Does international law recognise a right of humanitarian intervention in cases of overwhelming humanitarian necessity?

Introduction

The dilemma of what to do about citizens of another sovereign country who see themselves confronted with horrifying abuses by their own government has remained with us throughout the era post World War II. The recent events in the Sudanese region of Darfur, labelled not only civil war, but “ethnic cleansing”^[1] have, again, triggered discussions about the question of “humanitarian intervention”^[2]. We can quote various instances in recent history after 1945, where appalling violations of basic human rights, including the mass killing of civilians on a high scale happened within the sovereign territory of a country, for example in Cambodia in the period 1975-1979, in Ex-Yugoslavia in the early 1990s, in Rwanda in 1994, to name but these.^[3] Time and again, alongside those tragic events, different voices have called for military actions driven by humanitarian considerations, seemingly subscribing to the catchphrase “humanitarian intervention [as opposed to] inhumanitarian non-intervention”^[4].

The military actions of NATO in Kosovo^[5] especially, having been branded the first “humanitarian war”,^[6] have attained a remarkable degree of attention in the academia, raising new and old questions about the legitimacy and viability of the model of humanitarian intervention.^[7] While there seems to be an unanimous agreement that there are in existence both moral^[8] and ethical^[9] raisons d’être as well as some agreement of how the modus operandi of a humanitarian intervention should look like^[10], there exists some substantial disagreement as to if at all and under which conditions such a venture is to be deemed legally permissible.

In the face of an absence of a comprehensive legalistic framework under international law that would govern humanitarian interventions (the human rights framework is severely limited by the weaknesses of its enforcement mechanisms), the essence of the contemporary debate predominantly stems from a clash of imperatives between the principles of the protection of state sovereignty as laid down in Art. 2 (4) and (7) of the UN-Charter and the obligation of the protection of human rights (that might be achieved through a humanitarian intervention),^[11] in other words, a “conflict between justice and [legal] order”.^[12]

Are self-defence and Security Council-authorized enforcement under Chapter VII the only legitimate exceptions to the UN Charter’s prohibition on the use of force, or is there an independent right of humanitarian intervention based on (emerging) state practice, i.e. international customary law? Only a minority among international lawyers have adopted the view that humanitarian intervention is lawful.

This short paper seeks to briefly examine these and other relevant aspects that revolve around the concept of humanitarian intervention.^[13] It comes with no surprise that both advocates and antagonists of the concept of humanitarian intervention advance legal (and other) arguments which involve a variety of teleological interpretations de lege lata as well as considerations de lege feranda.

Bearing in mind our question, we will try to approach the subject from two different angles. First, we will attempt to analyse relevant articles of the United Nations Charter (UN-Charter) and some of the arguments that have been put forth by different authors regarding this realm of international law. Secondly, we will consider the rules of international customary law in this field as well as the arguments being attached to it by international lawyers.

The paper foresees the conclusion that a customary rule establishing a right of (forcible) humanitarian intervention has not yet been able to arise from state practise any further than being an “embryo of a rule of humanitarian intervention”^[14], the fact that thought-provoking tendencies can be observed in the international political arena notwithstanding.^[15] While wishing to allow the reader to explore some evidence that we have gathered, we will leave other detailed conclusions for a later analysis.

The Analysis of the subject matter

Before engaging in the concrete analysis, we shortly, but importantly wish to point out that, as Dixon and McCorquodale have indeed rightly pointed out, the theoretical debate about the lawfulness of humanitarian intervention is not simply for (legal) academics. Our view of humanitarian intervention reveals much about the prevailing “Zeitgeist”, the way we think of international law very generally – a fact which our analysis will have to take into consideration.^[16]

Professor Greenwood has morally and convincingly argued that, an interpretation of international law which would forbid an intervention with the intention to prevent something as terrible as the Holocaust of the German “Dritte Reich”, would be “contrary to the very principles on which modern international law is based”.^[17] Essentially, it seems, in the post-Cold War paradigm of comprehensive and inclusive security, the threat agenda (in the sense of Chapter VII UN-Charter) is now perceived to increasingly encompass human rights values, social injustices, economic deprivation et alia to “impart to the international security order with a more humanistic orientation”.^[18]

We herewith further seek to analyse whether this assumption can be traced in the existing international corpus legis. Extrapolating from Dixon, who has stated: “Should it be true that a right of humanitarian intervention is in the making, we must remember that for the international lawyer who believes in a theory of the „sources“ of international law, such a right can exist only if it is based in treaty or found in state practice supported by adequate opinio juris. There is no moralistic magic that can manufacture the right simply because it ought to exist.”^[19]

I.) Analysis of relevant articles of the UN-Charter

Humanitarian intervention is, in fact, not being expressly condemned by the UN-Charter, which sets the actual standard for the use of force between its member states.^[20] However, for our purposes, we have to take into account its Article 2 (4) (which reflects the so-called “doctrine of non-use of force”), which affirms that:

“All Members [member states] shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, (…).” ^[21]

In form of enumerative exceptions, there are only two cases under the Charter-law in which the use (or threat) of force may be allowed in the international relations between member-states – and it is highly questionable whether there are arguments that can persuasively make a case for the concept of humanitarian intervention finding a place in these.

Firstly, there is the right of self-defence, mentioned in Article 51 UN-Charta, which states that every member state of the UN is imbued with “(…) the inherent right of individual or collective self-defence if an armed attack occurs (…).” Secondly there is the possibility of legal military action on grounds of chapter VII of the UN-Charta, which reiterates in its Art. 43 that “(…) the Security Council (…) may take such action [by virtue of a Security Council Resolution] by air, sea, or land forces as may be necessary to maintain or restore international peace and security. (…).” Yet, a (classical) humanitarian intervention is neither a case of self-defence, nor of a measure based on chapter VII of the UN Charta. We will explain this briefly.^[22]

A claim of humanitarian intervention based on self-defence could legally emerge only after the country forcibly defending itself has witnessed a violation of legal rights and therefore could only be advanced in respect of nationals after these were being harmed. But this is not the case when we look at the classical case of a humanitarian intervention of a state that aims to purely protect the human rights of the citizens of the state that is being attacked.^[23]

The second exception to the rule of Art. 2 (4) UN-Charter, collective coercive military measures based on chapter seven, are also not being referred to in the case of a classical humanitarian intervention. The essential trait here is that no (express) consent of the Security Council (based on Art. 39 UN-Charter in connection with Art. 42 UN-Charter) covers the actions carried out in the name of a humanitarian intervention. In most cases, the violation of human rights of nationals will normally not constitute a threat or breach of international peace and security in the sense of chapter VII of the UN-Charter and the military actions are being driven unilaterally by one state or a group of states willing to act.^[24]

To be quite clear, what is illegal unilaterally may be legally permissible if it is the result of a collective decision of the Security Council. A coercive humanitarian intervention is not excluded by the Charter per se and a priori, provided that the Security Council determines that massive and systematic violations of human rights occurring within a state constitute a threat to the peace and security, and then authorises an enforcement measure under chapter VII UN-Charter.^[25]

In sum, we can say that the treaty-based international law does not incorporate a right to humanitarian intervention.^[26] However, since international law is not confined to treaty texts, our next chance to see the rising of a right to humanitarian intervention will be the examination of the existing or emerging international customary law, a question to which we will now turn.^[27]

[...]

^[1] See, inter alia, Human Rights Watch Homepage: http://www.hrw.org/campaigns/darfur/index.htm

^[2] For the purpose of this essay, for (the doctrine of) humanitarian intervention, we wish to refer to what Dixon describes as “one State (State A) may use force in the territory of another state (State B) in order to protect the human rights of individuals in State B, usually being nationals of State B, implemented without the consent of the territorial sovereign”; see: Dixon, M., 2000: Textbook on International Law, (Oxford University Press, 4th ed.), page 310. Wheeler and Bellamy put it, shortly, this way: “Humanitarian intervention is an act that seeks to intervene to stop a government murdering its own people”, see: Wheeler, N.J., Bellamy, A.J., “Humanitarian intervention and world politics”, in The Globalization of World Politics, Baylis, John and Smith, Steve (Oxford University Press, 2nd edition 2001), p.472. For a terminological distinction between humanitarian intervention and humanitarian assistance, see Sarooshi, “Humanitarian Intervention and International Humanitarian Assistance: Law and Practice”, Wilton Park Paper 86, the UK, November 1993, p.1. Furthermore, remarks on the notions of forcible and non-forcible interventions, that may occur in a unilateral or multilateral manner, can be found here. (A recent and vital example is the worldwide humanitarian assistance in the Asian region struck by the so-called Tsunami-disaster end of December 2004. Since this event, a large number of both government as well as NGO-resources have been mobilized in order to assist the victims; for UNHCR briefing notes on the UN-activities, see: http://www.unhcr.ch/cgi-bin/texis/vtx/tsunami?page=briefing). For different theories of humanitarian intervention see: Wheeler, , N.,J. Saving Strangers – Humanitarian Intervention in International Society, Oxford University Press, 2000, Part One; for yet another understanding of humanitarian understanding, see: Moeller, B.: “UN Military Demands and Non-Offensive Defence Collective Security, Humanitarian Intervention and Peace Support Operations”, Working paper of the Copenhagen Peace Research Institute, University of Queensland, Brisbane, Australia, July 1996.

^[3] Compare the remark by: Wheeler, pp.15, 16.

^[4] Chesterman, S.: Just war or just peace ? – Humanitarian Intervention and International Law, Oxford University Press, 2001, see title of chapter 6, p.219.

^[5] If the ICJ will find a ground for jurisdiction in Yugoslavia’s action against the NATO countries, there will exist an opportunity for an authoritative judicial analysis of the existing international law relevant for the doctrine of humanitarian intervention. A neat overview on the armed conflict in what the author calls the notorious “powder keg” Kosovo, including thought-provoking remarks on the issue of “humanitarian intervention”, is given by: Hadzic, M.: “Security Ranges Of NATO intervention in Kosovo”, Working paper published by the Copenhagen Peace Research Institute, September 1999; Also compare the thorough review by: Guicherd, C.: “International Law and the War in Kosovo”, Survival, (International Institute for Strategic Studies), Vol. 41, No.2, Summer 1999, pp.19-34.

^[6] Macrae, J.: “Humanitarian aid and intervention: The challenges of integration – Understanding integration from Rwanda to Iraq“, Ethics and International Affairs, Issue 18, no. 2 (2004); p.30.

^[7] As Hilpold has pointed out, the NATO military actions in Kosovo have by many authors been regarded as a watershed dividing a former Hegelian, state-centred system of international relations, from an actual Kantian model which is far more community-oriented; see the thorough and extensive legal review: Hilpold, p. 437; also compare remarks provided by Shaw, M.,N.: International Law, Cambridge University Press, Fifth Edition, 2003, pp.1046, 1047; furthermore, consider the interesting remarks provided by Ramsbotham, O., Woodhouse, T.: Humanitarian Intervention in Contemporary Conflict, Polity Press, Cambridge, 1996, chapter 6. pp.167-192.

^[8] This position might be challenged, for instance, by Bhikhu Parekh, who has claimed: “Citizens are the exclusive responsibility of their state, and their state is entirely their own business. (…)”; quotation taken from: Wheeler and Bellamy, p.473.

^[9] For an interesting overview on ethical issues regarding the concept of humanitarian intervention, see: Smith, M.J., “Humanitarian Intervention: An Overview of the Ethical Issues”, Ethics and International Affairs – Annual Journal of the Carnegie Council on Ethics and International Affairs, Volume 12, 1998; also compare: Bellamy, A.J.: “Ethics and Intervention: The “Humanitarian Exception” and the Problem of Abuse in the Case of Iraq”, Journal of Peace Research, Volume 41, Number 21, March 2004.

^[10] One would agree, for instance, that such actions would have to be in line with the four Geneva Conventions from 1949 and the two Additional Protocols from 1979 as well as other international humanitarian law. For a discussion of recent issues in this field, see, for instance: Human Rights Defenders on the Frontlines of Freedom - Protecting Human Rights in the Context of the War on Terror, Conference Report (November 11-12, 2003), May 2004, Carter Center, Atlanta, USA. For remarks on the quality of humanitarian law as lex specialis to other law in armed conflicts (and thus, also to humanitarian intervention), see: Watkin, K.: “Controlling the use of force: A role for human rights norms in contemporary armed conflict”, American Journal of International Law, Vol. 98:1, p.1-35; also compare the position held by the famous ICRC regarding the concept of humanitarian intervention an the involvement of humanitarian law: Ryniker, A.: “The ICRC’s position on “humanitarian intervention””, IRRC, June, 2001, Vol. 83, Nr.842, pp.527-532.

^[11] Kap asks, whether, quite generally, any military intervention reasonably can be called humanitarian, when he states : “Does it make sense to call an intervention 'humanitarian' when the troops involved may have to fight and kill those who, for whatever reasons, seek to obstruct them?”; see Kap, October 2000, Vol. 24, No.7. For a more generally written outlook on (the purposes of) humanitarian intervention and changing beliefs surrounding it can be traced at: Finnemore, M., reviewed by Cardenas, S., “The Purpose of Intervention: Changing Beliefs about the Use of Force”, Ethics & International Affairs Annual Journal of the Carnegie Council on Ethics and International Affairs, Volume 18, No. 1 (Winter 2004).

^[12] Wheeler, p.11.

^[13] Already for reasons of space, our investigation of arguments will by necessity remain selective.

^[14] For this notion as well as a neat overview on contemporary literature, see: Zacklin, R. “Beyond Kosovo”, in Ku, C., and Diehl, P.,F. (ed.), International law – Classic and contemporary readings, Boulder, London, 2003, pp.375, 376.

^[15] This position might, in international relations terminology, be called “restrictionist”, or “rule-consequentialist” as opposed to what “counter-restrictionist” views would offer; for this terminology, see: Wheeler and Bellamy, pp.472 and 474.

^[16] The legal “classicists” on the one hand view the formation of international law as stemming from the practice of States. Ipso facto, the absence of examples of intervention for the defence of basic human rights, or the (claimed) absence of acceptance of the legitimacy of such venture in those cases where humanitarian concern has been part of the motive for action, is all they need to prove that such acting is not in line with (contemporary) international law. So called “realists”, on the other hand, perceive law as an instrument for the achievement of community goals and reason that the right of humanitarian intervention need not be established by such very strict criteria. It is enough, in their view, if the right is necessary and not specifically prohibited by the law. While classicist appear to be willing to sacrifice human suffering in favour of upholding the formal legitimacy of the law-creating process (although they would disagree with this criticism), realists make a case in favour of the use of military force to achieve certain “values”. Compare the suggestions made in their notes, Dixon, M., McCorquodale, R.,2003: Cases and Materials on International Law, (Oxford University Pres, 4th ed. Oxford, New York (i.a.), p.556; equally compare the indications made by: Wheeler, p.11.

^[17] Greenwood as quoted in the UK Parliamentary Select Committee on Foreign Affairs, Fourth Report, (2000), as quoted in Dixon, McCorquodale, p.555.

^[18] Kap, October 2000, Vol. 24, No.7.

^[19] Dixon, p. 310.

^[20] It also had not been condemned by either the League Covenant or the Kellogg-Briand Pact. For remarks on the latter legal document, see: Dinstein, Y.: War, Aggression and Self-defence, Cambridge: Cambridge University Press, 3rd edition, 2001, p.78.

^[21] This primary obligation of all member states of the UN has attained the status of ius cogens, compare Dixon p. 293.

^[22] As we shall see later, none of the historic cases since World War II, where military actions have been (allegedly) driven by humanitarian grounds genuinely fulfilled the conditions set out by the UN-Charter.

^[23] Compare the remarks uttered by Judge Rosalyn Higgins, as quoted in: Dixon, McCorquodale, p.551.

^[24] So-called “unilateral actions” are taken by an unauthorized participant who contends they are, nonetheless, lawful; for a thorough discussion of this term in connection to the concept of humanitarian intervention, see: Reisman, M.W.: “Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention”, EJIL, 2000, Vol. 11 Nr.1, pp.3-18.

^[25] For further details on the legal background of humanitarian intervention in the face of UN-law, see (for instance): Quadraat, de Jonge, C.: “Intervention in Internal Conflicts: Legal and Political Conundrums”, Working Papers Carnegie Endowment for International Peace, Global Policy Program, Number 15, August 2000, pp.4 and following; equally consider: Chesterman, chapter 2.

^[26] In fact, some of the most interesting legal arguments that we will be discussing under II). might have also been discussed in this earlier section, I). However, we see them being more aptly used in the discussion/analysis of the contemporary customary law. (Chesterman, for instance, in his chapter 2, has chosen a different structure of his analysis). For reviews of the UN Charter, see: Simma, B.: The Charter of the UN: A Commentary, (Oxford: Oxford University Press, 1995).

^[27] For a general thorough legal review of the Exceptions to the prohibition of the use of inter-State force, see: Dinstein, Y.: War, Aggression and Self-defence, Cambridge: Cambridge University Press, 3rd edition, 2001, Part III, p.157-273.