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Humanitarian Intervention
and State Sovereignty
M O H A M M E D AYO O B
It is increasingly apparent that the greatest challenge to the notion of
international society comes from the new found proclivity on the part of
major powers as well as international and regional organisations to intervene
in the domestic affairs of juridically sovereign states for ostensibly
humanitarian purposes.1 The concept of international society privileges the
state as the sole repository of sovereign authority and is based on the
assumption that international order can be best maintained if states respect
each others sovereignty by adhering to the norms of non-intervention in the
internal affairs of other states. This has been the fundamental premise on
whose basis the rules and institutions governing international society,
including international law, diplomacy, and international organisations, have
been traditionally established.2 Respect for state sovereignty, therefore,
forms the cornerstone of what Robert Jackson has termed the global
covenant which, in turn, acts as the foundation for international order.
Respect for this covenant is all the more important in the contemporary
context where membership of the international system has expanded
exponentially and the notion of a common (European) culture undergirding
international order has been dramatically eroded.3
In contrast to this global covenant which emphasises sovereignty and nonintervention, the proclaimed goal of humanitarian intervention, undertaken
with increasing frequency during the last decade, is to protect the citizens of
the target state from flagrant violations of their fundamental human rights
usually by agents of the state. These rights are defined as being vested in
individuals as members of the human race. They exist independent of their
status as citizens of particular states. While this may be true at one level, it
does not provide the complete picture. For, as David Forsythe has pointed
out, Even if human rights are thought to be inalienable, a moral attribute of
persons that the state cannot contravene, rights still have to be identified
that is, constructed by human beings and codified in legal systems.4
Therefore, the question of agency who constructs and codifies human rights
becomes important. This, as we will see later, has an important bearing on
the issue of humanitarian intervention because those who define human
rights and decree that they have been violated also decide when and where
intervention to protect such rights should and must take place.
Mohammed Ayoob, James Madison College, Michigan State University
The International Journal of Human Rights, Vol.6, No.1 (Spring 2002) pp.81102
PU B L I S H E D BY F RA N K C A S S , LO N D O N
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Humanitarian interventions have also been conducted in some cases
where existing institutions of the state, for one reason or another, have been
rendered incapable of providing even the minimum degree of security and
order to their populations. Their citizens lives, in terms of Hobbess classic
formulation, have therefore become poor, nasty, brutish and short. In other
words, these are instances where the state has failed or collapsed and the
social contract binding the subject to the sovereign ceases to operate.5 In such
cases sovereignty ceases to exist and, therefore, the rules of international
society that privilege state sovereignty are no longer relevant. External
intervention, therefore, does not derogate from state sovereignty for none
exists. This is a very different argument from the one that decries the use of
sovereignty as a tool used by the agents of the state to violate the human
rights of citizens with impunity. It will be addressed briefly at the end of the
article separate from, but connected to, the main body of the argument.
SOVEREIGNTY AS AUTHORITY
In order to analyse the problem of intervention and state sovereignty, it will
be appropriate first to define the term sovereignty itself. Sovereignty is often
defined in terms of internal control and external autonomy. However, since
both control and autonomy wax and wane in the real world of politics, it is
better to define sovereignty as authority (the right to rule over a delimited
territory and the population residing within it).6 Such a definition accepts
that sovereignty has both internal and external dimensions. However, it has
certain advantages in comparison to definitions based on control and
autonomy since it is a normative construct used to signify the standard of
behaviour among members of international society. International norms,
including those of sovereignty, are expected to hold despite variations,
including violations, which occur in particular cases. Degrees of control and
autonomy can vary as they always do in particular instances, but the right to
rule remains the constant ingredient of sovereignty even when control is
diminished and autonomy diluted.
Sovereignty is thus not only an internal attribute of states. It is based in
substantial part on recognition by the community of peers (states) and is as
much constituted by external recognition as by internal acquiescence. Such
recognition and constitution of sovereignty by international norms are
important in an international system in which power is distributed in a highly
unequal fashion. This is the case because, as Benedict Kingsbury has pointed
out, The normative inhibitions associated with sovereignty moderate existing
inequalities of power between states, and provide a shield for weak states and
weak institutions. These inequalities will become more pronounced if the
universal normative understandings associated with sovereignty are to be
discarded.7 The capacity of sovereignty to act as a normative barrier to
unwanted external intervention should not be underrated. International
society is based on a set of normative structures, with sovereignty being the
foremost among them. If these structures are undermined, it may lead to
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either unadulterated anarchy or unmitigated hegemony or a combination of
the two anarchy within and hegemony without.
HUMAN RIGHTS AND SOVEREIGNTY
How does this conception of sovereignty square with the concern for human
rights (and more particularly their violation) that has been demonstrated by
members of international society increasingly during the past few decades?
This concern acquired much greater intensity and seriousness of purpose
during the 1990s. It has, in fact, become fashionable these days to dismiss
the notion of sovereignty as an anachronism or to dilute it so greatly as to
make its operation ineffectual when it suits major powers or important
international constituencies. Both the current UN Secretary General, Kofi
Annan, and his predecessor, Boutros Boutros-Ghali, have gone on record to
declare that state sovereignty is not absolute and exclusive and can be
circumscribed, even overridden, in special circumstances.
These statements as well as actions authorised by the UN Security
Council and undertaken by multinational coalitions, including organisations
like NATO, during the past decade demonstrate an inherent tension between
international concern increasingly translated into intervention for
humanitarian purposes and the notion of sovereignty. Non-intervention in
the domestic affairs of states is an essential corollary of sovereignty. It acts as
a no trespassing sign protecting the exclusive territorial domain of states.8
This sign has not prevented all external intervention into the affairs of states
because signs by themselves are never able to keep off all trespassers. Strong
states have routinely intervened, even forcibly, in the affairs of weaker ones.
Nevertheless, during the past 50 years, following the emergence of postcolonial states in large numbers, the notion of sovereignty and its corollary
of non-intervention had forced the strong to make at least mildly credible
cases for intervention into the affairs of the weak. Sovereignty had thus acted
as a restraint on the formers interventionary instincts.
THE NEW INTERVENTIONISM
During the past ten years, however, the notion of intervention has been
given a qualitatively new and different thrust. This has been done in two
ways. First, intervention is increasingly defined in terms of purposes or goals
which are radically different from the traditional objectives that intervention
was expected to achieve before the 1990s. These new goals are supposed to
be humanitarian and universal in character rather than political and strategic
and, therefore, specific in nature.
Second, intervention is sought to be projected as being undertaken by, or
on behalf of, the international community rather than by a state or a coalition
of states for its/their own ends. States that undertake intervention portray
themselves as acting as agents of the international community. In short such
intervention is represented as international intervention that is undertaken to
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achieve humanitarian objectives. It is further argued that these objectives are
intrinsically far too valuable to be held hostage to the norm of state sovereignty
and, therefore, ought to override that norm.9 In other words, sovereignty is
no longer sacrosanct.10 This is a radical departure from the Cold War era when
intervention was undertaken unabashedly to promote strategic ends, and
justifications were provided within the framework of sovereignty (often that
such intervention bolstered the sovereignty of the target states and the stability
of their regimes) rather than in contravention of that norm.
SOVEREIGNTY AS RESPONSIBILITY
Simultaneously, there has been a concerted attempt beginning in the 1990s
to redefine sovereignty to include the notion of responsibility as well as
authority.11 This has meant adding respect for a minimal standard of human
rights as an essential attribute of sovereignty. Such responsibility, according
to this line of reasoning, is owed by the state both to its people and to the
international community and those of its institutions that have come to be
seen as the guardians of international norms of civilised behaviour. In other
words, the state has to act toward its citizens in ways that meet not only with
the approval of the latter but also of other states and certain crucial
international organisations.
Without denying the considerable moral force of the sovereignty as
responsibility approach, one cannot help but notice echoes of the standard
of civilisation argument in this proposition.12 According to this latter thesis,
which was the prevailing political wisdom in Europe until the end of the
nineteenth century, only those countries that had reached a certain standard
of civilised behaviour had the right to attain sovereign status and interact
with each other on the basis of mutual recognition of sovereignty. The
others, being barbarians if not savages, were to remain subject to, or under
the tutelage of, sovereign (European) powers. Where they could not be
subjugated, as was the case with the Ottoman Empire, rules of European
international law that enjoined reciprocity in interstate interactions did not
apply to them. This denied them the protection of norms that had been
developed in Europe to govern interstate relations, the chief among them
being the principle of non-intervention in the internal affairs of states.
It is interesting to note in this context that capitulations were originally
extended by the Ottomans as extraterritorial jurisdiction to European
infidels who could not be expected to understand the religious codes
which regulated the daily lives of the Sublime Portes other subjects.
However, as the standard of civilisation emerged as an explicit legal
concept, the capitulations became a symbol in European eyes of Ottoman
inability to uphold civilised standards.13 Voluntary, even magnanimous,
concessions were transformed into instruments of discrimination that then
became justifications for further discriminatory treatment.
The resurrection of the standard of civilisation assumptions in the late
twentieth century, and their application under the guise of sovereignty as
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responsibility thesis, once again raises the spectre of a return to colonial
habits and practices on the part of major Western powers. It also has the
potential to divide the world once again into zones of civilised and
uncivilised states and legitimise predatory actions by the former against the
latter. As Benedict Kingsbury points out The theory of liberal and nonliberal zones proposes differential treatment where the boundaries of the
liberal zone are crossed, conferring privileges based on membership in the
liberal zone, and setting high barriers to entry [T]he outcome seems likely
to be the maintenance of a classificatory system which is itself both an
explanation and a justification for those at the margins remaining there for
generations.14 This is likely to erode the legitimacy of an international
society that for the first time has become truly global in character.
HUMANITARIAN CONCERNS AND NATIONAL INTERESTS
In addition to bifurcating international society into civilised and uncivilised
zones, the concept of humanitarian intervention raises a number of
additional questions. A major problem emerges from the fact that the new
interventionary logic presupposes the existence of a meaningful
international community in whose name intervention may be carried out.15
This assumption raises a host of important issues that need to be addressed.
The most fundamental of these relates to the mechanism through which the
will of the international community to intervene is determined. In other
words, as Lyons and Mastanduno put it, The important question is, who
determines that a state has not met its sovereign obligations and that the
consequences are such that intervention to force compliance is justified.16
However, one cannot even begin to address this issue without noting the
fact that we operate in an international system in which the most important
political and military decisions are taken not at the international but national
level. It is, therefore, impossible to prevent considerations of national
interest from intruding upon decisions regarding international intervention
for ostensibly humanitarian purposes. This immediately complicates the
problem of deciphering international will, for one is never sure whether
decisions taken on behalf of the international community are truly the result
of altruistic motives or are driven by the national interests of states that have
a stake in intervening in particular crises or locales.
On the question of the link between national interest and humanitarian
intervention, advocates of intervention are caught between a rock and a hard
place for two reasons.17 First, as past practice demonstrates, most states will
not be inclined to undertake humanitarian intervention unless their national
interests are directly or indirectly involved. Even if they commit themselves
to intervene for altruistic and humanitarian reasons, in the absence of
pressing national interest concerns they will normally not be in a position to
sustain such a commitment when faced by human and material costs that
their publics most likely will not be willing to pay. Past experience, above all
the case of the U.S. intervention in Somalia in 199293, demonstrates that
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the threshold of pain for states undertaking humanitarian intervention in
which their national interests are not substantially involved will be low.
Second, as long as decisions to undertake such interventions are primarily
taken at the national level, national interest considerations, under one guise
or another, are likely to determine states decisions to intervene or desist
from such intervention. Despite Stanley Hoffmanns exhortation that The
concept of national interest should be widened to incorporate ethical
concerns,18 decisions to intervene when taken by national decision-making
bodies make humanitarian interventions immediately suspect. When one
adds to this the fact that such interventions are undertaken on a selective
basis and the same criteria are not applied uniformly and universally in every
case, such interventions lose legitimacy and credibility in the eyes of many,
if not most, members of the international system.19 Even as interventionist a
UN Secretary-General as Kofi Annan has been forced to concede that If the
new commitment to intervention in the face of extreme suffering is to retain
the support of the worlds peoples, it must be and must be seen to be
fairly and consistently applied, irrespective of region or nation.20
However, selectivity in humanitarian interventions seems to be inevitable.
As staunch an advocate of humanitarian intervention as Thomas G. Weiss has
been compelled to admit that as far as such interventions are concerned,
there can be no universal imperative. States will pick and choose.21 It may be
possible, as MacFarlane and Weiss assert, that as a result of humanitarian
political activity the construction of national interest, especially in the case of
liberal democracies, comes to include humanitarian concerns.22 However,
there is the distinct possibility that such a humanitarian construction of
national interest may run headlong at some point into the narrower and
realpolitik construction of national interest. When this happens, more often
than not the latter construction is likely to prevail for domestic political and
economic reasons. Decisions to intervene, not to intervene, or to withdraw,
will be made (as they have been made in the past) largely on the basis of
strategic and economic considerations that may have little to do with
humanitarian concerns even if they are justified with reference to such ideals.
The impossibility of determining the predominance of humanitarian
concerns in a states decision to intervene was responsible in large measure for
the international condemnation of the Indian intervention in the former East
Pakistan in 1971 and the Vietnamese intervention in Cambodia in 1979. A large
majority of states had strong reservations about these interventions despite the
fact that in the former instance at least 300,000 civilians had been killed and 10
million refugees had crossed the border into India as a result of the reign of
terror let loose by the Pakistan army in what was then East Pakistan. In the latter
case, Pol Pot had killed over one million of his countrymen and women in order
to create a Cambodia of his dreams. However, it was clear in both cases that
Indian and Vietnamese strategic interests were involved in these interventions
because of existing hostile relations between India and Pakistan and between
Vietnam and the Cambodian regime, respectively.23 The opposition to these two
interventions among members of international society was, therefore, quite
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strong despite the fact that the violations of human rights, including large-scale
killings, in these two cases were of such an order that northern Iraq, Bosnia,
Kosovo and Haiti pale into insignificance before them.
HUMANITARIAN INTERVENTIONS AND DOUBLE STANDARDS
International society turned out to be more receptive to arguments in favour
of humanitarian intervention during the early and middle 1990s. This
happened to be the case even when obviously interested parties carried out
such intervention for reasons whose connection with humanitarian concerns
was rather dubious. This can be explained to a substantial extent by the
unusual circumstances surrounding the fundamental transformation of the
balance of global power that took place during the early part of that decade.
Few states could muster the courage in the first half of the 1990s to point
out to the lone superpower and the coalition it led that the altruism of their
actions was suspect and that they were often guilty of double standards.24
Such double standards were particularly glaring in the case of the Middle
East. They were most obvious in the case of the intervention in northern Iraq
and the imposition of no-fly zones in northern and southern Iraq. The
treatment of Kurds in Turkey was hardly better than that meted out to their
cousins in Iraq. However, no humanitarian intervention was ever
contemplated in the case of Turkey, a NATO member and a key player in
enforcing economic and military sanctions against Iraq. Moreover, as
MacFarlane and Weiss have pointed out,
This intervention [in northern Iraq] reflected the connection of NATO
to Turkey and American antipathy to Iran dating from the overthrow of
the Shah and the hostage crisis of 1979. The effects of these strategic
impulses were evident in that the Kurds on the Turkish border were the
primary focus of the intervention, although the majority of displaced
Kurds were found not on the Turkish but on the Iranian border. These
latter were receiving only 10 per cent of their assessed needs in April
1991. Although the crisis in Iran was 23 times as severe as that in
Turkey, international assistance to Turkey was substantially higher.25
The impression that the national interests of major powers determine
decisions regarding humanitarian interventions is strengthened by the fact that
Military operations under chapter VII [undertaken for humanitarian
purposes] are agreed largely on the basis of a calculus of shared
interests or of tradeoffs among the five permanent members of the
Security Council. In June 1994, for example, disparate interests
resulted in separate council decisions to authorise interventions by the
French in Rwanda, the Americans in Haiti, and the Russians in
Georgia. Each of the three permanent members traded its vote for the
favored intervention of the other in return for support of its own
favored operation.26
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In other words, decisions to intervene even when taken for ostensibly
humanitarian purposes and within the framework of the UN Security
Council were subject to bargaining among the major powers that engaged in
quid pro quo to enhance their respective strategic and economic interests in
their spheres of influence.
DETERMINING INTERNATIONAL WILL
Since humanitarian interventions are supposedly undertaken in order to enforce
the will of the international community, such bargaining and selectivity led to
the strong suspicion that the concept of international will is being used as a fig
leaf to hide motivations based on national interest. These misgivings cannot be
allayed unless one addresses the issue as to how international will is defined and
deciphered. It is clear that the definition of such will cannot be left to major
powers or a dominant coalition of major powers especially when they may have
special reasons to carry out particular interventions to suit their own political
and strategic objectives. A mechanism that not merely is, but is also seen to be,
transparent, fair, and broadly participatory must be established to determine
international will. Such a mechanism is not present at the current time.
Recourse to the UN Security Council for authorisation or endorsement is
inadequate as a measure for determining international political will. This is the
case primarily because of the lopsided composition of that body and the
seemingly firm resolve of its permanent members to block the expansion of its
permanent membership and prevent the distribution of permanent seats more
equitably in geographic and demographic terms.27 The veto power wielded by
its permanent members makes the Security Council even more suspect in terms
of its ability to apply uniform criteria for intervention to all humanitarian
crises that may arise in the future. This is so because it excludes the possibility
of international intervention against the veto-wielding powers and their
friends and allies. In short, since the veto power of the P-5 can be exercised to
deny humanitarian relief and to prevent humanitarian intervention, it creates
a visibly discriminatory system that brings into question the legitimacy of all
humanitarian interventions sanctioned by the Security Council.28
Furthermore, even if one accepts for arguments sake that the UN
Security Council is the proper agency for authorising humanitarian
interventions, this does not resolve the legitimacy problem for such
authorised interventions. A major concern arises from the lack of control by
the Security Council over interventions authorised by it and undertaken in
its name. Many of these operations have been subcontracted to groups of
states that set the military, and often political, objectives of such
interventions thus raising doubts about their legitimacy if not their legality.
Iraq and Haiti
The decisions to intervene in northern Iraq and Haiti clearly raised qualms
in many peoples minds that it was the UN Security Council to which a role
had been allotted by the intervening powers rather than the other way
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around. In the case of northern Iraq it could be argued plausibly that UN
Security Council Resolution 688, which was used to justify forcible
intervention by the United States, Britain and France, did not specifically
authorize the use of force, and the Secretary-General did not request it,
although he did in the end acquiesce in the intervention.29 That resolution,
one could reason, was essentially hijacked by the intervening powers to
punish Iraq and destabilise the Iraqi regime in the aftermath of the Gulf War.
It was thus utilised as a substitute for the Allies unwillingness to use force
during that war to overthrow Saddam Hussein.
In the case of Haiti, the UN Security Council Resolution 940 of July
1994 authorised member states to form a multinational force [and] to use
all necessary means to facilitate the departure from Haiti of the military
dictatorship. This was a more unambiguous authorisation of the use of force
than in the case of northern Iraq. However, the fact that the U.S. had a very
strong motive in intervening in Haiti to stop the flow of Haitian refugees
into the country raised doubts in the minds of many observers regarding the
legitimacy of such intervention.30 These suspicions were reinforced by the
fact that
segments of the American foreign policy establishment [had] provided
moderate to strong support to the de facto [military] government. For
instance it has been credibly alleged that US intelligence personnel
were involved in the formation and training of the FRAPH, a
paramilitary group that was accused of some of the worst human rights
violations under the Cedras regime.31
It was only when the flow of refugees into the United States became
intolerable that Washington took the lead in putting pressure upon the UN
to sanction intervention in Haiti.
Rwanda
The feeling that the U.S. was using double standards in the case of Haiti was
strengthened by the realisation that refugee movements of a much higher order
from Rwanda during the same year did not evoke a similarly strong
interventionary response from the Security Council. This inaction was
attributed to the fact that the U.S. was disinclined to support intervention in
Africa in the aftermath of the debacle in Somalia. In short, in this view the
successful intervention in Haiti and the humanitarian disaster in Rwanda were
both related to the presence or absence of U.S. national interest concerns.
The International Panel of Eminent Personalities set up by the Organisation
of African Unity (OAU) in 1998 to investigate the 1994 genocide in Rwanda
endorsed this view. The panel came to the conclusion that
Once the genocide began, the US repeatedly and deliberately
undermined all attempts to strengthen the UN military presence in
Rwanda [W]ith the genocide taking tens of thousands of lives daily,
the Security Council chose to cut the UN forces in half at the exact
moment they needed massive reinforcement. As the horrors
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accelerated, the Council did authorise a stronger mission but once
again the US did all in its power to undermine its effectiveness. In the
end, not one single additional soldier or piece of military hardware
reached the country before the genocide ended.32
The panel also concluded that the performance of other powers, especially
France, was even worse.
Bosnia
The treatment meted out by the major powers, and by extension by the
United Nations Security Council, to the recognised government of Bosnia
during the early phase of the Bosnian crisis also created grave misgivings
about the legality of several actions authorised by the Security Council in
that country in the name of humanitarian intervention. In this particular
case, the UN Security Councils attempt initially to maintain impartiality
between the Bosnian state and the Serb insurgents in that country clearly
violated international law and the norm of state sovereignty once Bosnia had
been admitted to UN membership. As a leading commentator pointed out,
The Bosnian government expected, because Bosnia was a recognised
member state, that the UN should protect its sovereignty against the
Bosnian Serbs. Many Bosnians and Bosnian supporters believed that
the principle of neutrality was totally inappropriate because it assumed
a legal, military, and moral equality between them and the heavily
armed Bosnian Serbs Simple logic told them that the UNs neutrality
meant it was in fact siding with the Serbs.33
The treatment of the Bosnian government more or less on par with the
Serbian-supported Bosnian Serb insurgents continued until the massacre of
Bosnian Muslims in the UN protected safe haven of Srebrenica in the
summer of 1995 forced the UN and the major powers to change track. A
great deal of bloodshed in Bosnia could have been avoided had the Security
Council acted on the basis of established norms and practices of
international law and provided the much needed help to the Bosnian
government under attack by rebels backed by Serbia instead of imposing an
arms embargo on it. The embargo left the Bosnian state in a position of acute
disadvantage against Serb forces equipped by Serbia, especially since the
latter was in control of most of the equipment belonging to the Yugoslav
army before the disintegration of the federation. As the involvement of
Serbia in the Bosnian conflict, both in terms of the transfer of arms and
military personnel, had been clearly established, the Security Council could
have treated this case from the very beginning as one of aggression from
outside Bosnias borders. International assistance to Bosnia could then have
been rendered under the ambit of Chapter VII of the UN Charter. It would
have also prevented the human tragedy of Bosnia epitomised by the
Srebrenica massacre.34
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CIRCUMVENTING THE SECURITY COUNCIL
While controversy continues to surround UN-sanctioned interventions, the
legitimacy of humanitarian interventions becomes even more suspect when
they are undertaken without the authorisation of the Security Council.
Kosovo is the primary case in point. The UN Security Council had voted
unanimously in September 1998 to demand a halt to indiscriminate attacks
against the civilian population in Kosovo. However, afraid that Russia and
China would prevent the Security Council from authorising a military
intervention in Kosovo to enforce this demand, NATO took the decision in
October 1998 to intervene unilaterally and began its air operation against
Yugoslavia in March 1999. As for NATOs right to act without explicit UN
authorisation, [NATO Secretary General] Solana argued that it [NATO] is a
serious organization that takes a decision by consensus among serious
countries with democratic governments, implying this fact alone conferred
sufficient legitimacy on the contemplated action.35
Despite the existence of a strong moral case for intervention in Kosovo, the
lack of authorisation by the UN Security Council immediately made it suspect
in the eyes of a large number of states in the international system. The Security
Council, even if a flawed instrument, at least gave some degree of legitimacy
to actions taken on behalf of the society of states. The Kosovo intervention not
only ignored the Security Council, but its proponents and executors added
insult to injury by continuing to proclaim that it had been undertaken on
behalf of the international community.36 If generalised, this type of justification
for intervention, either by a single power or by a multinational coalition,
undertaken without proper authorisation and oversight by the Security
Council, is likely not merely to confuse the discussion about humanitarian
intervention but to discredit the very idea itself. It is likely to do so because
such intervention is based on the unilateral arrogation by a state or a coalition
of states of the right to speak and act on behalf of the international community
and to represent international will when this is patently not the case.
When such arrogation takes place as the preliminary but crucial step
toward violating the fundamental organising principle of international
political life state sovereignty it raises serious concerns in the minds of
policy makers and analysts around the world. When it has the potential to
be used as a precedent to justify other similar actions it clearly undermines
international order. As Bruno Simma has argued, [T]he decisive point is that
we should not change the rules simply to follow our humanitarian impulses;
we should not set new standards only to do the right thing in a single case.
The legal issues presented by the Kosovo crisis are particularly impressive
proof that hard cases make bad law.37
The concept of sovereignty and the degree to which it can be exercised
today may be contested. However, one cannot deny the fact that not merely
the UN Charter but also the accumulated norms of international society
create a distinct predisposition towards accepting sovereignty claims unless
a very strong case can be made that these claims need to be overridden. In
order to disregard the legal claims of sovereignty, there must be a clear and
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demonstrated consensus on the part of a very large majority of states that
such exceptional circumstances exist in a particular instance that they
demand violation of the sovereignty norm. It must also be demonstrated that
such violation is not being committed for ulterior motives by intervening
states. Furthermore, it must be established clearly that the same yardstick
will apply to all cases similar to the one in which intervention is sanctioned
for humanitarian reasons. If the Kosovo case proves anything it is that the
criteria for intervention must be very stringent, restrictive, and nondiscriminatory for such interventions to be considered legitimate.
POTENTIAL FOR ABUSE
The foregoing analysis brings up some very fundamental concerns that I
harbour about humanitarian intervention in a world composed of sovereign
states but where power is unequally distributed among them. First, given the
disparity in power among states, humanitarian intervention has the strong
potential of becoming a tool for the interference by the strong in the affairs
of the weak, with humanitarian considerations providing a veneer to justify
such intervention. This would be a throwback to a hyper-realist world that
will no longer be undergirded by the norms of international society. This
outcome must be avoided at all costs for it will be extremely derogatory to
international order and is likely to create a Hobbesian state of nature in the
interactions of states with each other. In other words, the international system
will revert to the state where it is merely a system but no longer a society.38
Second, and equally important, the selective derogation of state
sovereignty by the use or misuse of humanitarian intervention may end up
detracting from the most essential instrument, the principle of sovereignty, that
has been used for the maintenance of international order during the past four
centuries.39 The principle of sovereignty has also contributed to international
justice, even if modestly, by acting as a normative barrier against the predatory
instincts of the more powerful states. Sovereignty has underwritten
international order primarily by enshrining the doctrine of non-intervention in
the internal affairs of states as an essential ingredient of international society.
While this may not have prevented interventions in the past, it has acted quite
effectively as a normative requirement by forcing potential or actual
interveners to justify their actions before their sovereign, and legally equal,
peers. Changing the normative yardsticks governing intervention (which have
traditionally had a pronounced bias toward non-intervention) may end up
doing more harm than good to international order in the long run.
My third concern, and one very inadequately addressed in the debate about
humanitarian intervention, is that state sovereignty, as a legal and normative
concept, acts as the cornerstone for the only institutional architecture capable
of providing order within territorially defined political communities. It goes
without saying that the preservation of domestic order is essential for the
maintenance of international order. But preserving domestic order is also
essential for the attainment of other values, including human rights, that most
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people hold dear. By eroding the legal basis of sovereign authority,
humanitarian intervention, especially as practised during the past decade, may
be opening the floodgates for domestic disorder. This, in turn, could negatively
affect international order as well as the individuals most basic requirements
for civilised existence. In the absence of domestic order one does not
experience freedom but anarchy where the weak and the vulnerable (both
within states and among them) are at the greatest disadvantage.
One has only to have a passing acquaintance with Thomas Hobbess
writings to realise the verity of this assertion.40 Furthermore, as recent
experience has demonstrated, there is no institution other than the state that
has the will or the ability to provide domestic order to societies. International
organisations, NGOs, as well as external powers have all tried their hand at
providing political order but have failed to do so. They have eventually been
forced to re-establish institutions of state to perform this most fundamental
task. The UN Transitional Authority in Cambodia (UNTAC) had to hand over
the reins of power to a Cambodian government although the latters
legitimacy was less than completely established and its effectiveness was in
question.41 In East Timor, the UN continues to face a conundrum because of
the unwillingness or inability of the UN Transitional Administration in East
Timor (UNTAET) to hand over the substance of power to local authorities. As
a result, it is increasingly alienating the local population and may find a revolt
on its hands.42 In the absence of feasible alternatives, eroding the legitimacy
and capacity of the state as an institution to provide order, even if it does so at
times by the use of excessive force, usually turns out to be counter-productive.
STATE MAKING AND VIOLENCE
Finally, given the past record, it would appear that the likely targets of
humanitarian intervention in the future would be new and weak states
struggling to establish themselves as full-fledged members of the
international system. It would be unrealistic to assume that they will be able
to do so without the exercise of some violence. Such violence is, and will be,
unavoidable, in light of the fact that new states, meaning those that have
emerged since the end of World War II and form a majority of members of
the international system, will continue to suffer for quite some time from the
twin problems of incomplete state making and inadequate nation
formation.43 Consequently, the coercive forces of the state may be frequently
pitted against recalcitrant elements that refuse to accept the authority of the
emerging state that is attempting to centralise power in its hands. Viewed
through this prism it becomes clear that Kosovo was not so much an
exception to the rule as a part of a historical trajectory that goes back several
centuries to the founding of modern sovereign states in Western Europe.
Those familiar with the history of Europe (or, indeed of the United States)
will immediately recognise such violence as belonging to the same category of
state making wars that Western and Central Europe experienced from the
sixteenth to the nineteenth centuries and the United States did in the Civil War
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of the 1860s and in its campaigns against native Americans. Such intrastate and
interstate conflicts were then considered essential instruments for the
imposition, maintenance, and legitimisation of political order. They serve much
the same purpose now.44 Using such outbursts of violent conflict as justification
for humanitarian intervention not merely defies the historical trajectory of state
making but is likely to have major negative impact on the endeavour to impose
and maintain domestic order. This is a subject that is under-explored in the
literature on humanitarian intervention but deserves closer and fuller scrutiny.
The bottom line is that a degree of violence is bound to accompany the
state making and nation building process. Such violence is inescapable in light
of the fact that political entities that emerged after World War II and, again,
in the early 1990s after the demise of the Soviet Union and the disintegration
of Yugoslavia have had no other option but to emulate the established states
in terms of acquiring control over populations and territories. Where they
have not been able to acquire such control, as in parts of sub-Saharan Africa
and Central Asia, they have remained the butt of international ridicule and
suffer from permanent marginalisation in international affairs.
Established international norms demand effective statehood from new
states in a drastically shortened time frame compared to their European
predecessors. At the same time, these states are subjected to a contradictory
set of normative demands emanating from the international system, viz., that
of civilised behaviour toward their populations, including those within their
boundaries who oppose the dominant state making project. One wonders if
West European and North American states would have successfully
completed their state building endeavours and eventually emerged as liberal,
democratic states, if they had the UN Human Rights Commission, Amnesty
International and now the UN Security Council breathing down their necks
during the crucial early phases of their state making endeavours.
It is true, however, that international sensibility regarding human rights
and their violations have changed quite radically during the past 50 years
and this reality cannot be ignored. Therefore, a moral case can certainly be
made regarding the need for humanitarian intervention and the violation of
sovereignty that such intervention may necessarily entail. As one author has
suggested, [I]t would be extreme to suggest that sovereignty is absolute to
the point of protecting the right of a state to carry out genocide, massive
human rights violations, and generally terrorizing the population.45 But,
even in this changed normative context, one cannot neglect totally the
imperatives of the state making process, especially since states continue to be
the only providers of domestic order. Balancing the two demands, therefore,
means that not only should the decision to intervene not be taken lightly, but
also that there must be a transparent and legitimate mechanism through
which such decisions are made on an impartial basis not affected by the
national interest concerns of the intervening powers. For, once the latter is
seen to happen the moral force of the humanitarian intervention argument
will dissipate very quickly.
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HUMANITARIAN INTERVENTION AND CHAPTER VII
In an attempt, however partial, to address this crucial issue of reconciling the
demands of state sovereignty with the need for humanitarian intervention
where there is irrefutable evidence of sustained and systematic violation of
human rights, I would like to make the following two suggestions. First, I
would like to argue strongly that humanitarian interventions should not be
undertaken under the provisions of Chapter VII of the UN Charter because the
circumstances that lead to such interventions usually do not fall within the
ambit of threats to international peace and security as defined in that chapter.
Much of the violence that usually prompts such intervention is intrastate in
character. Even where there are cross border implications of such violence,
usually in the form of refugees spilling over into neighbouring states, these do
not normally fall in the category of interstate conflict or aggression by one
state against another. It was certainly not the intent of the framers of the
Charter to use Chapter VII provisions for purposes of intervention within the
domestic jurisdiction of states. Chapter VII was intended to augment the
sovereignty of states and protect them from external aggression and unwanted
intervention, not to intervene in their domestic affairs. As such, humanitarian
interventions subvert the very purpose for which the Chapter was written.
Paradoxically, the use of Chapter VII has precluded the use of the UN as an
instrument of intervention in certain cases where such action was likely to have
been vetoed by one or more of the permanent members of the Security Council.
Kosovo was the prime example of this type of intervention undertaken without
the authorisation of the UN because of the inadequacy of Chapter VII in
reconciling the P-5s right to veto with the ostensibly altruistic intent of
humanitarian intervention. Consequently, even a document as sympathetic to
humanitarian intervention as the report by the Independent International
Commission on Kosovo was forced to admit that The intervention laid bare the
inadequate state of international law. The intervention was not legal because it
contravened the Charter prohibitions on the unauthorized use of force.46
NEED FOR A NEW MECHANISM
In light of these deficiencies it is clear that Chapter VII is not the proper
mechanism for authorising humanitarian intervention. It is clear that in order
to provide for such intervention the Charter must be amended and new articles
included carefully listing the conditions under which humanitarian intervention
can be considered permissible and the mechanism through which such
intervention must be conducted. This means, above all that decisions regarding
such interventions must be removed from the jurisdiction of the Security
Council. A new more broadly based body, call it the Humanitarian Council if
you will, must be created with adequate representation from all regions and
with rotating membership reflecting the diverse composition of the United
Nations. It should consist of at least 50 members, approximately a quarter of
the total membership of the UN. Decisions to intervene for humanitarian
purposes must require at least a three-quarters majority of the membership of
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the proposed Council with no state having the right to veto such a decision. It
must also be vested with oversight functions in regard to every intervention
sanctioned by it. This oversight function should be exercised through the UN
Secretary General who must report periodically to the proposed body.
It is essential that the authority for undertaking humanitarian intervention
be removed from the Security Council and vested in a larger and more
representative body in order to provide the much needed legitimacy and
credibility to such intervention. This becomes imperative because there is no
sign that the P-5 will be willing to suspend their veto powers when it comes to
dealing with humanitarian crises or to act with consistency regarding similar
crises no matter where they develop around the world. Such a major
amendment of the UN Charter may appear impossible to many advocates of
humanitarian intervention who would consider it unrealistic and not
adequately sensitive to the realpolitik considerations driving the policies of
major powers. This, however, would demonstrate the internal inconsistency of
their logic. For, decisions to intervene for humanitarian purposes are not
supposed to be subject to the logic of realpolitik. If they are, then such
interventions are not humanitarian in character. Eroding the normative basis
of international society in order to provide major powers the facility to
intervene selectively in the domestic affairs of weaker states should not be a
part of the logic of humanitarian intervention.
COMPLEX POLITICAL EMERGENCIES
A transparent and participatory process will also allow the international
community to clearly distinguish human rights violations by institutions of
the state from complex political emergencies that result primarily from state
failure.47 In the former case, state elites use disproportionate force in order to
promote their state and/or nation building project and bring dissent to a quick
if violent end. In the process they violate the human rights of groups and
individuals that are opposed to their state and nation building goals. A quick
and definitive outcome, even if not always achieved, is clearly envisaged by the
state elites perpetrating violence and violating human rights.
In the case of complex political emergencies, state collapse leads, among
other things, to the emergence of conflict entrepreneurs who benefit from
internal chaos and war and thus possess a vested interest in their indefinite, or
at least prolonged, continuation.48 Their goal is, therefore, to perpetuate
conflict rather than bring it to an end. This has led David Keen to point out that
[I]nternal conflicts have persisted not so much despite the intentions of
rational people, as because of them. The apparent chaos of civil war
can be used to further local and short-term interests. These are
frequently economic: to paraphrase Carl von Clausewitz, war has
increasingly become the continuation of economics by other means.
War is not simply a breakdown in a particular system, but a way of
creating an alternative system of profit, power and even protection.49
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A major reason for state collapse and the emergence of conflict entrepreneurs
is related to the end of the Cold War. The superpowers lost interest in a large
number of peripheral states, especially in Africa, that no longer served their
strategic purpose. During the Cold War, client regimes had been supplied
with external assistance by the superpowers to help them stay in power by
buying off and/or suppressing domestic opponents. With the withdrawal of
external support these regimes were confronted by strongmen whom they
could neither purchase nor control. Consequently, as William Reno has made
clear with regard to civil wars in Liberia and Sierra Leone, such conflicts,
which often lead to state collapse, are an outgrowth of the struggle between
once dominant regimes and increasingly enterprising strongmen to control
markets, both internally and externally, and convert that control into political
authority.50 In many cases, this results in the collapse of the state with various
contenders fighting over its carcass primarily in order to attain external
legitimacy that donning the mantle of the state provides to them.
Liberia, Somalia, Sierra Leone, Congo/Zaire, among others, fall within
this category of complex political emergencies that accompany state failure.
Northern Iraq, Haiti and Kosovo certainly did not. It is interesting, however,
that Great Power interest in intervening in the latter cases was of a much
higher order than in the former. It also explains why ECOWASs intervention
in Liberia and the UN mission in Somalia were far less controversial than the
Security Councils decision to authorise intervention in northern Iraq and the
NATO intervention in Kosovo. The profusion of state collapse, or its
likelihood, in sub-Saharan Africa explains to a considerable degree the greater
acceptance of outside intervention in Africa as compared to other regions.51
Simultaneously, the low priority of that region in the strategic calculations of
the dominant coalition as compared to Europe or the Middle East explains
the relative indifference of the international community to humanitarian
crises in Africa.
From the perspective of international society it is clear that the
intervention in the two sets of cases distinguished above must be crafted in
very different ways from each other, with the complex political emergencies
deserving greater attention and more intense military involvement. Moral
suasion, economic sanctions, and the equivalent of an international social
boycott must be the instruments of first choice when dealing with states that
routinely violate the human rights of their citizens. These tools are unlikely
to work in the cases defined as complex political emergencies where states
have collapsed or are about to do so. In the latter case, forcible, primarily
military, intervention may be the only means available to provide essential
goods and services to suffering populations as well as to bring the multiple
perpetrators of terror to book. Humanitarian emergencies accompanying
state failure are unlikely to pose the normative constraints on international
intervention that the former would pose. In the absence of a recognisable
sovereign authority, the question of violating state sovereignty becomes
largely redundant. Therefore, the legal barriers for international action are
drastically lowered.
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These two ideal types of conflict do not exhaust all the scenarios in which
international intervention may be demanded and/or considered. In fact,
most concrete cases are likely to fall somewhere between the two ideal types
and to possess characteristics that straddle the divide between them. Political
leaders may attempt to use the state-making justification for purely
predatory purposes à la Mobutu of Zaire. Alternatively, the use of excessive
violence for state-making purposes may itself prompt state collapse, as for
example in East Pakistan in 197071.
The likely prevalence of cases that combine the characteristics of statemaking violence with those accompanying state failure makes it more
imperative that decisions to intervene be taken by a body that is perceived to
be genuinely representative of the international community and is considered
to be largely impartial. Unlike the Security Council as it is currently
constituted, such a body will be able to deliberate about complex cases
transparently without being unduly influenced by the national interest
considerations of major powers. Ad hoc decisions that lead to selective
intervention and that are viewed as being linked to the national interests of
major powers are likely to eventually discredit the very notion of humanitarian
intervention as well as introduce greater disorder into international society.
The future of international order may well hinge on the way we are able to
resolve the tension between international intervention and state sovereignty.
In some cases, as those of state failure, such intervention may become a
necessity. In others, a more prudent as well as non-discriminatory approach will
be required. The demands for humanitarian activism and respect for state
sovereignty can be credibly balanced only when decisions to intervene are taken
by an institution that is representative and through a process that is transparent.
These qualities are essential to provide international legitimacy for decisions to
intervene in the internal affairs of states when such decisions are supposedly
taken on behalf of the international community. In their absence suspicions will
persist that it is the national interests of the powerful that dictate such decisions
rather than the collective interests of the society of states.
ORDER VERSUS JUSTICE
Underlying the debate over humanitarian intervention and state sovereignty
is the perennial problem of order versus justice in the international system.
However, in this case the debate intertwines two levels of the orderjustice
problem. At one level, the demand for human rights, which usually provides
the context and often the pretext for humanitarian intervention, can be seen
as the claim of individuals and substate groups for justice pitted against the
states claim that order comes prior to justice. The corollary of the latter claim
is that as the sole dispenser of domestic order the state has the right to tailor
the need for justice to the requirements of order.
At another level, the defence of state sovereignty against the undue
excesses of humanitarian intervention can be seen as the demand for justice
by the weaker states against the stronger states proclivity to impose their
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preferred view of international order on the weak in the name of justice
within states. Moral and normative claims can and will be advanced in the
name of justice at both levels. The trick is to balance these claims carefully so
as not to detract severely either from fragile domestic orders or from an
international order that itself continues to remain in uneasy equilibrium.
The tension between state sovereignty and humanitarian intervention also
brings to the fore the fundamental tensions between the Northern and
Southern perspectives on order and justice in the international system. This
tension can be summarised, with some risk of oversimplification, in the
following manner: While the North is primarily interested in justice within
states and order among them, the South is basically committed to order
within states and justice among them. This divergence in the Northern and
Southern perceptions of order and justice and the different realms to which
they apply is intimately related to where the two groups are generally located
in terms of their state-making odyssey and the technological, military and
economic capabilities at their disposal. States at an earlier stage of state
making and inferior in terms of capabilities are likely to defend their
sovereignty zealously. Those states that are well established, i.e. possess
unconditional legitimacy in the eyes of their populations, and more powerful
are, on the other hand, likely to be more interventionist in their inclinations.
They can be presumed to be more inclined to overrule the claims of state
sovereignty, especially since they know that their own sovereign claims are
unlikely to be challenged from within or superseded from without.
The tension analysed in this article is, therefore, likely to remain with us
for a long time to come. It will be resolved only when the newcomers to the
international system succeed in establishing effective and legitimate states as
well as in narrowing the power gap between them and the established states
of the global North. In the meantime, the society of states will have to
continuously grapple with this issue and balance the demands of the two
sides in such a fashion that neither sides basic commitment to the
fundamental rules governing international society is eroded and the global
covenant endangered. Ignoring the power and perceptual gaps between the
North and the South and working on the misleading assumption that a
community of interests exists within the society of states as regards
humanitarian intervention is likely to put international order at considerable
risk. Both sides should remember that while order must be tempered by
justice for it to attain legitimacy, the demand for justice when oblivious to
the need for order can easily lead to anarchy. They should also realise that
this applies to the condition within states as well as among them.
NOTES
1. In my view the concept of international society is by definition pluralist in character.
Take away the pluralism and the society no longer remains inter-national. For an
elegantly presented contrary view that advances a solidarist notion of international
society, albeit acknowledging pluralist restraints on international solidarism, see
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2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
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Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International
Society (New York: Oxford University Press, 2000). I would argue the opposite: that
international society at the beginning of the twenty-first century continues to be
essentially pluralist although there may be certain solidarist restraints imposed on its
basic pluralist character.
For a discussion of the fundamental characteristics of international society as well as
the rules and norms governing it, see Hedley Bull, The Anarchical Society: A Study of
Order in World Politics (New York: Columbia University Press, 1977).
According to Robert Jackson, The global covenant is the first attempt in world history
to construct a society of states that operates with a doctrine of recognition and nonintervention that bridges different civilizations and cultures around the world. Robert
Jackson, The Global Covenant: Human Conduct in a World of States (New York:
Oxford University Press, 2000), p.13.
David P. Forsythe, Human Rights in International Relations (New York: Cambridge
University Press, 2000), p.3.
For a discussion of state failure and collapse, see I. William Zartman (ed.), Collapsed
States: The Disintegration and Restoration of Legitimate Authority (Boulder, CO:
Lynne Rienner, 1995), especially chs. 1 and 17.
For a powerful rendering of this argument, see Janice E. Thomson, State Sovereignty
in International Relations: Bridging the Gap Between Theory and Empirical Research,
International Studies Quarterly, Vol.39, No. 2 (June 1995), pp.21333.
Bendedict Kingsbury, Sovereignty and Inequality, in Andrew Hurrell and Ngaire
Woods (eds.), Inequality, Globalization, and World Politics (New York: Oxford
University Press, 1999), p.86.
See, R.J. Vincent, Nonintervention and International Order (Princeton, NJ: Princeton
University Press, 1974), p.331.
For one authoritative expression of such sentiment, see the text of Kofi Annans
statement to the UN General Assembly on 20 September 1999. The text is published
under the title Human Security and Intervention in Vital Speeches of the Day, New
York, 15 October 1999.
Jarat Chopra and Thomas G. Weiss, Sovereignty is No Longer Sacrosanct: Codifying
Humanitarian Intervention, Ethics and International Affairs, Vol.6 (1992), pp.95118.
For example, see Francis M. Deng et al., Sovereignty as Responsibility (Washington,
D.C.: The Brookings Institution, 1996).
For details, see Gerritt W. Gong, The Standard of Civilization in International Society
(Oxford: Clarendon Press, 1984).
Ibid., p.107.
Kingsbury (note 7), pp.9091.
Gene M. Lyons and Michael Mastanduno, Introduction in Gene M. Lyons and
Michael Mastanduno (eds.), Beyond Westphalia? State Sovereignty and International
Intervention (Baltimore, MD: Johns Hopkins University Press, 1995), p.13.
Lyons and Mastanduno, Introduction in Lyons and Mastanduno (ibid.), p.8.
I do not intend to enter into the controversy in this article about how national interests
themselves are defined, who defines them, etc. For the purposes of this article it will
be assumed that national interests are those objectives articulated as such by
authoritative spokesmen for the states on the basis of widely reflected consensus
among the foreign policy and security communities within those states.
Stanley Hoffmann, The Politics and Ethics of Military Intervention, Survival, Vol.37,
No.4 (Winter 199596), p.29.
Adam Roberts, The Road to Hell : A Critique of Humanitarian Intervention,
Harvard International Review, Vol.16, No.1 (Fall 1993).
See Kofi Annan, Human Security and Intervention in Vital Speeches of the Day (New
York: 15 October 1999.
Thomas G. Weiss, The Politics of Humanitarian Ideas, Security Dialogue, Vol.31,
No.1 (March 2000), p.20.
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22. S. Neil MacFarlane and Thomas Weiss, Political Interest and Humanitarian Action,
Security Studies, Vol.10, No.1 (Autumn 2000), pp.12052.
23. For details of the two interventions and events preceding and following them, see
Richard Sisson and Leo and E. Rose, War and Secession: Pakistan, India, and the
Creation of Bangladesh, Berkeley: University of California Press, 1990; and Nayan
Chanda, Brother Enemy: The War After the War, San Diego: Harcourt Brace
Jovanovich, 1986.
24. This point has also been made in connection with the selective use of the collective
security argument. See Mohammed Ayoob, Squaring the Circle: Collective Security in
a System of States, in Thomas G. Weiss (ed.), Collective Security in a Changing World
(Boulder, CO: Lynne Rienner, 1993), pp.4562
25. MacFarlane and Weiss (note 22), p.136.
26. MacFarlane and Weiss (ibid.), p.137.
27. The Independent International Commission on Kosovo concluded that additional UN
reforms could address the growing gap between legality and legitimacy that always
arises in cases of humanitarian intervention. The global credibility of the UN is
undermined by the lack of representivity of the current structure of the UN Security
Council. Expansion of the UNSC and of the permanent members will be an essential
step toward regaining the credibility to maintain an effective role as guardian of world
security. Independent International Commission on Kosovo, The Kosovo Report
(Oxford University Press, 2000), p.291.
28. Richard Falk has summed up these reservations regarding the legitimacy of actions
authorised by the Security Council in the following words: Particularly confusing is
the uncertainty regarding whether a Security Council decision involves a genuinely
collective and community interventionary judgement guided predominantly by
considerations of public good. Uncertainty clouds the degree to which such a decision
is little more than a legitimating rationale for use of force that would otherwise be
more widely viewed as illegal if undertaken by a state on its own or in coalition with
other states. Richard Falk, The Complexities of Humanitarian Intervention: A New
World Order Challenge, Michigan Journal of International Law, Vol.17 (Winter
1996), pp.4923.
29. Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian
Intervention, Kluwer Law International, Cambridge, MA, 1999, p. 153.
30. See, for example, Cynthia Weber, Dissimulating Intervention: A Reading of the USLed Intervention in Haiti, Alternatives, Vol.20, No.3 (1995), pp.26578.
31. Chetan Kumar and Elizabeth M. Cousens, Policy Briefing: Peacebuilding in Haiti, New
York: International Peace Academy, 1996), p.4. Accessed on the internet at:
http://www.ipacademy.org/Publications/Reports/Research/PublRepoReseHaitPrint
32. OAU International Panel of Eminent Personalities to Investigate the 1994 Genocide in
Rwanda and the Surrounding Events, Special Report, 7 July 2000, Executive Summary,
p.7. Accessed on the internet at: http://www.oau-oua.org/Document/ ipep/report/
rwanda-e/EN-II-EX
33. Susan L. Woodward, Balkan Tragedy: Chaos and Dissolution After the Cold War
(Washington, D.C.: Brookings Institution, 1995), p.320.
34. For a powerful indictment of the UNs imposition of an arms embargo on Bosnia and
its policy of evenhandedness between the Bosnian government and Serbian insurgents,
who perpetrated most of the human rights violations in Bosnia, see Haris Silajdzic,
Since the UN Cant Protect Us, Lift the Arms Embargo, New Perspectives Quarterly,
Vol.12 (Summer 1995), pp.389. The author was the Prime Minister of Bosnia when
this article was published.
35. Ivo H. Daalder, NATO, the UN, and the Use of Force, paper prepared for UNA-USA,
March 1999, p.10. Accessed on the internet at: http://www.unausa.org/issues/sc/
daalder
36. For a perceptive discussion of the controversies surrounding the Kosovo intervention,
see Nicholas J. Wheeler, Reflections on the Legality and Legitimacy of NATOs
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37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
15:56
Page 102
T H E I N T E R N AT I O N A L J O U R N A L O F H U M A N R I G H T S
Intervention in Kosovo, International Journal of Human Rights, Vol.4, Nos.3/4, 2000,
pp.14563.
Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, European Journal
of International Law, Vol.10, No.1 (1999), accessed on the internet at:
www.ejil.org/journal/Vol10/No1/ab1-2.
For an authoritative discussion of the difference between a hyperrealist world which is
confined to being a system and one governed by norms and rules that establish, as
well as symbolise, a society of states or international society, see Hedley Bull, The
Anarchical Society: A Study of Order in World Politics, New York: Columbia University
Press (1977), ch.1.
See Alan James, The Practice of Sovereign Statehood in Contemporary International
Society, in Robert Jackson (ed.), Sovereignty at the Millennium (Malden, MA:
Blackwell, 1999), pp.3551.
For one perceptive interpretation of Hobbes as a theorist of domestic order, see
Michael Williams, Hobbes and International Relations: Reconsideration.
International Organization, Vol.50, No.2 (1996).
For an evaluation of UNTACs achievements and failures, see Trevor Findlay,
Cambodia: The Legacy and Lessons of UNTAC, SIPRI Research Report No.9 (New
York: Oxford University Press, 1995).
For a stringent critique of the UNTAETs policies and actions by an insider, see Jarat
Chopra, The UNs Kingdom of East Timor, Survival, Vol.42, No.3 (Autumn 2000),
pp.2739.
This assertion is based on the premise, borne out by historical analysis, that most cases
of successful nation formation have been those where the state has been able to fashion
the nation through the exercise of coercion as well as persuasion but, above all, by the
very existence and resilience of state institutions within roughly the same boundaries
over a considerable period of time. For a concise yet perceptive account, see Cornelia
Navari, The Origins of the Nation-State, in Leonard Tivey (ed.), The Nation-State:
The Formation of Modern Politics (Oxford: Martin Robertson, 1981), pp.1336.
For details of this argument, see Mohammed Ayoob, State Making, State Failure and
the Revolution in Military Affairs, in Gwyn Prins and Hylke Tromp (eds.), The Future
of War (Boston: Kluwer Law International, 2000), pp.14766.
Frederick J. Petersen, The Façade of Humanitarian Intervention for Human Rights in
a Community of Sovereign States, Arizona Journal of International and Comparative
Law, Vol.15, No.3 (1998), p.882.
Independent International Commission on Kosovo (note 27), p.290.
For a review of the literature on state failure and interventions to reverse this process,
see Tonya Langford, Things Fall Apart: State Failure and the Politics of Intervention,
International Studies Review, Vol.1, No.1 (Spring 1999), pp.5979.
Jonathan Goodhand and David Hulme, From Wars to Complex Political Emergencies:
Understanding Conflict and Peace-Building in the New World Disorder, Third World
Quarterly, Vol.20, No.1 (February 1999), p.19.
David Keen, The Economic Functions of Violence in Civil Wars, Adelphi Paper 320
(Oxford: Oxford University Press, for the International Institute for Strategic Studies,
London, 1998), p.11.
William Reno, Humanitarian Emergencies and Warlord Economies in Liberia and Sierra
Leone, Working Paper No.140 (UNU World Institute for Development Economics
Research, 1997), p.2.
According to one author, During the same period [199096] when membership of the
UN shot up by 16 per cent, primarily due to the dissolution of the Soviet Empire, over
one-third of the total number of states in Africa alone have collapsed or are at risk
Karin von Hippel, Democracy by Force: US Military Intervention in the Post-Cold War
World (New York: Cambridge University Press, 2000), p.2.
The Responsibility
To Protect
december 2001
Report of the
International Commission on Intervention
and State Sovereignty
III
INTERNATIONAL COMMISSION ON
INTERVENTION AND STATE SOVEREIGNTY
Gareth Evans
Co-Chair
Mohamed Sahnoun
Co-Chair
Gisèle Côté-Harper
Lee Hamilton
Michael Ignatieff
Vladimir Lukin
Klaus Naumann
Cyril Ramaphosa
Fidel Ramos
Cornelio Sommaruga
Eduardo Stein
Ramesh Thakur
Published by the International Development Research Centre
PO Box 8500, Ottawa, ON, Canada K1G 3H9
http://www.idrc.ca
© HER MAJESTY THE QUEEN IN RIGHT OF CANADA 2001
as represented by the Minister of Foreign Affairs
National Library of Canada cataloguing in publication data
International Commission on Intervention and State Sovereignty
The Responsibility to Protect
Report of the International Commission on Intervention and State Sovereignty
Issued also in French under title : La responsabilité de protéger.
Issued by the International Development Research Centre.
Accompanied by CD-ROM
ISBN 0-88936-960-7
1.
2.
3.
4.
5.
I.
II.
Intervention (International law).
Sovereignty.
National security.
United Nations. Security Council.
Pacific settlement of international disputes.
International Development Research Centre (Canada)
Title.
JZ6368.I57 2001
327.1’7
C2001-980327-3
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V
TABLE OF CONTENTS
FOREWORD ............................................................................................................................VII
SYNOPSIS ................................................................................................................................XI
1. THE POLICY CHALLENGE..................................................................................................1
The Intervention Dilemma ..................................................................................................1
The Changing International Environment ..........................................................................3
The Implications for State Sovereignty ................................................................................7
The Meaning of Intervention................................................................................................8
2. A NEW APPROACH: “THE RESPONSIBILITY TO PROTECT” ......................................11
The Meaning of Sovereignty ..............................................................................................12
Human Rights, Human Security and Emerging Practice..................................................14
Shifting the Terms of the Debate ......................................................................................16
3. THE RESPONSIBILITY TO PREVENT ..............................................................................19
A Commitment to Prevention............................................................................................19
Early Warning and Analysis ................................................................................................21
Root Cause Prevention Efforts ..........................................................................................22
Direct Prevention Efforts ....................................................................................................23
4. THE RESPONSIBILITY TO REACT ..................................................................................29
Measures Short of Military Action ....................................................................................29
The Decision to Intervene ..................................................................................................31
Threshold Criteria: Just Cause............................................................................................32
Other Precautionary Criteria ..............................................................................................35
5. THE RESPONSIBILITY TO REBUILD ..............................................................................39
Post-Intervention Obligations............................................................................................39
Administration under UN Authority ................................................................................43
Local Ownership and the Limits to Occupation ..............................................................44
6. THE QUESTION OF AUTHORITY....................................................................................47
Sources of Authority under the UN Charter ....................................................................47
The Security Council’s Role – and Responsibility ............................................................49
When the Security Council Fails to Act ............................................................................53
The Responsibility to Protect
VI
7. THE OPERATIONAL DIMENSION ..................................................................................57
Preventive Operations ........................................................................................................57
Planning for Military Intervention ....................................................................................58
Carrying Out Military Intervention....................................................................................61
Following Up Military Intervention ..................................................................................64
A Doctrine For Human Protection Operations ................................................................66
8. THE RESPONSIBILITY TO PROTECT: THE WAY FORWARD........................................69
From Analysis to Action ....................................................................................................69
Mobilizing Domestic Political Will....................................................................................70
Mobilizing International Political Will ............................................................................72
Next Steps ............................................................................................................................73
Meeting the Challenge........................................................................................................75
APPENDIX A: MEMBERS OF THE COMMISSION ..............................................................77
APPENDIX B: HOW THE COMMISSION WORKED ..........................................................81
INDEX ......................................................................................................................................87
VII
foreword
This report is about the so-called “right of humanitarian intervention”: the question of
when, if ever, it is appropriate for states to take coercive – and in particular military – action,
against another state for the purpose of protecting people at risk in that other state. At least
until the horrifying events of 11 September 2001 brought to center stage the international
response to terrorism, the issue of intervention for human protection purposes has been
seen as one of the most controversial and difficult of all international relations questions.
With the end of the Cold War, it became a live issue as never before. Many calls for
intervention have been made over the last decade – some of them answered and some of
them ignored. But there continues to be disagreement as to whether, if there is a right
of intervention, how and when it should be exercised, and under whose authority.
The Policy Challenge
External military intervention for human protection purposes has been controversial both
when it has happened – as in Somalia, Bosnia and Kosovo – and when it has failed to happen,
as in Rwanda. For some the new activism has been a long overdue internationalization of the
human conscience; for others it has been an alarming breach of an international state order
dependent on the sovereignty of states and the inviolability of their territory. For some, again,
the only real issue is ensuring that coercive interventions are effective; for others, questions
about legality, process and the possible misuse of precedent loom much larger.
NATO’s intervention in Kosovo in 1999 brought the controversy to its most intense head.
Security Council members were divided; the legal justification for military action without new
Security Council authority was asserted but largely unargued; the moral or humanitarian
justification for the action, which on the face of it was much stronger, was clouded by
allegations that the intervention generated more carnage than it averted; and there were many
criticisms of the way in which the NATO allies conducted the operation.
At the United Nations General Assembly in 1999, and again in 2000, Secretary-General Kofi
Annan made compelling pleas to the international community to try to find, once and for all,
a new consensus on how to approach these issues, to “forge unity” around the basic questions
of principle and process involved. He posed the central question starkly and directly:
…if humanitarian intervention is, indeed, an unacceptable assault on
sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross
and systematic violations of human rights that affect every precept of our
common humanity?
It was in response to this challenge that the Government of Canada, together with a group
of major foundations, announced at the General Assembly in September 2000 the establishment of the International Commission on Intervention and State Sovereignty (ICISS).
Our Commission was asked to wrestle with the whole range of questions – legal, moral,
operational and political – rolled up in this debate, to consult with the widest possible
range of opinion around the world, and to bring back a report that would help the
Secretary-General and everyone else find some new common ground.
The Responsibility to Protect
VIII
The Commission’s Report
The report which we now present has been unanimously agreed by the twelve
Commissioners. Its central theme, reflected in the title, is “The Responsibility to Protect”,
the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are
unwilling or unable to do so, that responsibility must be borne by the broader community
of states. The nature and dimensions of that responsibility are argued out, as are all the
questions that must be answered about who should exercise it, under whose authority, and
when, where and how. We hope very much that the report will break new ground in a way
that helps generate a new international consensus on these issues. It is desperately needed.
As Co-Chairs we are indebted to our fellow Commissioners for the extraordinary qualities
of knowledge, experience and judgement they brought to the preparation of this report over
a long and gruelling year of meetings. The Commissioners brought many different personal
views to the table, and the report on which we have agreed does not reflect in all respects
the preferred views of any one of them. In particular, some of our members preferred a
wider range of threshold criteria for military intervention than those proposed in our report,
and others a narrower range. Again, some Commissioners preferred more, and others less,
flexibility for military intervention outside the scope of Security Council approval.
But the text on which we have found consensus does reflect the shared views of all
Commissioners as to what is politically achievable in the world as we know it today. We
want no more Rwandas, and we believe that the adoption of the proposals in our report is
the best way of ensuring that. We share a belief that it is critical to move the international
consensus forward, and we know that we cannot begin to achieve that if we cannot find
consensus among ourselves. We simply hope that what we have achieved can now be
mirrored in the wider international community.
The Report and the Events of 11 September 2001
The Commission’s report was largely completed before the appalling attacks of
11 September 2001 on New York and Washington DC, and was not conceived as addressing
the kind of challenge posed by such attacks. Our report has aimed at providing precise
guidance for states faced with human protection claims in other states; it has not been
framed to guide the policy of states when faced with attack on their own nationals, or the
nationals of other states residing within their borders.
The two situations in our judgement are fundamentally different. The framework the
Commission, after consultations around the world, has developed to address the first case
(coping with human protection claims in other states) must not be confused with the
framework necessary to deal with the second (responding to terrorist attacks in one’s own
state). Not the least of the differences is that in the latter case the UN Charter provides much
more explicit authority for a military response than in the case of intervention for human
protection purposes: Article 51 acknowledges “the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations”, though
requiring that the measures taken be immediately reported to the Security Council. In
Resolutions 1368 and 1373, passed unanimously in the aftermath of the September attacks,
the Security Council left no doubt as to the scope of measures that states could and should
take in response.
The Responsibility to Protect
IX
While for the reasons stated we have not – except in passing – addressed in the body of
our report the issues raised by the 11 September attacks, there are aspects of our report which
do have some relevance to the issues with which the international community has been
grappling in the aftermath of those attacks. In particular, the precautionary principles
outlined in our report do seem to be relevant to military operations, both multilateral and
unilateral, against the scourge of terrorism. We have no difficulty in principle with focused
military action being taken against international terrorists and those who harbour them. But
military power should always be exercised in a principled way, and the principles of right
intention, last resort, proportional means and reasonable prospects outlined in our report
are, on the face of it, all applicable to such action.
Acknowledgements
The research and consultations on which the Commission report is based, and the way in
which we went about our task, are described in detail in the accompanying supplementary
volume, titled “Research, Bibliography, Background”. We are indebted to former Canadian
Foreign Affairs Minister Lloyd Axworthy, who initiated the Commission and chaired our
Advisory Board, and to his successor John Manley who carried it through; to our Canadian
support team, headed by Jill Sinclair and Heidi Hulan, for their boundless enthusiasm and
energy; and to our research team, headed by Thomas Weiss and Stanlake Samkange, for their
dedication and wise counsel. Our work has also benefited profoundly from that of many
others who have researched and published on the many different issues on which this report
touches, and we acknowledge that contribution more fully in the supplementary volume.
We have not tried to reproduce in our report work which has been well and fully done
elsewhere – for example on the subject of prevention or operational issues – but we are
profoundly conscious of the many debts we owe.
We particularly want to emphasize the benefit we derived from the series of lengthy
roundtable discussions we conducted in Beijing, Cairo, Geneva, London, Maputo, New
Delhi, New York, Ottawa, Paris, St Petersburg, Santiago and Washington. The meetings
involved representatives from governments and inter-governmental organizations, from
non-governmental organizations and civil society, and from universities, research institutes
and think tanks – in all, over 200 people. These roundtable meetings proved to be a
wonderfully rich source of information, ideas and diverse political perspectives, and an
excellent real world environment in which the Commission could test its own ideas as they
evolved. If we have in our report succeeded in breaking new ground, finding new and
constructive ways to tackle the long-standing policy dilemmas associated with intervention
for human protection purposes, there are a great many others who can justly claim a share
of that success.
GARETH EVANS
MOHAMED SAHNOUN
Co-Chairs
30 September 2001
XI
synopsis
THE RESPONSIBILITY TO PROTECT:
CORE PRINCIPLES
(1) Basic Principles
A. State sovereignty implies responsibility, and the primary responsibility for the
protection of its people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war, insurgency,
repression or state failure, and the state in question is unwilling or unable to halt or
avert it, the principle of non-intervention yields to the international responsibility
to protect.
(2) Foundations
The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in:
A. obligations inherent in the concept of sovereignty;
B. the responsibility of the Security Council, under Article 24 of the UN Charter, for
the maintenance of international peace and security;
C. specific legal obligations under human rights and human protection declarations,
covenants and treaties, international humanitarian law and national law;
D. the developing practice of states, regional organizations and the Security Council itself.
(3) Elements
The responsibility to protect embraces three specific responsibilities:
A. The responsibility to prevent: to address both the root causes and direct causes of
internal conflict and other man-made crises putting populations at risk.
B. The responsibility to react: to respond to situations of compelling human need
with appropriate measures, which may include coercive measures like sanctions
and international prosecution, and in extreme cases military intervention.
C. The responsibility to rebuild: to provide, particularly after a military intervention,
full assistance with recovery, reconstruction and reconciliation, addressing the
causes of the harm the intervention was designed to halt or avert.
(4) Priorities
A. Prevention is the single most important dimension of the responsibility to protect:
prevention options should always be exhausted before intervention is contemplated,
and more commitment and resources must be devoted to it.
B. The exercise of the responsibility to both prevent and react should always involve
less intrusive and coercive measures being considered before more coercive and
intrusive ones are applied.
The Responsibility to Protect
XII
The Responsibility to Protect:
Principles for Military Intervention
(1) The Just Cause Threshold
Military intervention for human protection purposes is an exceptional and extraordinary measure. To be warranted, there must be serious and irreparable harm occurring
to human beings, or imminently likely to occur, of the following kind:
A. large scale loss of life, actual or apprehended, with genocidal intent or not, which
is the product either of deliberate state action, or state neglect or inability to act, or
a failed state situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing,
forced expulsion, acts of terror or rape.
(2) The Precautionary Principles
A. Right intention: The primary purpose of the intervention, whatever other motives
intervening states may have, must be to halt or avert human suffering. Right
intention is better assured with multilateral operations, clearly supported by
regional opinion and the victims concerned.
B. Last resort: Military intervention can only be justified when every non-military
option for the prevention or peaceful resolution of the crisis has been explored,
with reasonable grounds for believing lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the planned military
intervention should be the minimum necessary to secure the defined human
protection objective.
D. Reasonable prospects: There must be a reasonable chance of success in halting or
averting the suffering which has justified the intervention, with the consequences of
action not likely to be worse than the consequences of inaction.
(3) Right Authority
A. There is no better or more appropriate body than the United Nations Security
Council to authorize military intervention for human protection purposes. The task
is not to find alternatives to the Security Council as a source of authority, but to
make the Security Council work better than it has.
B. Security Council authorization should in all cases be sought prior to any military
intervention action being carried out. Those calling for an intervention should
formally request such authorization, or have the Council raise the matter on its own
initiative, or have the Secretary-General raise it under Article 99 of the UN Charter.
C. The Security Council should deal promptly with any request for authority to
intervene where there are allegations of large scale loss of human life or ethnic
cleansing. It should in this context seek adequate verification of facts or conditions
on the ground that might support a military intervention.
The Responsibility to Protect
XIII
D. The Permanent Five members of the Security Council should agree not to apply
their veto power, in matters where their vital state interests are not involved, to
obstruct the passage of resolutions authorizing military intervention for human
protection purposes for which there is otherwise majority support.
E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time,
alternative options are:
I. consideration of the matter by the General Assembly in Emergency Special
Session under the “Uniting for Peace” procedure; and
II. action within area of jurisdiction by regional or sub-regional organizations
under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.
F.
The Security Council should take into account in all its deliberations that, if it fails
to discharge its responsibility to protect in conscience-shocking situations crying
out for action, concerned states may not rule out other means to meet the gravity
and urgency of that situation – and that the stature and credibility of the United
Nations may suffer thereby.
(4) Operational Principles
A. Clear objectives; clear and unambiguous mandate at all times; and resources
to match.
B. Common military approach among involved partners; unity of command; clear
and unequivocal communications and chain of command.
C. Acceptance of limitations, incrementalism and gradualism in the application of
force, the objective being protection of a population, not defeat of a state.
D. Rules of engagement which fit the operational concept; are precise; reflect the
principle of proportionality; and involve total adherence to international
humanitarian law.
E. Acceptance that force protection cannot become the principal objective.
F.
Maximum possible coordination with humanitarian organizations.
1
1. THE POLICY CHALLENGE
THE INTERVENTION DILEMMA
1.1 “Humanitarian intervention” has been controversial both when it happens, and when
it has failed to happen. Rwanda in 1994 laid bare the full horror of inaction. The United
Nations (UN) Secretariat and some permanent members of the Security Council knew
that officials connected to the then government were planning genocide; UN forces were
present, though not in sufficient number at the outset; and credible strategies were available
to prevent, or at least greatly mitigate, the slaughter which followed. But the Security
Council refused to take the necessary action. That was a failure of international will – of
civic courage – at the highest level. Its consequence was not merely a humanitarian
catastrophe for Rwanda: the genocide destabilized the entire Great Lakes region and
continues to do so. In the aftermath, many African peoples concluded that, for all the
rhetoric about the universality of human rights, some human lives end up mattering a great
deal less to the international community than others.
1.2 Kosovo – where intervention did take place in 1999 – concentrated attention on all
the other sides of the argument. The operation raised major questions about the legitimacy
of military intervention in a sovereign state. Was the cause just: were the human rights
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