|About the author|
|My focus will be a bit different than was Professor [Stephen C.] Neffs.1 Since I am discussing a period much shorter than he addressed, I will consider particular uses of force, in an effort to relate the development of doctrine to the behavior of states. The first problem in addressing the issue of humanitarian intervention during the period 1945-1989 is one of terminology. During this period, the term humanitarian intervention was least controversially applied to situations where a state used force to rescue its own nationals facing extreme physical danger on the territory of some other state, the government of which was unable or unwilling to protect the endangered nationals of the first state. A condition on the legality of such an action, however, was that the objectives of the use of force had to be strictly confined to rescuing the persons in danger. My first objective in this talk is to review instances of this type of humanitarian intervention which took place during the cold war period; I will then address other events during this period with implications for the law of the use of force for humanitarian purposes. |
Perhaps the best known example of an intervention focused solely on the rescue of nationals of the intervening state was Israels raid on the Entebbe airport in Uganda in 1976. Israel acted after an Air France jet was hijacked to Entebbe by German and Palestinian terrorists, the passengersincluding many Israelisbeing held hostage. The Ugandan government was assisting the terrorists. Israels actions were limited to landing troops at Entebbe, rescuing the hostages, disabling Ugandan air force jets which could have hindered the Israelis escape, and departing. The only Ugandans injured were military personnel assisting the terrorists in guarding the hostages. Israel was permitted to refuel its aircraft in Kenya after the raid, but otherwise acted alone. This action was labeled lawful by the United States and by European states, but was condemned as aggressionat least verballyby a number of third world and communist states and by the Organization of African Unity. It should be stressed that the striking thing about the Entebbe raid was the limits of both its objectives and its effects. Quite literally, all the operation was about was hostage rescue.
Hostage rescue operations were also carried out in what is now the Democratic Republic of the Congo in 1964 and 1978. These were somewhat more ambiguous, however, since they took place in the course of civil strife, and with the permission of one of the contending sides, that is, the incumbent government. The 1964 operation was carried out by Belgian troops transported in American aircraft to rescue approximately 1,800 Europeans held hostage in the eastern Congo by forces opposed to the incumbent government. The tactical situation arguably required Belgium to coordinate its operations with those of the forces of the government of the Congo, especially since it was that governments opponents who had created the threat the hostages faced. In any case, the ensuing Belgian military operation took the form of a parachute attack on the town of Stanleyville coordinated with a ground attack by Congolese government forces. The operation succeeded in rescuing over 2000 mostly European hostages from the anti-government forces. It also had the entirely predictable effect of assisting the efforts of government troops against their opponents. This operation provoked considerable criticism from African states and the Soviet Union, not because the critics denied the legality of a rescue of endangered nationals, but because they believed the hostage rescue was simply a pretext for intervening in the Congos civil strife. According to the critics, the intervention was actually motivated by a desire to aid the Congo government against its enemies, and was unlawful for that reason.
The 1978 intervention was carried out initially by France and Belgium with American support, after anti-government forces invaded the rich province of Shaba from the south. The invaders had set out to seize Europeans as hostages. While Belgian troops limited their activity to rescuing hostages held by the anti-government forces, the French troops not only sought to protect their nationals, but also acted against the anti-government groups. It should be noted that France as well as Belgium had considerable economic interests at risk because of the invasion. The French intervention lasted a week, while the Belgians were on the ground for only three days. After the departure of the European troops, Moroccan units were transported to the area by the United States to serve a peace-keeping function. Other African states also provided troops. While there was some criticism of this operation because of the assistance it provided to the incumbent government, this action provoked much less outcry than did the 1964 intervention; the 1964 action, for example, was debated in the Security Council and led to a resolution calling for an end to interventions in the Congo. In contrast, no UN organ discussed the 1978 intervention.
Besides these successful efforts to rescue hostages, there were two other interventions that should be mentioned. In 1975, the United States dispatched naval forces and marine units to rescue the crew of the American merchant ship Mayaguez, which had been captured, arguably unlawfully, by forces of what was then called Democratic Kampuchea. Due to poor intelligence, the marines attacked an island where the hostages were not located, and suffered heavy casualties; the hostages were retrieved by an American naval vessel from a Kampuchean ship that was returning them to the Mayaguez, Kampuchea apparently having decided to release the hostages. The other, and even less successful rescue attempt, was the American effort in 1980 to release its nationals held hostage in Iran. As is well known, the rescue mission was a debacle. Interestingly, the United States attracted a fair degree of criticism for its use of force in the Iranian case, apparently because the operation was seen as a threat to ongoing efforts to resolve the crisis through diplomacy and by bringing the matter to the International Court of Justice.
One other case relevant in this connection is the so-called Football War between El Salvador and Honduras in 1969. Though dismissed as a result of bad feelings over the result of a soccer game, the war was in fact triggered in part by the expulsion by Honduras of El Salvadorian nationals resident in Honduras, in some cases, for many years. It should be stressed that the actions by Honduras apparently did not extend to widespread efforts to harm El Salvadorians physically. Further, the invasion necessarily was more of an effort to punish Honduras than an attempt to somehow rescue El Salvadorians; indeed, it is much less tricky, at least in principle, to intervene in a country in order to pluck endangered persons out, than to use force to prevent people from being expelled from a country. At minimum, such a use of force would have somehow to affect the policy-making apparatus of the target country, an objective hard to reconcile with the prohibition on interventions aimed at objectives beyond a rescue.
In any case, El Salvadors invasion evoked widespread condemnation in the Americas, and was halted when the OAS threatened El Salvador with serious economic sanctions.
In addition to interventions in which people clearly were in some sort of jeopardy and their protection clearly a dominant purpose of the intervention, this period also saw efforts by the United States to justify interventions as aimed at protecting American citizens when other motives were in fact likely dominant. Danger to Americans was one of the original justifications for the American intervention in civil strife in the Dominican Republic in 1965, though the United States early on in that intervention began to ground its action on its desire to prevent a leftist victory in the Dominican Republic. Once American motives had crystallized, they drew considerable criticism, and the United States quickly sought to deflect this criticism by associating the OAS in the Dominican operation.
Again, the United States attempted to characterize its intervention in Grenada in 1983 as aimed at rescuing American citizens resident on that island at the time of a violent coup, though at the time of the intervention it was unclear that Americans in Grenada were in any danger, and there is considerable reason to believe that the leftist orientation of the government installed by the coup was in fact the main reason for the American action. This conclusion is strengthened by the fact that the operation was clearly aimed at and succeeded in subjugating the island, a step not required if the only American objective was a rescue and contrary to the then-understood limits on the objectives legally permissible in a case of humanitarian intervention. In this case, it should be noted, President Reagan justified the actions of the United States not only by reference to the dangers to American citizens posed by the new government, but also to the dangers that government posed to its own citizens. The Grenada operation was severely criticized internationally, although apparently welcomed by Grenadas population.
To sum up this first part of my talk, the legitimacy of interventions as operations aimed at rescuing nationals was well established in this period, to the point that states sought to shield themselves by using this label for operations where its applicability was doubtful. As a corollary, interventions justified as rescue operations but having objectives beyond simple rescue, or taking place in situations where the persons in jeopardy didnt really require rescueas was true of the El Salvadorians in Hondurasor interfering with non-forcible efforts to resolve a crisis, as with the American intervention in Iran, drew criticism and, occasionally, threats of sanctions.
But what about interventions for humanitarian purposes when the intended beneficiaries were nationals of the state in which the intervention took place? The balance of my talk will consider this class of uses of force. The dominant view among international lawyers in the 1945-1989 period was that such interventions were unlawful. The argument was that the prohibition on the use of force in article 2, paragraph 4 of the United Nations Charter was a rule so fundamental as to overwhelm all other considerations. Some authorities argued, however, that such interventions were lawful. Professor Tesón has pointed to four cases as examples of humanitarian interventions aimed at protecting, not the nationals of the intervening state, but the nationals of the state in which the intervention took place.2 Further, he sees these same cases as state practice tending to support the legality of such interventio Êns even at a time when black letter international law would have labeled such actions as unlawful. The first of these examples was Indias invasion of what was then East Pakistan and is now Bangladesh in December, 1971, putting an end to an almost indescribably brutal repression of the Bengali people which the Pakistan army had begun to carry out the previous march. Another was Vietnams 1978 invasion of what is again Cambodia, which had the effect of ousting a genocidal government. Still another was Tanzanias invasion of Uganda in early 1979, which led to the overthrow of Idi Amins highly repressive regime. And finally France, in September 1979, removed the extremely brutal Jean-Bédel Bokassa as the ruler of the Central African Republic, as the country was called before his rule and has again been named since.
Should these uses of force be considered examples of state practice supporting the legality of intervention to protect the nationals of the state in which the intervention took place?
Initially, it should be noted that, in three of the cases, relations between the invading and invaded states had been strained for some time for reasons unrelated to human rights questions. In the case of India and Pakistan, bad relations had existed for decades. With respect to Viet Nam and Kampuchea, Viet Nam aspired to a form of hegemony in South East Asia which Kampuchea resisted, while Kampuchea had developed a particularly strident chauvinism directed against Viet Nam. Relations between Uganda and Tanzania had long been complicated by the fact that Milton Obote, the former president of Uganda overthrown by Idi Amin, was closely allied with President Nyerere of Tanzania; Obote and other anti-Amin Ugandans had taken refuge in Tanzania. Only in the case of the removal of Bokassa did the human rights violation of the ousted government appear to contribute to the decision to intervene with no previous history of bad relations between the two states. Indeed, the problem for France was that relations had been too warm, rather than too cool. Bokassa was known to have close relations with France; when the scale of his atrocities also became known, this close relationship became an embarrassment for Paris.
In short, except for the case of France and the Central African Empire relations between the governments on the opposite sides of the eventual intervention predisposed the eventual intervener toward hostility to its target. Yet even against a background of poor relations, the governments which eventually carried out these invasions did not leap at the chance to act. In all of these cases, the gross violations of human rights being committed by the governments of Pakistan, Kampuchea, Uganda and Bokassa, respectively had been widely reported for some time prior to the invasions. India reacted relatively quickly; the repression in East Pakistan had begun in late March, 1971, and India began aiding anti-Pakistan Bengali groups very shortly thereafter. But the Khmer Rouge had been in control of Kampuchea for three years before Viet Nam acted, and Idi Amin had been in power for eight prior to the invasion which led to his overthrow. The particular massacres that provoked the greatest outrage against Bokassa took place eight months before the French intervention in September, 1979; indeed, in May, four months after the massacres and four months before the invasion, a French cabinet minister spoke dismissively regarding the accusations against Bokassa. It seems clear that the events precipitating the invasions were not simply the human rights violations of the governments of the invaded states, but rather threats posed by those states to the interests of the invaders.
Indias actions could be most closely tied to human rights concerns, in that its prime objective was the return to Bangladesh of the millions of refugees from Pakistani terror who had fled into some of the poorest and most volatile regions of India. India was forced to focus on eliminating the threat to human rights in Bangladesh, since it realized that it could bring about the return of the refugees only through the replacement of Pakistani control of what is now Bangladesh by a government trusted by the refugees. India apparently had decided by four months after the repression began in Bangladesh to invade if it could find no other means of eliminating Pakistani control of Bangladesh; it acted five months later. Even in this case, however, protection of human rights was apparently a means by which India sought to rid itself-interestof the burden posed by the refugees, rather than an end in itself.
In contrast, Tanzania was not directly affected by human rights violations in Uganda, and acted only after it had itself-interestbeen invaded. Further, it took advantage of its eventual victory to install a government in Uganda subject to its domination. Similarly, Viet Nam acted only after the government of Democratic Kampuchea had on several occasions carried out incursions into Vietnamese territory, simultaneously showing itself-interestto be a threat to Viet Nam and a barrier to Viet Nams desire for regional control. In the Central African Empire, France was facing, not merely embarrassment, but the rise of opponents of Bokassa who were also not friendly to Franceand Frances economic stake in the country was significant. It should be noted that the man with whom France replaced Bokassa was a former president of the country himself-interestremoved in Bokassas original coup in 1965; he was an enemy of Bokassa who was a friend of France.
Nor was the human rights aspect of the matter controlling with respect to international reaction to the invasions. Although the Soviet Union provided India with military equipment and diplomatic support, the United States not only opposed Indias actions in the United Nations, but deployed naval forces in the Bay of Bengal in an apparent effort to support Pakistan. Once the Government of Bangladesh was esta blished, however, it was recognized diplomatically by a large number of states, especially when Indian troops departed three months after their invasion. In contrast, the new government in Uganda was widely recognized almost as soon as it took power, despite the continued presence of Tanzanian troops; in this case, there is some reason to think that widespread disgust with Amin affected the reaction to his ouster. Yet the attack on Democratic Kampuchea generated a high degree of hostility toward Viet Nam, notwithstanding the horrible human rights record of the Khmer Rouge. Not only did powerful states continue to recognize the ousted government, but the United States acquiesced when informed by China of the latters plan to attack Viet Nam as punishment for Viet Nams attack on Kampuchea - which attack in fact took place in February, 1979. Despite the fact that the effect of the Vietnamese invasion was to free the population of Cambodia from the worst excesses of the Khmer Rouge, wo Ìrld reaction seemed to put more weight on the ambitions which it saw as Viet Nams actual motive for its attack. There was little reaction to Frances removal of Bokassa, perhaps because France sought to disguise the extent of its participation in the affair.
Finally, in none of these cases did the invading states seek to justify their actions as humanitarian, perhaps because of the uncertain legal status of the concept of intervention for the purpose of protecting non-nationals. France sought to obfuscate its role in the replacement of Bokassa. In the other three cases, denial of state action was impossible, but the legal justifications advanced did not include an argument that intervention was justified to halt massive violations of human rights. Rather, all three states sought to bring their actions under the rubric of self-interestdefense.
In short, it seems something of a stretch to classify any of these cases as matters of humanitarian intervention. In each case, the interveners motives seem to have been based on self-interestinterest rather than, in the first instance, a concern for protecting a helpless population. If this observation is correct, it suggests the conclusion that the status of disinterested humanitarian intervention during the 1945-1989 period was at best doubtful. This conclusion, in turn, is reinforced by a consideration of cases where states were unwilling to undertake interventions solely to protect nationals of other states from massive violations of human rights by their own governments.
Even leaving aside failures to act against generally oppressive systems in a great many countries, even widespread killing failed to lead to outside intervention when no states self-interestinterest was implicated by the human rights violations. The massive campaign directed against communists in Indonesia after the failed 1965 coup provides one example; others are provided by the failures of action by outside states regarding mass killings in Rwanda and Burundi in the 60's and 70's. In some ways most striking, however, was the international reaction to Indonesias invasion of East Timor in 1975, and the ensuing extremely violent effort to repress the Timorese. Although the General Assembly and Security Council of the United Nations initially criticized the invasion and occupation, key Asian states including Japan dissociated themselves from this criticism. Within less than two years of the invasion, and despite reports of the brutal character of the Indonesian repression, the United States and a number of significant states in the region had recognized Indonesias claim to East Timor. As each year passed after the invasion, international interest grew weaker and weaker. In short, it appeared that no government was willing to risk its relations with Indonesia because of its brutality in East Timor.
To sum up, it seems that states engaged in massive repression between 1945 and 1989 faced intervention only when the intervenings states self-interest was implicated. Prevailing legal doctrine disapproved of interventions for reasons unrelated to the rescue of endangered nationals of the intervening state. Further, even operations aimed at the rescue of nationals drew criticism, though such actions also received considerable support.
Copyright retained by author.