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The East Timor crisis and the concept of humanitarian intervention. Speech at Melbourne Institute of Asian Languages and Societies, Melbourne University, 7 February 2002



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The East Timor crisis and the concept of humanitarian intervention

 

Peter van Walsum

Former Ambassador of the Netherlands to the United Nations

and former President of the UN Security Council

 

Speech at Melbourne Institute of Asian Languages and Societies , Melbourne University, 7 February 2002

 

The Charter of the United Nations is much more explicit on the prohibition of armed intervention and the obligation to respect territorial integrity than on the duty to uphold and promote human rights. On the use of force against a sovereign state the Charter is crystal-clear: Chapter VII stipulates that the use of force is permitted only when authorised by the Security Council or in the exercise of the inherent right of individual or collective self-defence. By contrast, the promotion and encouragement of respect for human rights is only mentioned, almost in passing, as one of the purposes of the United Nations. It is true that since the adoption of the Charter in 1945 the balance between respect for sovereignty and respect for human rights has been somewhat redressed by the adoption of a series of treaties and agreements on human rights, but the Charter remains the law of the land, and it is virtually impossible to adjust it on this point because most states attach a greater importance to respect for sovereignty than to respect for human rights for the obvious reason that the former will shield them from foreign interference whereas the latter may give rise to it.

 

The Charter therefore continues to prohibit military action aimed at putting an end to human rights violations as long as the Security Council has not authorised such action. In theory we must distinguish between humanitarian intervention with Security Council authorisation and humanitarian intervention without it, but the former variant rarely gives rise to discussion because it is uncontroversial. Art. 2 paragraph 7 of the Charter proclaims the sanctity of domestic jurisdiction but immediately adds that this shall not prejudice the application of enforcement measures under Chapter VII. Sovereignty will yield when the Security Council gives its blessing to humanitarian intervention. What we are discussing here is humanitarian intervention undertaken without such a blessing.

 

By early 1999 there had already been a great deal of abstract debate on humanitarian intervention without a Security Council mandate, but the issue suddenly became concrete when NATO decided to intervene in the Federal Republic of Yugoslavia, having unsuccessfully tried to put an end to the terror inflicted on the Kosovo Albanians by the Serbian security forces. As soon as the NATO air strikes had begun, the Russian Federation tabled a draft resolution in the Security Council characterising the NATO action as a violation of the UN Charter.

 

There are all kinds of caucuses in the Security Council, but a NATO caucus does not exist. On this occasion, however, the representatives of the five NATO countries on the Security Council, i.e. the United States, the United Kingdom, France, Canada and the Netherlands, thought it wise to compare notes as to the most effective rebuttal of the Russian accusation. On Friday, March 26, the Security Council was to meet in an open formal session at 10.30 a.m., and half an hour earlier the five of us came together in the United States mission, which is conveniently located across First Avenue from the United Nations headquarters.

 

It will not surprise anyone that our briefs were fairly similar, but there were some interesting nuances. It turned out that my French colleague and I had almost identical instructions: both of us were to emphasise the mandatory nature of the resolutions the Council had adopted in September and October and the subsequent flagrant non-compliance by the Milosevic government. But beyond that our positions parted, for I was supposed to admit that these facts, grave as they were, did not quite add up to a Security Council mandate but in the given context could be seen as an adequate legal basis for the air strikes, whereas the French authorities apparently could not bear the thought of having given the green light for military action on less than perfect legal grounds and had accordingly instructed their ambassador to state that legally everything was in order. As the Netherlands spoke before France, my French colleague tried to conceal the difference by stating that the air strikes responded to Belgrade’s violation of its international obligations under the resolutions which the Security Council had adopted under Chapter VII of the United Nations Charter. France had decided to vote against the Russian draft resolution because it ran directly counter to this judgment.

 

There were other nuances. The United States simply stated that the allegation that NATO had acted in violation of the United Nations Charter was turning the truth on its head, and Britain pointed out that adoption of the draft resolution would have signal led to President Milosevic that there was no check on his repressive action in Kosovo. But in the end no delegation really claimed that NATO had acted with a Security Council mandate.

 

Initially that did not seem to matter a great deal. On the contrary, among western delegations there was a sense of exhilaration that the Kosovo crisis had produced such a textbook case of humanitarian intervention, i.e. not just a coalition of the willing intervening to avert an impending humanitarian catastrophe, but also a virtual consent expressed by the Security Council in rejecting the Russian draft resolution with only three votes in favour and twelve against.

 

This outcome was so much better than we had expected that some delegations tried to convince themselves that such a total rejection of a draft resolution which characterised our military action as a violation of the Charter was almost as good as a resolution authorising the military action itself. Obviously, that was not the case. Two of the votes in favour had been cast by permanent members, who would presumably have vetoed a resolution authorising the military action. There may be some vague moral equivalence between the two approaches, but what matters is the formal result. That is what the right of veto is all about. I cannot speak for all five NATO countries on the Council, but the Netherlands had decided against first trying to obtain a Security Council resolution authorising the strikes because we felt the message conveyed by a veto was more likely to undermine support for such action than to strengthen it.

 

All the same the outcome was surprising. In general terms it undoubtedly signified a shift in the balance between respect for sovereignty and respect for human rights, but more specifically it must have reflected the international community’s accumulated revulsion at all the ethnic cleansing that had taken place at President Milosevic’s behest since the middle of 1991. As the NATO action drew to a close on June 10, 1999, I could not help recalling the extraordinary vote on the Russian draft resolution and drawing the conclusion that we had come a long way since the shameful episode of the 1980s, when the United Nations had shown itself to be more indignant about a Vietnamese military intervention in Cambodia which almost all Cambodians had experienced as a liberation, than about three years of Khmer Rouge genocide.

 

The general good feeling about the NATO action against the FRY slowly but surely began to make way for a sense of unease on account of at least three factors:

  1. There was irrefutable evidence that since the launch of the NATO air strikes Serbian terror against Kosovo Albanians had not decreased but increased. It was clear that Milosevic had seized the opportunity to carry through a sort of final solu tion of the Kosovo Albanian problem. That was, of course, not caused by us, but it could not be denied that our intervention had initially led to a worsening of the situation.
  2. It goes without saying that a country or an alliance that commits its air force pilots to action will try to keep them out of harm s way as much as possible. If, however, this requires them to fly at such altitudes that the risk of collateral damage including the death of innocent civilians is greatly increased, there is an obvious mo ral dilemma.
  3. A similar dilemma arose when no agreement could be reached on the deployment of NATO ground troops. This could not help reinforcing the impression that for us civilian Yugoslav casualties due to the air strikes were less disturbing than the de ath of one NATO soldier.

 

After the military action had been brought to a successful end, there soon emerged a fourth factor. We had intervened not on behalf of the Kosovo Albanians but in defence of the ideal of a multi-ethnic society. It was the rejection by the Serbs of such a society that had led to our intervention. The Kosovo Albanians, however, turned out to be just as much opposed to multi-ethnicity as the Serbs had been. Both ethnic groups were simply in favour of a state without the other.

 

As a result, the mood was far less buoyant after the air strikes had been crowned with success than when they had just been launched. Everyone was glad the war was over, and there was a strong sense of  “never again” in the air. Against the background of this “Kosovo hangover” the Security Council turned its attention to the implementation of the so-called May 5 Agreements concluded between Indonesia, Portugal and the United Nations on the popular consultation of the East Timorese people. According to these agreements the people of East Timor would be given the choice of either a constitutional framework providing for special autonomy for East Timor within the unitary Republic of Indonesia (option 1), or East Timor’s separation from the Republic of Indonesia (option 2). To prepare for this ballot the Security Council established the United Nations Mission in East Timor (UNAMET) on  June 11, 1999, one day after the adoption of the resolution ending the NATO action against Yugoslavia.

 

It seems safe to assume that Jakarta went along with the May 5 Agreements because it believed that the majority of the East Timorese could be prevailed upon to vote for option 1 (i.e. autonomy). As the polling date drew nearer, however, there was growing concern: in Jakarta about the outcome of the ballot, and in New York about the Indonesian reaction in case the autonomy option was defeated. What had at first been hailed as a peaceful solution to a decades-old intractable problem was inescapably becoming an acute problem itself.

I will not go into the role played by the Indonesian Government, the TNI (armed forces) and the anti-independence militias between May 5 and September 3. Many Australians know more about this episode than I do. On Friday September 3, at 9.00 p.m., Secretary General Kofi Annan announced to the Security Council that 21.5 percent had voted for autonomy and 78.5 percent had voted against: in other words that the East Timorese had overwhelmingly opted for independence.

In East Timor, where it was twelve hours later, violence erupted instantaneously. The scenario for the contingency of a pro-independence vote provided for the establishment of a UN peacekeeping force in Phase III, i.e. after the Indonesian parliament had acted on the outcome of the ballot by adapting the Indonesian constitution, but until that time, throughout the so-called Phase II, Indonesia would remain responsible for security in East Timor. The Netherlands had taken over the presidency of the Security Council on September 1, and on the day of the announcement of the ballot result two of my colleagues urgently approached me on that matter. Before the Council meeting the Indonesian permanent representative came to remind me that law and order in East Timor was the sole responsibility of his government as long as the Indonesian parliament had not amended the Indonesian constitution, and immediately after the meeting the Portuguese permanent representative urged me to convene the Security Council again to discuss the breakdown of law and order in East Timor.

On Sunday, September 5, the Security Council met in informal consultations and decided to dispatch a mission consisting of five Council members to Jakarta and East Timor. My Portuguese colleague was pleased but not satisfied and made it clear that Lisbon insisted on a formal meeting of the Security Council. The Portuguese request was subsequently seconded by Brazil, which, unlike Portugal, was a member of the Security Council.

The rules of procedure with regard to requests to convene a Council meeting are ambiguous. They clearly state that the president must comply, but they do not specify when. Usage expects the president to consult the Council, but not necessarily with a view to reaching a consensus. He is supposed to collect the various views and then decide on his own authority.

Accordingly, I consulted the Council and found that all delegations - with presumably the exception of Brazil, which, however, declined to participate in the procedural debate - were of the view that it would be illogical for the Security Council to dispatch a mission consisting of one-third of its members and not wait for them to return and report. My initial reaction was that this made perfect sense, but one day later I was not so sure any more. All that was needed now was pressure on the Indonesian Government, and I felt that an open formal Security Council meeting could make an important contribution to that end. With the agreement of the Council I submitted this argument to the mission, but I was informed that all its members felt that I should await their return.

I grew more and more convinced that I could not leave this crucial decision to the misson, nor to the Council for that matter. The mission could not be back before Monday, and public opinion would not understand it if we let another weekend go by without the Council expressing its concern at what was going on in East Timor. On Friday September 10 I therefore informed the Council that I was calling an open formal meeting for the following day.

During that meeting, which lasted nearly six hours, no less than fifty delegations took the floor, almost all critical of Indonesia’s role in East Timor. If the Indonesian authorities had expected the nonaligned delegations to show more concern about interference in the internal affairs of a member state than about observance of human rights in that state, they must have been deeply disappointed. Under normal circumstances, to be sure, the balance between respect for sovereignty and respect for human rights would have been far less favourable, but what Jakarta had failed to appreciate was the popularity of the May 5 Agreements and the strength of the general desire, especially in the third world, to see the East Timorese problem solved peacefully.

The following day, on Sunday September 12, President Habibie telephoned Secretary General Annan to call for UN assistance to restore peace and security in East Timor. In New York, we were initially tempted to believe that the open Security Council meeting had done the trick, but it soon appeared that a long list of eminent persons and institutions had also contributed to the pressure which ultimately made Indonesia give in. We will probably never know in what proportion the pressure is attributable to the various actors - especially since some of them have succeeded in remaining behind the scenes - but there can be no doubt that Australia has played an important role by placing first one, and then two brigades on standby, and by expressing its readiness to lead a coalition of the willing once it had become clear that the UN peacekeeping force planned for Phase III could not be brought forward and given a peace- enforcing mission. A second crucial factor, and actually a stroke of luck, was that the foreign ministers and heads of government meetings of APEC in Auckland coincided with the height of the East Timor crisis. At these APEC meetings, like in the open meeting of the Security Council, Indonesia must have felt abandoned by her friends, for almost all participants agreed that if Indonesia could not stop the violence it had to invite the international community to do so. Finally, in addition to all these elements of outside pressure, it should be mentioned that members of the Security Council mission, who visited Dili with Defence Minister General Wiranto, believe that the latter was genuinely shocked by what he saw there.

All these factors have played a role in swaying the Indonesian Government. But the factor that tends to be overlooked is Kosovo. I already mentioned that the Security Council was not in the mood for another Kosovo, so it would be logical to assume that what had happened in Yugoslavia had no effect on the unfolding of the East Timor crisis other than in reassuring Jakarta that, unlike Belgrade, it need not fear a military intervention without a Security Council mandate.

But that is only half the story. Let us assume for a moment that Indonesia had not given in to the pressure and had continued not to allow the international community to stop the violence while being unable to do so itself. What would have happened then? It is inconceivable that the international community would have simply looked the other way as the killing in East Timor continued. There is no doubt that the international community is quite capable of doing just that, but not after media attention has passed a critical point, which in this case for countries like Australia and the Netherlands had clearly been passed. If the militias had not been curbed in one way or another, the international community would have found itself under ever-increasing pressure to do something. And ultimately the Kosovo precedent would have come into play.

The NATO countries that had played an active role in the air strikes against Yugoslavia would be asked “why then and not now”, or “why in Europe and not in Asia”. And Russia and China, who had been opposed to the NATO action, would remember that they had been unable to stop it: that the action had in fact taken place. Both Russia and China were anxious to prevent another Kosovo because a second unauthorised intervention in less than half a year would damage the Security Council’s authority in general and the prestige of the veto-wielding permanent members in particular. This explains why Russia and China joined those who urged Indonesia to consent to the deployment of an international force. The fact that on account of the treatment of Indonesia’s Chinese minority there was no love lost between China and Indonesia must have helped as well.

Thus the Kosovo crisis became a major factor in the outcome of the East Timor crisis. All countries wanted to avoid another humanitarian intervention without a Security Council mandate, but all of them also knew full well that such an intervention had taken place and could eventually take place again.

The fact that the deployment of foreign troops in East Timor was based on a unanimously adopted Security Council resolution does not mean that operations of the East Timor type are so uncomplicated that we are now going to see many more of them. The Council’s unanimity was contingent on the consent of the Indonesian Government, and this might not have been forthcoming if the pressure had not been so universal. It would therefore be a mistake to see Indonesia’s yielding to universal criticism as the dawn of a new era, where member states will openly criticise a fellow-member state that commits grave violations of human rights. What caused the general indignation at Indonesia’s conduct was not the violation of human rights per se, but the fact that after an impasse of decades Indonesia had accepted a formula for a final settlement involving not just the other party but also the United Nations, and then proceeded to sabotage it when it did not work out the way it had expected  it would. Many third-world countries felt that in behaving this way Indonesia had embarrassed, if not affronted, the Secretary General of the United Nations.

For those who hope to see the concept of humanitarian intervention thrive, 1999 turned out to be a model year. Humanitarian intervention without a Security Council mandate took place in Kosovo, and thanks to that occurrence it could be averted in East Timor. The outcome could be summarized in one sentence: Humanitarian intervention without a Security Council mandate should be avoided but cannot be excluded.

Now this may not be a maxim of great precision, but it is a good example of constructive ambiguity. In this imperfect world we often find that constructive ambiguity is the best we can get. Unfortunately, however, most governments abhor ambiguity in international law. It is for them an intolerable idea that what they are doing may possibly be a violation of international law. Accordingly, there has been a flurry of  academic, institutional and governmental activity aimed at establishing criteria, standards, guidelines or frameworks for humanitarian intervention without a Security Council mandate in hopes of creating some semblance of order in this - by definition - disorderly field. An example of this activity is the work of the International Commission on Intervention and State Sovereignty (ICISS), co-chaired by your former foreign minister Gareth Evans.

With all respect for the interesting work done in this field, I remain unconvinced that it is wise to try and establish any sort of rules for humanitarian intervention without a Security Council mandate. It is like making rules for breaking the rules, and that can only reduce the ambiguity. The only thing that needs to be unambiguous is the realisation on the part of every government in the world that it cannot hide behind its shield of sovereignty while terrorising its own citizens. The moment we become more specific and spell out what sort of behaviour may trigger a humanitarian intervention without a Security Council mandate, we automatically also identify types of misbehaviour that cannot lead to such an intervention. The net result of our exercise will therefore be that the shield of sovereignty, though reduced in size, will offer a criminal state even more protection than before. If constructive ambiguity is to remain constructive it also needs to remain ambiguous. 

Governments which terrorise their own citizens need to feel an indefinite and unspecified threat of a humanitarian intervention without a Security Council mandate. For this threat to remain credible it is, of course, necessary that such interventions take place with a certain regularity. Kosovo made East Timor possible, but if there are no further Kosovos we are not likely to see new East Timors either. Ideally we should have a humanitarian intervention without a Security Council mandate about once every five years. More often would erode the authority of the Security Council, less often would make the threat less credible.

Unfortunately there are reasons why this timetable will probably not be met. We are unlikely to witness a humanitarian intervention in the short or medium term because the concept has been so totally overshadowed by the war on terrorism. There is a latent affinity between the two concepts, but from the point of view of international law the war on terrorism is less problematic than humanitarian intervention without a Security Council mandate. The military operation against the Al-Qaeda network and the Taliban regime was fully covered by Security Council resolutions, initially based on the inherent right of individual or collective self-defence, but then gradually merging into the international efforts to root out terrorism in keeping with the Charter of the United Nations.

In addition to satisfying the Security Council, the United States has also carefully cleared its action with the Islamic world. It was an extraordinary feat of United States diplomacy that in Qatar on October 10 the foreign ministers of the Organization of the Islamic Conference strongly condemned the September 11 attacks while remaining almost silent on the American air strikes against Afghanistan. The ministers only expressed their concern at the prospect of civilian casualties in that country and warned the United States not to attack any Moslem country other than Afghanistan. Here, under the guise of a stern warning, the OIC in fact gave Washington the green light for its intervention in Afghanistan.

In its war on terrorism the United States has therefore been doubly successful, both militarily and diplomatically. But a double success should make one doubly careful, because the support the United States has enjoyed since September 11 cannot be sustained indefinitely, and certainly not for the several years that, according to President Bush, the war on terrorism may last. The problem will become acute the moment there is nothing more for the US military to do in Afghanistan. It seems unlikely that the United States will then be satisfied with all the freezing of funds, denying of entry and other measures that have proven so ineffective in the past. It is generally taken for granted that other interventions will follow, but it is not clear whether they will focus on countries that give shelter to terrorists or on countries that are developing weapons of mass destruction. Either way, in the light of the OIC statement of October 10 it is difficult to see how the so-called “coalition” could be held together after an American intervention in another Moslem country.

Even the Security Coucil is bound to become less pliant as time goes by. Russia and China may continue to be accommodating as long as they think this can buy them American support for their own wars on terrorism in Chechnya and Sinkiang respectively, but this is the sort of quid pro quo on which a country with a free press and active NGOs will find it hard to deliver. Today all members of the Council agree that it is essential to combat the scourge of international terrorism, but in a war on terrorism that lasts several years the problem of definition is bound to resurface. By the time it does, the inherent right of self-defence based on September 11 will undoubtedly have lapsed. I do not see how it could be invoked to justify an attack on Iraq, not even if there were irrefutable proof that Saddam Hussein had developed operational weapons of mass destruction. Article 51 does not cover a preventive strike. It only grants the right of self-defence “if an armed attack occurs”.

This is where the affinity between humanitarian intervention and the war on terrorism comes into play. If  we agree that a humanitarian catastrophe (or the threat of one) can be so exceptional that it justifies an intervention without a Security Council mandate, it is difficult to see why an exceptional terrorist or rogue state attack (or the threat of one) could not justify such an intervention. In other words, if we accept the thesis that a threat can be so exceptional that it justifies an intervention without a Security Council mandate, why should this apply to the Kosovo Albanians threatened by the Serbian security forces and not to the inhabitants of Tel Aviv threatened by an Iraqi weapon of mass destruction?

This hypothetical question may help us understand why countries like Russia and China believe that in condoning humanitarian intervention without a Security Council mandate countries like Australia and the Netherlands have ventured onto a slippery slope. Countries like Australia and the Netherlands, however, maintain that there is international law beyond the UN Charter and other treaties, agreements and conventions. That view is borne out by Article 38 of the Statute of the International Court of Justice, which states that in deciding disputes in accordance with international law the Court may also apply the general principles of law recognised by civilised nations.

It is important that we accept and even welcome the evolution of international law beyond ratified treaties because international law would be in mortal danger if it were not allowed to keep pace with the evolution of the real world. The UN Charter, for example, does not forbid a sovereign state to terrorise its own citizens, but there can be no doubt that today there is a general principle of law recognised by civilised nations prohibiting this. If we block the evolution of these general principles we will only encourage disdain for international law.

Respect for international law is always in jeopardy in time of war. But we must do all we can to keep the war on terrorism within the pale of international law because respect for international law is one of the values for which this war is being fought. This will require determination on the part of the United States to continue to abide by international law as well as willingness on the part of the international community to recognize that international law extends beyond the provisions of the UN Charter.

The United States will have to sort this out on its own. Advice from across the Atlantic or the Pacific is not likely to be welcome, let alone effective, at this stage. The President’s promise to win the war on terrorism and the United States’ respect for international law must be reconciled by the Americans themselves. This will be difficult enough. It clearly is not the time for us to engage the Americans in a debate on the legitimacy of humanitarian interventions without a Security Council mandate. But without American participation there is no point in discussing this matter either. It would therefore be my advice to take a break in the humanitarian intervention debate and resume it when the war on terrorism has been won - or has spent itself.