THE last year of the twentieth century witnessed an unprecedented surge of gross violations of human rights. The genocidal attacks on civilian populations in Kosovo and East Timor, ruthless invasion of Chechnya causing tens of thousands to flee are only a tip of the iceberg. The world is made up of self-interested nation states, which jealously protect their sovereignty. As one of the consequences of such attitude, civil wars are escalating into regional conflicts. Crimes against humanity, war crimes, serious violations of the laws and customs applicable in armed conflict threaten the very existence of humanity. A very significant issue of this critical juncture thus relates to the determination of the right to intervene on humanitarian grounds.

The Dictates of the UN Charter

One of the fundamental aspirations of the United Nations is "To achieve international cooperation in solving international problems of an economic. social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex. language or religion (Article 1(3) of the UN. Charter]. Article 55 of the United Nations Charter states that the UN. " shall promote ...universal respect for. and observance of, human rights and fundamental freedoms....’. Article 56 provides that "All members pledge themselves to take Joint and separate action in co-operation with the organisation for the achievement of the purposes set forth in Article 55.’

Yet initiating specific steps to promote and protect human rights within the UN or by UN members have been rebuffed

with an oblique reference to Clauses (4) and (7) of Article 2 of the UN Charter. " All members ' shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner Inconsistent with the purposes of the United Nations." - Article 2(4) states. On the other hand Article 2(7) says: Nothing contained in the present Charter shall authorise the United Nations

to intervene in matters which are essentially with in the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter; but this principle shall not prejudice the application of the enforcement measures under chapter 7."

What is clear is that the international community does not confer on any state a right to use force in favour of human rights protection in another country. A response to human rights violations can not be made through violence. In a recent resolution entitled. The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States", the Institute of International Law took this position. The resolution states that diplomatic, economic, and other measures could be undertaken by a state when acting individually or collectively. A confirmation of the broad normative scope of the prohibition of the armed force in international relations is also found in the Friendly Relations Declaration, adopted by the consensus by the UN General Assembly in 1970 which states: ’No state or group of states has the right to Intervene, directly or indirectly, for any reason whatever, in the internal and external affairs of any other state. Consequently armed in-

tervention and all other forms of interference or attempted threats against the personality of state or against its political, economic and cultural elements are in violation of international law. Seen against this backdrop, the NATO intervention in Kosovo is clearly Illegal. The deficiencies of the UN can not establish a new claim of right to drop bombs for humanitarian purposes.

The Dilemma of State Sovereignty and

Humanitarian Intervention

It appears from the brief analysis that the limitation imposed by the UN Charter on armed intervention even by the UN "in matters that are essentially within the domestic Ju-risdictioh of any state" does not apply only to the enforcement measures taken by the United Nations Security Council under ■ Chapter 7 of the Charter. Article 39 empowers the Council with the sole power of determining "the existence of any threat to the peace, breach of peace, or^ct of aggression." It shall, then make recommendations. or decide what measures, shall be taken in accordance with Article 41 and 42. to maintain or restore international peace and security. Besides. Article 51 preserves " the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. In fact, the charter has promulgated comprehensive legal regime on the prohibition on the use of force, which has become recognised as jus cogens or rules of a peremptory charac-

Theodor Meron. a professor of International Law at New York University argues albeit progressively. "By joining the treaties, most governments have now signed on to the idea that human rights clearly limit their sovereignty, and create obligations to the entire community of states." In fact the principle of non interference with the essential domestic Jurisdiction of states simply can not be Judged as a protective shield behind which human rights can be flagrantly or systematically violated with impunity. The very principle of respect for sovereignty, territorial integrity or political independence of any state should not be allowed to outweigh at least the existing international human rights regime shaped to confront gross violations of human rights.

Sovereignty does not include the right of mass slaughter or of destroying a rebellious province in the name of pacifying it or launching a systematic operation of torture or forced exodus of civilian populations in the name of controlling civil strife. Chechnya. East fimor, Kosovo. Bosnia. Sierra Leone. Kashmir: all have experienced appalling human rights abuses that test our preparedness to translate promise Into action. Those are the tests we all but failed in different perspectives. One thing remains the same. Human rights become the first casualty. Ominous human rights situation, specially crimes against humanity, clearly amounts to a threat to international peace and security. which permits the Security Council to take enforcement action to remedy the situation, there is nothing in article 2(7) restricting the enforcement action to measures short of the

use of force As succinctly put by Sir Nigel Rodley, a professor of International Human Rights Law at the Universify of Essex and the UN Special Rapporteur on Torture.".... human rights violations have simply become over the years matters of international concern and no longer ones "essentially within the domestic jurisdiction" of states". UN can effectively intervene in any matters that can be a threat to international peace and security. The meaning of such "threat" no longer belongs to conservative domain of interpretation.

No state or group of states has unilateral or collective right to intervene or use of force against the territorial integrity or political independence of another state. A right to humanitarian intervention does not. as such, exist. Only the UN has or it can authorise such right in due procession however this process has many fallings: It can be cumbersome and slow moving. But it possesses the quality of universal legitimacy and it s a forum where every nation can have its voice heard.

Geographical proximity or regional interest does not constitute a proper qualification for intervention except in case of asserting one's right to self-defence. Otherwise the floodgate will be opened to all sorts of subjective claims when inter-ventlc:"' ''rejustified. It is essential to recall that, until the Government of Indonesia invited an international force in to East Timor, no government in the world was prepared to offer troops for an early UN intervention.

In Quest for an Effective Mechanism

The recent trend whereby courts are increasingly allowing the prosecution of human rights cases, irrespective of

where they occurred or how much time has elapsed Is a welcome development. The decision of the House of I.ords of the United Kingdom in the Pinochet case was a landmark decision on the potential of national courts to enforce international commitments. The Judiciaries of different countries can decide to act firmly to impede the rising occurrences of crimes against humanity.

The newly established Office of the UN High Commissioner for Human Rights can play a crucial role in promoting and protecting human rights. The present trend of using this office mostly for promotional purposes is a sheer wastage of hu-man and financial resources. It should be redesigned as the focal point of UN human rights activism. The office should be allowed to perform a pro-active role especially in cases of systematic pattern of gross violation of human rights. The Office can determine the urgent need for UN intervention and directly refer the case to Security Council for immediate consideration. The preventive strategy will yield better result than simply being reactionary. As rightly pointed out by Mary Robinson. UN High Commissioner for Human Rights "Prevention must be paramount....

• Failures of prevention shame us all. Cambodia shamed us. Kosovo shamed us and now East Timor has shamed us. Are we going to be shamed again?"

The writer is a Chevening Scholar and President, Amnesty International Society. University of Essex.