CIAO DATE: 05/02

Humanitarian Action: A Symposium Summary

Jake Sherman

November 2000

International Peace Academy

Table of Contents

Executive Summary
Introduction
"Humanitarian Action" vs. Military Intervention
Shifting Concepts of Sovereignty & Human Rights
Criteria for Intervention and the Question of Codification
Fora for Action: the UN, Regional Organizations and Other Actors
The Prevention-Intervention Continuum
Conclusion
Annex I: Opening Remarks of H.E. Mr. Kofi Annan
Annex II: Opening Remarks of H.E. Mr. Jozias van Aartsen
Annex III: Agenda
Annex IV: Keynote Speakers, Conveners, Participants

Executive Summary:

• Military intervention, even if undertaken for humanitarian motives, is not itself humanitarian in nature. Nonetheless, there are circumstances that warrant military intervention for the purpose of preventing or limiting grave and large-scale violations of human rights, even when undertaken without the agreement of the target state.
• Developing states generally tend to view human rights issues as an "internal matter" and international intervention as a violation of state sovereignty, but many are not opposed to it in specific instances. Although it may be impossible to reconcile the two concepts completely, state sovereignty is steadily becoming more permeable, particularly concerning human rights violations.
• Any effort to justify military intervention without Security Council authorization remains highly contentious, particularly among the permanent members of the Security Council (the P-5) and countries in the South. At least one member of the P-5 is considering an assessment framework for authorizing intervention, but agreement on these criteria is not yet forthcoming.
• Although state practice in recent years suggests that humanitarian intervention without Security Council authorization may be morally and politically justifiable in certain circumstances, the assertion that such intervention is legally justifiable as an emerging norm of customary international law remains highly controversial.
• Reform of the Security Council would enhance its credibility on issues of intervention among states in both the North and South. Efforts at reform are limited by the vested interests of the P-5, notably the veto. While the members of the P-5 are unlikely to relinquish their power of veto, there are positive signs that they would consider limiting its use during considerations of genocide and other grave violations of humanitarian law.
• Improved conflict prevention is urgently needed, particularly for developing countries which can ill-afford the cost of war. All states must undertake to dedicate the necessary political support and resources for implementation of the recommendations of the Report of the Panel on United Nations Peace Operations on preventive action.

Introduction

The Government of the Netherlands and the International Peace Academy co-sponsored a symposium on "Humanitarian Action" in New York on 20 November 2000. The purpose was to provide a forum in which academics, international policy makers and field practitioners from the legal, security, and humanitarian fields could discuss the use of armed intervention to prevent or halt violations of human rights and/or international humanitarian law.

The use of the term "humanitarian action" was chosen to reflect the whole spectrum of humanitarian responses to conflict and crisis situations, ranging from the provision of aid with the consent of a state through to military intervention in the absence of the consent of the affected state.

Discussions nevertheless focused on "humanitarian intervention," meaning the threat or use of armed force without the agreement of the target state to address a humanitarian disaster, in particular caused by grave and large-scale violations of fundamental human rights.

The proceedings focused on the following issues:

• A working definition of "humanitarian intervention," including the need to maintain a distinction between the humanitarian assistance and military-security realms and the recognition that there may be circumstances which warrant military intervention in order to prevent or limit grave and large-scale violations of human rights.
• The tension between respecting state sovereignty and protecting human rights, and the increasing modification of the concept of state sovereignty to accommodate international involvement in what were previously considered "internal matters."
• The utility of an assessment framework on humanitarian intervention, either as a guideline for Security Council debate on the appropriateness of intervention or as a legal justification for intervention when the Council is deadlocked, and whether any such criteria should be political or legal in nature.
• The means of improving the international community's reaction time and effectiveness during humanitarian crises, including reforming the Security Council, improving the relationship between the Security Council and other actors, and examining alternative courses of action concerned states may take when the Council is deadlocked, specifically through the General Assembly and regional organizations.
• The relationship between intervention and prevention and the need to implement the recommendations on prevention of the Report of the Panel on United Nations Peace Operations (the Brahimi Report).

IPA President David Malone drew attention to the valuable contributions of the Stanley Foundation, the International Independent Commission on Kosovo, the Netherlands Advisory Council on International Affairs and the Advisory Council on Issues of Public International Law, the Danish Institute of International Affairs, the Pugwash Conferences on Science and World Affairs, and the new International Commission on Intervention and State Sovereignty to the debate over humanitarian intervention. A number of these initiatives were represented at the symposium, notably by Mr. Richard Stanley, Mr. Gareth Evans, Dr. Peter Baehr, Dr. Adekeyo Adebajo, Dr. Christopher Landsberg, H.E. Mr. Jorgen Bojer, Ms. Nicole Fritz, Professor Richard Falk, and Mr. Stanlake Samkange.

This report draws its content from the main presentations of the symposium and interventions from the floor. It respects the Chatham House rule of non-attribution under which the symposium proceeded (with exception to the remarks of the Secretary-General and Foreign Minister van Aartsen, which are included as annexes), but draws directly upon the ideas advanced by the participants. Any errors or omissions are the sole responsibility of the rapporteur of the symposium.

"Humanitarian Action" vs. "Military Intervention"

In his September 20, 1999 speech to the General Assembly, the Secretary-General stressed that "it is important to define intervention as broadly as possible, to include actions along a wide continuum from the most pacific to the most coercive." In contrast, during this symposium, the Secretary-General attempted to reinforce the distinction between "humanitarian intervention" and "humanitarian action."

In his opening remarks, the Secretary-General noted that, within the United Nations, "humanitarian action" is more narrowly defined than the range of action alluded to by the symposium conveners:

"[T]he humanitarians among us are those whose work involves saving lives that are in imminent danger, and relieving suffering that is already acute. They are people who bring food to those threatened with starvation, or medical help to the injured, or shelter to those who have lost their homes, or comfort to those who have lost their loved ones."

Humanitarian "action" is, therefore, not synonymous with military intervention; on the contrary, such military operations, even if undertaken for humanitarian motives, are not humanitarian in nature. Any blurring of this line risks the possibility that governments will view acceptance of humanitarian aid as "the thin edge of the wedge." Instead of seeing aid as the first step towards forceful intervention, states should be eager to allow humanitarian aid because doing so may remove the need for military intervention.

Nonetheless, there are circumstances that warrant military intervention for the purpose of preventing or limiting grave and large-scale violations of human rights, even when undertaken without the agreement of the target state.

This report adopts the definition of humanitarian intervention proposed by the Danish Institute in referring to the use of such force. It does not use the term "humanitarian action," but uses the term "humanitarian intervention" interchangeably with "military intervention" and "military action" within this specific context.

Specifically, the Danish Institute has defined humanitarian intervention as "coercive action by states involving the use of armed force in another, for the purpose of putting to a halt gross and massive violations of human rights or international humanitarian law" particularly when those violations are, in the words of one speaker, "instrumental to the achievement of government policies perpetrated in such a quantity and in such a manner as to create a situation in which the rights to life, to personal integrity, or to personal liberty of the population as a whole or one or more sectors of the population of a country are continuously infringed or threatened - crimes against humanity, genocide and war crimes, including enslavement, arbitrary and summary executions, torture, cruel, inhuman or degrading punishment, rape, mass deportations, involuntary disappearances, and 'ethnic cleansing'."

Shifting Concepts of Sovereignty & Human Rights

The central dispute over the legal status of humanitarian intervention is reflected in the position that "when a state by its behavior so outrages the conscience of mankind, no doctrine can be deployed to defend it against intervention." The vexing dilemma is whether the specifics of today's humanitarian crises - frequently involuntary gross or widespread violations of human rights and humanitarian laws and principles - warrant decisive military action by the international community to halt these abuses, in contravention of long-established norms of state sovereignty.

In international law, there is both an obligation for the international community to respect state sovereignty and a duty of the state to protect and promote internationally recognized human rights. In some circumstances, these obligations may be irreconcilable. Respect for state sovereignty, with its corollary of non-interference "in matters which are essentially within the domestic jurisdiction of any state," is enshrined in articles 2(4) and 2(7) of the UN Charter. The conception of sovereignty as inviolable has been central to international law and practice since the 1648 Treaty of Westphalia. Nevertheless, it is now widely accepted that the concept of sovereignty is not absolute. For example, the prohibition against genocide and the obligation upon all states to prevent it is already firmly established in international law. Contemporary understandings of state sovereignty are steadily becoming more flexible concerning broader violations of human rights, the scope of which have also been gradually expanding.

H.E. Mr. Jozias van Aartsen, Foreign Minister of the Kingdom of the Netherlands, highlighted this shifting emphasis in international law between sovereignty and human rights. Events in Rwanda, the former Yugoslavia, Sierra Leone, East Timor, Cambodia and elsewhere around the world have demonstrated that massive violations of human rights and humanitarian principles are the concern of the international community as a whole, particularly when the consequences of these violations cross international borders.

It is generally the countries of the North which more openly advocate a right (or responsibility) of humanitarian intervention, while it is the South (and at least one permanent member of the Security Council) that gives priority to state sovereignty and non-interference. Yet, discussion of intervention often transcends the North-South division. Although several developing countries noted the preoccupation of the North with Kosovo and the precedent set by NATO's actions, and more viewed the word "intervention" with skepticism or find "humanitarian intervention" unacceptable, not all states are opposed to its intent (or, more controversially, its application) in specific cases. There have been notable interventions by southern states: Tanzania in Uganda, India in East Pakistan / Bangladesh, Vietnam in Cambodia, ECOWAS in Sierra Leone and Liberia, and, of a non-military nature, the imposition of sanctions against South Africa and Burundi by their neighbors. Many of these target states recognize the value of (more broadly defined) "interventions" in helping to end authoritarian regimes or their practices.

A related question is whether conventional notions of sovereignty are a hindrance to action by Member State governments. Notably, states did not fail to intervene in Rwanda due to concerns over state sovereignty. Although legal arguments may be presented as one reason for inaction, intervention remains governed by political considerations, including international and domestic political repercussions, lack of available resources, including financial, personnel or transport, and lack of faith in the viability of success.

Criteria for Intervention and the Questions of Codification

The debate on whether criteria for humanitarian intervention should be codified centers on two questions: first, whether and when the Security Council should intervene; and second, and considerably more controversial, whether these guidelines should enable intervention without Security Council authorization and under what circumstances.

The principal camps are divided into those opposed to any type of codification - predominantly developing states concerned about the erosion of their sovereignty, diminished restrictions on the use of force, or abuse of intervention for political purposes; those that favor the adoption of guidelines for use by the Security Council but oppose any codification legitimizing circumvention of the Council, including some of its permanent members; and those in favor of a right to unilateral intervention - the majority of which are developed states that place a high priority on human rights. The last camp is in turn divided between those who seek a "doctrine" approach and those who favor an "exception" approach.

The conclusions of the seminars on humanitarian intervention held in The Netherlands, at Scheveningen (November 1999) and Noordwijk (April 2000), and the reports of the Netherlands Advisory Council on International Affairs, "Humanitarian Intervention" (21 August 2000), as well as the study by the Danish Institute of International Relations, "Humanitarian Intervention: Legal and Political Aspects" (1999) provided a useful starting point for discussion on whether it is necessary or useful to codify the circumstances in which military intervention might be appropriate.

All states accept that there are circumstances in which the international community is justified in using force. Indeed, Chapter VII of the UN Charter allows the use of force with the authorization of the Security Council. Increasingly, however, the matters with which the Council is seized are essentially intrastate rather than interstate. As noted above, tension exists between the responsibility of the Council to maintain international peace and security and respect for the internal affairs of states. Those in favor of codification seek to develop a framework of criteria for considering whether the use of humanitarian intervention, i.e., military action, is an appropriate and legitimate response.

It is broadly accepted by the international community that discussion of whether and when the Security Council should intervene should not be unprincipled, but there is disagreement over the merits of particular cases. There has been growing debate as to whether the Council should continue determinations of intervention on an ad hoc basis or establish standing guidelines of a political or legal nature which would provide a basis for determining when such action is appropriate.

While Security Council decisions to intervene will always be taken on a case by case basis (due to feasibility, available resources, and other concerns), established guidelines may help to clarify the minimum conditions necessary for intervention and could structure debate on authorizing the use of force, helping the Council to reach consensus and thus ensuring its effective and timely action. These criteria were succinctly enumerated as gravity, urgency, objectivity, acceptability, practicality, proportionality, and sustainability.

Some states are concerned that too strict a codification may not succeed or may result in a state of law that is more restricted than what can be deduced from article 2(7) of the Charter in combination with existing human rights instruments.

Far more serious reservations, if not outright rejection, exist regarding justification without Security Council authorization. Following the NATO action in Kosovo, some states have argued that legal considerations should not preclude military action and have advanced the idea of codifying criteria for unilateral intervention when the Council is unwilling or unable to act. As Minister van Aartsen noted, "situations will arise time and again where humanitarian intervention without a mandate will be the only way to stop large-scale human suffering." Proponents of this position maintain that the international community has a responsibility to protect rather than a right to intervene.

Legal justification for unauthorized intervention is highly problematic. According to international law, the Security Council is the appropriate forum both to decide whether gross and massive violations of human rights amount to a threat to international peace and security and to take enforcement measures to deal with such violations. Although state practice in recent years suggests that humanitarian intervention without Security Council authorization may be morally and politically justifiable in certain circumstances, the assertion that humanitarian intervention is legally justifiable as an emerging norm of customary international law cannot yet be assumed. Many states - including members of the P-5, powerful regional states, and small developing states - oppose claims to action without explicit Security Council authorization. (For example, the tacit Security Council authorization for continued use of force by NATO following the defeat of the 26 March 1999 draft Russian resolution condemning NATO action in Kosovo.) At least one member of the P-5 indicated that codification was acceptable only if intended to advise the Security Council, not to justify intervention if the Council fails to act.

Since the time of Hugo Grotius, opponents of a right of humanitarian intervention have feared that any such right would be abused. Nonetheless, one international law expert argued that codification was unlikely to increase abuse, provided that the situation was referred to the Council prior to any outside action being taken, and that the Council was fully briefed on all subsequent actions taken. The likelihood of abuse would be further minimized if the decision to intervene and the action itself were multilateral - whether carried out by a "coalition of the willing" or an international or regional organization - rather than unilateral. Ultimately, however, intervention is least likely to be abused when its use is contingent upon the unanimity of the Security Council.

Proponents of guidelines further argue that codification "can provide the UN community of nations with a basis for assessing instances of unauthorized humanitarian intervention that have already taken place and for tolerating them in appropriate cases." However, in most cases of unauthorized intervention, this would require returning to the Council for the approval of something that it refused to do itself, though there are exceptions to this, notably the unauthorized ECOWAS interventions in Liberia and Sierra Leone, which were tacitly accepted ex post facto by the Council.

Developing countries in particular regard the central mission of the UN as limiting the discretion of states to use force in non-defensive circumstances. It is rightly feared that codification may widen state discretion, eroding article 2(4). Intervention on "moral" grounds, particularly if codified as a legal norm, may be a step backwards, re-legitimizing the use of force. Most developing states are acutely aware that they lack the power to intervene due to disparities in economic and military development. They are concerned that intervention will occur at the whim of the great powers, rather than on the basis of consistent criteria, and that the relationship will always be non-reciprocal. Likewise, these states lack the power to oppose intervention, and therefore worry about power politics. Finally, they oppose intervention on the grounds of human rights violations when international consensus on these violations is lacking.

Although there is no consensus on guidelines for unauthorized intervention even among its proponents, it is worthwhile to consider whether such guidelines would be political or legal in nature. As political guidelines would not provide a legal justification for intervention, many feel that legal guidelines would be preferable. Others advocated a "do it, but don't make it a doctrine" position, maintaining that codification should not formalize what the Danish Institute of International Affairs called "an 'emergency exit' from the existing norms of international law."

Adoption of legally binding criteria would likely take one of two forms: amendment of the Charter, or adoption of an international agreement. Both options would have to be ratified by the Member States, and both remain problematic and unlikely, at least at the present time. The adoption of criteria for intervention might be a way to update the Charter to reflect current political realities. yet many states feel that amending the Charter would weaken it. Under these conditions, attempts to do so risk exacerbating differences of opinion over intervention and might ultimately do more harm than good. An alternative approach is to think of the Charter as a "living document" which, although based on the situation prevailing in the 1940s, can be applied to the experiences of today in such a way as to provide a framework for intervention. Additional legal measures on intervention would therefore not be needed.

The second option, the adoption of an international agreement, is also difficult, but some argued that, like the Statute of the International Criminal Court, a lack of full consensus should not be an excuse for not trying. Legally, however, such a document would only be relevant when it is least needed, i.e., when the Council is in agreement on its course of action. When the Council is divided, article 103 would prohibit any separate document being used to circumvent the Security Council and the UN as a whole. Operationally, then, it is difficult to conceive how such a document might work unless it had universal legitimacy, especially if it was possible to invoke the right against a non-signatory state.

An alternative approach, suggested by a member of the Group of 77, would be to undertake an exercise similar to that of the 1970 Declaration on Friendly Relations (adopted by the General Assembly as Resolution 2625) which interpreted all the sub-articles of Article 2. A non-binding resolution of the General Assembly on the magnitude of events leading to intervention could establish norms for its use in the absence of authorization. In the event of a humanitarian crisis during which the Security Council and/or General Assembly is deadlocked, states acting without authorization could, under such a declaration, use force in accordance with norms of intervention laid down by the General Assembly. Such a measure might be welcomed by those states which fear erosion of Article 2(4).

Fora for Action: the UN, Regional Organizations and Other Actors

The Security Council is vested with the primary responsibility for international peace and security. Yet the role of the Council is not without criticism. Many Member States have argued that it is the Council, not the Charter, which poses the greater problem. Reference was made to its composition, particularly that of the P-5, and the use of the veto. The interference of domestic political concerns in the decision-making of the P-5 members was also noted. (Examples include the role of domestic politics in the payment of US dues, and the Chinese veto of UNPREDEP in Macedonia, allegedly due to the latter's recognition of Taiwan.) Other noted factors included the Council's failure to act due to gaps between rhetoric and practice and the lack of military and civilian administration skills at its disposal.

Reform of the Security Council would enhance its credibility in both North and South countries. Recommendations include increasing the size of the Council to better reflect the geographic distribution of the UN, allowing greater openness in debates, and drawing on expertise outside the Council. These changes might allow more points of view to be expressed, injecting more dynamism into Council debate and generating a momentum for action beyond the Council members - an "irresistible pressure" of the will of the international community.

For many non-permanent Member States, the veto remains the foremost problem, the centerpiece of a system where "some members are more equal than others." Moreover, the threat and use of the veto are regarded as effectively the same thing and many have called for a limitation of its use. The P-5, however, maintain that the veto is an integral part of the system, and, according to one member of the P-5, its presence ensures unanimous consensus on issues of force. (Whereas another member of the P-5 indicated that the deadlock on the Council was always political rather than financial or practical and therefore should not be countenanced.) The active participation of Russia, China and the US within the UN may be in part contingent upon maintaining the veto. Significantly, some members of the P-5 are considering introduction of a code of conduct on the use of the veto during considerations of genocide and other grave violations of humanitarian law. This proposal was looked upon favorably by participating Member State representatives.

Other participants sought to move responsibility for intervention to the General Assembly or to regional organizations. These states question the Council's principal peace and security role given its inability to fairly represent the will of the international community at large. The General Assembly, due to its near universal membership, may be more reflective of the will of the international community than the Security Council; for this reason, developing countries may be more willing to accept intervention under the authorization of the General Assembly, where they have an equal vote. In addition, the General Assembly may provide an alternative forum for action in the event that the Security Council fails, or is unable to take action. Under Resolution 377 (1950), "Uniting for Peace," a two-thirds majority of the General Assembly may adopt a resolution recommending action to Member States for collective measures.

Reliance upon the General Assembly is problematic as well, however, as it does not sit permanently, lacks independent access to information, and operates through slow bureaucratic mechanisms. More importantly, many members of the General Assembly, most notably the G-77 and others in the developing world, do not endorse humanitarian intervention as outlined above. Thus, the very inclusiveness of the General Assembly which lends it credibility may also hinder sufficiently decisive and rapid action.

Regional organizations have gained greater attention following the involvement of ECOWAS in Sierra Leone and Liberia, the OSCE in Bosnia and Kosovo, and, perhaps most significantly, the NATO action in Kosovo. Article 53 of the Charter provides that "the Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security CouncilŠ" The definition of a regional organization is not nailed down, and could be construed to include the OSCE, EU and NATO in Europe, the OAU and sub-regional organizations, e.g., ECOWAS, IGAD, SADC, et al. in Africa, the OAS, as well as ASEAN and other predominantly economic regional organizations.

It should be noted that NATO is not clearly a regional organization, and has always objected to being defined as one. By defining itself as a "collective self-defense" organization, under article 51, it may take defensive action without authorization until such time as the Council has taken necessary measures. However, "self-defense" is the operative word; such action is only permissible in the event of an armed attack against a member of the collective - an influx of refugees cannot be construed as an attack, though it may have consequences for international peace and security.

Regional organizations alone cannot provide an answer. In Africa, where regional organizations are most active in peacekeeping, due in part to the lack of direct response by the international community to the continent's problems, there is an inability to assume and sustain the financial burden of peacekeeping. Likewise, the advantages of geographic proximity may be offset by local rivalries and political self-interest. Additionally, most economic-oriented regional organizations are not prepared to handle internal political issues, let alone humanitarian intervention.

Cooperation and coordination between the UN Security Council and other actors is needed to optimize the respective comparative advantages of each. These actors include other UN organs and agencies, regional organizations, individual countries (especially medium and smaller states), as well as think tanks and NGOs engaged in conflict resolution, peace-building, and other activities, and the research community.

The Prevention-Intervention Continuum

Although Minister van Aartsen rightly recognized that humanitarian intervention, not early warning, was the issue of the day, there was an overwhelming consensus that any policy on intervention must begin with better prevention. Prevention is the first purpose of Article 1 of the UN Charter, yet it often receives only lip service. The Security Council is mandated to take as early as possible all feasible measures to prevent or end grave and massive violations of human rights and international humanitarian law that are considered a threat to international peace and security. Yet the Council's record has not been especially good at either prevention or rapid response, notably in Rwanda, Bosnia-Herzegovina, Eastern Zaire (DRC), and Sierra Leone.

The Brahimi Report recommendations for prevention may be more urgently needed than those for peace-keeping, particularly for developing countries affected by poverty, and AIDS, which can ill-afford the cost of conflict. The report offers several recommendations on preventive action. First, more frequent use of fact-finding missions, good offices and other key initiatives of the Secretary-General, especially where sovereignty is an issue. Second, closer coordination between the Security Council and other principal organs of the organization, as well as with international financial institutions and non-state actors, including the private sector and civil society organizations. A third, related, recommendation concerns improved in-house information gathering and analysis. This last is controversial, especially among developing states which fear that a UN intelligence capacity could be used to infringe upon sovereignty, but is nevertheless essential for evaluating the urgency of a crisis and for effective decision-making. It is critical for the UN, including both Member States and the Secretariat, to dedicate resources for implementing these activities. The General Assembly as a whole must assume responsibility for strengthening the prevention capacity within the UN by facing up to its own responsibilities.

The UN practice on prevention is still in the process of early development. To date, initiatives have tended to focus on existing crisis management, rather than on longer term structural prevention. Although this short term approach may be necessary given financial, political and other constraints, the UN must develop a long-term strategy for conflict prevention. Such a plan of action must be organization-wide, yet draw upon the strengths of the different departments and agencies, as well as outside actors. It must address poverty eradication, official development assistance, arms reduction, environmental protection, AIDS and other crucial issues, in a manner that respects issues of gender and human rights.

Conclusion

When the nineteen members of NATO supported the intervention in Kosovo, each had its own public rationale for doing so: humanitarianism, regional security, or upholding the principles of Security Council Resolution 1199. There was no consensus on the theory, and only barely on the practice. Outside of NATO, there is agreement neither on theory nor practice. Indeed, most states continue to have deep reservations about intervention, and therefore codification - particularly if it may legitimate the circumvention of the Security Council's mandate.

Nonetheless, circumstances will inevitably arise in which the Council is unwilling or unable to act but where realities on the ground warrant the use of force. Defining the acceptable boundaries of humanitarian intervention and resolving the tension between state sovereignty and human rights is no easy task and requires continued discussion to bridge the deep divide between all sides. Any solution must reaffirm both the law of the Charter and its ideals without sacrificing one for the other. Attention should focus on developing a concept which welds the pro-sovereignty argument popular in the South with that of humanitarian intervention in the North. The use of such force must be credible and legitimate in the eyes of the community of nations and any criteria for its use ideally should be agreed upon by the international community as a whole. It is therefore fundamental that any potential assessment framework for intervention enshrine the principle that military action for humanitarian purposes must be undertaken only under the most extreme circumstances, when other, non-military attempts have failed to improve the situation.

The distinction between humanitarian assistance and military intervention made by the Secretary-General at the outset of the Conference remains valid, and perhaps necessary to protect the provision of aid and those who supply it. Yet the principles of sovereignty and human rights, humanitarianism and military force must be wedded in such a way as to do the most good for those most in need.

Ultimately, however the best solution to the tension between sovereignty and humanitarian principles may lie not in agreeing on when to undertake humanitarian intervention, but on how better to prevent the humanitarian crises that lead some to think such action is necessary.

Annex I: Opening Remarks:

H.E. Mr. Kofi Annan, Secretary-General of the United Nations

Minister van Aartsen,
Excellencies,
Ladies and Gentlemen,

Let me begin by thanking you and your government, Minister, for sponsoring this symposium on a subject of great concern to the United Nations.

I know some of you may be expecting me to repeat what I said to the General Assembly last year about intervention and sovereignty. If so, I'm afraid I shall disappoint you, because that is not what we at the United Nations mean when we talk about "humanitarian action."

Indeed, this symposium is particularly useful and timely because there is a lot of confusion about what the word "humanitarian" does mean.

The Concise Oxford Dictionary defines it as "(1) a person who seeks to promote human welfare. (2) a person who advocates or practices humane action; a philanthropist."

Well, in that sense, all of us probably like to think of ourselves as humanitarians, and certainly all the work of the United Nations, from development to peacekeeping, should be seen as humanitarian in that sense. Indeed, that is the way much of the general public sees it.

Within the United Nations, however, the term is more narrowly defined.

All our work is aimed at preserving human life and improving its quality. But the humanitarians among us are those whose work involves saving lives that are in imminent danger, and relieving suffering that is already acute.

They are people who bring food to those threatened with starvation, or medical help to the injured, or shelter to those who have lost their homes, or comfort to those who have lost their loved ones.

They are people who see a great deal of human suffering in the course of their work, and they are well aware that this suffering does not just happen. It is caused by events, either natural or man-made. A great deal of it could have been prevented, by wiser or more vigorous policies. And, of course, it should be prevented.

Few people are more aware of that than humanitarian workers. Perhaps nothing in life makes you angrier than the spectacle of massive human suffering which you know need not have happened, if only people had taken better decisions in good time, or had some thought for the human consequences of their decisions.

Most humanitarian workers also soon learn that their work has results, beyond the immediate relief of suffering which their purpose.

The humanitarian ideal is to treat all human beings as equal, and to make need and suffering the only criteria that determine who we help. But so often we find that our impartial benevolence is not neutral in its effects.

Again and again, in the conflicts of the last 20 years, we have seen humanitarian aid manipulated by warring factions and unscrupulous regimes to advance their political interests.

Every day, in the humanitarian work of the United Nations, we face agonizing moral dilemmas.

Should we continue sending food to non-combatants in an area controlled by one side in a conflict, when we know much of it will be taken by the fighters, and we are unable to reach the people on the other side? Should we allow armies to take a percentage as the price of allowing some relief to get through to starving populations, when the effect may be to prolong the war?

Should we help people to reach safety, when by doing so we also help their persecutors to win control of their homes and "cleanse" the areas of an unwanted population?

Should we continue bringing humanitarian relief to a country where a large part of the population - women, for instance - is denied its most elementary rights? Their need may be all the greater, but relief can help stabilise the regime and so prolong the oppression.

In short, humanitarian disasters very often have political causes, and humanitarian action often has political effects.

So it is not surprising that humanitarian workers often form strong political opinions.

Some are so horrified by the pain that war inflicts that they become uncompromising pacifists, rejecting the very notion that war could ever be just.

Others react in the opposite way, and call for decisive military action to halt the killing and the ethnic cleansing whose grim effects they are left to deal with.

Some insist that they must concern themselves only with immediate suffering, and not get drawn into the calculus of how today's relief may lead to more suffering tomorrow.

Others say such an approach is naive and irresponsible, and humanitarian aid should be made conditional on the observance of some minimum standards of behavior by the recipients and their leaders.

But what happens when such conditions are refused, or when promises are made but not kept? Do we simply leave people to die? The humanitarians will tell us they cannot do that.

Of course, there are no easy answers, and in real life there is probably no such thing as a wholly neutral humanitarianism. Man is a political animal, and politics affects all human activities.

But I hope in this symposium you will help us to preserve the specific role of humanitarianism, and not allow it to be too much confused with other things.

David Malone has told us, in his letter of invitation, that the title "Humanitarian Action" refers to "the whole range of humanitarian responses to conflict and crisis situations, ranging from provision of aid with the consent of a state, through to military intervention".

I would go a bit further, and say, let's get right away from using the term "humanitarian" to describe military operations.

Of course military intervention may be undertaken for humanitarian motives.

I myself believe, and I think it is implicit in the Charter, that there are times when the use of force may be legitimate and necessary because there is no other way to save masses of people from extreme violence and slaughter. I hope such cases will be very rare, and I strongly believe it is our job to make them rarer. But they do exist.

Such military intervention should not, however, in my view, be confused with humanitarian action. Otherwise, we will find ourselves using phrases like "humanitarian bombing", and people will soon get very cynical about the whole idea.

Humanitarian workers may sometimes think military intervention is called for in a given situation. But they would not regard it as part of their own work.

On the contrary, their anger is strongest when they feel that their work is being used as a substitute for political or military action, because politicians lack the resolve to do their job properly.

Some humanitarians have felt this so strongly that they actually gave up purely humanitarian work and went into politics. I respect them for that, and I think those who have stayed in the humanitarian field should also be grateful. It helps clarify the division of labour.

No government should fear that accepting humanitarian aid is the first step towards military intervention. On the contrary, governments should be eager to allow humanitarian aid to reach their people without obstruction, because by doing so they remove any pretext for military intervention.
It is in everyone's interest to keep the two things clearly distinct.

Anyway, that is my view. But I shall listen with great interest to yours, Mr. van Aartsen and to those of other participants.

Thank you very much.

Annex II: Opening Remarks:

H.E. Mr. Jozias van Aartsen, Foreign Minister of the Kingdom of the Netherlands

Mr. President, Mr. Secretary-General, Excellencies, ladies and gentlemen,

First of all, I would like to express my appreciation to the Secretary-General of the United Nations for being here today. It confirms his leadership in the efforts to find solutions to the many problems that the world is confronted with. I am particularly pleased to be able to "kick off" together with him this seminar, so ably organised by the IPA.

The subject of today's discussion deals with the shifting emphasis in international law between the concepts of sovereignty and human rights. This subject is of great significance as it lies at the heart of international law. Centuries ago a famous Dutch lawyer - Hugo Grotius - already defended the concept of humanitarian intervention.

Nowadays, the international community is still confronted with a painful dilemma when civilians are victimized in endless civil wars. The shocking images of the former Yugoslavia and Rwanda are still with us, as is the memory of the "killing fields" of Cambodia.

In essence, the dilemma is this:

Should the international community refrain from action if a country systematically and massively violates the fundamental human rights of its own people just because the Security Council is unable to act? Should ethnic cleansing, and even genocide, be allowed to take place just because taking action against it would infringe on national sovereignty?

Of course not. International law without justice cannot be called law.

Where humanitarian intervention is concerned, two seemingly conflict concepts are striving for the upper hand: the obligation to respect the sovereignty of states on the one hand, and the duty to protect and promote fundamental human rights on the other. It will often prove impossible to reconcile these different considerations.

However, at this point I should stress that over time both the concepts of sovereignty and human rights have evolved. Sovereignty has been one of the basic principles of international law since the Treaty of Westphalia in 1648. But sovereignty is only an instrument a state has been given to protect the rights and interests of its citizens. And these have only grown over the last decades.

In my view respect for sovereignty has become less and less stringent and respect for human rights more and more mandatory. Massive violations of human rights are nowadays a legitimate concern of the world community.

Nobody in the world believes that a state has the right to ethnic cleansing and genocide. And everyone can understand that the effect of such heinous acts will reach across borders. Moreover, it is the duty of every state to stand up against it.

The balance between sovereignty and human rights has thus already shifted. A new - still uncodified - equilibrium has been reached. It is only just that fundamental human rights now outrank sovereignty, and that humanitarian intervention - even without a mandate of the Security Council - is justifiable on moral and political grounds.

But we should go a step further; we need to develop a legal basis for humanitarian intervention. This was recently confirmed in a joint advisory report I requested from the Netherlands Advisory Council on International Affairs and the Advisory Committee on Issues of Public International Law. So: rules have to be developed.

First of all for humanitarian intervention with a mandate of the Security Council. This remains in all cases the preferred option. These rules should be framed as factors that should guide the Security Council on when to authorize military intervention. They would also help to reach consensus when such crises occur, thus ensuring effective and timely action by the Council.

Sadly, situations will arise time and again where humanitarian intervention without a mandate will be the only way to stop large-scale human suffering. We have the duty to prepare for those situations. This type of intervention might, however, be open to abuse. Here rules are even more necessary. An assessment framework will have to be developed.

The Netherlands already took the first steps in this direction. We organized two international seminars during the last year; one in Scheveningen and one in Noordwijk. Diplomats, lawyers, academics, and human rights organizations were invited. They all have a role to play in this debate. The idea developed in these seminars can form the beginning of the creation of an assessment framework, and I feel international interest for such a framework is growing.

An assessment framework could be set up as follows:

First of all, the factors that need to be evaluated and weighed before undertaking a military intervention have to be determined. Just a few examples: It should be objectively clear that grave and large-scale violations of human rights are taking place. There should be a clear urgency to act. The action should be supported by those for whom it is intended, and by countries and organizations in the region. This became once more very clear to me during my recent visit to Africa. Especially, I was struck by the pivotal role organizations such as ECOWAS and OAU actually play.

Second, guidelines for humanitarian intervention itself have to be established. Here it is, for example, necessary to make the purpose of the intervention clear and public from the very beginning. Of course, the rules of international humanitarian law should be fully complied with. And, there should be - for the sake of accountability - full reporting to the Security Council after the intervention.

Mr. President, Mr. Secretary-General, ladies and gentlemen.

Early warning is not the issue. Developing a legal basis for humanitarian intervention is the issue. When confronted with large-scale human suffering, we must be ready to act. Let us prepare for that.
Thank you for your attention.

Annex III: Agenda

9:15 AM Opening Remarks
Dr. David Malone , President, International Peace Academy
H.E. Mr. Kofi A. Annan , Secretary-General of the United Nations
H.E. Mr. Jozias van Aartsen , Foreign Minister of the Kingdom of the Netherlands

9:30 AM Panel I: Humanitarian Action and Codification
Chair: Sir Kieran Prendergast , Under-Secretary-General for Political Affairs, United Nations Speaker: Dr. Peter R. Baehr , Emeritus Professor of Human Rights, Utrecht University
Discussant: H.E. Mr. Arthur C.I. Mbanefo , Permanent Representative of Nigeria to the United Nations

10:45 AM Panel II: Humanitarian Action and Prevention
Chair: Dr. David Malone , President, International Peace Academy
Speaker: Mr. Gareth Evans , President of the International Crisis Group and Co-chair of the International Commission on Intervention and State Sovereignty
Discussant: H.E. Mr. Dumisani Shadrack Kumalo , Permanent Representative of the Republic of South Africa to the United Nations

11:55 AM Panel III: Humanitarian Action and the Work of the Security Council
Chair: H.E. Mr. Peter van Walsum , Permanent Representative of the Kingdom of the Netherlands to the United Nations
Panel: H.E. Sir Jeremy Greenstock , Permanent Representative of the United Kingdom to the United Nations; H.E. Mr. Sergey V. Lavrov , Permanent Representative of the Russian Federation to the United Nations; H.E. Mr. Jean-David Levitte , Permanent Representative of France to the United Nations

12:55 PM Concluding Remarks
H.E. Mr. Jozias van Aartsen , Foreign Minister of the Kingdom of the Netherlands
Dr. David Malone , President, International Peace Academy

Annex IV: Participants

Keynote Speakers
H.E. Mr. Kofi A. Annan, Secretary-General of the United Nations
H.E. Mr. Jozias van Aartsen, Foreign Minister of the Kingdom of the Netherlands

Conveners
Dr. David M. Malone, President of International Peace Academy
H.E. Mr. Peter van Walsum, Permanent Representative of the Kingdom of the Netherlands to the United Nations

Participants
H.E. Mr. Ahmed Aboul Gheit, Permanent Mission of the Arab Republic of Egypt to the United Nations
Dr. Adekeye Adebajo, International Peace Academy
H.E. Mr. André Adam, Permanent Mission of Belgium to the United Nations
Ms. Zahabia Adamaly, Inter Press Service
Ms. Anette Andersson, Center on International Cooperation, New York University
H.E. Mr. Martin Andjaba, Permanent Mission of the Republic of Namibia to the United Nations Ambassador Diego Arria, IPA Board of Directors / Technology Holdings International
Ms. Nasrine Azimi, United Nations Institute for Training and Research
H.E. Mr. Abdallah Baali, Permanent Mission of Algeria to the United Nations
Professor Peter R. Baehr, Utrecht University
H.E. Mr. Walter Balzan, Permanent Mission of Algeria to the United Nations
Dr. Fabrizio Bassani, World Health Organization
H.E. Mr. Jorgen Bojer, Permanent Mission of Denmark to the United Nations
Mr. Charles Mbuli Boliko, Food and Agriculture Organization Liaison Office with the United Nations H.E. Mr. Luigi Boselli, Delegation of the European Commission to the United Nations
Mr. Daniel B. Brewster, Jr. G + J USA Publishing
Mr. Reed Brody, Human Rights Watch H.E.
Mr. Jassim Mohammed Buallay, Permanent Mission of the State of Bahrain to the United Nations H.E. Mr. Naste Calovski, Permanent Mission of the former Yugoslav Republic of Macedonia to the United Nations
Dr. Simon Chesterman, International Peace Academy
Mr. S. Chidambaranathan, United Nations University Office in North America
H.E. Mr. Anwarul Karim Chowdhury, Permanent Mission of the People's Republic of Bangladesh to the United Nations
Ms. Karen Colvard, The Harry Frank Guggenheim Foundation
Mr. Hans Corell, United Nations Office of Legal Affairs
Ms. Nicola Dahrendorf, Conflict Security and Development Group, King's College, London
Ms. Catherine Dumait-Harper, Médecins San Frontières/Doctors Without Borders
Mr. Pim Dumoré, Political and Legal Affairs Desk, Department for United Nations Affairs, The Netherlands
Dr. William J. Durch Henry, L. Stimson Center H.E.
Ms. M. Patricia Durrant, Permanent Mission of Jamaica to the United Nations
Mr. Willem van Ee, Ministry of Foreign Affairs, The Netherlands
Mr. Boudewijn van Eenennaam, Ministry of Foreign Affairs, The Netherlands
Dr. Nabil Elaraby, Dr. Zaki Hashem & Partners, (Formerly) Permanent Mission of the Arab Republic of Egypt to the United Nations
H.E. Mr. Stewart G. Eldon, Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations
Mr. Gareth Evans, The International Crisis Group / The International Commission on Intervention Professor Richard Falk, Princeton University
Ms. Catherine Fitzpatrick, International League for Human Rights
H.E. Mr. Gelson Fonseca, Permanent Mission of Brazil to the United Nations
Dr. Shepard Forman, Center on International Cooperation, New York University
Ms. Nicole Fritz, New York University School of Law
Professor Ibrahim A. Gambari, United Nations Under-Secretary-General and Special Adviser on Africa
Dr. Richard Garfield, Columbia University Ambassador
Richard Gardner, Columbia University School of Law
Ms. Monique Garrity, The World Bank
Ms. Wandia Gichuru, Department for International Development, United Kingdom
H.E. Mr. Jeremy Greenstock, Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations
Mr. Jean-Marie Guéhenno, United Nations Under-Secretary-General for the Department of Peacekeeping Operations
Ms. Nadine B. Hack, NBH Executive Consulting
Mr. Stephen Handelman, Toronto Star
Ms. Annika Hansen, International Institute for Strategic Studies, London
H.E. Mr. Agam Hasmy, Permanent Mission of Malaysia to the United Nations
H.E. Mr. Paul Heinbecker, Permanent Mission of Canada to the United Nations
Dr. Arthur C. Helton, Council on Foreign Relations
Ambassador John L. Hirsch, International Peace Academy
Ms. Jane Holl Lute, The United Nations Foundation
Mr. Rick Hooper, The Center on Conflict Prevention and Peace, New York
H.E. Mr. Thorsteinn Ingólfsson, Permanent Mission of Iceland to the United Nations
H.E. Mr. Baboucarr-Blaise I. Jagne, Permanent Mission of the Gambia to the United Nations
Ms. Renée Jones-Bos, Ambassador for Human Rights, The Netherlands
Ms. Sylvie Junod, Delegation of the International Committee of the Red Cross to the United Nations Ms. Angela Kane, United Nations Department of Political Affairs
Ms. Marion Kappeyne van de Copello, Department for Human Rights and Peacebuilding, Ministry of Foreign Affairs, The Netherlands
Mr. Jan Kára, Permanent Mission of the Czech Republic to the United Nations
Mr. Nils Kastberg, United Nations Children's Fund
H.E. Dr. Dieter Kastrup, Permanent Mission of Germany to the United Nations
Mr. Micheal Keating, United Nations Development Programme
Mr. Tom Kelly, Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations
Ms. Kakuna K. Kerina, International League for Human Rights
Mr. Rashid Khalikov, United Nations Office of the Coordinator for Humanitarian Affairs
Mr. Marc Kimman
Mr. Sven Koopmans, New York University / Oxford University
Dr. Jean E. Krasno, Academic Council on the United Nations System, Yale University
Mr. Volodymyr G. Krokhmal, Permanent Mission of Ukraine to the United Nations
Mr. Robert Kushen, Doctors of the World
H.E. Mr. Dumisani Shadrack Kumalo, Permanent Mission of the Republic of South Africa to the United Nations
Ms. Nicole Lannegrace, United Nations Department of Political Affairs
Mr. Christopher Landsberg, University of Witwatersrand, South Africa
H.E. Mr. Sergey Lavrov, Permanent Mission of the Russian Federation to the United Nations
H.E. Mr. Pierre Lelong, Permanent Mission of Haiti to the United Nations
Mr. Iain Levine, United Nations Children's Fund
H.E. Mr. Jean-David Levitte, Permanent Mission of France to the United Nations
Ms. Elisabeth Lindenmayer, United Nations Executive Office of the Secretary-General
Professor Edward C. Luck, New York University School of Law
H.E. Mr. Kishore Mahbubani, Permanent Mission of the Republic of Singapore to the United Nations
H.E. Mr. Percy Metsing Mangoaela, Permanent Mission of the Kingdom of Lesotho to the United Nations
Mr. Ram Manikkalingam, The Rockefeller Foundation
H.E. Chief Arthur C.I. Mbanefo, Permanent Mission of Nigeria to the United Nations
Mr. Bhaskar Menon, Undiplomatic Times
Ms. Lamia Mekhemar, New York University School of Law
Mr. Peter Mollema, Permanent Mission of the Kingdom of the Netherlands to the United Nations H.E. Mr. António Victor Monteiro, Permanent Mission of Portugal to the United Nations
Mr. Edward Mortimer, United Nations Executive Office of the Secretary-General
Ms. Iseli Muriel, New York University School of Law
Ambassador Richard Murphy, Council on Foreign Relations
H.E. Mr. Joseph Mutaboba, Permanent Mission of the Rwandese Republic to the United Nations Ms. Joanne Myers, Carnegie Council on Ethics and International Affairs
H.E. Mr. Anund Priyay Neewoor, Permanent Mission of the Republic of Mauritius to the United Nations
Professor Wentworth B. Ofuatey-Kodjoe, The Graduate School and University Center, The City University of New York
Professor O. R. Olaniyan, Office of the Permanent Observer for the Organization of African Unity to the United Nations
Mr. Simon Olleson, New York University School of Law
Mr. William O'Neill, Legal Consultant
H.E. Mr. Moctar Ouane, Permanent Mission of the Republic of Mali to the United Nations
H.E. Mr. Umit Pamir, Permanent Mission of Turkey to the United Nations
Dr. Stewart Patrick, Center on International Cooperation, New York University
Dr. James A. Paul, Global Policy Forum
H.E. Dr. Gerhard Pfanzelter, Permanent Mission of Austria to the United Nations
H.E. Mr. Michael Powles, Permanent Mission of New Zealand to the United Nations
Ann Phillips, IPA Board of Directors
Sir Kieran Prendergast, United Nations Department of Political Affairs
Ms. Shazia Z. Rafi, Parliamentarians for Global Action
H.E. Ms. Marjatta Rasi, Permanent Mission of Finland to the United Nations
Professor Simon Reich, The Royal Institute of International Affairs, London
Mr. John Rempel, Mennonite Central Committee
Ms. Sarah Richards, Department for International Development, United Kingdom
Dr. Benjamin Rivlin, Ralph Bunche Institute on the United Nations
H.E. Mr. Gert Rosenthal, Permanent Mission of Guatemala to the United Nations
H.E. Mr. Richard Ryan, Permanent Mission of Ireland to the United Nations
Professor Dirk Salomons, Columbia University / New York University
Mr. Stanlake J.T.M. Samkange, International Commission on Intervention and State Sovereignty H.E. Mr. Carlos Dos Santos, Permanent Mission of the Republic of Mozambique to the United Nations
Mr. Jozef W. Scheffers, Permanent Mission of the Kingdom of the Netherlands to the United Nations
Dr. Stephen Schlesinger, World Policy Institute
H.E. Mr. Pierre Schori, Permanent Mission of Sweden to the United Nations
Ms. Nakissa Sedaehat, New York University School of Law
H.E. Mr. Kamalesh Sharma, Permanent Mission of India to the United Nations
Mr. Benon Sevan, United Nations Office of the Iraq Programme
H.E. Dr. Ivan Simonovic, Permanent Mission of the Republic of Croatia to the United Nations
H.E. Dr. Vladimir Sotirov, Permanent Mission of the Republic of Bulgaria to the United Nations H.E. Mr. Jenö C. A. Staehelin, Permanent Observer Mission of Switzerland to the United Nations
Mr. Richard H. Stanley, The Stanley Foundation
Robert Y. Stebbings, Esq. ,Stebbings & Associates
Mr. Joseph Stephanides, United Nations Security Council Affairs Division
Professor John Stremlau, University of the Witwatersrand, South Africa
Mr. Hansjoerg Strohmeyer, United Nations Office for the Coordination of Humanitarian Affairs
Mrs. Lilly Sucharipa, University of Vienna, Austria
Dr. James Sutterlin, Academic Council on the United Nations System, Yale University
Mr. Mark B. Taylor, Institute for Applied Social Sciences (FAFO), Canada
Dr. Shashi Tharoor, United Nations Executive Office of the Secretary-General
Dr. Frederick S. Tipson, Council on Foreign Relations
Mr. James Traub, New York Times Magazine
Dr. Necla Tschirgi, International Development and Research Centre, Canada
Sir Brian E. Urquhart, IPA Board of Directors / Former United Nations Under-Secretary-General for Special Political Affairs H.E. Mr. Juan Gabriel Valdes Permanent Mission of Chile to the United Nations Professor
Paul Van Zyl, Columbia University Law School
Dr. Naomi Weinberger, United Nations Studies Program, Columbia University
H.E. Mr. Yingfan Wang, Permanent Mission of the People's Republic of China to the United Nations
Ms. Cora Weiss, The Hague Appeal for Peace
H.E. Ms. Penny A. Wensleym Permanent Mission of Australia to the United Nations
Ms. Joanna Weschlerm Human Rights Watch Ambassador
David Wright, Canadian Joint Delegation to NATO
Mr. Jim Wurst, IPS Daily Journal
H.E. Mr. Hubert Wurth, Permanent Mission of Luxembourg to the United Nations
Mr. Mohammad Kamal Yan Yahaya, Permanent Mission of Malaysia to the United Nations
Mr. Jin Yongjian, United Nations General Assembly Affairs and Conference Service
Mr. Robert W. Zaagman, Permanent Mission of the Kingdom of the Netherlands to the United Nations