Must intervention be legal?

The Economist

Armed intervention in Darfur may-or may not-flout the law. So what?

July 29, 2004 — FOR many outsiders, common sense dictates that there should be immediate military intervention in Darfur. But what, legally, can be done?

Under the UN Convention on Genocide in 1948, the 127 state signatories undertook to “prevent and punish” genocide, defined as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”, including the causing of serious bodily or mental harm, preventing births or inflicting conditions calculated to lead to a group’s destruction. States may act alone or call on the UN to take “appropriate” measures.

Is what is happening in Darfur genocide? Legally, it is fuzzy. Though Sudanese Arab militias have been targeting three black African tribes, some Arab groups have also been attacked and some African ones spared. America’s Congress has called the attacks genocide, but the Bush administration has carefully avoided the word. The African Union and various human-rights groups argue that the threshold for genocide has not yet been crossed.

It may not matter much, for under international law, there is no inherent right of armed humanitarian intervention, even to stop genocide. The UN charter only sanctions force in self-defence (Article 51) or when authorised by the Security Council to prevent a breach of the peace or an act of aggression (Chapter VII). It specifically forbids intervention “in matters which are essentially within the domestic jurisdiction of any state”, though this injunction can be overridden by a Chapter VII authorisation. Sudan has warned Britain and Australia “not to meddle” in its affairs after they said they would be prepared to send in peacekeeping troops.

The UN has, of course, intervened in the past to stop gross violations of human rights-in Somalia and Yugoslavia, for example. But it has only ever done so under Chapter VII in the name of preserving the peace. It could do so again. But this would require a Security Council resolution, which China (because of Tibet) and Russia (because of Chechnya) are likely to veto. A UN resolution drafted by the Americans is now circulating but it talks only of sanctions, not intervention.

Many governments, particularly poor and despotic ones, argue that national sovereignty should always trump humanitarian issues. Most western ones argue the opposite. One way round a possible veto would be to invoke the UN’s “uniting for peace” resolution, put forward by the United States in 1950 to overcome the Soviet veto on military intervention in Korea. Under it, the UN’s General Assembly may “recommend” measures, including the use of force, to counter a threat to peace, if the Security Council is unable to act. But many are reluctant to invoke an instrument that they fear would undermine the Council’s authority.

Another possible tack would be to persuade Chad, across whose borders tens of thousands of Sudanese refugees are streaming, to initiate an intervention in Darfur under its right to self-defence. This would obviate the need for a Security Council vote and thereby the threat of a veto. But could Chad be persuaded?

It would, of course, be possible to intervene in Darfur without going through the UN. This need not be as drastic an assault on international law as some legal sticklers fear. Provided that China and Russia did not object too publicly (and how could they in the face of such carnage?), an intervention could be justified with reference to NATO’s campaign in Kosovo, which proceeded without UN approval. That might even set a useful precedent for dealing with future catastrophes.