When is intervention not Intervention?

 (If invited, this is not the intervention force you're looking for.)

Regular readers of this blog* will know that I revere the UN Charter. And "revere" is not too strong a word, as international law has gained some of the status of a secular religion; indeed, like most religions the legal fraternity has its fair share of fundamentalists. But to stretch the biblical metaphor to breaking point, the UN Charter reflects its convoluted negotiation process, and like The Bible, the Charter has lots of internal tensions / contradictions. 

 (Blue book fundamentalism starts here)

The interplay between the Charter's Preamble on the Human Rights and Article 2(7)  on non-interference in the internal affairs of sovereign States illustrates these tensions perfectly. The Preamble talks of

"reaffirm[ing] faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women"

and Article 2(7) says in part:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State … but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

There is clearly tension – when does protection of human rights trump non-intervention? If so, when and under what circumstances, and with what protections?

So how does this work in the real world?

 Pearl Square, Manama
(Note to editors: This has not been facilitated by a foreign non-intervening intervention.)

Bahrain

On Monday, 1000 Saudi soldiers togetherwith 150 armoured personnel carriers and 500 UAE policemen arrived in Bahrain, at the request of the Bahraini Government, as that Government believes it requires reinforcement to quell the pro-democracy movement that has blossomed in the "Arab spring". Combined with yesterday's declaration of a three-month State of Emergency, summarily suspending Bahrain’s human rights protections, Bahrain’s Government is effectively suppressing dissent with the force of foreign arms.

However, as this is at the request of the Government, the Government argues that this isn't intervention - instead it is (presumably) collective self-defence against external subversion. Interestingly, this is the same argument used by the Government of Republic of South Vietnam to legitimate the US-led coalition in what became the Vietnam War. As it isn't intervention, there is allegedly no violation of Article 2(7).

Libya

As you look at a map of the Middle East, move a few countries to the left on the other side of Saudi Arabia and Egypt, and in Libya, Muamar Gaddafi is testing the other end of Article 2(7) by killing large numbers of Libyan civilians.

(The rather wonderful green book from the Very Important Book Box - VIBB)

So how much latitude should there be for Gaddafi to kill his own civilians? In the rather wonderful “Charter of the United Nations: A Commentary” edited by Bruno Simma (now Justice Simma of the International Court of Justice, ICJ), the stated law comes from the famous dictum in the Nicaragua Case from 1986:

“In view of the generally accepted formulations, the principle [of non-interference] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters on which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural systems and the formulation of foreign policy.”**

This is not very helpful – an intervention’s not allowed if it’s not allowed. But it is if it is. Hmm. Fortunately, in 1923, the ICJ’s predecessor the Permanent Court of International Justice defined the distinction in Nationality Decrees in Tunis and Morocco , noting to the effect that matters that are solely within the domestic jurisdiction or a State are such “matters which are not, in principle, regulated by international law… with respect to which States, therefore remained sole judge”***

Sounds sensible.

So if the controlling law is your international obligations, then Art 2(7) – the modern repository of the ancient law of non-intervention – ceases to cover Governments that are violating their international obligations. Specifically, this means that genocide – due to the 1948 Genocide Convention – and crimes against humanity**** – due to customary international law – cannot be wrapped in a cloak of Art 2(7) impunity. Indeed, this has been the case since the 1960s when aparthied South Africa consistently lost the argument that Art 2(7) meant that the UN has no locus to criticise the apartheid system.

(Victory, for some. Presumably a demonstration in favour of more billboards.)

This means that Gadaffi et al in Libya are not covered by Art 2(7). (Nor are the autocrats in Burma / Myanmar.)

But Bahrain? Democracy – pace Teson – is not protected by an international Treaty, so it is harder to argue that autocrats can’t phone a friend and borrow some troops to resist demands for the autocracy’s end. So the beach island holiday for the Saudi troops is probably legal, as long as they don’t actually engage in violence against Bahrain’s citizens. At this point, however, it would lose this legitimacy.

I realise that this is a slightly depressing result: it would be much more compelling to conclude that these are all things that need to be protected and that At 2(7) is outdated State-centric nonsense. But at least concluding that Art 2(7) is not a torturer’s charter is a start, and refining the concepts of R2P going forward will build upon it.

* There are at least some. And you know who you are.

** Nicaragua, ICJ Reports (1986), pp. 14, 107 para. 205.

*** PCIJ, Series B No. 4 (Feb 7, 1923), p. 24, in Simma  p. 157.

**** For these purposes, crimes against humanity are the same as war crimes committed against your own people.