secondly, the Commission has taken a similar view in relation to cases where a population, having clearly expressed its desire for a democratic regime, is denied its democratic rights by a military take-over. The overthrow of a democratic government is a grave matter, requiring concerted international action such as sanctions and suspension or withdrawal of credits, international membership and recognition — and there might well be wider regional security implications such that the Security Council is prepared to authorize military intervention (including by a regional organization) on traditional "international peace and security" grounds. There may also be situations where the overthrown government expressly requests military support, and that could clearly be given within the scope of the self-defence provisions in Article 51 of the UN Charter. But the Commission's view is that military intervention for human protection purposes should be restricted exclusively, here as elsewhere, to those situations where large scale loss of civilian life or ethnic cleansing is threatened or taking place.

4.27 Thirdly, as to the use of military force by a state to rescue its own nationals on foreign territory, sometimes claimed as another justification for "humanitarian intervention," we regard that as being again a matter appropriately covered under existing international law, and in particular Article 51 of the UN Charter. The same goes for the use of force in response to a terrorist attack on a state's territory and citizens: to the extent that military action is justified, it would be supported by a combination of Article 51 and the general provisions of Chapter VII, as the Security Council has now made clear with its resolutions in the aftermath of 11 September 2001.

The Question of Evidence

4.28 Even where consensus has been reached on the types of situations which might warrant a military intervention, it will still be necessary in each case to determine whether events on the ground do in fact meet the criteria presented — actual or threatened large scale loss of human life or ethnic cleansing. In many cases, competing "facts" and versions of events will be produced — often for the specific purpose of leading or misleading external opinion. Obtaining fair and accurate information is difficult but essential.

4.29 Ideally there would be a report as to the gravity of the situation, and the inability or unwillingness of the state in question to manage it satisfactorily, from a universally respected and impartial non-government source. The International Committee for the Red Cross (ICRC) is an obvious candidate for this role, often mentioned to us, but for understandable reasons — based on the necessity for it to remain, and be seen to remain, absolutely removed from political decision making, and able to operate anywhere on the ground — it is absolutely unwilling to take on any such role.

4.30 It is difficult to conceive of any institutional solution to the problem of evidence, of a kind that would put the satisfaction of the "just cause" criterion absolutely beyond doubt or argument in every case. But there are other ways in which credible information and assessments can be obtained, and the evidence allowed to speak for itself. Reports prepared in the normal course of their operations by or for UN organs and agencies — such as the High Commissioners for Human Rights and for Refugees — are important, as can be assessments made for their own purposes by other credible international organizations and non-governmental organizations, and on occasion the media.

4.31 Moreover, where existence of the conditions that might warrant an intervention for human protection purposes is in question, and time allows, an independent special fact-finding mission could be sent by the Security Council or the Secretary-General for the purpose of obtaining accurate information and a fair assessment of a particular situation. The Commission believes there is particular utility in the Secretary-General seeking the advice of well-placed objective witnesses and others highly knowledgeable about the situation in question. The Secretary-General of the UN has formidable, but hitherto much underutilized, authority under Article 99 of the Charter to "bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security": it is a power that could be utilized to extremely influential effect in the present context.

OTHER PRECAUTIONARY CRITERIA

4.32 For a military intervention decision to be, and be seen to be, justified, there are four other substantial conditions that have to be met at the outset: right intention, last resort, proportional means and reasonable prospects. When both these and the threshold "just cause" principle are taken together, to jointly shape the policy decisions of both the Security Council and member states, the Commission believes that they will strictly limit the use of coercive military force for human protection purposes. Our purpose is not to license aggression with fine words, or to provide strong states with new rationales for doubtful strategic designs, but to strengthen the order of states by providing for clear guidelines to guide concerted international action in those exceptional circumstances when violence within a state menaces all peoples.

Right Intention

4.33 The primary purpose of the intervention must be to halt or avert human suffering. Any use of military force that aims from the outset, for example, for the alteration of borders or the advancement of a particular combatant group's claim to self-determination, cannot be justified. Overthrow of regimes is not, as such, a legitimate objective, although disabling that regime's capacity to harm its own people may be essential to discharging the mandate of protection — and what is necessary to achieve that disabling will vary from case to case. Occupation of territory may not be able to be avoided, but it should not be an objective as such, and there should be a clear commitment from the outset to returning the territory to its sovereign owner at the conclusion of hostilities or, if that is not possible, administering it on an interim basis under UN auspices.

4.34 One way of helping ensure that the "right intention" criterion is satisfied is to have military intervention always take place on a collective or multilateral rather than single-country basis. Another is to look to whether, and to what extent, the intervention is actually supported by the people for whose benefit the intervention is intended. Another is to look to whether, and to what extent, the opinion of other countries in the region has been taken into account and is supportive. In some discussions these considerations are identified as separate criteria in their own right, but the Commission's view is that they should be regarded as sub-components of the larger element of right intention.

4.35 It may not always be the case that the humanitarian motive is the only one moving the intervening state or states, even within the framework of Security Council-authorized intervention. Complete disinterestedness — the absence of any narrow self-interest at all — may be an ideal, but it is not likely always to be a reality: mixed motives, in international relations as everywhere else, are a fact of life. Moreover, the budgetary cost and risk to personnel involved in any military action may in fact make it politically imperative for the intervening state to be able to claim some degree of self-interest in the intervention, however altruistic its primary motive might actually be. Apart from economic or strategic interests, that self-interest could, for example, take the understandable form of a concern to avoid refugee outflows, or a haven for drug producers or terrorists, developing in one's neighbourhood.

4.36 To those domestic constituencies who may actually demand of their governments, when it comes to intervention for human protection purposes, that they not be altruistic, or moved by what we have called "right intention," and that they should have regard only to their own country's national interests, the best short answer may be that, these days, good international citizenship is a matter of national self-interest. With the world as close and interdependent as it now is, and with crises in "faraway countries of which we know little" as capable as they now are of generating major problems elsewhere (with refugee outflows, health pandemics, terrorism, narcotics trafficking, organized crime and the like), it is strongly arguable that it is in every country's interest to contribute cooperatively to the resolution of such problems, quite apart from the humanitarian imperative to do so. This is a theme to which we will return in our concluding chapter.

Last Resort

4.37 Every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored. The responsibility to react — with military coercion — can only be justified when the responsibility to prevent has been fully discharged. This does not necessarily mean that every such option must literally have been tried and failed: often there will simply not be the time for that process to work itself out. But it does mean that there must be reasonable grounds for believing that, in all the circumstances, if the measure had been attempted it would not have succeeded.

4.38 If the crisis in question involves a conflict between a state party and an insurgent minority, the parties must be induced to negotiate. Ceasefires, followed, if necessary, by the deployment of international peacekeepers and observers are always a better option, if possible, than coercive military responses. The long-term solution for ethnic minority conflict or secessionist pressures within a state will often be some kind of devolutionist compromise that guarantees the minority its linguistic, political and cultural autonomy, while preserving the integrity of the state in question. Only when good faith attempts to find such compromises, monitored or brokered by the international community, founder on the intransigence of one or both parties, and full-scale violence is in prospect or in occurrence, can a military option by outside powers be considered.

Proportional Means

4.39 The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the humanitarian objective in question. The means have to be commensurate with the ends, and in line with the magnitude of the original provocation. The effect on the political system of the country targeted should be limited, again, to what is strictly necessary to accomplish the purpose of the intervention. While it may be a matter for argument in each case what are the precise practical implications of these strictures, the principles involved are clear enough.

4.40 It should go without saying that all the rules of international humanitarian law should be strictly observed in these situations. Indeed, since military intervention involves a form of military action significantly more narrowly focused and targeted than all out warfighting, an argument can be made that even higher standards should apply in these cases.

Reasonable Prospects

4.41 Military action can only be justified if it stands a reasonable chance of success, that is, halting or averting the atrocities or suffering that triggered the intervention in the first place. Military intervention is not justified if actual protection cannot be achieved, or if the consequences of embarking upon the intervention are likely to be worse than if there is no action at all. In particular, a military action for limited human protection purposes cannot be justified if in the process it triggers a larger conflict. It will be the case that some human beings simply cannot be rescued except at unacceptable cost — perhaps of a larger regional conflagration, involving major military powers. In such cases, however painful the reality, coercive military action is no longer justified.

4.42 Application of this precautionary principle would on purely utilitarian grounds be likely to preclude military action against any one of the five permanent members of the Security Council even if all the other conditions for intervention described here were met. It is difficult to imagine a major conflict being avoided, or success in the original objective being achieved, if such action were mounted against any of them. The same is true of other major powers who are not permanent members of Security Council. This raises again the question of double standards — but the Commission's position here, as elsewhere, is simply this: the reality that interventions may not be able to be mounted in every case where there is justification for doing so, is no reason for them not to be mounted in any case.

4.43 In relation to the major powers, there are still other types of pressure that can be applied, as happened, for example, in the case of Indonesia and East Timor. And other types of collective action — including sanctions — could and should still be considered in such cases as part of the responsibility to protect.

Document(s) 6 of 12