Examine The Legality Of Military Humanitarian Intervention International Law Essay

The general prohibition on the use of force contained in Article 2(4) [1] of the UN Charter forms a cornerstone of public international law. That prohibition is subject to a very narrow category of exceptions, all of which arise from the right to self-defence codified in Article 51 of the UN Charter. [2] A more controversial exception to the use of force that has been claimed to arise as a rule of customary international law is that of humanitarian intervention. This essay looks at the arguments in support of the proposition that humanitarian intervention is now established in international law as a lawful exception to the general prohibition on the use of force and assertions against such a proposition.

The theoretical debate

Ever since the question of the legality of humanitarian intervention first arose, there has been both vocal support and opposition to it. Lauterpacht famously put forward the rationale behind humanitarian intervention. He stated that one had to go back to the purpose of the general prohibition on the use of force, and that was to ensure peace. He considered that ‘ultimately, peace is more endangered by tyrannical contempt for human rights than by attempts to assert, through intervention, the sanctity of human personality’. [3] He thus considered that humanitarian intervention was justified if a state committed atrocities against its citizens in such a way and to such a degree that it interfered with those citizen’s fundamental human rights.

However, it has always been appreciated that there are problems with the very idea that a state would expend its own resources and risk its own security simply for the good of the citizens of another state. Such a view might be considered to be cynical, but there is no doubt that history has shown that whenever humanitarian intervention is claimed as the legal basis for military force in another country, it is mixed with other reasons why a state would military intervene in another state. [4] Furthermore, humanitarian intervention is often put forward as a basis for legality of force without the citizens of the state who have suffered the intervention asking for such intervention to take place. [5] One can therefore question the theoretical underpinnings of such intervention.

This problem is only exacerbated when one considers that humanitarian intervention is intervention that is undertaken by states on a unilateral basis outside of the precepts of the Security Council. The purpose of setting up the United Nations and the Security Council was to provide for peace throughout the world and engage in military intervention when required, as authorised by the Security Council. The Security Council is thus authorised with powers under Chapter VII of the UN Charter that allows it to authorise military use of force in another country. In doing so, the Security Council is able to take into account the fact that a particular country is facing human rights violations at the hands of its government and/or leaders. [6] Thus for example, in 1991, when the oppressive government of Iraq being led by Saddam Hussein took disproportionate military action to repress the Iraqi civilian population, the Security Council passed Resolution 668 under Chapter 7 of the UN Charter demanding of Iraq to immediately end the repression and insist that it allowed access to international humanitarian organisations to enter Iraq. [7] 

Any force authorised by the Security Council may be politically contentious, but there is no doubt that it would be lawful under the rules of force in international law. Given that there is such a power in the Security Council, one would question why there was a need for humanitarian intervention. [8] Indeed, providing that there is a right for humanitarian intervention available to states that can be exercised independently of the UN and the Security Council would greatly undermine the function of the Security Council as the body entrusted with authorisation of military force. [9] 

Humanitarian intervention is thus a doctrine which has long been debated in the courts. The real debate lies however in the practical instances that have arisen in the past where humanitarian intervention has been alleged as a justification of force. The section below shall go on to analyse these practical instances and asses to what extent humanitarian intervention can be said to now be a norm of international law.

Practical instances of humanitarian intervention

One major problem that arises when assessing the legality of the doctrine of humanitarian intervention is that one must distinguish between instances where the doctrine is invoked in rhetoric and public relations only and instanced where humanitarian intervention is actually relied on as a legal basis for justifying use of force in another state. The latter is a lot rarer than the former. The problem however is that it is only the latter incidents that is actually evidence of state practise of the right to humanitarian intervention.

One of the earliest incidents to deal with the concept of humanitarian intervention commented on by commentators was that of Indian action in Bangladesh. In early 1971, following subjugation to Pakistani rule, Bangladeshi nationals were rebelling and seeking to establish Bangladesh as an independent country. India provided extensive military aid to Bangladesh to allow this to happen, aid without which arguably Bangladesh would not have won the conflict. In public theoretic, India stated that’s is actions were based on humanitarian intervention since the Bangladeshis were suffering human rights violations under Pakistani rule. [10] This was highly criticised however for the fact was that India in having long-standing conflict with Pakistan itself did have vested interests in helping Bangladesh gain independence. [11] Indeed, India did not go on to utilise humanitarian intervention as a legal basis for its action and sought to rely on the doctrine of self-defence instead. [12] 

This pattern was repeated in many more incidents that occurred. Tanzania intervened militarily in Uganda in 1979 to enable rebels there to overthrow the repressive leader Idi Amin. [13] In 1978 Vietnam invaded Cambodia stating that it wished to prevent Cambodia from suffering at the hands of its government. Both stated that they wished to help the citizens of the respective countries they intervened in. This was however continuously rejected by the international community, with France and the US specifically stating that human rights violations did not justify the use of force, thus clearly indicating that it was not accepted at that time that humanitarian intervention was considered to be a legal basis for intervention. [14] 

Chronologically, the next major incident of humanitarian intervention that took place was that of Australian intervention in East Timor. Rebels in East Timor seeking to establish it as in independent country were facing repression from the state of Indonesia resisting independence. Human rights violations in the situation ensued resulting in several UN Resolutions calling for peace and eventually in a UN referendum, the results of which indicated that the majority of people wished for independence. The Australian government thus took the lead in providing military assistance to East Timor to repel Indonesian presence and establish an independent state. [15] In doing so, the Australian government expressly relied on the right to humanitarian intervention.What must be pointed out however is that the UN was involved in that situation, and most commentators regard that the intervention in East Timor is more akin to an incident where the UN regulates force for purposes of humanitarian intervention rather than when the right is employed unilaterally by a state. [16] Thus, the intervention in East Timor was seen to be highly similar to the US intervention in Somalia in 1992 which had been acted upon only after the UN had specifically called for humanitarian intervention. [17] 

Perhaps the most famous incident of humanitarian intervention was that in Kosovo. Kosovo, now an independent country, used to be part of the Socialist Federal Republic of Yugoslavia and consisted of a mix of ethnicities, with 90% being ethnical Albanians and the minority being Serbians. In the 1990’s the Federal Republic of Yugoslavia started to break up with each different country announcing its independence. The state of Kosovo also suggested breaking off from the FRY, to regain the independence Kosovo once had before Yugoslavia was established in the first place. This was met by much resistance from the Serbians both in Serbia and in Kosovo. A regime of ethnic cleansing of the Albanians in Kosovo started to prevent the calls and efforts by those peoples to make Kosovo an independent country and one of the world’s worst conflicts started, with human rights violations reaching epidemic proportions. [18] 

This matter was brought to the attention of the Security Council, and on 31 March 1998 it adopted Resolution 1160, [19] which imposed an arms embargo on the FRY and called for it to work with the Kosovar Albanians to achieve a peaceful solution to the matter. Following this however the violence in Kosovo only intensified and Resolution 1199 was adopted which determined that the situation in Kosovo amounted to a threat to peace and security in the region. [20] The problem was however the presence of the veto in the Security Council. Every permanent member of the Security Council has the right to veto any Security Council resolutions made. Russia being a major part of the former Soviet Union that existed was highly reluctant to take any action further to the two resolutions already adopted against the FRY and indicated that it would use its veto if any resolution were attempted to be passed which authorised military measures to be taken against the FRY. There was little chance that the Security Council would therefore be able to take action in response to the situation that was ongoing in Kosovo. [21] 

As a result of this, NATO states came together to discuss military intervention in Kosovo. NATO declared that the FRY had not complied with Resolution 1199 and that NATO would therefore institute military action against Russia. Extensive military action was undertaken via an aerial campaign, attacking FRY forces both in Kosovo and in the FRY itself to attempt to stop the attacks that were taking place against Kosovo. The campaign commenced ion 23 March 1999 and did not end several months later, on 10 June 1999 when the FRY forces agreed to a case-fire and signed the military-technical agreement with NATO on 9 June 1999. [22] 

There was no doubt that the military action undertaken by NATO had been successful in bringing peace to the region. Despite the fact that there was no apparent basis at the time for military action, there was no international objection to the force used (other than by the states to whom the military action was targeted against). It was apparently accepted that the action undertaken by NATO was lawful. [23] From this, one can deduct that there must have been a valid theoretical underlying to the force taken.

It was clear that the action was not authorised under the Security Council resolutions, for while the resolutions were relied on in justifying the military action undertaken, it was always accepted that the resolutions did not authorise military force and indeed did not attempt to do so because of the veto that would be exercised by Russia. There was no question that the Serb forces had carried out an armed attack against NATO countries or anyone in the region of NATO countries and so the doctrines of self-defence or collective self-defence could not be relied on. The only remaining doctrine that could have possibly justified the military force undertaken by NATO forces was therefore that of humanitarian intervention. Indeed, the situation in Kosovo appears to be the one that elevated the doctrine of humanitarian intervention from what was seen to be a less than credible basis of justification of use of force to one that was apparently widely accepted. [24] 

Thus commentators who point out that the doctrine was accepted as applying to the case of Kosovo point to the wide apparent acceptance of the international community that the acts of NATO in Kosovo were legal. In March 1999 the states of Belarus and Russia introduced a draft resolution to the Security Council which stated that the NATO bombing of Yugoslavia was illegal. This was rejected by a majority of 12 votes. In 1999, the UN Commission on Human Rights passed a resolution finding that the intervention by NATO had been lawful, with only Russia and Cuba (both communist states) finding against such a resolution. [25] 

Kosovo is therefore at least one incident where the right to humanitarian intervention was both relied on and appears to have been accepted. The difficulty lies in the fact that while the military action undertaken against Kosovo was considered to be morally justified, concerns continue to be expressed by academic commentators that the incident should not be seen to act as precedent, for doing so would effectively widen the category of exceptions that existed in relation to the use of force and undermine the well-established rules of Article 2(4). [26] 

Perhaps the next most famous incident where the right of humanitarian intervention was relied on, but one where the basis of such a right was considered to be much more contentious, was that of Iraq. [27] Coalition military intervention in Iraq in 2003 was one of the most contentious use of force that took place and the legality of the war continues to be debated to the current day. Different bases were offered by the coalition states that went to war at different times. Saddam Hussein’s brutal treatment of his people and the human rights violations that they had suffered were often pointed to when the rhetoric on whether a war should take place was entered into. [28] What is notable however was that although apparently doing so in the period preceding the war, neither the US nor the UK legally relied on the doctrine of humanitarian intervention to justify its war in Iraq. Rather, the UK relied on interpretation of Security Council resolutions while the US argued for the right of self-defence, both pointing to the fact that Iraq was in possession of weapons of self-destruction (an assertion which was later discovered to be invalid). [29] The fact that humanitarian intervention was not relied on despite the fact that Iraq was suffering a humanitarian catastrophe and had been for several years indicates that neither of the world’s leading states considered that the right to humanitarian intervention had established itself as a legal norm and would not, formally at least, be accepted by the international community as a bass for military intervention.

Responsibility to protect

The humanitarian intervention doctrine has evolved in recent times and international law has come to develop the ‘responsibility to protect’ doctrine, often referred to as the ‘R2P doctrine’. The very existence of this doctrine supports the idea that humanitarian intervention is not only regarded as a moral justification of the use of force in states where human rights violations are being committed, but is a positive duty on the international community to act and intervene in states where there is inadequate respect for human rights.

UN Secretary General Kofi Anan brought the tensions that were apparent behind the prohibition on the use of force in Article 2(4) and the fact that intervention was required as a result of increasing human rights violations that were seen around the world to the fore in 1999. At that date, the atrocities in Rwanda were being discussed by the international community, and the committee that had been set up to investigate how the genocide in Rwanda had taken place came back with reports attributing much blame to the UN for failing to take action in Rwanda in what was seen as a ‘preventable genocide’. [30] Annan therefore requested the General Assembly to answer the question of: ‘if humanitarian intervention is, indeed an unacceptable assault on sovereignty, how should we response to Rwanda, to a Srebrenica – to gross and systematic violations of human rights?’. [31] 

The Canadian government in response to this question set up the ICISS. In 2001 the ICISS produced a report where the doctrine of the responsibility to protect was advanced. [32] In 2004, the High-Level Panel on threats, challenges and changes that had been set up by the UN secretary-General stated that the R2P doctrine was ‘an emerging norm of collective international responsibility to protect’. [33] The Secretary-General went on to endorse this finding. In a 2005 world summit, the R2P doctrine was expressly accepted and referred to. [34] 

Perhaps the most pertinent recognition of the R2P doctrine is that the Security Council specifically referred to the doctrine in Resolution 1674 (2006) when it was regarding the question of how civilians in armed conflicts should be protected. [35] The Resolution referred to the R2P doctrine as a ‘doctrine of international law’ apparently conferring upon it a status of customary international law or otherwise.

The problem with the fact that R2P now appears to be part of international law is the emergence of further questions, namely what the relationship of the doctrine of humanitarian intervention with the R2P doctrine is. Is the R2P doctrine simply any other way of describing humanitarian intervention? Or are the two concepts entirely different? If so, is humanitarian intervention subject to the doctrine of R2P? Debate on these questions commenced ever since the R2P doctrine was put forward and has ensued ever since.

One might consider that the R2P doctrine is in fact simply another way of describing the doctrine of humanitarian intervention, and one that seeks to grant the doctrine a more elevated status. The language of ‘responsibility’ no doubt confers more powers than the language of ‘rights’ does for while the latter grants states discretion in whether to exercise the particular rights of concern, the former does not. If one were to accept such an argument, then the fact that R2P now appears to be a doctrine of international law means that humanitarian intervention is also a rule of international law and such intervention legalises use of force in other states.

However, the ICISS’s formulation of the R2P doctrine is on the basis that it is an entirely different concept to the doctrine of humanitarian intervention. The ICISS report thus stated that humanitarian intervention should not be seen to be the prime concern in the modern world where catastrophic human rights violations such as Rwanda were taking place. The Commission argued that there was a need for a new doctrine, which governed the need to intervene in the affairs of states who committed human rights violations. Such a doctrine should not be seen as a right to intervene that was granted to the intervening state, as humanitarian intervention might do, but rather as a responsibility on other states to intervene as a result of the right of the state that was suffering human rights violations to be protected. [36] 

R2P also introduced a new method of dealing with the concept of state sovereignty. As set out above, the doctrine of humanitarian intervention does not tie in well with the concept of state sovereignty, for it effectively allows a sate to intervene in another states’ affairs on the ground that the former state is of the opinion that the latter states’ treatment of its own citizen is in accurate. Such a concept can be seen to go against the very idea of equality of states in international law. [37] The R2P doctrine proposes to deal with this tension by proposing that the concept of state sovereignty ‘to control’ its citizens with that of ‘sovereignty as responsibility’ to protect its citizens. Once again, there was a shift from rights to responsibility. The R2P doctrine effectively re-characterises the conception of state sovereignty as one that is a right of governments to control their citizens, to one where there is a duty on governments to protect its citizens, and rights are granted to citizens to be protected. Where these rights were not being complied with and a government was not protecting its citizens and was in fact committing human rights violations against it, then the sovereignty to protect was not being effected and this sovereignty did not exist. As such, any exercise of the R2P doctrine through the use of military force would not contravene any idea of sovereignty. [38] 

Such a proposal can be commended for its view of the principle of state sovereignty. The fact is that the concept of state sovereignty and the idea that a state is able to control its citizens as it wishes is one that while remaining in theory can be seen not to have continued on an international basis. International law has long adjudicated to govern the relationship of a state and its individuals. A prime example of this can be seen to be in international human rights protections which essentially impose standards on states with regards to a state’s treatment of its citizens which must be complied with. [39] The very concept of the international community and of the United Nations necessitates a limiting of the concept of state sovereignty. The reformulation of the concept of state sovereignty from one which sees sovereignty as control to that to protect might be considered to be ingenious in that it resolves the theoretical tensions that exist between the right to military intervention in states where human rights violations are committed and sovereignty of that state.

However, the fact is that the concept of sovereignty as sovereignty to protect still poses the same problems that the traditional concept of state sovereignty controls: Sovereignty to protect allows a third state to intervene in a state’s matters when protection of citizens is not being undertaken adequately. Which state is to decide however when citizen’s protection is being undertaken adequately and when it is not? To what extent does the protection of citizens in a state have to be undermined before military action can be allowed in that state? [40] 

Thus, whether or not R2P is the same or a different doctrine to that of humanitarian intervention, the same difficulties that are faced by humanitarian intervention proponents remain, and perhaps the most major of these problems is the wide floodgates the idea of a responsibility to protect opens. Practical incidents have shown how in the past humanitarian intervention has wrongfully been used by states, often on a post-facto basis, to justify use of force and intervention in other states. The R2P doctrine in fact provides for a wider scope of humanitarian intervention for as pointed out above, a responsibility imposes a larger duty and therefore a larger scope of power on states to take action than a right to intervene does, and the R2P doctrine therefore arguably exacerbates the problem that humanitarian intervention traditionally faced.

In this vein however it must be noted that the proponents of the R2P doctrine point out that unlike humanitarian intervention, the R2P would impose a duty on states to employ a wide range of measures, along a continuum, to regulate states’ behaviour. Thus the R2P doctrine envisaged that preventative measures should be used to prevent human rights atrocities, and duties included rebuilding societies that had been affected by human rights violations. Such a doctrine is therefore very commendable in theory. [41] 

Furthermore, it must be pointed out that the R2P doctrine apparently appears to have been envisaged to be utilised within the provisions of the Security Council rather than impose duties or rights on states to act on a unilateral basis to military intervene in other countries. If that is the case, then the R2P doctrine has not really helped towards resolving the questions surrounding humanitarian intervention at all. [42] 

Conclusion

The above discussion has shown that there are many questions regarding the legality of humanitarian intervention in international law as a justification for use of force in another state. There is little doubt that in the past the doctrine was not regarded as a valid justification for the use of force. Thus the international community tended to reject attempts by states to justify use of force with the concept of humanitarian intervention, not least because such justification was often posed on an ex facto basis and was usually tied in with some other form of justification that was put forward. The position appeared to change however in the NATO intervention in Kosovo when the international world apparently accepted the legality of the action. The war in Iraq in 2003 however appeared to reverse the position once again, when attempts to rely on humanitarian protection were rejected almost from the outset and indeed the coalition states eventually went on to rely on other basses to justify the use of force that was undertaken.

The doctrine of humanitarian intervention does have its proponents and certainly is a very attractive concept in international law. In the writer’s view however the dangers posed by the doctrine outweigh the advantages that it offers. The doctrine effectively widens the scope of exceptions that exist to Article 2(4) and allows states to unilaterally take force. This undermines not only the concept of state sovereignty but also the purpose of the United Nations and the Security Council as being relevant bodies to regulate international peace and security.

The R2P doctrine that has been put forward as a doctrine of international law is in many ways preferable to that of humanitarian intervention. The R2P doctrine provides for rights of citizens rather than rights of states and importantly it envisages that military action will be undertaken by the Security Council rather than on a unilateral basis. The writer is therefore of the opinion that the R2P doctrine should be distinguished from the idea of humanitarian intervention – R2P should be recognised as a principle of international law and one that allows the Security Council to take military action in state when required. It should not however be seen to extend the doctrine of humanitarian protection.

Indeed it is the writer’s view that humanitarian protection does not exist as a legal right in international law, both in theory and in practise. The doctrine goes against all ideas of state sovereignty and against the prohibition of the use of force in general. Furthermore, states do not appear to have accepted that the doctrine is a norm of law. In this vein, the case of Kosovo can be considered to be an exception in international law. [43] In that case, the only reason the Security Council did not take action was because of the presence of the Russian veto, but otherwise there was international consensus that military action should be taken. States do not appear to have accepted that there is a right to humanitarian intervention other than this one incident however and so the writer is of the opinion that military action taken in a state based under solely under the doctrine of humanitarian intervention would not be legal in international law.