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After Bangladesh: The Law of Humanitarian Intervention by Military Force

  • Thomas M. Franck (a1) and Nigel S. Rodley (a1)

In the Bangladesh crisis, two important objectives of international law appeared to be in conflict: that of peace and that of justice. The former objective is set out in the rules of the U.N. Charter against the use of force by states except in self-defense against an armed attack. The second is found in the provisions of the Charter and in various resolutions, declarations, and covenants pertaining to fundamental human rights and self determination.

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The authors gratefully acknowledge the invaluable editorial assistance of Mr. Bert Lockwood, Assistant Director of the Center for International Studies, New York University, which is all the more appreciated for an awareness that Mr. Lockwood does not necessarily agree with all of their conclusions.

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1 Art. 2(4). Reaffirmed most recently in G.A. Res. 2734(XXV), 25 UN GAOR, Supp. 28, at 22, UN Doc. A/8028 (1970).

2 Art. 51.

3 UN Charter, Arts. 1(1), (2), (3); 13(1) (b), 55, 56, 62, 68, 73, 76. For a complete documentation of the UN resolutions, declarations, and conventions in this area see Sohn, L. & Buercenthal, T., 3 International, Protection of Human Rights, Cases and Materials: Basic Documents (prel. (draft) ed., 1972).

4 UN Doc. S/PV.1606, Dec. 4, 1971, at 78.

5 Id. at 86.

6 UN Doc. S/PV.1611, Dec. 12, 1971, at 62.

7 UN Doc. S/PV.1608, Dec. 6, 1971, at 141.

8 UN Doc. S/PV.1606, Dec. 4, 1971, at 86.

9 UN Doc. S/PV.1608, Dec. 6, 1971, at 158.

10 The International Protection of Human Rights by General International Law, Second Interim Report of the Sub-Committee (Richard Lillich, Rapporteur), in Report of the International Committee on Human Rights of the International Law Assn. 38 at 54, 1972.

11 Since we are considering the Bangladesh case, we need not concern ourselves here with the vexed question of degrees of intervention. About this subject, Winfield expressed the definitive view that “[a] reader, after perusing Philliniore’s chapter upon intervention, might close the book with the impression that intervention may be anything from a speech of Lord Palmerston’s in the House of Commons to the partition of Poland.” Winfield, , The History of Intervention in International Law, 3 British Y.B. of Int. Law 130 (1922–23). The Indian military action clearly falls at the upper level of intervention.

12 We accept the following definition: “The theory of intervention on the ground of humanity is properly that which recognizes the right of one state to exercise an international control by military force over the acts of another in regard to its internal sovereignty when contrary to the laws of humanity.” This definition, except for the italicized words appended by us, is in Rougier, , La Théorie de l’Intervention d’Humanité, 17 Rév. Gén. Du Droit Int. 468 (1910); see also 1 Sohn & Buergenthal, supra note 3, at 136–230, from whcih we have received much excellent assistance in the preparation of this and the following subsections.

13 Wheaton, , Elements of International Law (1866), reproduced in: the Classics of International Law, 79 (James Brown Scott, ed. 1936). Wheaton wisely notes in respect of intervention: “It is, in fact, impossible to lay down an absolute rule on this subject; and every rule that wants that quality must necessarily be vague, and subject to the abuses to which human passions will give rise, in its practical application.” Ibid.

14 Id. at 78.

15 See, France, & Weisband, , Word Politics: Verbal Strategy Among the Superpowers (1971).

16 Cf., Lillich, R., Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325 (1967).

17 Cf., Brownub, I., International Law and the Use of Fobce By States 44, 34041 (1963); Claydon, , Humanitarian Intervention and International Law, 1 Queen’s Intra. L.J. 36 (1969).

18 For opposing insights see, Bowett, D., The Use of Force in the Protection of Nationals, 43 Grottos Society 111 (1957); Cabranes, J., Human Rights and Non-intervention in the Interamerican System, 65 Mich. L. Rev. 1147 (1967).

19 Draft Proceedings of a Conference on Humanitarian Intervention convened by Professor Richard Lillich at Charlottesville, Va., March 11–12, 1972, at 49–50 (unpubl.).

20 For example, even Wheaton notes with satisfaction that “In a ruder age, the nations of Europe, impelled by a generous and enthusiastic feeling of sympathy, inundated the plains of Asia to recover the holy sepulchre from the possession of infidels. . . .” Supra note 13, at 96.

21 “Most of the modern publicists recognize that equality can be the rule only among states having common standards of civilization. . . . Inequalities of legal capacity arising out of differences in civilization are manifested in several important rules of the positive law of nations.” Dickinson, , the Equality of States in International Law 22324 (1920).

22 Stowell, E., Intervention in International Law 12627 (1921).

23 Ibid.

24 Cf., Oppenheim, L., 2 International Law, A Treatise 194 (2nd ed., 1912); Wheaton, supra note 13, at 96–97.

25 Preamble to the treaty, cited in Wheaton, supra note 13, at 95.

26 Turkey, concurrently, was engaged in a separate war with Russia which was terminated by the Treaty of Adrianople in 1829. “In this state of things, the western powers of Europe thought they perceived the necessity of interfering to save the Ottoman Empire from the double danger with which it was threatened; by the aggression of the Pacha of Egypt on one side, and the exclusive protectorate of Russia on the other.” Wheaton, supra note 13, at 98. “The moving causes of intervention in the affairs of the Ottoman Empire were the apprehension that Russia would gain a formidable preponderance in Europe, if she became, substantially if not in form, the mistress of the Black Sea and the Dardanelles, and the great interest of England to preserve the existence of a neutralized and guaranteed power in Egypt and the Levant with reference to her Indian Empire.” Id., 99n.

27 L. Sohn, International Law and Basic Human Rights, 22 Naval War College Rev. 52 at 56 (no. 3, 1970).

28 Cf., Wheaton, supra note 13, at 99n.

29 Cf., Nicolson, , the Congress of Vienna, A Study in Allied Unity: 1812–1822 at 17980 (1946). In 1863, Russian oppression of Poles, denying them autonomy, was accepted by the powers. Stowell, supra note 22, at 99–100.

30 Stowell, supra note 22, at 65.

31 Minute of British Commissioner on the Judgments proposed to be passed on the Turkish Officials and Druse Chiefs by the Extraordinary Tribunal of Beyrout. Correspondence relating to the Affairs of Syria: 1860–61 (Part I). Cd., No. 2800, in Great Britain, 68 PAKL. PAPERS 17, Item No. 351, Inclosure 2, (1861). These and related documents are reproduced in 1 Sohn & Buergenthal, supra note 3, at 167–68.

32 Brownue, supra note 17, at 340.

33 Woolsey, T., America’s Foreign Policy 74 (1898).

34 Fenwick, C., Intervention: Individual and Collective, 39 AJIL 645, at 650 (1945).

36 See generally, Brownlie, supra note 17 and Stoweix, supra note 22. See also respecting Latin America, Cabranes, supra note 18, at 1147.

37 There is at least doubt about the continuing validity of historic precedents involving intervention in favor of aliens abroad in this era of decolonization and of the UN Charter. For the Western Hemisphere they have been abjured at least since the 1936 Buenos Aires Conference and U.S. acceptance of the Additional Protocol Relative to Non-intervention which “declare[d] inadmissible the intervention of any [High Contracting Party], directly or indirectly, and for whatever reason, in the internal or external affairs of any other of the parties.” 188 LNTS 4351 (1938); 31 AJIL Supp. 57 (1937). Similarly, the “right” has been renounced by all powers in relation to other states in Art. 2(4) of the UN Charter.

37 League of Nations Off. J. 2289–90 (1931). Excerpts from the remarks of the Japanese representative at the League Council are contained in Brown, , Japanese Interpretation of the Kellogg Tact, 27 AJIL 100 (1933). See Nanda, V., “U.S. Action in the 1965 Dominican Crisis: Impact on World Order, 43 Denver L. J. 439, at 44950 (1966).

38 Letter from Reich Chancellor Hitler to Prime Minister Chamberlain, , The Crisis in Czechoslovakia, April 24-October 13, 1938, 44 Int. CONC. 433 (1938).

39 Cf., Wheaton, supra note 13, at 99–100; Stowell, supra note 22, at 282–83n.

40 Fitzgibbon, , Cuba and the United States, 1900–1935 , at 22 (1935).

41 Cf., McDougal, M. and Reisman, M., Response, 3 Int. Lawyer 438 at 439 (1969).

42 Fitzgibbon, supra note 40, at 25.

43 For a comprehensive study of Hungarian, Czech, and Dominican interventions, see Franck and Weisband, supra note 15; Schmeltzer, , Soviet and American Attitudes Towards Intervention: The Dominican Republic, Hungary and Czechoslovakia, 11 Virginia J. of Int. Law 97 (1970).

44 Ambassador Sobolev, 11 UN SCOR, 754th Meeting 10 (1956).

45 “It should be remembered that apart from the right of peoples to self-determination, there is also the right of the working class to strengthen its power, and to this latter the right of self-determination js subordinated.” V. Stalin, Socheniniya (Works) 265 (1921–23), quoted in Schmeltzer, supra note 43, at 103.

46 11 UN SCOR, 746th Meeting 27 (1956).

47 Ambassador Malik, UN Doc. S/PV.1445, Aug. 24, 1968, at 118–20.

48 Ambassador Tarabanov, UN Doc. S/PV.1443, Aug. 23, 1968, at 146.

49 Thus, a typical statement from President Johnson on June 18, 1965, listed among the U.S. objectives in Vietnam “to permit the people of South Vietnam to select their own government and to build a way of life which conforms to their own traditions and desires” and “to permit a young nation to develop its own destiny, to help its people rebuild and create a modem nation even before the guns go silent.” 55 Dept. State Boll. 43 (1965) [Emphasis supplied]. Elsewhere he said: “Our people in South Vietnam are helping to protect people against terror.” 51 Id. 47 (1964). The latter statement was, of course, made before the United States had comprehensively based its argument on alleged aggression by the North on an independent South Vietnam.

50 President Johnson, Statement of May 1, 1965. 52 Dept. State Bull. 743 (1965).

51 President Johnson, Statement of April 30, 1965, Id. at 742. See also V. Nanda, supra note 37.

82 “. . . [T]he United States used an excessive amount of force against the Constitutionalists and, more importantly, failed to use enough force to curb the terrorism of the Dominican police and military. Although the Johnson Administration had proclaimed as one of the main purposes of the intervention the need to save Dominican lives in a bloody civil war, in fact most of the estimated three thousand Dominican deaths occurred after the intervention, some of them in clashes between the Constitutionalists and U.S. troops, and the rest at the hands of a Dominican military that the United States had rescued from probable annihilation in April and thereafter had helped to protect and rebuild.” Slater, , Intervention and Negotiation: The United States and the Dominican Revolution, 203 (1970).

53 Lillich, R., Forcible Self-Help Under International Law, 22 Naval War College Rev. 56 at 62. (no. 6, 1970).

54 For a summary of the facts, cf. 1 Sohn and Buergenthal, supra note 3, at 218–30. The request of the Congolese Government is contained in the Letter from Congolese Prime Minister Tshombe to the UN Secretary-General, UN Doc. S/6060 (Nov. 24, 1964), in 19 UN SCOR Supp. Oct.-Dec, 1964, at 69. See also Lillich, , Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 324 at 33839 (1967).

55 The Congo rescue “has no other aim than to try and save the lives of 1,000 foreigners—men, women and children—belonging to more than ten different nations. . . .” Prime Minister Spaak, P. H., announcing the Belgian landing at Stanleyville on Radio Brussels, Nov. 24, 1964 . Africa Research Bull., Political, Social and Cultural Series, 189B (1964).

56 Letter from U.S. Representative to the President of the UN Security Council, UN Doc. S/6062 (Nov. 24, 1964), in 19 UN SCOR Supp. Oct.-Dec, 1964, at 186–89.

57 Letter from the USSR Representative to the President of the UN Security Council, UN Doc. S/6066 (Nov. 25, 1964), id. at 192–94.

58 Time, The Congo Massacre, Dec. 4, 1964 at 28; The Times (London) Nov. 28, 1964, at 8.

59 Ambassador Ganao, 19 UN SCOR, 1170th Meeting 15 (1964). “When we were younger, we learned that in music one white note was worth two black ones. The famous humanitarian operation of Stanleyville has just proved to us that one white . . . is worth thousands and thousands of blacks.” Ibid.

60 Africa Research Bull., (P.S.&C.) 189B and C (1964). Between November 24 and the end of the year, five hundred persons suspected of being rebels were executed in Stanleyville by the central government forces which were led by five hundred white, mostly Rhodesian, mercenaries. 10 Africa Rep., 43 (No. 2, Feb. 1965) and 9 Africa Rep. 18–19 (No. 11, Dec. 1964).

61 Africa Research Bull. 189B and C.

62 Letter from the Representative of Afghanistan, etc. to the President of the UN Security Council, (Dec. 1, 1964), 19 UN SCOR, Supp. Oct.-Dec. 1964, at 198–200, UN Doc. S/6076 and Adds. 1–5 (1964).

63 Ibid.

64 But for another view cf., Weisberg, G., The Congo Crisis 1964: A Case Study in Humanitarian Intervention, 12 Virginia J. of Int. Law 261 (1972).

65 Cf., U.S. v. Holmes, 1 Wall. Jr. 1, 26 F. Cas. 360 (1842) and discussion of this point in France, The Structure of Impartiality 52–57 (1968).

60 Stowell, supra note 22 at 66–67, citing eighteenth century authorities.

67 Correspondence Respecting the Persecution of Jews in Moldavia, Cd. No. 3890 at 12 (1867), in Great Britain, 74 Parl. Papers 509 at 522 (1867).

68 Foreign Relations of the U.S., 1872, at 691, (1903); Moore, 6 Digest of International Law 360 (1906).

69 Foreign Relations of the U.S., 1902, at 42, 44 (1903).

70 Ibid., 442.

71 The adjective is Stowell’s, supra note 22, at 71.

72 Foreign Relations of the U.S., 1880, at 873 (1880).

73 Hackworth, , 3 Digest of International Law 64041 (1942). Secretary Hay instructed the U.S. Embassy in St. Petersburg to “make known to His Excellency the views of this Government as to the expediency of putting an end to such discrimination between the different classes of American citizens on account of their religious faith when seeking to avail themselves of the common privilege of civilized peoples to visit other friendly countries for business or travel.” Foreign Relations of the U.S., 790–91 (1904). The action of the United States eventually in 1911 extended to termination of the Treaty of Commerce and Navigation of 1832.

74 Stowell, supra note 22, at 73.

75 Foreign Relations of the U.S., 1891, at XIII (1892).

76 Id.

77 Foreign Relations of the U.S., 1882, at 451 (1883).

78 Stowell, supra, note 22, at 76–78.

79 3 Hackworth, supra note 73, at 642–47.

80 Ibid. The reference to laws banning Jews from bathing resorts is at 645–46, citing Department of State file 862.4016/2125. For reference to similar ineffectual gestures vis-à-vis the Romanian holocaust, cf., Hackworth, , 2 Digest of International Law 15253 (1941).

81 Tenzer, , Review of the Politics of Rescue, 66 Amer. Pol. Sci. Rev. 201 at 202 (1972). The book Tenzer reviews is itself a frightful but well-documented study of nonhumanitarian nonintervention at the highest levels of U.S. Government, politics, and society: Feingold, the Politics of Rescue: The Roosevelt Administration and the Holocaust, 1938–1945 (1970). Notably, it is the Department of State which is shown most officiously and effectively to have torpedoed all proposals for rescue, first with the argument that its Jewish policies were matters internal to Germany, and later with the argument that rescue was likely to dissipate energies and resources from the overall war effort.

82 Foreign Relations of the U.S., 1938, at 374 (1955).

83 ES-II UN GAOR 68 (1956). See also France and Weisband, supra note 15, at 56.

84 UN Doc. S/PV. 1608, Dec. 6, 1971, at 102–105.

85 For discussion of this period cf., Stoweix, supra note 22, at 80–85; 1 Sohn and Buergenthal, supra note 3 at 204–17.

86 The U.S. Ambassador in Turkey (Morgenthau) to the U.S. Secretary of State, Constantinople, Aug. 11, 1915. Foreign Relations of the U.S., 986 (1928).

87 The U.S. Ambassador in Turkey (Morgenthau) to the U.S. Secretary of State, Constantinople, Sept. 3, 1915, id. at 988.

88 Treaty of Sèvres, Aug. 10, 1920, Great Britain Treaty Series, No. 11, Cmd. 964, Arts. 88–89.

89 The U.S. and the Supreme Council of Allied Powers in 1920 extended de facto recognition to the Government of the Armenian Republic. 1 Hackworth supra note 67, at 221–22.

90 28 LNTS 12 (1924).

91 Hughes, Charles E., Recent Questions and Negotiations, 18 AJIL 229, 23739 (1924).

92 The New York Times, Aug. 24, 1966, at 1. Thus, when the new government of Indonesia announced its desire “to resume full cooperation with the United Nations,” there were no objections in the General Assembly to this course of action. 3 UN Monthly Chronicle 11–12 (No. 9, Oct. 1966).

93 The most international attention these hostilities received was on the occasion of the arrest and trial in the Sudan of the German mercenary Rolf Steiner. At a rally in Khartoum, in January 1971, Mr. Diallo Telli, the Secretary-General of the Organization of African Unity is reported to have felt called upon to describe the arrest as “one of the greatest victories achieved by Africa.” 8 Africa Research Bull., (P.S. & C.) 2000(1971).

94 Cf., The New York Times, June 3, 1972, at 1, 10. The Secretary-General did, eventually, dispatch a special messenger to Burundi from June 22–28 in order to examine the “staggering” crisis with a view to assessing the country’s need for humanitarian assistance. Press Release SG/1768-IHA/133.

95 Cf., The New York Times, June 10, 1972, at 3.

96 Lillich, R., Intervention to Protect Human Rights, 15 McGill L. J. 205 at 216 (1969).

97 This useful distinction is developed in Matthews, , Domestic and Inter-State Conflict in Africa, 25 Int. Journal 459, 46668 (1970).

98 Resolution passed by the Organization of African Unity Heads of State, Kinshasa, Sept., 1967, 6 ILM 1243 (1967); 4 Africa Research Bull. (P.S. & C.) 856 (1967). Resolution passed by the Heads of State, Algiers, Sept., 1968, 5 Africa Research Bull. (P.S. & C.) 1174 (1968).

99 On June 11, 1968, under pressure in the Commons, the British Foreign Secretary said that the Government would not unilaterally halt its arms supplies to Nigeria. 766 Pabl. Deb., H.C. (5th ser.) 38 (1968). Similarly the USSR pledged that, in opposition to “attempts to dismember . . . Nigeria,” the Soviet Union would “continue to render it support in its independent national development. . . .” 5 Africa Research Bull. (P.S. &C.) 1127 (1968).

100 Cf., The New York Times, Oct. 11, 1968, at 3; id. Oct. 23, 1968, at 4; id. Jan. 17, 1970, at 1 and 8; id. April 20, 1970, at 18; id. Oct. 1, 1970, at 3.

101 Ambassador Akwei (Ghana), UN Doc. A/PV.2002, Dec. 7 1971, at 31.

102 See on South Africa, S.C. Res. 181( 1963), Aug. 7, 1963, 18 SCOR, Res. and Dec., at 7, UN Doc. S/INF/18/Rev. 1 (1963) solemnly calling upon “all States to cease forthwith the sale and shipment of arms, ammunition of all types and military vehicles to South Africa,” and Res. 181(1964), June 18, 1964, 19 SCOR Res. and Dec., at 13, UN Doc. S/INF/19/Rev. 1 (1964) adding “equipment and materials for the manufacture and maintenance of arms and ammunition in South Africa” to the range of proscribed items. On South West Africa, see Res. 269 (1969), Aug. 12, 1969, 24 SCOR, Res. and Dec., at 2, UN Doc. S/INF/24/Rev. 1 (1969) calling “upon all States to refrain from all dealings with the Government of South Africa purporting to act on behalf of the Territory of Namibia” and Res. 276(1970), Jan. 30, 1970, 25 SCOR, Res. and Dec., at 1, UN Doc. S/INF/25 (1970); Res. 283(1970), July 29, id. at 2; and Res. 301(1971), Oct. 20, 1971, 26 SCOR, Res. and Dec., at 7, UN Doc. S/INF/27 (1971). And on Rhodesia, see Res. 232 (1966), Dec. 16, 1966, 21 SCOR, Res. and Dec., at 7, UN Doc. S/INF/21/Rev. 1 (1966); Res. 253 (1968), May 29, 1968, 23 SCOR, Res. and Dec., at 5, UN Doc. S/INF/23/Rev. 1 (1968); and Res. 314, Feb. 28, 1972, UN Doc. S/RES/314 (1972), imposing extensive economic sanctions on Rhodesia.

103 Cf. the recent U.S. legislation purporting to permit the importation of certain strategic materials, notably chrome ore, from Rhodesia in defiiance of the above-cited resolutions (the “Byrd Amendment,” Military Procurement Act of 1971, P.L. 192–156 §503, amending Strategic and Critical Materials Stock Piling Act, 50 U.S.C. §98–98h). See also Arnold, G., “Sanctions Against Rhodesia 1965–1975,” The Africa Bureau (1972).

104 See Statement by Prime Minister Wilson in Accra, Ghana, Oct. 31, 1965, 11 days before Rhodesia’s unilateral declaration of independence, The Times (London), Nov. 1, 1965, at 6 and in the Commons the following date; id., Nov. 2, 1965, at 14.

105 One other line of cases is worth mentioning. During the past few years, diplomatic personnel have unfortunately tended to become pawns in the domestic strife of a number of countries, chiefly Latin American but also including Turkey. When a diplomat is kidnapped, his country generally has the option of buying his life from the kidnappers. Such payment is clearly humanitarian in that it saves the diplomat’s life. It is also interventionary because payment helps the cause of the revolutionaries. Rescue through ransom has consequently, for the most part, been spurned by the ambassadors’ governments, precisely on the ground that such payment would encourage the instant and future kidnappers and thus constitute intervention in the affairs of the state in which the kidnapping occurred. For U.S. refusal to see its nationals’ lives spared at the cost of encouraging kidnappings, cf. The New York Times, Aug. 11. 1970, at 3. In the case of the kidnapped British Ambassador to Uruguay, the British Foreign Minister stated: “Her Majesty’s Government will not surrender to blackmail. . . .” Verbatim Service, London Press Service, 245/71, 2nd August 1971. “In the discussions so far, Britain has pressed for taking a hard line with kidnappers, so as to try to prevent the phenomenon from spreading.” The Times (London), Jan. 13, 1971, at 1. See also 809 Parl. Deb., H.C, (5th ser.) 76–77 (1971). Implicit in this is a recognition that interventions which save lives may yet be undesirable if they interfere with the rights of a sovereign state. Equally implicit is an understanding that even legitimate rescue, while saving life in the short run, may have long term consequences that are unacceptable from every point of view, including the humanitarian. If, for example, the effect, in one way or another, is to encourage an escalation of violent behavior in general, then an intervention which may save lives in one instance may cost far more lives in the future. It is, of course, easier to make this assertion in instances where only one, or a handful, of lives are at stake. Nevertheless, it is instructive to contrast the growth of hijacking, where short-run humanitarian considerations have been heeded more often.

106 See Sohn & Buergenthal supra note 3 which is the outstanding contribution to this subject.

107 The texts of all these instruments, together with the resolutions approving them where appropriate, are conveniently collected in 3 Sohn & Buergenthal, supra note 3. See also I. Bkownlie, Basic Documents in International Law (2nd ed. 1972).

108 Response, supra note 41, at 438, 442–44.

109 Art. 56 of the Charter states: “All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55” which enumerates economic and social goals. It is scarcely worth citing authorities for the self-evident proposition that this provision is not an invitation to members to attack fellow members to secure such objectives as “higher standards of living,” “full employment,” “cultural cooperation,” nor even “respect for, and observance of, human rights and fundamental freedoms” (Art. 55).

110 The Universal Declaration, indeed, in its preamble, specifies “teaching and education” as the means of promoting its goals, and there is provision for reporting and recommendations on progress to and by international bodies (Arts. 18–23). The International Covenant on Civil and Political Rights provides for a Human Rights Committee (Art. 28) whose sole mandatory power is to receive from governments reports on their own progress towards implementation, to study these reports, and to transmit “general comments thereon” (Art. 40). In addition, the Committee may be granted, optionally, the power to hear and attempt to reconcile complaints from other states (Art. 41) or from individuals (Optional Protocol to the International Covenant on Civil and Political Rights).

The Genocide Convention obliges the parties to “prevent and to punish” genocide (Art. I) but makes no provision for unilateral enforcement by one state against another. Art. VI does state that: “Persons charged with genocide . . . shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such internaional penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” In the event enforcement is necessary, “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate” (Art. VIII) and, in the event of a dispute, it shall be submitted to the International Court (Art. IX). These procedures may not be working, but they do not leave room for unilateral self-help. In only one instrument is the door to unilateral enforcement left ajar. The Proclamation of Teheran states regarding the crime of apartheid that it “is therefore imperative for the international community to use every possible means to eradicate this evil. The struggle against apartheid is recognized as legitimate” (para. 7). “Every means” and “struggle” appear to encompass OAU African liberation.

111 The International Law of the Future: Postulates, Principles and Proposals, Carnegie Endowment for International Peace, 38 AJIL Supp. 41 at 76 (1944).

112 Ibid. See also Whiteman, , 5 Digest of International Law 328ff (1965).

113 G.A. Res. 39(1), Dec. 12, 1946, UN Doc. A/64/Add. 1, at 62 (1946).

114 For a full review of these efforts vis-à-vis South Africa, cf. 5 Whiteman, supra note 112, at 364–77.

115 G.A. Res. 294(IV), Oct. 22, 1949, UN Doc. A/1251 and Corrs. 1 and 2, at 16 (1949).

116 Higgins, , the Development of International Law Through the Political Organs of the United Nations, 230 (1963).

117 G.A. Res. 2131 (XX), Dec. 21, 1965, 20 GAOR, Supp. 14, at 11–12., UN Doc. A/6014.

118 id. Art. 6

119 Corfu Channel Case, Judgment of April 9th, 1949: [1949] ICJ Rep., 4.

120 Id. 23.

121 Id. 35.

122 For an account of the even more vigorous prohibition of intervention in the Americas for humanitarian or any other reasons, cf. 5 Hackworth supra note 73, at 462–70; 5 Whiteman, supra note 112, at 409–59; 2 Sohn & Buergenthal, supra note 3, at 1480–1677; Cabranes, supra note 18, at 1147; Clayton, supra note 17, at 36, 53–61.

123 See Arts. 15 & 17 of the Charter of the OAS, 119 UNTS 48 (1948) (Arts. 18 & 20 of the Revised Charter, Pan-American Union T.S., No. 1–13; OAS Official Records, OEA/SER.A/2 (1967)); Art. 8 of the Treaty of Friendship, Co-operation and Mutual Assistance (Warsaw Pact), 219 UNTS 3, 25 (1955); Art. 3 of the Charter of the OAU, 479 UNTS 39, 71 (1963).

124 Rostow, Eugene, In Search, of a Major Premise: “What is Foreign Policy For?” Round Table, April 1971, 239, at 242 , published in Peace in the Balance 35–36 (1972). The final quotation is from Brownlie, supra note 17 at 436.

125 Tunkin, , International Law and Ideological Struggle, Int. Affairs (Moscow) 25 at 27 (1971). See also Szabo, and Kovacs, , Socialist Concepts of Human Rights (1966).

126 Cf. The New York Times, June 7, 1972, at 7.

127 Tenzer, supra note 81, at 201.

The authors gratefully acknowledge the invaluable editorial assistance of Mr. Bert Lockwood, Assistant Director of the Center for International Studies, New York University, which is all the more appreciated for an awareness that Mr. Lockwood does not necessarily agree with all of their conclusions.

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