HUMANITARIAN RELIEF AID:
DOES IT PROTECT THE NEEDY? (*)
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by  Sadruddin Aga Khan, Fondation Bellerive, Geneva
(25 October 1992 - version française)

        Increasing instability in certain parts of the world produces civil strife, famine and displacement of populations, genocide, ethnic cleansing, torture: man's capacity to harm his neighbor is enhanced through the proliferation of sophisticated weaponry.  Until international structures are adapted or complemented with better ones, tragedies similar to those which are unfolding in Somalia, the former Yugoslavia and Iraq, will multiply.

        There are fundamental problems with the present means of providing humanitarian aid.  The United Nations, for example, is criticized for applying a "band-aid" approach in providing relief assistance.  In the past, this was in part due to constraints placed upon the UN by governments during the Cold War period.  The UN had to separate the provision of humanitarian aid from political attempts to address causes of strife.  This was particularly true during my days as United Nations High Commissioner for Refugees from 1965 to 1977.  If one waited until the root causes of conflict were resolved, relief aid would never reach those in need in time to alleviate suffering.  Assistance was not always satisfactory, but being apolitical, its delivery could be facilitated, albeit on a limited basis, in a bi-polarized world where conflict often remained beyond resolution.

        For a number of reasons, the UN has never been able or allowed to achieve a level of optimum operational efficiency.  The situation was further aggravated by bureaucratic contradictions in responding to humanitarian emergencies.  UN aid agencies sometimes compete with one another for scarce funds.  During emergencies, internal competition adds to other duplications of effort.  Furthermore, the UN has not always been able to find sufficient personnel competent to handle emergencies, particularly in the field.

        In order to reduce reaction time to emergencies, the operational capability of the International Committee of the Red Cross (ICRC) and private voluntary organizations to provide relief aid need to be strengthened as these organizations will often be the first on the ground due to their flexible structures and terms of reference.  Private voluntary organizations should be the operational partners of the UN.  Timely and coordinated interaction by these different actors is necessary (1).  The technical expertise of UN agencies makes the UN better able to provide long-term assistance which is, for example, beyond the resources of private voluntary organizations.  In some situations, governments may be willing to lend the UN specially trained military units, e.g. medical personnel, engineers, for rapid deployment where an emergency strikes.  This, however, would require the consent of the authorities where relief aid would be provided.  Unilateral deployment of such units would fall outside the purview of the UN.  The use of special military units is, however, a costly short-term solution.  This was the case in northern Iraq, where the UN was asked to assume relief operations begun by the Coalition north of the 36th parallel.

        Humanitarian aid experiences should be examined in order to extract ideas and derive inspiration which may help us prevent future disasters.  Events in Somalia, the former Yugoslavia and Iraq show that the provision of relief aid based on traditional concepts of international humanitarian law is often impossible.  The right of intervention on humanitarian grounds is proposed as a means of overcoming this problem.

From Absolute Sovereignty to the Right of Humanitarian Intervention

        The right of intervention on humanitarian grounds (droit d'ingérence humanitaire) is to legitimize an intervention to assist people in need of relief even when opposed by the "host" country.  Although a relatively new concept, it nevertheless finds some historical precedence.  The right of intervention is no longer an excuse for intrusion justified by brute strength as in the 19th century example of a western government starting a war with China on the "humanitarian" basis that Chinese people, contrary to the Emperor's wishes, should have the right to smoke opium.

        A doctrine of humanitarian intervention is based on an even older concept which called for the protection of people from abuses by their own government.  One thinks of de las Casas and other Spanish churchmen who tried to protect indigenous peoples of South America against the rapacity of the Viceroy (2).  In the early 16th century, such intervention was carried out in the name of God.  To meet the complexities of challenges today, a secular, rigorously defined right of humanitarian intervention, rooted in accepted principles of international law, is required.

        A look at the development of the ICRC is helpful.  Within fifty years of its foundation, the ICRC had developed the right of humanitarian observation (droit de regard).  This permitted the institution to encourage nations to make war less cruel, first for soldiers and then for civilians.  The ICRC exercises a tacit, unarmed right of humanitarian interference.  Unfortunately, attacks such as the recent ones against the ICRC in Sarajevo make armed protection inevitable.

        Be it armed or unarmed, the right of humanitarian intervention must be part of a doctrine of humanitarian international law which will protect the fundamental rights of individuals, as well as the rights of minorities in civil war and other man-made disasters.  A first step which will give the ICRC a stronger mandate to protect civilians is for the United States to ratify the Geneva Additional Protocols I and II (3).  The support of a great power is urgently required.

        Establishing the protection of minorities is a much tougher problem.  The United Nations has under its Charter a general jurisdiction to protect minorities.  The lack of specifics means that, in practice, when the UN tries to exercise this right in situations like the one facing the Kurds in Iraq or Moslems in Bosnia, the UN's mandate to justify an infringement of national sovereignty is contested.  Older and more precise treaties which came into force under the auspices of the League of Nations could be invoked.

        The League of Nations had at its disposal a corpus of treaties, preventive instruments and redress mechanisms providing for intervention on humanitarian grounds to protect minorities.  Corresponding League guarantees focused on related "obligations of international concern"  (4) which were incurred by League members as a condition of their joining the League.  In the case of Iraq, such obligations were not only sine qua non conditions for membership but also for national independence upon termination of the League mandate in 1932.

        The League's international minority protection obligations were recognized as fundamental laws for countries concerned, i.e. inter alia, Turkey, Iraq, Serbia-Croatia-Slovenia.  They could not be altered without the consent of the League Council and were explicitly declared to take precedence over any existing and future national "law, regulation or official action"  (5).

        The League focused on preventing minority rights abuses through the possibility of early public exposure of violators.  To this effect, issues could be brought before the League Council by any of its Members, and in some cases even by individuals.  Before Nazism embarked on armed aggression, this method was quite successful.

        In the aftermath of World War II the League of Nations was replaced by the United Nations. Some writers  (6) suggest that minority protection obligations put in place at the time of the League could perhaps be a means of reinforcing UN resolutions and that certain relevant treaties and obligations under the League should be considered as remaining valid.  They contend that the UN, as the legal successor of the League, can accede to League instruments through simple General Assembly resolutionsThe argument is advanced that League obligations could be applied with respect to Iraq and the former Yugoslavia (7).  It would be helpful if international law experts were to examine the validity of this proposal.  If it were valid, this might strengthen the UN's position.  Indeed, some observers have argued that UN Security Council resolutions are not an adequate basis for intervention on the scale carried out in, for example, Iraq.

The Right of Humanitarian Intervention Today

        If humanitarian aid is to be provided reliably and effectively, we must seek to universalize the rights of man.  The question is how to champion individual human rights without encouraging unjustified violation of national sovereignty by outside powers or cutting across age-old spiritual and social values.  The western concept of Individual Human Rights is not universally
shared.

        Evolution of society requires the development of a cross-cultural humanitarian ethic.  Ideally, this ethic should define a right of intervention to protect populations at risk. When governments violate fundamental principles, a line must be drawn lest inaction results in even greater harm (8).  However, a right of humanitarian intervention must never be an excuse to interfere in the affairs of states or redraw borders.

        An ethic based on the right of intervention for humanitarian purposes should have as its foundation the defense of the basic common values of civilization.  It should provide effective protection of fundamental rights which are recognized throughout much of the world.  Chief amongst them is the right to life, including freedom from genocide.

        Suppressed genocidal tendencies may be unleashed in other hot spots (9) as they have been in the former Yugoslavia.  There, as in Iraq and Somalia, suffering has been so well publicized that it has catalyzed international action. Security Council Resolutions 688, 751 and 780 (10) have set limits to the harm governments can inflict on their populations with impunity.  These resolutions have marked a precedent-setting watershed in the way the international community can impinge on national sovereignty.  But these resolutions lack specifics governing military intervention for humanitarian purposes.

        The Security Council obliged Iraq to immediately end the "repression of the Iraqi civilian population" since it constituted a "threat to international peace and security" (11).  Resolution 688 requested the Secretary-General  "to use all the resources at his disposal ... to address urgently the critical needs of the refugees and displaced Iraqi population" and it appealed "to all Member States and to all humanitarian organizations to contribute to these humanitarian relief efforts." (Resolution 688, pares. 1, 2, 5 and 6)

        Resolution 688 was not militarily enforced beyond the Kurdish areas when it came to relief operations.  The UN sought prompt access to Iraqi victims and an agreement was reached which resulted in a Memorandum of Understanding, enabling the UN and private voluntary organizations to conduct relief operations to benefit all civilian populations affected by the war.  The Memorandum was not based on Security Council resolutions.  Later, when the Government of Iraq chose not to renew the Memorandum, the UN took no concrete action to enforce Resolution 688.  The suffering of civilians was temporarily alleviated, but the UN's ability to manoeuvre was substantially limited.  The root causes of the problem and the fears of affected groups in Iraq were not removed.  Neither were the sanctions.

        Although Resolution 688 was adopted, it was never fully enforced.  Some argue that this may have weakened the UN's credibility or its ability to influence the government.  Whether this is true or false, the consequences are evident.  Winter is coming and more suffering in Iraq may be unavoidable.

Practical Applications

        Thus, one comes to the question of practical means to make humanitarian relief effective.  The international community may wish to reconsider its response to humanitarian needs which cannot be met at the national level.  This is all the more necessary as some governments use the distribution of aid as an instrument of power against their own people.  The establishment of temporarily neutralized zones, e.g. hospitals, schools, as called for in Article 15 of the Fourth Geneva Red Cross Convention should become more common, especially as attacking the ICRC neutralized zones is a war crime.  The establishment of larger, militarily protected safe havens under longer-term UN supervision, before and during hostilities and the facilitation of the repatriation and resettlement of displaced populations, are desirable.  The UN guard contingent formula, introduced to support the relief operation in Iraq, could also prove useful in this regard.  A "preventive" UN presence in, for example, Kosovo may one day be necessary to thwart hostilities and prevent the spread of conflict to surrounding non-"Yugoslav" areas from becoming a reality.

        Providing humanitarian assistance through governments in power may not always be effective.  This is certainly the case if the government in question is a belligerent and is the party accused of violating the basic human rights of its people, including minorities.  Therefore, it may be that emergency relief aid can sometimes only be provided under military or police protection.  How else can a sufficiently secure environment be assured in places such as Somalia and the former Yugoslavia where aid would be impossible without it?  Should specialized military units be on stand-by, ready to go into danger zones?  They could assist in operations by providing logistics, heavy machinery, engineering capacity and specialist knowledge.  They could also assist in channeling and distributing emergency relief aid and provide protection as required.  The use of military power to protect the provision of humanitarian aid implies the full application of the right of humanitarian intervention, with or without the consent of belligerents.

        Economic sanctions are sometimes used.  If they are imposed, sanctions must be examined so that victims or neighboring countries are not hurt more than aggressors.  A blockade within blockade can easily be created, evidenced by the use by Iraq of international sanctions as an excuse to establish de facto internal blockades.

        The setting up of special protected areas for humanitarian intervention is not meant to constitute a violation of a nation's rights under international law.  The goal of humanitarian intervention is to bring medical assistance, food, clothes, heat and shelter to people in need; in a word, ensure their survival.

        In the aftermath of the Gulf War, governments felt that the UN's response to humanitarian problems was less than satisfactory.  They hoped that the creation of a Department of Humanitarian Affairs to manage large-scale and complex emergencies would overcome the problems of the past.  The Department was established at UN headquarters in New York to coordinate inter-governmental and private voluntary organizations in preparing rapid and coherent responses to emergencies through, inter alia, early-warning, facilitating and negotiating access by relief organizations to emergency sites - including the establishment of relief corridors, and managing a fifty million dollar fund for emergencies.

        Many felt that Geneva would have been a more appropriate venue for the Department given the fact that the ICRC, the office of the UN High Commissioner for Refugees, the World Health Organization and other humanitarian agencies are already based there.  In light of multiplying tragedies, the Department has been overwhelmed by these tasks.  The work of aid agencies remains largely uncoordinated and some have had to take initiatives in areas under the Department's mandate.  This mandate is perhaps too generally defined.  Has the result been only the creation of yet another layer of UN bureaucracy?

        Recent events suggest that new approaches to the management of humanitarian emergencies in conflict situations quired and should be kept under review.  Is the Security Council not a more logical forum for direct involvement in handling emergencies, particularly if the Council were expanded as a number of Member States wish?  The increasing magnitude of man-made disasters is a growing threat to peace.  A Department of Peace-Keeping that would include the humanitarian component in its interventions could, under the supervision of the Secretary-General, serve as the Council's operational arm in protecting victims and bolstering the work of relief agencies.  The litmus test would be the extent to which Member States are prepared to give tangible support to such an initiative.

        To be effective and impartial, the right of humanitarian intervention should never become an  instrument of power politics.  Humanitarian intervention is based on universal ethical concepts and the practical needs of people who continue to suffer in this, the modern age.  The challenge lies in turning these principles into practice.
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Sadruddin Aga  Khan


(*)    speech given in the course of the RENCONTRES DE LA SORBONNE at the Cité de la Réussite in Paris on 25 October 1992 (text adapted to the Internet by  CORUM, 1211 Geneva 2 - www.solami.com/UNGA.htm; version française).

(1)     For UN reform see:  Boutros Boutros-Ghali, "An Agenda for Peace", United Nations, York, 1992;  E. Childers, and B. Urquhart, "Towards a More Effective United Nations", Development Dialogue 1-2, Dag Hammarksjold Foundation, Uppsala, 1991;  L. Minear, et al., "United Nations Coordination of the International Humanitarian Response to the Gulf Crisis 1991-1992", Thomas J. Watson Jr. Institute for International Studies, Occasional Paper 13, Brown University, Providence, 1992.

(2)     "Don Fray Bartolome de las Casas", Mouton, Paris, 1974.

(3)    Protocol I deals with the protection of victims of international armed conflict and Protocol II with the protection of victims in non-international armed conflict.

(4)     Art.44, Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923, League of Nations Treaty Series, vol.28, 1924, p.35; Art.10, Iraq Declaration of 30 May 1932, League of Nations Publications, VII Political, 1932, VII.9.

(5)     Art.10, Iraq Declaration, op.cit.; Art.37, Lausanne Treaty, op.cit.

(6)    "UN Resolution 688 - A Mandate for 'Exceptional Response'", CORUM, Geneva, 6 April 1992.  See also UN documents E/CN.4/1992/31, S.24386 and E/CN.4/1992/L.11/Add.6.

(7)     The UN General Assembly set out mechanisms for this possibility with its Resolution A/28 of 12 February 1946 (598/9, vol.I, p.402).

(8)     George KENNEY, "If the West Fails to Halt Serbia...," International Herald Tribune, 1 October 1992.

(9)     Jacques ATTALI, "Will Balkan Tribalism Spread to the West?" and Peter CONRADI, "A little Free-Thinking for the Republics of Caucasia," The European, 13 September 1992.

(10)     UN Security Council Resolution 688 provides for the right of limited intervention in Iraq and Resolution 751 in Somalia. Resolution 780 establishes a commission of experts to investigate war crimes in the former Yugoslavia.

(11)     The French co-author of SC Resolution 688, Professor Mario Bettati, expressed no reservation as to the binding character of Resolution 688. He stated: