"As a lawyer, as a judge, I would seriously regret people charged with such crimes such as genocide and crimes against humanity being granted amnesty... I think those are the sort of crimes which politicians do not have the moral right to forgive." - Judge Goldstone

An argument based on morality is often of convincing value in everyday conversation but it is not backed up by the power that is the positive law. There exists a moral duty or obligation to prevent harms being caused to individuals. It is natural for human beings to avoid and in some circumstances prevent a catastrophe like Rwanda. This concept was emphasised by Kofi Anan, the previous Secretary General of the United Nations. He called for a need of ‘intervention in cases of urgent humanitarian necessity.' What is intervention of a humanitarian nature? 

According to Roberts in his "The so-called ‘Right" of Humanitarian Intervention", Humanitarian Intervention is defined as ‘coercive action by one or more states involving the use of armed force in another state without the consent of its authorities, and with purpose of preventing widespread suffering or death among the inhabitants.' Kolb in his "Note on Humanitarian Intervention", in more colloquial language defines this concept as the use of force in order to stop or oppose massive violations of the most fundamental human rights (especially mass murder and genocide) in a third state, provided that the victims are not nationals of the intervening state and there is no legal authorisation given by a competent international organisation.

During the last two decades the international community has encountered numerous occurrences which fall within the two mentioned definitions. The problem we are faced with globally is whether such intervention is contrary to the principles of International law. Further if and/or when such intervention would be allowed for the prevention of gross or ‘massive' violations of fundamental human rights.

An example of an international instrument allowing intervention subject to certain conditions would be the African Union's Constitutive Act. The Act was amended on 3 February 2003 by broadening Article 4(h). This provision allows "the right of interference to prevent a ‘serious threat to legitimate order'". Baimu and Starman evaluate the amendment and conclude the new amended provisions creates a sense of uncertainty with regard to how and when such intervention may or may not occur. This emphasises uncertainty exists that in respect of the existence of a ‘right' to humanitarian intervention.

As a result of such uncertainty only a few success stories exist where humanitarian intervention provided a significant benefit. The NATO bombings in Kosovo of 1999 brought to a halt the ethnic cleansing and further clear violations of the Rome Statute of the International Criminal Court. Despite no authorisation from an international organisation, the intervention occurred with a positive result, not without criticism and international outrage, but ensured the prevention of the escalation of unfortunate events. In contrast, the lack of humanitarian intervention in Rwanda was a contributing factor to ultimate consequences, the death of approximately 800 000 people.

It seems trite that if it is clear that gross human rights violation occur, intervention must be an option but often this assumption is based on some form of morality. There is argument that a duty or responsibility exists on governments to prevent such events from occurring. Although the moral duties and obligations argument may be compelling, there is a need to obtain a balance between the maintenance of peace on the one hand and on the other, the respect for human rights. Kolb evaluates this argument and concludes that ‘there is a duty at least in the most extreme cases, to strike a balance between conflict minimalisation and the protection of human rights.

Striking Kolb's balance is not as practical and straightforward as it sounds. Political factors, self interest and economic considerations play influential roles in the decision making with regard to these interventions. Governments are often not quick to raise their hands in defense of humanity, especially after the US incident is Mogadishu. Robertson in ‘Crimes Against Humanity' refers to this concept as the ‘Mogadishu Factor'. The decision making is further hampered by the need for authorisation. The United Nations Security Council, the main body for the maintenance of international peace and security, experiences deadlocks with the veto right of Article 27 of the Charter. The Uniting for Peace Resolution, exactly for the purposes of avoiding inaction by the Security Council, is not invoked often and consequently matters are left stagnant. Political and Diplomatic chess is played while important issues are not being resolved.

Robertson further evaluates the nine preconditions for a lawful humanitarian mission, which principles were further expounded by the Commission on Intervention and State Responsibility. The Commission was established to evaluate the concept of Humanitarian Intervention. The report of the commission, ‘The Responsibility to Protect', creates a six step requirement ‘for an intervention to be lawful.' According to it the following must be present according to Kolb:

 

1) just cause;

2) the right intention;

3) situation of last recourse;

4) respect for the principles of proportionality;

5) reasonable prospect of success;

6) prior request for authorisation by Security Council of the action.

 

Progress has thus been made to determine when an international humanitarian intervention may occur. Although these requirements narrow the area of consideration, Kolb goes on to criticise the factors by arguing that a sense of vagueness is still present but positively states that for any future humanitarian intervention to be internationally accepted, adherence to the commission's opinions and a compliance with the requirements would be necessary.

The international law currently in force contains no direct measure to intervene. Certain schools of thought avoid setting down on paper the allowance of intervention for a fear of misuse and more importantly, the use of the veil of humanitarian intervention for the personal gain of nations. The closest measure allowing for direct humanitarian intervention is Article 4(h) of the Constitutive Act of the African Union where intervention is allowed by the Peace and Security Council pursuant to a decision of the assembly. The Charter of the United Nations, similarly, allows for action of many different forms in Chapter VII and Chapter VIII but no specific provision for humanitarian intervention.

If we feel strongly about preventing such catastrophes, a development of strict, direct and easily interpreted requirements is needed, which requirements need to be supported by the international community and backed with lawful obligations that nations would adhere to the requirements and essentially act when the circumstances provide for it. N Barney Pityana in "Hurdles and pitfalls in international human rights law" was wise in quoting the following:

"We must not make a scarecrow of the law, Setting it up to fear the birds of prey, and let It keep one shape till custom make it their perch and not their terror"

It is clear that there is a need to find a central ground between the maintenance of peace and the protection of human rights. Both these concepts are essential for a stable international order. The argument that the United Nations, or any international body or organization, must not be used as an instrument of warfare is important but we live in times where respect for humanity is disregarded and it is important that we find a way, if it not be humanitarian intervention, to ensure that the ‘right to life, liberty and security of person' is enforced and protected.