Balancing human rights and state sovereignty in a multicultural world
Rethinking Humanitarian Intervention
By Brian D. Lepard
The Pennsylvania State University Press
University Park, Pennsylvania, USA
One of the thorniest issues faced by the United Nations in recent years has been how to balance state sovereignty with human rights. At the core: when does the world have the right to tell a government how to treat its people?
The question is made even more difficult when discussed in the context of using outside military force to rescue people from grievous rights violations, something known as "humanitarian intervention."
The discussion is not abstract. There have been recent humanitarian military interventions in Bosnia, Somalia, Rwanda, Haiti, Kosovo, and East Timor.
In some cases, as with Rwanda, intervention was too late and too weak to prevent a humanitarian crisis. The deployment of a small UN peacekeeping mission in the mid-1990s was virtually useless in preventing ethnic violence between the Tutsi and Hutu that took some 800,000 lives.
In Kosovo, a NATO force used aerial bombing in 1999 to intervene on behalf of ethnic Albanians in that Yugoslavian province. The Yugoslavian government ultimately reined in those responsible for violations against the Kosovo Albanians, but an estimated 500 civilian lives were lost to NATO bombs.
Indeed, in virtually all such cases, the moral and policy choices are difficult.
Part of the conundrum is that international law is mixed. While some parts of the UN Charter clearly uphold the concept of state sovereignty, other passages allow the Security Council to use military force such as "may be necessary to maintain or restore international peace and security."
Likewise, the Universal Declaration of Human Rights proclaims that it is "essential to promote the development of friendly relations between nations," a statement often interpreted as upholding state sovereignty. But it also proclaims that "[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized," granting in the minds of some a moral entitlement to human rights - not in the least of which is to life, liberty and security of person.
Into this quandary comes Brian D. Lepard and his important new book, Rethinking Humanitarian Intervention, which seeks to do just what its title implies: reconsider the fundamental legal and ethical issues surrounding the use of force across international borders to rescue people facing egregious rights violations.
The outcome of Prof. Lepard's considerations is enormously significant. Among the main offerings of the book is a new methodology for reconciling the competing provisions of international law.
More specifically, Prof. Lepard suggests that competing claims can be reconciled by looking beyond the words contained in the law and instead to fundamental ethical principles - principles which, he further suggests, can be derived from and supported by the revered texts of the world's major religions.
Doing so "adds a degree of persuasive weight to these principles as legitimate foundations for a fresh approach to humanitarian intervention and international law suitable for a multicultural world," writes Prof. Lepard, who is an associate professor at the University of Nebraska College of Law. "Like normative statements of fundamental ethical principles in written and constitutive legal documents such as the Universal Declaration of Human Rights, revered moral texts are looked to by many believers as expressions of their highest ethical aspirations."
In terms of human rights and humanitarian law, the "preeminent ethical principle is the unity of all human beings as equally dignified members of one human family, who in turn can, within a framework of unity, develop and take pride in individual, national, ethnic, or religious identities," writes Prof. Lepard.
The principle, he writes, is implicit in the UN Charter - as in the preamble's "we the peoples of the United Nations" and in various human rights documents. More recently, he notes, the Millennium Declaration of the UN General Assembly refers to the UN as "the indispensable common house of the entire human family."
Proposing, then, to use the principle of "unity in diversity" as the lodestone by which the necessity of humanitarian intervention can be judged, Prof. Lepard goes on to show how other basic principles of human rights law can be likewise derived from it. The equal dignity of all human beings, for example, is implied by unity in diversity, as is the right to life and physical security.
But in what may be the most insightful aspect of the book, Prof. Lepard then goes on to show how the overarching principle of unity in diversity and its corollary principles can likewise be supported by the sacred texts of world religions. Specifically, he has combed through the essential texts of the Bahá'í Faith, Buddhism, Christianity, Confucianism, Hinduism, Islam, and Judaism - religions whose followers together represent three-quarters of the world's population.
The texts of all of these religions, he writes, give strong support to the idea of human oneness. "For example, the Bhagavad Gita affirms that the whole world is united in God," writes Prof. Lepard. "In the words of one Hindu scholar, central to Hinduism is thus the belief that the 'whole human family is one and basically indivisible.'... Moreover, the Hebrew Scriptures affirm: 'Have we not all one Father? Did not one God create us?' (Malachi 2:10)"
Religious texts also support the idea of a cherished diversity within that oneness, he writes. The Qur'an, for example, says that one of the signs of God is the creation of "the variety of your tongues and hues."
Prof. Lepard goes on in some detail with respect to the other major ethical principles outlined in UN human rights documents and, likewise, shows how religious texts support them. The iteration extends to such principles as the idea of "just war" and the "obligation to undertake humanitarian intervention in extreme cases."
He also explores the ramifications of this new approach, and draws out a framework for deciding when and how to intervene. He examines, for example, the legal legitimacy of the Security Council in exercising jurisdiction over so-called Chapter VII interventions under the UN Charter in terms of when human rights violations constitute a breach of the peace and the degree to which such interventions might violate the long-standing norm of "impartiality" of the UN.
Prof. Lepard also considers whether the Security Council and member states are "in fact legally or morally obligated" to intervene in certain cases of human rights violations, and he investigates rather controversial issues surrounding the command and composition of multinational forces for such missions. He also discusses the role of the veto power and offers suggestions for how the Council might improve its consultation.
At 496 pages, the book is at times quite legalistic. Yet its preponderance of evidence and thoroughness of consideration make the book one that policy makers concerned with the topic cannot afford to ignore.
Over the last decade or so, the connection between international policy and religion has been strengthened, notably in the arena of environmental conservation, and, more recently, in the area of poverty eradication, as exemplified by the World Bank-sponsored World Faiths Development Dialogue.
In making an explicit connection between international human rights law and religion, Prof. Lepard has taken this trend to the next level.