Preventive Action for Refugee Producing Situations

200 Chapter 5
b) Humanitarian intervention
The term "humanitarian intervention" is traditionally meant to apply to any
type of intervention, including military, for humanitarian purposes, as for
example to deposing a dictator, stopping massive human rights violations, and
protecting nationals on foreign soil.
Research in the recent past, especially by students of international law,
tended to focus rather narrowly on a single aspect, that of intervening to protect
one's nationals who were endangered in a foreign country. 464 Studies on the
subject contain diametrically opposed interpretations of the legitimacy of
"humanitarian intervention." On the one hand, Shan Mei holds that the idea that
intervention is justifiable on humanitarian grounds is quite simply not true. Mei
suggests that "an intervention by an outside power may touch off an
international conflict. In a world overloaded with nuclear bombs, nothing
would be more ironic than if mankind were exterminated because of the
protection of human rights." 465
On the other hand, Fernando Teson makes a comparison with an adult
hitting a child so severely as to endanger the child's life. We have no choice
then but to interfere, even if the adult says "It's my child, it's my home, and it's
my business," because he has no right to jeopardize the life of a child. Teson
asserts:
Humanitarian intervention among nations is morally justified for similar reasons. Nation
A has no moral right to stand by while Nation B proceeds to imprison, tonure, and
slay large numbers of a minority group within a population. Although the victims may
be citizens of Nation B, nationality from a moral standpoint is even less relevant than
parenthood is in the previous example. Nation A must intervene, forcibly or otherwise,
in order to prevent or mitigate the criminal acts. 466
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464 Teson, Humanitarian Intervention: An Inquiry Into Law and Morality, 1988, p.
vii.
465 Mei further suggests, "Military deployment is not only unable to bring about the
minimum standard of human right, but often, domestically, sharpens alienation,
worsens communal relations, intensifies the civil war, increases the deaths of the
innocent; and internationally, widens the gap and deepens the distrust among
nations ... A deprivation of human rights in a state, no matter how shocking it is,
usually does not constitute a direct threat to regional or world peace." Shan Mei,
"Humanitarian Intervention under International Law," Harvard Law School, Graduate
Program Paper, Cambridge, 1986, pp. 41-44.
466 Teson, p. xiii.
Legal Justiflcation 201
Other scholars, including Vattel, admit the principle of humanitarian intervention
in exceptional cases. 467 In reviewing several states' practice of
interventions during the past three decades, Pauer found that the primary
motive for states to intervene by force was usually their own self-interest,
and only secondarily to restoring or maintaining minimal humanitarian
standards. 468 Their self interest had been the primary motive for their interventions,
rather than the desire to stop massive human rights violations. 469
Given that "humanitarian" intervention is often carried out for political
purposes rather than out of genuine humanitarian concern, Pauer seeks
alternatives. He concludes that modern international law offers states several
individual and collective possibilities for defending minimal humanitarian
standards, such as voting in the United Nations for institutional, nonpolitical
intervention, offering economic aid or diplomatic intercession.
The above examination of principles of intervention has revealed some of
its essential weaknesses. The original intent of humanitarian intervention
was for an outside force to come in, fix the problem, and depart.
Unfortunately, the temptation to remain in the occupied country, or
otherwise retain an undue influence over its domestic affairs has proved
overwhelming to most nations in modern times. Therefore, we must reject
"humanitarian intervention" as a means of international preventive action,
because of the likelihood of its implementation by force, which is
disallowed to states under the U.N. Charter (Art. 2 (4)), and its potential for
political abuse. Leaving aside humanitarian intervention, then we
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467 Stephen B. Young, "Between Sovereigns: A Reexamination of the Refugee's
Status," in Transnational Legal Problems of Refugees, 1982 Michigan
Yearbook of International Legal Studies (New York: Clark Boardman Co.
Ltd., 1982), p. 363. See also Helmut Rumpf. Der international Schutz der
Menschenrechte und das Interventionsverbot, p. 76: "Der Klassiker unter den
Zeugen des Prinzipes der Nicht-Intervention, hielt eine Einmischung in
innere Angelegenheiten 'aus besonderen Gründen' für denkbar."
468 Pauer cites the USA in the Dominican Republic, April 1965; India in
Pakistan, December 1971; Vietnam in Cambodia, January 1979; Tanzania in
Uganda, April 1979; France in Central African Republic, September 1979;
and Spain in Equatorial Africa, January 1979. See Pauer, pp. 156-78.
469 "Die Staaten intervenierten vielmehr durchweg zu eigennüztigen Zwecken,
wie zur Verhinderung einer kommunistischen Machtübernahme (USA), zur
Schwächung des politischen Gegners (Indien), oder zur Vertreibung des
unbequemen Nachbarn (Tansania). Lediglich in zwei Fällen interventionarer
Tätigkeit (Frankreich und Spanien) fiberwog deutlich humanitäre
Motivation. Pauer, pp. 178-79.