Naval Law Review 1997: Vol 44

315 Pages·1997·55.5 MB·English

NAVAL LAW REVIEW
ARTICLES
THE EMERGING NORM OF HUMANITARIAN INTERVENTION
AND PRESIDENTIAL DECISION DIRECTIVE 25
Lieutenant Commander Glenn T. Ware, JAGC, USN
THE UCM) AND THE NEW JOINTNESS: A Proposal to Strengthen
the Military Justice Authority of Joint Task Force Commanders
Major Michael J. Berrigan, USA
COUNTER-GUERRILLA OPERATIONS: Does the Law of War
Proscribe Success?
Lieutenant Commander Kenneth B. Brown, JAGC, USN
THE MILITARY’S DNA REGISTRY: An Analysis of Current Law and
a Proposal for Safeguards
Sarah Gill
SEXUAL HARASSMENT IN THE UNITED STATES NAVY: A New
Pair of Glasses
Kristin K. Heimark
THE PRIVATIZATION OF A MILITARY INSTALLATION:
A Misapplication of the Base Closure and Realignment Act
Professor Edwin R. Render
NAVAL LAW REVIEW
Judge Advocate General of the Navy
Rear Admiral John D. Hutson, JAGC, USN
Commanding Officer, Naval Justice School
Captain Timothy C. Young, JAGC, USN
Editor
Lieutenant Commander Scott M. Lang, JAGC, USN
Associate Editor
Lieutenant Kevin M. Brew, JAGC, USN
Managing Editors
Lieutenant Kevin M. Brew, JAGC, USN
Lieutenant james R. Crisfield, JAGC, USN
Book Review Editor
Captain John P. Marley, USMC
Editorial Board
Lieutenant Commander David J. Gruber, JAGC, USN
Lieutenant Commander Tamara A. Miro, JAGC, USN
Lieutenant Commander Hermen Y. Yee, JAGC, USNR
Captain John P. Marley, USMC
Captain Kevin J. Conway, USMC
Lieutenant Barry L. Harrison, JAGC, USNR
Lieutenant Don A. Martin, JAGC, USN
Lieutenant Gregory P. Noone, JAGC, USN
Editorial Assistant
Gerald J. Gallant
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NAVAL LAW REVIEW
The Emerging Norm of Humanitarian Intervention
And Presidential Decision Directive 25
Glenn T. Ware’
The West . . . has a high capacity to kill but a low capacity to die.
Charles William Maynes
I. INTRODUCTION.
The New World Order brought an end to neither war, ethnic and regional
conflict, nor genocide, but rather set loose conflict as the world began to come
to grips with democracy. Eastern Europe is raging in conflict as a result of the
disintegration of the former Soviet Union. Third World countries once firmly
controlled by Cold War politics, have had their hands untied and have likewise
struggled with their newfound freedom. Calls for intervention, humanitarian
assistance, peacekeeping, peacemaking and preventive diplomacy can be heard
daily. These multifaceted international dilemmas are the types of challenges that
the leadership of the United States and the United Nations must all too
frequently come to terms with in this changing era of world politics. Actual or
potential conflicts loom on the horizon, particularly in the Middle East, Africa,
new independent states and other areas in the Third World.' The causes vary
from the end of the Cold War to the rapid pace of decolonization, ethnic feuds
and natural disasters. The political, legal and military questions raised by these
threats to international peace and security, often times referred to as complex
The positions and opinions Stated in this article are those of the author and
do not represent the views of the United States government, the Department of
Defense, or the United States Navy. The author is an active duty Naval Officer
presently serving as the Staff Judge Advocate to COMMANDER, CARRIER
GROUP FIVE, located in Yokosuka, Japan. This article was completed as part
of the author’s study for his L.L.M. from Harvard University, Cambridge,
Massachusetts. The author would like to thank Prof. Abe Chayes for his
thoughtful comments and guidance. Additionally, the review by L.A. Benton was
most insightful. This article has been edited by Captain Kevin J. Conway,
USMC.
1 See generally Thomas G. Weiss & Kurt M. Campbell, Military Humanitarianism, SURVIVAL,
Vol. 35, No. 5., at 451-465 (1991). Weiss & Campbell discuss the issues that are confronted with
the emerging notion of “military humanitarianism” as a result of the unprecedented increase in
military humanitarian operations since the end of the Cold War.
1997 The Emerging Norm of Humanitarian Intervention
humanitarian emergencies, are staggering. How do states justify intervening
in these humanitarian disasters in contravention of the norm of nonintervention?
What legal and political mechanisms have been established for operating in a
complex humanitarian environment? How has the leadership in the United
States reacted to previous crises and how have these reactions and experiences
shaped the course of future U.S. participation and support of actions to resolve
international crises that are yet to come?
The purpose of this Article is to address these questions. It will discuss
generally the changing world order as it relates to intervention by states before
and after the Cold War. It will explore the “tools” for peace available to the UN
and to the United States. It will review the legal, political and military
requirements that must be considered by the national leadership prior to
participating in any operation designed to address a complex humanitarian
emergency. Specifically, this Article will explore how events in Somalia have
significantly shaped U.S. decision making and have caused the U.S. to draw
back from its early 1990 posture of involvement and support in restoring peace
in the world’s trouble spots. This retreat in policy is articulated in Presidential
Decision Directive (PDD) 25, which relates to U.S. involvement in international
crises. The Article will discuss the elements of this new policy and its probable
effect on U.S. involvement in future humanitarian emergencies.
The policy enunciated in PDD 25 makes threats to vital U.S. interests the
trigger for U.S. action or support in resolving complex humanitarian
emergencies. This strict "vital national interests" test is a shift from the early
1990s interventionist “multilateralistic” attitude brought about as a result of
several factors: emerging international norms of justifiable intervention, a post-
Cold War reinvigorated UN, post-Gulf War euphoria and a new Democratic
administration willing or even feeling compelled to seek UN authority to conduct
unilateral intervention operations, among other things.’ A retreat to a strict
? For a summary of operational/political issues involved in complex humanitarian emergencies,
see David J. Zvijac & Katherine A. W. McGrady, Operation Restore Hope: Summary Report,
Center For Naval Analysis (Mar. 1994) (on file at the Center For Naval Analysis and with the
author); Jennifer Morrison Taw & John E. Peters, Operations Other Than War, Implications for the
U.S. Army, Arroyo Center, RAND Corp. (1995); See also JOHN L. HIRSCH & ROBERT B. OAKLEY,
SOMALIA AND OPERATION RESTORE HOPE (1995). This book details the political, legal and military
operation in Somalia, including UNISOM I, UNITAF and UNISOM II. UNITAF was the U.S. led
humanitarian mission into Somalia.
* Peter W. Rodman, Declarations of Dependence, NATIONAL REVIEW, June 13, 1994, Vol. 46,
No. 11, at 32. The recognition that unilateral action, outside of self-defense under UN Chart. Art.
51, must be conditioned on UN authority is a signification change from previous administrations.
Certainly President Reagan would not have sought UN authority to invade Grenada.
2
NAVAL LAW REVIEW
"vital national interests" test and away from an expanded “just causes” test for
intervention (e.g., massive human rights abuses, has prevented and will continue
to prevent the U.S. from acting in areas of the world where it does not have a
vital national interest, yet massive and systematic genocidal atrocities are, have
been, or will be committed. The 1993 massacre of the Tutsis in Rwanda is a
perfect example.
This national policy shift by the U.S. embodied in PDD 25 has numerous
potential ramifications. It may signal a “hands off” attitude by the U.S. which
will free the temptations of rogue nations or groups (or as National Security
Advisor Anthony Lake termed “thug of the month”, interested in “ethnic
cleansing” or racial purity. It may restrain the U.S. from intervening until an
emergency becomes exceedingly volatile and the calls for intervention can no
longer go unheard. This delay could put those individuals (military, relief
workers, etc.), who are tasked with intervening in a complex humanitarian
emergency at greater risk. Additionally, it could increase costs because the cost
of involvement increases as the volatile nature of a situation increases.
To avoid such results, the criteria that the U.S. uses in determining when it
will support an intervention action must be reassessed. We must re-imagine our
“vital” national interests when determining whether the United States will
support or participate in international intervention operations. The United States
should take the lead in seeking international consensus to expand the reasons
justifying intervention to account for cases like Rwanda. However, this
expansion of the “just causes” test for intervention should be balanced against
a strict "means" test to accomplish the objectives as well as account for the
practicality of intervention.
The move towards an expanded notion of “just causes” for intervention
would likely have several effects. First, it would mean earlier U.S. engagement
in complex humanitarian emergencies. This early engagement would curtail
atrocities the likes of which the world has not seen since World War II. Also,
early engagement would lessen the overall costs of an intervention, in terms of
both financial and personnel resources. Early engagement, utilizing one of the
various “tools” for peace, can be an effective and useful mechanism for
achieving a variety of positive results as mentioned above. The task remains,
however, to articulate the balance between the “just cause” for intervention and
the means and practicality of intervention. While it remains to be seen what
PDD 25’s long term effect on U.S. interventionist posture will be, it is
problematic that with the emergence of global democracy, the United States has
1997 The Emerging Norm of Humanitarian Intervention
in place a policy that causes the U.S. to shy away from multilateral intervention
in threatened democracies. As it stands now, current U.S. policy embodied in
PDD 25 leaves open the possibility for future Rwanda scenarios and, in fact,
may encourage their onset.
Il. NONINTERVENTION AND ITS CHANGING NORMATIVE
CONTENT.
With the peace of Westphalia in 1648 and the end of the “interventionist
cycle of religious war,” nonintervention principles prohibiting state intervention
in the affairs of other states were established by statesman to “preserve the
peace in a world of states divided by nationality, religion and ideology.”* After
three centuries, this Westphalian understanding of world order structured the
relationship between states whereby “[bJoth sovereignty and nonintervention
acquired an absolute status as ideas.”* Although these ideas were often
“betrayed in the daily dynamic of world politics,” they nevertheless remained
the ideal. °
Intervention takes many forms but does not include normal international
activities, which result from the relationships among states. This is true even
if the relationship tends, in the perception of one state or another, to unjustly
benefit a particular state. Rather, interventionist acts are those acts that are so
extraordinary as to be “subject to elimination from the repertoire of state
‘ J. Bryan Hehir, Intervention: From Theories to Cases, 9 ETHICS AND INTERNATIONAL AFFAIRS
1, 4 (1995).
> GAat2-3.
6 Id. at 3. See also Marc Trachtenberg, Intervention in Historical Perspective, in EMERGING
NORMS OF JUSTIFIED INTERVENTION 15 (Laura W. Reed & Carl Kaysen eds., 1993). Although the
norm of nonintervention developed over the period of three centuries, there were significant events
in its development which tended to indicate a double standard such as “gun boat diplomacy” by the
British which led to the war with China. By the end of the 19th century it was assumed that the
“civilized’ nations of Europe had the right to control their own destiny, free of foreign intrusion,
but the “backward” and “less civilized” Asian and Latin American states could be targets of
intervention. Id. at 23. The U. S. also took for granted the double standard which applied to
civilized v. uncivilized countries. “Woodrow Wilson. . . the great champion of self-determination
for the European nationalities, sent American forces into Santo Domingo and Haiti and into Mexico
twice.” Id. at 24.