The legality of military humanitarian intervention

Introduction

The doctrine of humanitarian intervention is one of the most highly controversial issues in the world today. Many interventions have been made under the veil of humanitarian reasons, such as the US intervention in Iraq in 1990.

Moreover, some interventions were made under the self-defence concept. After the World Trade Centre and the Pentagon were attacked on 11 September 2001, the war against terrorism was announced by the US President George W. Bush. He said that this war is for self-defence, which is the right of any state. In 2002 he stated that a threat to the US has been caused by Iraq, Iran and North Korea by developing weapons of mass destruction, such as nuclear weapons. In his second inaugural address he stated that:

“The best hope for peace in our world is the expansion of freedom in all the world…. So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.”

After that, the US and the UK invaded Iraq under the guise of humanitarian intervention to provide freedom for the Iraqi people, in an operation entitled “Operation Iraqi Freedom”.

The legality of this situation was enormously arguable, as was stated by many states such as Russia, China, France, Germany and many others. The members of the Security Council were split into agree and disagree, and some of them said that it was partly due to the Security Council's failure.

Furthermore, there were other interventions for humanitarian purposes, such as in Somalia, East Pakistan, Rwanda, Liberia and many others. Are the interveners practicing it as a legal right? Or they were going against international law with they did it?

Many arguments have been made about the legality of humanitarian intervention. Some scholars see it as a legal right for states in some situations, whereas other argue that in all situations humanitarian intervention is an illegal act.

This essay will examine the legality of humanitarian intervention by first, defining what is meant by humanitarian intervention. Secondly, we will discuss its legality in terms of the UN Charter. Finally, we will consider its legality with regard to customary international law.

Definition Of Humanitarian Intervention

Although is difficult to define humanitarian intervention, it is vital to understand it clearly. Humanitarian intervention has been defined differently by different scholars. For example, humanitarian intervention has been defined by Wil Verwey as:

“The threat or use of force by a state or states abroad, for the sole purpose of preventing or putting a halt to a serious violation of fundamental human rights, in particular the right to life of persons, regardless of their nationality, such protection taking place neither upon authorization by relevant organs of the United Nation no with permission by the legitimate government of the target state.”

This definition contains two main points: the first one is that there should be an armed act by an international group, the second is that there must be other types of force beside “Threat or use of [military] force”.

However, Malvina Halberstam defined humanitarian intervention as:

“The use of force by one state in the territory of another to protect persons who are in imminent danger of death or grave injury when the state in whose territory they are is unwilling or unable to protect them”

This definition provides two elements. The first is that there is killing or harm to people is about to happen. Secondly, the people involved will not be protected by the territorial state or the state does not want to protect them.

Another scholar - Stowell - stated that humanitarian intervention is:

“…justifiable use of force for the purpose of protecting the inhabitants of another state from treatment so arbitrary and persistently abusive as to exceed the limits within which the sovereign is presumed to act with reason and justice.”

Although these definitions are not identical, they express the basic meaning of the humanitarian interventions doctrine. Most of these definitions provide four main aspects in terms of the humanitarian intervention concept. Firstly, the use of [military] power. Secondly, the examination of human rights in all humanitarian interventions arguments. Thirdly, the sovereignty of the international organization - the one that has been intervened into. Finally, the examination of the United Nations Charter and customary international law with regard to all humanitarian interventions.

The United Nations Charter

The main responsibilities of the UN Charter are keeping peace and security, respect for sovereignty, non-intervention, and human rights. If country A violates the human rights of country B's citizens in her country, then country A has breached article 55. However, if country A has intervened in country B, then she has breached article 2 (4) of the UN Charter or perhaps article 2 (7) by interfering in country B's internal affairs. To know if humanitarian intervention is permitted or prohibited under the UN Charter, it might first of all be important to explain certain concepts briefly - the concepts of sovereignty, non-intervention, and human rights.

  1. Respecting Sovereignty

The concept of respecting another state's sovereignty appears in both customary international law and the UN Charter. Therefore, the state has the right to practice and manage its own internal affairs without interference by another country or international organization. Many scholars agree that the Sovereignty concept has had a great influence in modern international law after the great Treaty of Westphalia, which stated that Roman Catholic and the Protestant people should both have equal rights. Another example of respecting state sovereignty in terms of international customary law is seen when the French Supreme Court in 1849 insisted that, “…the reciprocal independence of a state is one of the most universally respected principles of international law”

According to the UN Charter, any state has the right to exercise and govern her total jurisdiction in her borders. Moreover, article 2 (7) stated that every sovereign state must respect other sovereign states, and that no state has the right to intervene in the domestic or internal affairs of another state.

  1. The Non-Intervention Principle

The rule that governs the use of force in international law and the requirement not to intervene, is formed by the United Nations Charter. Article 2(4) of the UN Charter states that:

“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”

Beside on Article 2 (4) of the UN Charter, there are two more articles that are devoted to the prevention of the use of force. Article 2 (3) states; “all members shall settle their international disputes by peaceful means…” and Article 2 (7) states that, “all nations are to respect all others' decisions that affect solely their internal affairs”.

However, the UN Charter provides two exceptions on the use of force. The first exception is provided by Article 51, which states that the state has the right to use the force of power for self-defence if an armed attack occurs against her. The second exception is provided by Article 42 of the UN Charter, which states that the Security Council has the right to intervene in any state by land, air or sea forces, if it is necessary to bring back or maintain international security and peace.

  1. Emphasis On Human Rights

Article 55 of the UN states, specifically, that the United Nation shall increase and spread the respect for human rights in all nations, and ensure primary freedom for them.

The second one is Article 56, which states that all members should make promises to help the UN organization to achieve the goal of Article 55. Scholars argue about the word “pledge” in this article as to whether it is a legal obligation or just a moral one. However, it could be said that it is a legal obligation for the reason that the word “pledge” expresses itself as a legal requirement.

The main problem which might arise here is how could the UN spread human rights and freedom when every culture is different from one another?

The UN tries to solve this problem by taking the human rights concept in a very general way. Furthermore, it tries to move from nation to nation to protect and to spread human rights as much as possible.

Humanitarian Intervention Under The Un Charter

The legality of humanitarian intervention under the UN Charter is a controversial issue. Some scholars argue that it is legal, whereas other think it is not.

  1. Textual Arguments

According to the Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” This is why the UN Charter must be taken in a good faith, because it is a treaty.

  1. The Classicist's Good Faith View

The classicists group argue that the right of humanitarian intervention does not exist under the UN Charter. Moreover, they claim that the UN Charter provides only an exception to the prohibition of the use of force. The first exception is the use of force in a self-defence situation. The second exception is that action has been taken by authorization of the Security Council for an enforcement measure. Furthermore, if humanitarian intervention is a third exception to the UN Charter, then why is it not expressed in the Charter? And why does it provide a provision that prohibits intervening in another sovereignty state for humanitarian purposes?

Another reason for prohibiting the use of force relies on the General Assembly definition of the “aggression” which says that, “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another state….. no justification of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression” . According to Modibo Ocran, the General Assembly's definition of “aggression” expresses specifically that there is no other justification of intervention in another state, such as humanitarian intervention.

The classicists also argue that the UN Charter prohibits all types of unilateral use of force. Also when it allows other states to use force in a self-defence situation, it puts limitation on it. First of all, every state must inform the Security Council directly if it is using force in a self-defence situation. Secondly, after the Security Council takes measure against the armed action, the right to self-defence is over. However, the use of armed force might be possible if apartheid is the only problem.

  1. Realist's Good Faith View

The main reason for humanitarian intervention is to help other people who are in need. Many scholars make humanitarian intervention legal because of their emotional feelings about the situation, such as Professor Arthur Leff and Professor Reisman.

It could be said that the humanitarian intervention is a continuing right of state. According to the Thomases, there are two main points that makes humanitarian intervention a legal right of state. The first point is that humanitarian intervention action does not harm territorial integrity and does not affect state independence. Secondly, if the concept of self-defence was taken as an extension, then the intervention for the protection of other national people would be allowed under this concept. Professor Reisman agreed strongly with this justification, and said that if the Article 2 (4) is read closely, it would appear that there is no forbidding for the use of force, but that it prohibits the use of force for particular illegal ends.

Furthermore, if there was violence committed against human rights that might cause a peace threat, then according to article 2 (7), the humanitarian intervention in this situation is a legal right.

  1. Summary Of The Textual Arguments

Both sides have given reliable arguments. However, neither side answered the question as to whether humanitarian intervention is permissible or prohibited under the UN Charter.

  1. Intent Arguments

After the good faith argument, the Classicist and Realist groups went on to consider the intent argument to support their point of view.

  1. Classicist's Intent View

Firstly, they argued that one of the main goals of the UN Charter is to make peace throughout the world, which is the main reason for prohibiting humanitarian intervention. Moreover, if the use of force is legalized, then it would be against the interests of justice.

Secondly, the UN Charter established that the main reason is to generate a scheme to minimize war, not to create more wars. Furthermore, it was established to ban any evil act or aggression in the world.

Thirdly, they also argued about the language that is used in the UN Charter.

Using the word “protecting” might be interpreted to mean more than the UN meant or intended, whereas the use of the word “promote” means that nations cannot interpret this to allow them to use force.

(b) Realist's Intent View

The realists support their argument about the intent by examining three aspects.

  1. Intention Of Human Rights Provision

The realists argue that the UN Charter's provisions for human rights were forced to provide equal rights for all human beings. According to Lauterpacht, respecting human rights is a legal duty for every nation. He also stated that using the word “promote” in the UN Charter was a slip on the part of the founders. Another supporting point is that human rights are protected, merely by passing the UN Charter. This is the main reason why the provision of human rights should be taken seriously.

  1. Human Rights And Article 2 (7)

Some scholars argue that intervening in a third nation or any nation's domestic jurisdiction to minimize violence on the grounds of human rights, is prohibited by article 2(7).

However, the realist's group disagree and think otherwise. They argue that all nations nowadays have obligations with regard to human rights. Therefore, any violence with regard to human rights that occurs within the domestic jurisdiction of a state, gives the right to another state to intervene in this state's domestic affairs to protect human rights.

Moreover, they also argue that article 2(7) prohibits the Economic and Social Council from giving any advice about any matter inside any domestic jurisdiction. However, the Security Council is not prohibited from intervening for humanitarian purposes.

Finally, many scholars agree that any human rights violence that happens within the domestic jurisdiction of a state is an international matter rather than a domestic one.

  1. Human Rights And Article 2(4)

The realists support their view by saying that the phrases used in Article 2(4) seem to prohibit any change in state borders or any minimization of its independence by force. However, it allows intervention for humanitarian purposes.

Moreover, according to Teson, if the UN Charter founders had thought about humanitarian intervention, they would definitely have allowed it.

  1. Summary Of Intent Arguments

To know what the exact intent of the UN Charter is, is nearly impossible, because it was established by a huge group of people. Moreover, it is obvious that when the UN Charter was created, the intent of the parties was to stop human rights violence and aggression.

  1. Policy Argument

Is seems that the UN Charter provisions are not clear about the legality of humanitarian intervention. Therefore, the Classicists and Realists have gone to the policy argument to support their point of view.

  1. Classicist's Abuse Argument And Realist's Responses

The classicists argue that allowing intervention for a humanitarian purpose might be easy in theory, but too dangerous in practice. Moreover, permitting humanitarian intervention could give the stronger states the chance to intervene in weaker states for their own interest, but under a humanitarian veil.

However, the realist's have two responses to the classicist's argument.

Firstly, they state that the problem is the thing that must be attacked by the UN, not the solution. For example, in the US, crime is out of control, and many police officers are covering their power abuse under the crime-preventing veil. According to the classicist's argument, the police officers' numbers must be reduced because they are using their power in bad way. Whereas, the solution is to create an effective system that tries to eradicate the problem without eliminating the solution.

Secondly, saying that prohibiting the use of force, even in the form of humanitarian intervention, will provide a safer life, then allowing it might not be true. For example, there might a problem that occurs in some situations that needs intervention to benefit the whole situation and solve the problem.

  1. Realist's Arguments And Classicist's Responses

  1. Failure Of The UN

The realists argue that the regular UN failure to act when there is violence that impacts on human rights, Is the main reason which will make many states retain the humanitarian intervention rights. They said that the main reason for the failure of the UN, and the Security Council in particular, is that it leans on a fragile agreement of five member states - the Permanent Members.

There are many examples of UN failure when human rights have been violated and they have failed to intervene. In Nigeria, nearly half a million Ibos were killed by the government; tens of thousand were killed in Rwanda and there are many other examples where the UN failed to intervene to protect these people from suffering.

  1. Sovereignty Of The People

The realists argue that sovereignty is for people, not for governments. Therefore, every nation should have equal democracy and, based on this, states should have the right to intervene in another country to provide the freedom for its people. As George W. Bush stated:

“The best hope for peace in our world is the expansion of freedom in all the world…. So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.”

They also argue that providing democracy is part of human rights work and everyone in the world should have this right, even by force, and that the king sovereignty concept must disappear from the world. This means intervening becomes a legal right if it is about the democracy purpose.

The classicist's counter argument is that providing democracy for people by use force is not the correct way. Moreover, they said that democracy comes from the people's desire. In other words, if they want democracy, they will make it for themselves without any external force intervention, such as happened in Eastern Europe.

  1. Conclusion Of The Humanitarian Intervention Under The UN Charter

The legality of humanitarian intervention under the UN Charter is not clear. Therefore, the provisions of the UN Charter should be interpreted in good faith, such as the Vienna Convention on the Law of Treaties has stated.

However, some might argue that does intervening for human purposes indicate good faith? This is another argument that might arise when it is seen from this angle. Therefore, even if we go with the Vienna Convention and we intervene in terms of the UN Charter provisions, there is still this problem of whether humanitarian intervention is considered a good faith or not?

Customary International Law

  1. Definition Of Customary International Law

Customary international law could be defined as a "…general and consistent practice of states followed by them from a sense of legal obligation”. It is considered as one of the main sources of international law.

Customary international law also could be defined as the “…collection of international behavioral regularities that nations over time come to view as binding as a matter of law” According to this definition, the CIL contains two fundamental elements.

The first element is that the uniformity and practice should be widespread.

Secondly, the psychological element which is the “opinio juris”. When there is an act or behaviour practiced by a nation, then the opinio juris gives an explanation about this act or behaviour.

  1. Customary International Law And Humanitarian Intervention

There are many cases where states, great powers and normal powers have intervened in other states, and their acts have been justified and accepted as humanitarian intervention.

For example, the Indian intervention in East Pakistan (Bangladesh) in 1971. Indian first claimed that over ten million refugees were crossing its border because of the genocide that was being undertaken by the government and that this caused a threat to India and the neighbours. They then claimed that the Indian intervention in East Pakistan was self-defence. Many nations, including the Soviet Union, supported this view. Therefore, the Indian intervention was justified, even if it caused the creation of a new country (Bangladesh).

Another case is the Uganda intervention. Many nations accepted the intervention and the change of government. Moreover, there are many cases where nations have acted positively in terms of humanitarian intervention.

From the above it could be said that humanitarian intervention is the new rule in customary international law. Firstly, because it has been practiced by many states on many occasions. Secondly, because it has been accepted by many states and many scholars have justified such interventions.

Therefore, as Sohn and Buergenthal said , humanitarian intervention is a legal right under customary international law. They have supported this point of view by “…various instances in which the powers have intervened to prevent a neighbor from continuing to commit such abuses as constituted a violation of the universally recognized and generally respected rules of decent state conduct”.

Conclusion

The concept of humanitarian intervention is very important. It is difficult to distinguish between the moral and the legal aspect. The law exists for the people in order to protect them, to give them rights, fairness and freedom. Therefore, many rules are forced depending on the needs of the society.

It is not fair to see people enjoying luxury and leading a democratic life while people in other nations are not. Moreover, any society cannot accept seeing people being killed every day by their government, while other governments just look on. Therefore, society needs the humanitarian intervention doctrine to provide equal rights for all nations throughout the world.

On the other hand, humanitarian intervention is important, but very dangerous in practice. Moreover, I personally do not agree about the need for intervention for democracy reasons, and I think that democracy reasons should be distinguished from humanitarian reasons. Humanitarian reasons are there to protect people from killing and from violence associated with human rights. Democracy reasons are to provide a better life and better rights for the people. Democracy should come from the people themselves without any force from outside. They are the ones who should change their ideas and minds. If they do not, then this means that they are not ready for democracy.

The concept of humanitarian intervention is not clear in either the UN Charter or Customary International Law. Therefore, scholars should codify and put strict terms to legalize it, such as when it is a legal right and who have the right to intervene, should neighbours intervene? Or can enemies intervene?

Finally, despite the fact that the legality of humanitarian intervention is not clear in law, many countries have practiced it and others accept it, which means that they implicitly recognise it.

Bibliography

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  • C. Gray, International Law and the Use of Force (2nd edn. OUP, 2004 UK).

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Journals And Websites: 11

  • R. Gordon, ‘Humanitarian Intervention by the United Nations- Iraq, Somalia, and Haiti', (1996) 31 Texas International Law Journal.

  • R. Lillich, ‘Intervention to Protect Human Rights' (1969) 15 McGill L. J.

  • F. Teson, ‘Collective Humanitarian Intervention' (1995-1996) 17 Mich. J. Int'I L.

  • J. Goldsmith and E. Posner, ‘A Theory of Customary International Law' (1999) 66 The University of Chicago Law Review.

  • E. Gordon, ‘Article 2 (4) in Historical Context' (1985) 10 Yale J. Int'l L.

  • S. Jianming, ‘The Non-Intervention Principle and Humanitarian Interventions under International Law' (2001) 7 International Legal Theory.

  • R. Burchill, ‘Democracy and International Law' (2008) 19 EJIL.

  • Steve G. Simon, ‘Comment, The Contemporary Legality of Unilateral Humanitarian Intervention' (1993) 24 CAL. W. INT'L LJ.

  • F. Hassan, ‘Realpolitik in International Law: After Tanzanian-Ugandan Conflict “Humanitarian Intervention” Reexamined' (1980-1981) 17 Willamette L. Rev.

  • M. Halberstam, ‘The Legality of Humanitarian Intervention' (1995) 3 Cardozo J. Int'I & Comp. L.

  • T. Modibo Ocran, ‘The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping '<http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/25_1/01_FMS.htm> Accessed 9 Jan 2010.

The Legislation:

  • The Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect' < http://www.iciss.ca/pdf/Commission-Report.pdf> Accessed 8 Jan 2010.

The UN Charter 1945:

  • Article 2 (4).

  • Article 2 (3).

  • Article 51.

  • Article 42.

The Vienna Convention On The Law Of Treaties, 1969:

  • Article 31(1) Section 3. Available in <http://www.worldtradelaw.net/misc/viennaconvention.pdf> Accessed 9 Jan 2010.

  • General Assembly Resolution on the Definition of Aggression, GA Res 3314, 29 UN GAOR, Supp No 31, UN Doc A/963 (1974), art 3(f) (‘Resolution 3314') <http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement> Accessed 9 Jan 2010.