A Case by Case Analysis of Recent Crises Assessing 20 Years of Humanitarian Action: Iraq, Somalia, the former Yugoslavia, Rwanda, Burundi, the former Zaire, Chechnya, and Kosovo
A quick glance at the United Nations (UN) Charter shows that human rights are not protected by the collective security system since there are only mentioned in article 1 (enumerating the purposes of the UN) and article 55 (belonging to the UN co-operation system). "The Charter clearly distinguishes between action taken to restore and maintain international peace (…) and action taken to create the conditions of stability and well-being necessary for peaceful and friendly relations among States". Indeed human rights, at the time of the drafting of the Charter, were considered as domestic matters protected from external interference by article 2(7) and by customary international law. However, the analysis of practice reveals that violations of human rights are more and more frequently and specifically discussed and even sometimes condemned by UN bodies.
Astoundingly though, the Security Council (SC) has no special powers concerning human rights and international humanitarian law, despite the reluctance of some countries like China and Zimbabwe, it has become involved in this realm and acted within the framework of the collective security system. Such a development can be explained by the change of armed conflicts’ nature: nowadays combatants do not fight only against combatants but also against the civilian population who becomes the direct target of attacks. The idiosyncrasy of the third generation of civil war has therefore encouraged the Security Council to become active.
Nonetheless, a closer analysis unveils that the protection of human rights in peacetime and warfare offered by the Security Council is rather weak and that today its only success is the provision of humanitarian assistance.
One could be surprised by such a statement since one could genuinely believe that it is easier to enforce rights then a concept which at first sight appears to be without legal basis. Indeed, as stated by René Jean Dupuy: "les droits de l’homme relèvent de l’argument juridique, l’assistance invoque un sentiment d’humanité". In addition, whereas human rights are of inter-State concern, humanitarian assistance is usually regarded as being classically within the realm of non-governmental organisations (NGOs).
The separation of these two notions implies that a right to humanitarian assistance does not exist and hence it cannot be invoked in order to alleviate people’s suffering during warfare. In fact, these two terms stem from different philosophies. In the first case, people’s rights should not be disregarded and in the latter one, these violations are more or less tolerated but should not attain a certain threshold. This solution is usually used when it appears impossible to end violations of human rights. That explains why humanitarian assistance is considered as a substitute to a policy incapable of protecting human rights during war time.
The Security Council when confronted with the civil war in the Former Yugoslavia used both strategies. On the one hand it condemned the violations but since a military intervention in order to enforce its resolutions was rejected by the majority of its members, its requests were never listened to. On the other hand the Security Council decided to provide humanitarian relief to the civilian population and condemned the warring parties attacking the humanitarian convoys and personnel. Can thus humanitarian assistance be considered as a right or is it only a (surrogate) policy without any legal basis?
The right to humanitarian assistance has a twofold meaning:
- the victims’ right to be helped; and
- the organisations’ and States’ right to assist the victims.
This distinction may sound slightly senseless in particular when one thinks in terms of accessibility but legally, it changes the beneficiaries and the dutyholders of that right.
In a first part, I would like to analyse the Security Council’s resolutions pertaining to human rights violations which occurred in the Former Yugoslavia and try to find the legal basis of its actions. In a second part, the emphasis will be put on the existence of the right to humanitarian assistance and the consequences of such an existence.
The paper argues that certain themes of general relevance can be highlighted, while at the same time acknowledging that particular policies have to be fashioned in the light of sui generis circumstances. First, strategic, coherent and long-term approaches to the processes of transition are not integrated into the agendas and implementing mechanisms of interventionist policy-making institutions. Second, there is an imbalance between short-term, ‘hard’, visible reconstruction meaures and ‘soft’, long-term civil society programmes. Third, the humanitarian dimension has been geared towards social engineering rather than towards civil development based on local ownership of the peacebuilding process. In this last aspect, a distinction might be made between social engineering that promotes change in civil, political and demographic structures (by holding elections, by fostering refugee returns, for example), and civil development that emphasises change in the way power relationships are expressed (by for example, promoting transparency and accountability in both external assistance to war-torn societies and in generating local civil society).
The first section of the paper begins by examining the need for attention to transitions, the lack of coherence that arises from neoliberal pressures for subcontracting and the retraction of state welfare provision, and the problems that arise from assumptions that rehabilitation is part of a relief to development continuum. The next section addresses the continuities in war-torn societies that have to be addressed in analysing the social-civil dimension of rehabilitation. They include the perpetuation of security risks, guerilla war economies, military provision of humanitarian aid and the power relationships established by external actors. The third section considers the concept of ‘transformation’ of society in transitions to relative peace, the obstacles that exist to transformation, the limits of social engineering and the role that external agents can play by adapting concepts of accountability and evaluation to particular situations.
- The Hill proposal was adopted within the framework of the attempt by the international community to address the issue of Kosova as one of autonomy and to reject any claims for independence. It must be realized that this basic approach obviously determines the flavour of the agreement throughout.
- The agreement exhibits some features of an international agreement (a treaty), but its status is in fact far from clear, and probably left deliberately ambiguous. This ambiguity is dangerous for Kosova, as the implementation of the agreement appears to be envisaged at the level of FRY law, rather than international law.
- The agreement provides for limited legal personality for Kosova and actively denies its claim to statehood. The agreement does not constitute an interim arrangement towards statehood (as opposed to the case of Chechnya), but instead freezes the envisaged subordinate position of Kosova indefinitely.
- Due to a complex and complicated division of powers among several organs, Kosova is reduced to a position of authority that is considerably less developed than was the case under the 1974 constitution. Most importantly, the legal personality of Kosova as an overall entity is reduced to a vanishing point. A claim to self-determination in the future is precluded by the fractionating of authority and its distribution to various layers of competence.
- At a local level, very significant authority for self-governance is attributed to communes or municipalities, subject to certain important safeguards relating to the treatment of local minority populations. In practical terms, this is intended to balance the lack of legal personality and significant authority of Kosova as a whole over its own affairs throughout its territory. However, this practical autonomy at a sub-regional level is interfered with by involving Serbs and possibly others as a national group which is given (a) several layers of independent authority and (b) important veto rights over all aspects of decision-making in Kovova.
- Generally, this agreement is heavily dominated by considerations of achieving a solution that is acceptable to the FRY/Serbia–even to the point of abandoning the international demand that at least the autonomy status of the 1974 constitution must be restored. Such a proposed solution sacrifices the legitimate aspirations of the people of Kosova to the perceived need of appeasing Belgrade. With the conclusion of the initial deal with Milosevic of 12/13 October, the representatives of Kosova will come under even heavier pressure to accept this sacrifice.
- Conclusion: While the Republic of Kosova should not in principle oppose negotiations towards an interim arrangement, such an arrangement must not be concluded along the lines proposed by Ambassador Hill. Even to start negotiations on the basis of this proposal will inevitably yield an unacceptable result which prejudices Kovoa’s position irreparably, for now and in the future.