The Current Status of Humanitarian Intervention in Need of Legal Clarification. Analysis of the Legal and Humanitarian Justifications for Intervening In Libya and the Inaction in Syria

Master's Thesis , 2014 , 74 Pages , Grade: DISTINCTION

Law - European and International Law, Intellectual Properties

In this thesis, the concepts of Sovereignty, non-intervention and Humanitarian Intervention will gradually be unveiled, especially in subsequent chapters. The cases of Syria and Libya will serve as watershed for the theoretically unveiled concepts.

The principle of State Sovereignty plays a great role in the formation of international law as it sets a basic foundation on which the international society is built. The natural supposition is that international order is best maintained if states respect one another’s sovereignty by adhering to the norms of non-intervention in the internal affairs of other states. The modern idea of Sovereignty dates back to Ancient Rome in which all sovereign powers were bestowed on the Emperor. It was deemed an absolute, unified, inalienable power based upon a voluntary but irrevocable contract.

TABLE OF CONTENTS

DEDICATION

ACKNOWLEDGEMENT

CHAPTER ONE: STATE SOVEREIGNTY AND THE PRINCIPLE OF NON-INTERVENTION
LAW ON THE USE OF FORCE
AUTHORIZATION BY THE UN SECURITY COUNCIL
THE CONCEPT OF HUMANITARIAN INTERVENTION
HISTORICAL EVOLUTION OF HUMANITARIAN INTERVENTION
HUMANITARIAN INTERVENTION UNDER CUSTOMARY INTERNATIONAL LAW
HUMANITARIAN INTERVENTION UNDER THE UNITED NATIONS CHARTER

CHAPTER TWO: LEGAL JUSTIFICATION FOR HUMANITARIAN INTERVENTION UNDER THE UNITED NATIONS CHARTER
TEXTUAL ARGUMENTS
CLASSICISTS VIEW
NON-RESTRICTIONISTS VIEW
THE EMERGENCE OF RESPONSIBILITY TO PROTECT

CHAPTER THREE: REACTION OF THE INTERNATIONAL COMMUNITY TOWARDS INTERVENTION
THE PROBLEM WITH UNILATERAL AND REGIONAL HUMANITARIAN INTERVENTION
CASE STUDIES OF HUMANITARIAN INTERVENTIONS
KOSOVO
SOMALIA AND RWANDA
BOSNIA
PANAMA
LIBERIA
LIBYA AND SYRIA: TWO DIFFERENT CASES?

CHAPTER FOUR: MORAL JUSTIFICATION FOR HUMANITARIAN INTERVENTION
HUMANITARIAN INTERVENTION: A NEW PARADIGM; THE WAY FORWARD
OBSERVATIONS AND PROPOSALS FOR SUCCESSFUL IMPLEMENTATION OF HUMANITARIAN INTERVENTION

CONCLUSION

BIBLIOGRAPHY

ACKNOWLEDGEMENT

I would like to express my gratitude to My Honorable Supervisor, Dr. Virginnie Barral for taking time out of her busy schedule to supervise me. Indeed, words would never be enough to show how thankful I am for her assistance. I am most grateful for the suggestions and advice given on this work.

My appreciation also goes to the LLM Co-ordinator, Mr Kevin Rogers for his support and timely help each time it was needed. I equally remain thankful for the good job he is doing for all LLM students as a whole.

Finally, I would also like to acknowledge the LLM Class of 2013 for their support in various ways. I learnt a lot form them and I appreciate the fact that they gave me the opportunity to experience different cultures of diverse backgrounds.

CHAPTER ONE: STATE SOVEREIGNTY AND THE PRINCIPLE OF NON-INTERVENTION

The principle of State Sovereignty plays a great role in the formation of international law as it sets a basic foundation on which the international society is built. The natural supposition is that international order is best maintained if states respect one another’s sovereignty by adhering to the norms of non-intervention in the internal affairs of other states.¹ The modern idea of Sovereignty dates back to Ancient Rome in which all sovereign powers were bestowed on the Emperor. It was deemed an absolute, unified, inalienable power based upon a voluntary but irrevocable contract.²

In this thesis, the concepts of Sovereignty, non-intervention and Humanitarian Intervention will gradually be unveiled, especially in subsequent chapters.

To understand why humanitarian interventions take place or not requires a discussion on the most important factors framing it, its reasonableness, importance, its morality, justification, legal status and finally its enforceability. However, before delving into the main issue at hand, it is essential to have a sound knowledge of the history of humanitarian intervention for better understanding of its current application.

Over time, the idea of Sovereignty evolved as the absolute authority of the State and was given recognition under the United Nations Charter as one of the principles of International law under Art 2(4).³ For effective promotion of sovereignty of member states, Art 2(7) so states that ‘nothing contained in the present Charter shall authorize the UN to intervene in matters that are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter’.

As such, a state has liberty to exert its influence in any manner over all persons just as other states must respect its territorial sovereignty.⁴ However, it may be noted that just as there are exceptions to every general rule, the concept of Sovereignty has limits. Although these limits have always been in dispute, they remain widely acknowledged. As the Charter evidences, Sovereignty is no barrier to actions of the Security Council when taking measures in cases involving “a threat to the peace, a breach of the peace or an act of aggression”.⁵

LAW ON THE USE OF FORCE

One of the most significant developments of the twentieth century was the prohibition of the use of force as a legitimate instrument of national policy. To this day and beyond, it remains a fundamental aspect of the United Nations’ system of governance of relationships between States.⁶ For a long time, the right to resort to war otherwise known as the jus ad bellum, was considered the sovereign right of each state. However, the recurrent occurrences of bloodshed and cruelties resulting from wars culminated to the First World War.⁷

According to Gray, the starting point for any examination of the law on the use of force is reference to Article 2(4) of the UN Charter which prohibits the 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.⁸ It has been emphasized that this provision not only refers to war but also includes measures short of war and has been confirmed by several international treaties ratified since then.⁹

However, there are two exceptions to the rule on the use of force under Article 2(4).¹⁰ One is that of Self Defence which permits states to use force in self-defence ‘if an armed attack occurs against a Member of the United Nations.’¹¹ The other exception is Article 42 which allows the Security Council authorize the use of force if it feels such authorization is necessary, having identified ‘threat to peace, breach of the peace or act of aggression’.¹²

AUTHORIZATION BY THE UN SECURITY COUNCIL

In Thomas’ opinion, what is called ‘Security Council Authorized Collective Human Intervention’ or simply ‘Collective Humanitarian Intervention’ is nothing but the use of military force authorized by the Security Council under Chapter VII of the Charter for the maintenance or restoration of international peace and security, especially in circumstances where there is a humanitarian aspect to the Council’s aims.¹³ It may be noted that over the years, Security Council practice since 1990 has extended the interpretation of ‘threat to peace’ to the point that it is gradually being accepted that widespread human rights violations within a single state along with purely internal armed conflicts can constitute a threat.¹⁴

THE CONCEPT OF HUMANITARIAN INTERVENTION

The issue of Intervention by one state in the affairs of another is a basic source of concern which has confronted the international community for ages. External interference in the relationship between the ruler and the ruled has remained an enduring and persistent feature of the western society since inception.¹⁵

The nature and scope of this right as Sousa reiterates, is a mixed question of academic and political controversy. While some commentators argue that the concept of a war waged in defence of human rights is inimical to the principle of non-intervention, others assert that humanitarian catastrophes give rise to a moral imperative to respond.¹⁶

The theory of Humanitarian Intervention, Ganji notes, is based on the assumption that States in their relation with their own nationals have an international obligation to guarantee them certain fundamental rights which are considered necessary for existence, and for maintenance of friendly relations amongst nations.¹⁷ These guaranteed rights are fundamental to the human person so much that any derogation or violation by the state cannot go unnoticed by other states. As such, this assumption alone could create leverage for other states to intervene, in event of flagrant disrespect or abuse of human rights by any state to her citizens.¹⁸

On a slightly different note, Pattison maintains that intervention is frequently employed to denote a wide array of international actions; from the distribution of humanitarian aid to virtually any form of military intervention, regardless of whether it is in response to a serious humanitarian crisis or not.¹⁹

Humanitarian Intervention is viewed as a proportionate trans-boundary help, including forcible help provided by governments to individuals in another state who are being denied basic human rights and who themselves would be rationally willing to revolt against their oppressive government.²⁰ The word ‘Intervention’ on its own denotes ‘dictatorial interference by one state into the affairs of another’; this interference could come in various forms ranging from political or economic coercion to the actual use of armed force.²¹

In addition, Murphy projects that Interventions come in various forms, hence, any working definition of Intervention should not be so rigid that it fails to take account of the differences. He notes that although it may be viewed as a sort of trans-boundary projection of military units into a target state, one may also recognize the possibility of humanitarian intervention where force used is not armed force and where it does not fall within the class of force prohibited by Article 2(4).²²

In view of the above submissions, it may be observed that the subject of humanitarian intervention is confined to cases in which a substantial part of a state’s population is threatened with death or suffering on a grand scale, either due to the government’s actions or owing to the state’s gradual slide into anarchy.²³

HISTORICAL EVOLUTION OF HUMANITARIAN INTERVENTION

The basic problem of how to protect human rights and safeguard human security remains one most persistent problem which the international community faces, although ‘the dilemma of what to do about strangers who are subjected to appalling cruelty by their government’ has been particularly pressing over the last hundred years.²⁴ Simms argues that though various attempts have been made to provide answers to this dilemma, the notion of humanitarian intervention had always been treated as if it were a subject without a history.²⁵

The Classical Origin of humanitarian Intervention lies in the emergence of the substantive doctrine of the Just War in the middle ages.²⁶ The opinions of Scholars gradually contributed to its development; however the most comprehensive and widely publicized work on this subject was that of Hugo Grotius.²⁷ He reasoned that it was important that laws governing every human society be limited by the principle of humanity. Hence, where a sovereign while exercising his rights, acts contrary to the rights of humanity by grievously mistreating his subjects, the right of intervention can be considered lawful.²⁸

It may be observed that Intervention was common in the Greek city-state system, the Roman Empire and in religious wars of 16th and 17th century.²⁹ Green posits that it seems to be largely a creation of 19th century because prior to this time, Intervention was based on Christian Beliefs and religious concepts of the dignity of man.³⁰ On this basis, the teachings of Thomas Aquinas usually referred to the fact that a sovereign had right to intervene in the internal affairs of another when the latter greatly mistreats its subjects.³¹

An Early Jurist, Gentili notes that there was the need for a mechanism to remind the sovereign of his duty and hold him in restraint, ‘unless we wish to make sovereigns exempted from the law and bound by no statutes and no precedents.’³²

Interestingly, Wheaton adds that the idea of humanitarian intervention arose from political philosophy and diplomatic practice of the early European states system. This was based on the ambition of European sovereigns to expand their influence beyond Europe which made them enhance regular diplomatic contact with more parts of the world.³³

In due time, the European powers devised military threats and intervention as legitimate modes of resolving issues in the occurrence of any clash or struggle for supremacy from other states, especially in relation to Non -Christian rulers who melted out harsh treatment to converted Christian subjects.³⁴ In view of this, it is noted that the greater part of the history of human intervention is the history on behalf of persecuted religious minorities.³⁵

Over time, such interventions gradually derived legitimacy and recognition from international law and natural law doctrines; a point of reference was the concern for humanity. However, Knusden argues that since the sources of humanitarian intervention were largely influenced by Christianity, the religious bias associated with this right is undeniable.³⁶

The late Middle Ages witnessed the upshot of more writers on European International Law and political theory who formulated ideas on their perception of humanitarian intervention, although this caused huge debates as regards its scope and application. The immediate justification for this right was found in the general sentiments of humanity, with law of nature as a legal basis, although great care was taken to ensure that the principle was also recognized in state practice.³⁷

In the Eighteenth Century, Humanitarian Intervention became a regular topic amongst scholars like Vattel who reasoned that it was lawful for any state to support an uprising in another country if the people had been exposed to tyranny.³⁸ This view was appreciated by emergent scholars who began to treat humanitarian intervention as an exception to the general principle of non-intervention.

The general pattern of most writers in the nineteenth century was one of acceptance of this principle and the acknowledgment that the international society recognized the existence of some minimum standards of humanity, which could justify that sometimes, the principle of non-intervention could be set aside if justice was to prevail.³⁹

Gradually, humanitarian intervention became a standard subject of discussion in international law works, especially as a consequence of the increasing and more dramatic use of it in state practice. It was due to this emerging practice that in 1836, Wheaton concluded that ‘Non-interference is the general rule, to which cases of justifiable interference form exceptions limited by the necessity of each particular case.’⁴⁰ His proposition of human intervention as a recognized exception was accepted by a large number of European and American Scholars and Authorities on International law and politics through the nineteenth and early twentieth centuries.⁴¹

A strict view which emerged was that foreign intervention was unavoidable because the oppressed were entitled to make themselves worthy through effective resistance.⁴² Oppenheim emphasized that should a State treat its subjects or a part thereof with such cruelty as would offend humanity, public opinion of the rest of the world would call upon powers to exercise intervention.⁴³ Likewise, Lauterpacht stated that ‘the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins.’⁴⁴

Kusden observed that although some early writers were quicker to acknowledge the right of humanitarian intervention than others, they supported it on the grounds of morality and humanity.⁴⁵ He adds that the incorporation of humanitarian Intervention into international law was not just a mere reflection of policy formulation, but also a reflection of developments in state practice.⁴⁶

For Orford, Humanitarian Intervention is ‘the new form of interventionism’ or ‘willingness to use force in the name of humanitarian values’ as it played a major role in shaping international relations during the 1990s.⁴⁷ She further identifies NATO‘s response to the Kosovo crisis, as well as the Security Council’s authorisation of the use of force in East Timor, which caused intense discussions on the legality and morality of humanitarian intervention.⁴⁸ This became an issue which dominated the international legal and political sphere.

A significant change in International politics during this period was the growth of support within mainstream international law and circles for the idea that force can legitimately be used to respond to humanitarian challenges. This justification, as Orford maintains, was illustrative of the transformation encountered towards the end of the cold war.⁴⁹

HUMANITARIAN INTERVENTION UNDER CUSTOMARY INTERNATIONAL LAW

A threshold question in the ongoing debate on humanitarian intervention involves the status of particular norms as binding international law. This question relates to the problem of whether there are sources of international law including but not limited to the text of the UN Charter that legally permit, regulate or even require humanitarian intervention.⁵⁰

Lepard posits that the International Court of Justice Statute clearly defines Customary International Law in Article 38(1) b) as ‘an evidence of a general practice accepted as law’.⁵¹ In other words, it is usually determined by two factors: the general practice of states and what states have accepted as law (opinion juris).⁵²

Prior to the UN Charter, Knusden maintains that though there was no established state practice for reliance upon for humanitarian intervention to justify the use of force, most academics still wrote in support of the concept.⁵³ Interventions by the great powers in the moribund Ottoman Empire in 19th century to protect the Empire’s Christian and Jewish populations were often cited by jurists as instances of humanitarian intervention.⁵⁴ Vaughan pinpoints certain instances where armed forces were used; such as the naval battle of Navarino in 1827 in support of Greek rebellion and during the French occupation in Syria in 1860. The legal justifications given by the intervening states were references to treaty obligations of the Ottoman Empire. The US also justified intervening in Cuba during the latter’s war with Spain in 1988 on the basis that it sought to protect the residents of Cuba in accordance with the dictates of humanity.⁵⁵

Vockel in an attempt to portray Humanitarian Intervention as an evidence of both state practice and opinion juris, makes mention of two instances.⁵⁶ The first is the intervention of ECOWAS in Liberia in a bid to stop the civil war in 1990. He notes that though such action was not mandated by the UN Security Council, it received formal support from same about two years later, and this approval met little or no international opposition.⁵⁷

The second instance is the intervention of the USA, UK and a number of states in Northern Iraq to create safe havens for the large numbers of refugees and displaced persons to return home safely. The Security Council had strongly condemned the Iraqi repression of civilian population as a threat to international peace and security in SCR 688(1991), although this resolution was not legally binding and did not authorise military action.⁵⁸

It may be observed that customary international law on humanitarian intervention is an area which has been subjected to argument amongst various scholars. While some maintain that it is an upshot of state practice and is neither terminated nor weakened by the creation of the United Nations,⁵⁹ another group contends that the handful of pre-charter humanitarian interventions are so far inadequate to establish a customary right of humanitarian intervention⁶⁰ and also that even if one agrees that a customary right existed before the charter, it did not legally survive the creation of the UN’s jus ad bellum regime. These varying arguments have brought about fluctuating trends which have influenced international law today.

HUMANITARIAN INTERVENTION UNDER THE UNITED NATIONS CHARTER

The emergence of the UN Charter and its establishment of a system of Collective Security brought about radical change in the framework within which humanitarian intervention could be invoked. It gave the Security Council power to intervene, including for humanitarian purposes, in any member state.⁶¹ The invocation of these powers however, is only limited to situations which constitute a threat to peace, a breach of peace or an act of aggression. It may be noted that this practice by the UN, particularly during the 1990s, extended to internal situations related to widespread violations of human rights. In support of this practice, reference could be made to acts of trans-boundary effects such as refugee flows and destabilization of the region.

The Charter as Stanulova identifies, introduced a new legal norm in the international sphere as it did not expressly condemn humanitarian intervention, although it prohibited the unilateral resort to force.⁶² It established rules to govern use of force so that international peace and security may not be endangered by individual states.

In examining humanitarian intervention, Vaughan notes that unlike unilateral intervention which comprises one or more states intervening in another state, or by a state acting alone or through an international organization other than the UN, Collective humanitarian intervention on the other hand takes place in accordance with the procedure of the UN Charter requiring consent.⁶³

Consequently, one may observe that Humanitarian Intervention though subject to a plethora of arguments, remains an issue whose legality is still heavily contested in the international parlance. This is due to the notion of it as an affront to the principle of non-intervention as a result of which its validity has been questioned in recent times. Subsequent chapters will focus on the controversial debates and arguments on the legality of this principle.

CHAPTER TWO: LEGAL JUSTIFICATION FOR HUMANITARIAN INTERVENTION UNDER THE UNITED NATIONS CHARTER

The question of the existence of a right of humanitarian Intervention remains a topic subjected to heavy disputes amongst commentators. Respect for state sovereignty is a cornerstone of the international legal order and still more fundamental is the rule that no state may use, or threaten to use armed force against the territorial integrity or political independence of another country.⁶⁴

In event of the above dilemma, one may ask that does it now follow that when a government massacres its people, or when the citizens of a state are threatened with starvation and injustice and their government adamantly refuses international aid, should the international community just remain a passive spectator?

Flowing from the above, there are some who advocate a right of humanitarian intervention, others who view it as an exceptional right to use force to avert an ‘overwhelmingly humanitarian catastrophe’, and yet others who deny its existence.⁶⁵

A line of distinction however shows that there are two types of humanitarian Intervention; that which is authorized by the United Nations under Chapter VII and that which is without UN’s consent, also known as Unilateral Humanitarian Intervention.⁶⁶

TEXTUAL ARGUMENTS

There has been a constant war amongst authors trying to strike a balance between the weight attached to Article 2(4) and the legitimacy of bypassing the Security Council for humanitarian reasons when it seems impossible to obtain a clear and explicit authorization from the Security Council.⁶⁷ The interpretation of humanitarian Intervention which has been a matter of dispute between both camps of the restrictionists (classicists) and ‘counter-restrictionsts’, is subsequently considered.⁶⁸

CLASSICISTS VIEW

Restrictionists, also known as Classical theorists, believe that no persuasive ground exists to support the claim that a right of humanitarian intervention exists in the Charter.⁶⁹ Basing their arguments on the principle of sovereignty and norm of non-intervention, they posit that military humanitarian intervention is bound to be illegal since the charter forbids use of force and as such, interference in the affairs of the sovereign state in the name of ‘humanitarianism’ poses a direct breach of the Charter.⁷⁰

Brownlie, a leading restrictionist contends that unilateral intervention would be an instrument wide open to abuse and a licence to vigilantes and opportunists to resort to.⁷¹ This alone, could further damage the already fragile issue of legality and legitimacy which it faces.⁷²

For Hurd, the seeming illegality of this doctrine rests on the plain language of the Charter which clearly outlaws the use of force by states and suggests no possibility that the use of force for humanitarian purposes should be understood any differently from other uses of force.⁷³

It would appear as Weiss explains, that opponents of this doctrine contend that Article 2(7) constitutes an absolute prohibition on international interference in domestic matters, including a ruling regime’s treatment of its citizens.⁷⁴ Hence, any uninvited use of force within territorial borders would be unacceptable breach of each state’s unfettered domestic authority, and could amount to an unprovoked act of aggression.⁷⁵

The overriding concern of these commentators who prefer that unilateral intervention remain illegal is the fear of potential abuse by stronger states seeking political gain to the detriment of weaker states.⁷⁶ Authors like Byers and Chesterman posit that any workable criterion developed would only benefit a handful of states.⁷⁷ Besides this, states which desire to engage in war could easily invoke this doctrine as a pretext for unlawful, selfish or political goals.⁷⁸

In this regard, Franck contends that the most blatant abuse of the doctrine of humanitarian intervention was perpetrated by Hitler, who used it to justify using military force in Czechoslovakia in 1938, disguising his motive as a protest against the extreme mistreatment of ethnic Germans in that country.⁷⁹ Consequently, any legal recognition of a right to unilateral intervention is viewed by this class as a ‘slippery slope’ argument.⁸⁰

Another reason for opposing this concept is the notion that it transforms the intervener into a judge. This is so because it is the intervening state who solely decides that human suffering in another state has reached a stage which necessitates intervention.⁸¹ Abass feels this is quite ironic, especially where intervening governments who are worst violators of rights of their citizens take it upon themselves to intervene in similar conditions in another country.⁸²

A notable observation is that the general line of argument seems centred on the fact that if unilateral intervention is legalized, it would only be for the benefit of the larger states because smaller states would have no capacity to invoke it due to their inability to prevent human rights abuses.⁸³ Hence, there would no fairness or sense of purpose if only stronger states get to enjoy its benefits.⁸⁴

Also, in evaluating state practice, restrictionists maintain that there are no precedents to validate this doctrine.⁸⁵ They argue that concerning the invasion of Uganda by Tanzania in 1979 during Idi Amin’s oppressive rule and his forceful removal, the aftermath of which was the installation of a puppet government by Tanzania while exerting political influence over Uganda after intervention.⁸⁶ Ronziti contends that Tanzania justified its actions on national security grounds and chose not to invoke humanitarian arguments. Hence, this may not be considered a precedent for this doctrine.⁸⁷

Based on the above submissions, the prevalent argument by restrictionists is that general reluctance exhibited by states towards reliance on this right reflects a persisting weakness of the claim to it and is also a demonstration of its extremely controversial status.⁸⁸

NON-RESTRICTIONISTS VIEW

The UN collective security system not only lacked a standing force from the onset, but has not successfully played the role expected of it as foreseen by the UN Charter.⁸⁹ Consequently, while its drafters had envisaged a more active and effective role play by the Council, nonetheless by giving the right of veto to permanent members, they excluded the possibility of what would happen in the absence of a consensus amongst these five.⁹⁰ This lacuna has led member states when facing crisis situations, to act themselves, rather than rely on the UN.

For non-restrictionists, although unilateral humanitarian intervention may be currently considered illegal in international law due to the accepted interpretation of the Charter which deems it so, a growing number of authors would rather have it legalized.⁹¹ These authors believe that a revised interpretation of the Charter would establish the legality of this intervention; and that in doing this, an understanding of the conditions under which the UN Charter was drafted seems necessary as well as the UN’s history in relation to this concept.⁹²

Although the general argument is that for Humanitarian Intervention to be legal, it must be authorized by the Security Council, Abass notes that this argument is rather difficult to make because Humanitarian Intervention arises mostly when the UN collective security system has failed.⁹³ If it acts as actively as it should, there would have been no need for Tanzania, Cambodia, NATO or ECOWAS to intervene in conflicts in the first place.

For a variety of reasons and in different ways, a substantial number of authors argue that unilateral intervention should be legal. Their argument is based on the fact that when a government abuses its citizens, and the international organizations fail to act, states should also have a right of unilateral humanitarian Intervention, within certain limits, to prevent those abuses.⁹⁴

Furthermore is their claim that state practice developed since the Charter’s inception sufficiently supports the legitimization of humanitarian intervention.⁹⁵ Accordingly, the Charter’s existence neither extinguishes nor undermines the customary law rule of humanitarian intervention, but rather extends its frontiers.⁹⁶

For Lilich, the preservation of humanity and value of human life prevails over adherence to legal principles.⁹⁷ In effect, no person should remain idle in the midst of government-sponsored slaughter.⁹⁸ A major criticism laid is the recognition that in practice, the UN collective security measures usually fail to prevent the rampant cases of human rights violations.⁹⁹ Mackinlay argues that in cases where UN’s approval of the use of military force is extremely difficult to obtain, humanitarian intervention should be legal.¹⁰⁰ Numerous instances exist to show the obvious failures of the UN Collective security measures to provide the international security for which they were designed in the first place. Basic examples include the former Yugoslavia, Somalia, Sudan and Iraq.¹⁰¹

Flowing from the above, it is noticeable that not responding to extreme human rights violations causes dictators to believe that they can commit massive violation of human rights with impunity.¹⁰² Benjamin supportively adds that in the formative years of the UN, it was earlier recognized that collective security measures of the Security Council might not be able to prevent serious tragedy and that individual states might retain the right to unilateral action.¹⁰³

On a slightly different note, another approach adopted by non-restrictionists is an evaluation of the legislative history of the UN Charter and the conclusion that because the drafters could have explicitly banned humanitarian intervention but yet chose not to, it remains legal.¹⁰⁴

As Bethlehem shows, humanitarian Intervention is in compliance with the compelling objective of the UN as expressed in its Charter which is ‘to save succeeding generations from the scourge of war’ and ‘to reaffirm faith in fundamental human rights, in dignity and worth of the human person’.¹⁰⁵ He also pinpoints state practices which infer legitimization and could serve as precedents; the Tanzanian Intervention in Uganda (1979) ousting Idi Amin, Vietnamese Intervention in Cambodia ultimately removing Khmer Rouge, Congo’s case (1964), and Indian Intervention in East Pakistan (1971) which ultimately resulted to the creation of Bangladesh.¹⁰⁶ Benjamin notes that in each case, massive human rights atrocities were occurring and states intervened militarily to prevent further abuses.¹⁰⁷

The above seems consistent with Glennon’s suggestion that formal legal elements on international rules concerning the use of force are no longer regarded as obligatory by states as they have lost the qualities which formerly gave them binding character.¹⁰⁸ He makes reference to ‘desuetude’, the idea that law fails as law if it is routinely bypassed in domestic and international legal systems. In effect, this concept allows some outmoded laws to remain in books despite major challenges.¹⁰⁹ This logic according to him, is applicable to use of force for humanitarian purposes.

A further contention by this school is that Article 2(4) is not absolute because it forbids only use of force directed against the territorial integrity or political independence of any state.¹¹⁰ This definition of ‘Territorial Integrity’ as Amato depicts, strictly means ‘preventing the permanent loss of a portion of one’s territory’.¹¹¹ Hence, Humanitarian Intervention may not cause a nation to lose its sovereignty, although such could only happen temporarily if it happens at all.¹¹² Therefore, one may logically reason that where humanitarian intervention does not affect a country’s sovereignty, it causes no violation to its political independence.

The Charter’s preamble further expresses its determination to reaffirm faith in the fundamental human rights, in the dignity of and the worth of the human person.¹¹³ This provision as Mcdougal suggests, is frequently considered to legally justify or at least encourage humanitarian intervention.¹¹⁴

From Hurd’s standpoint, he projects three arguments to justify Unilateral Intervention. These propositions as he explains, though aligning with current state practice in international law, yet present different interpretations.¹¹⁵ While the first suggests that the ban on war in Article 2(4) has lost its legal force due to repeated violations by states in practice, the second proposition centres on change in world politics which has led to regression in the face of the progressive custom of humanitarianism.¹¹⁶ These changes, he states, have indirectly created modifications in formal laws and made lawful what was formerly unlawful.

Also, it is sometimes argued that the concepts of sovereignty and humanitarian intervention are in fact complementary on the basis that sovereignty is conditional on government respecting the obligation to protect its own people. This view agrees that unilateral intervention should be lawful because the legal protections for sovereign states cease to exist once the state engages in the worst kinds of abuse of its citizens.¹¹⁷

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¹ M. Ayoob, ‘Humanitarian Intervention and State Sovereignty’, Michigan State University, The International Journal of Human Rights, Frank Cass, London, vol 6 , No 1 (Spring 2002) pg 81-102

² J. Bodin, ‘Six Books of a Commonweale’, Bk 1, Chapter 8 at 84, as quoted in F. Abiew, ‘The Evolution of the Doctrine and Practice of Humanitarian Intervention’, Kluwer, 1999 at pg 27

³ See Article 2(4) of the UN Charter which states that ‘All Members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’

⁴ J. Starke, Introduction to International Law, 9th edn, pg 1984 at pg 152

⁵ See Article 39 of the UN Charter

⁶ L. Henkin, ‘The Use of Force: Law and the US Policy, in RIGHT v. MIGHT: International Law and the Use of Force’ 37, 38, Louis Henkin et al. eds. 1991; See also C. Henderson, ‘The 2006 National Security Strategy of the United States: The Pre-Emptive Use of Force and the Persistent Advocate’, 15 TUL. J. COMP& INT’L L.1, 9 (2007)

⁷ Ibid

⁸ C. Gray, ‘International Law and the Use of Force’, Oxford University Press, third edition, 2008 at pg 6; See also S. 2(4) of the Charter which 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 manner inconsistent with the purposes of the United Nations’.

⁹ S. Heselhaus, ‘International Law and the Use of Force’, Encyclopaedia of Life Support Systems, Justus Liebig University, Giessen, Germany, Pg 5

¹⁰ J. Green, Questioning the Peremptory Status of the prohibition of the Use of force, 32 Michigan Journal of International Law, 215- 257, 2011, pg 16; http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1052&context=mjil assessed on 15/09/2014

¹¹ See Article 51 of the UN Charter on Self Defence.

¹² See Article 39 of the United Nations Charter which provides that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’.

¹³ T. Franck , ‘Recourse to Force- State Action against Threats and Armed Attacks’, Cambridge University Press,6th edn, 2002, See Chapter 9

¹⁴ Ibid

¹⁵ F. Abiew, ‘The Evolution of the Doctrine and Practice of Humanitarian Intervention’ , Pg 21;

¹⁶ M. De Sousa ‘Humanitarian Intervention and the Responsibility to protect: Bridging the moral/ legal divide’, UCL Jurisprudence Review, 2010; Sousa notes that the constant debates on humanitarian Intervention is one of Sovereignty and Human rights; it reflects the tension between the principle of Non-Intervention on one hand and the adequate protection of Individual rights on the other.

¹⁷ M. Ganji, International Protection of Human Rights (Geneve: Librairie, E.Droz, 1962) at 9

¹⁸ Ibid

¹⁹ J. Pattison, ‘Humanitarian Intervention and the Responsibility to Protect: Who should intervene?’, Oxford University Press, 2010

²⁰ F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality (Ardsley on Hudson), New York, Transnational Publishers, 1988 at pg 5

²¹ Ibid

²² S. Murphy, ‘Humanitarian Intervention: The United Nations in an Evolving World Order’ University of Pennsylvania Press, 1996 at pg 12; Sean notes that for instance, where comprehensive economic sanctions are imposed impeding the ability of the state to provide goods and services to its people, then this type of coercion cannot be seen as armed force.

²³ C. Greenwood, ‘Is there a right of Humanitarian Intervention?’,1993, pg 34http://www.jstor.org/discover/10.2307/40396480?uid=3738032&uid=2&uid=4&sid=21104140327847 assessed on 15/09/2014

²⁴ N. Wheeler, ‘Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press, 2000, pg 1’

²⁵ B. Simms and D. Trim, ‘Humanitarian Intervention: A History’, Cambridge University Press, 2011 at pg 2

²⁶ S. Chesterman, ‘Just War or Peace? Humanitarian Intervention and International Law’, Oxford University Press, 2001 at pg 9

²⁷ Ibid

²⁸ H. Grotius, ‘De Jure Belli ac Pacis Libri Tre’ (1625) Kelsey trans., New York: Bobbs- Merrill Co, 1925 at 504-505, 508, 582; In Grotius’ words, ‘If a Tyrant practices atrocities towards his subjects, which no just man can approve, the right of human social connexion is not cut off in such a case…It would not follow that others may not take up arms for them’

²⁹ H. Morgenthau, ‘To Intervene or not to Intervene’, 1967, 45 Foreign Affairs at 425; See also C. Phillipson, ‘The International Law and Custom of Ancient Greece and Rome’, Vol 1 London: Mac Milan & Co. Ltd, 1911at 100-101, Vol 2 at 90

³⁰ L. Green, ‘Is International Law Law?’ in Law and Society ,Leyden: A.W Sijthoff, 1975) at 294

³¹ J. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter (1974) 4 California Western International Law Journal 203 at pg 214

³² A. Gentili, ‘De Jure Belli’ 1612, Classics of International Law, Rolfe Trans, Oxford: Claredon Press, 1993, I, XVI

³³ H. Wheaton, Elements of International Law, Beresford Atlay, London: Stevens and Sons, 4th edn, 1904 at 91-92; Wheaton noted that alongside the spread of Christianity came justification for intervention in the affairs of ‘non civilized nations’ by the ‘civilized ones’

³⁴ Op Cit, Elements of International Law, Beresford Atlay, London: Stevens and Sons, 4th edn, 1904 at 91-92.

³⁵ M. Ganji, ‘International Protection of Human rights’, University of Geneve, 1962 , pg 17

³⁶ T. Knusden, ‘The History of Humanitarian Intervention: The Rule or the Exception?’, All Academic Research, pg 4; http://citation.allacademic.com//meta/p_mla_apa_research_citation/3/7/0/8/0/pages370801/p370801-5.php assessed on 15/09/2014

³⁷ Ibid, at pg 6; Knusden notes that the early writers labelled it an exception to the principle of non-intervention in a deliberate attempt to set limits on the powers of the sovereign vis-à-vis his subjects

³⁸ E. Vattel, ‘Le Droit de Gens’, 1756, Book II Ch IV, Section 56; Emerich notes that if a prince, by his insupportable tyranny brings on a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for it

³⁹ Op Cit, ‘The History of Humanitarian Intervention: The Rule or the Exception?’, All Academic Research , pg 7

⁴⁰ H. Wheaton, Elements of International Law, Fourth English Edition, ed By J. Beresford Atlay, London: Stevens and Sons, 1904 (1836), pg 101 , pg 120

⁴¹ Op Cit, International Protection of Human Rights, pp9-16 and 41-43, See also I. Brownlie, International Law and the Use of Force by States, pp338-42, M. Reisman ,and Myres S. McDougal, ‘Humanitarian Intervention to Protect the Ibos’, Richard B. Lillich (ed), Humanitarian Intervention and the United Nations, Charlottesville: University Press of Virginia, 1973, pp 167-71

⁴² J. Mills, ‘A few words on Non-Intervention’, Collected Works, Vol 21, 1984 (1859), pp 111-124

⁴³ L. Oppenheim, ‘International Law: A Treatise, Vol 1, London, Longmans, 1905’

⁴⁴ H. Lauterpacht, ‘The Grotian Tradition in International Law’, P. 357

⁴⁵ Op Cit, ‘The History of Humanitarian Intervention: The Rule or the Exception?’, All Academic Research,, pg 10

⁴⁶ Ibid

⁴⁷ A. Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, Cambridge Unversity Press, 2003 at pg 2

⁴⁸ Ibid

⁴⁹ Ibid

⁵⁰ B. Lepard, ‘Rethinking Humanitarian Intervention’, The Pennsylvania State University, 2002 , Pg 99

⁵¹ Ibid, at pg 100; Lepard notes that the Statute is a treaty appended to the UN Charter and to which all UN member states are parties and that it is often regarded as an authoritative statement of the customary rules regarding sources of international law

⁵² N. Shah, ‘Customary International law, Humanitarian Interventions and Syria’, 2013, Concurrents.org http://www.countercurrents.org/nshah060913.htm accessed at 15/09/2014

⁵³ Op Cit, ‘The History of Humanitarian Intervention: The Rule or the Exception?’, All Academic Research,, pg 10

⁵⁴ V. Lowe and A. Tzanakopoulous, M. Planck Encyclopedia of Public International Law , 2011 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e306?rskey=9iQyVV&result=124&q=&prd=EPIL assessed on 15/09/2014

⁵⁵ Ibid

⁵⁶ G. Vockel, ‘Humanitarian Intervention in cases of overwhelming humanitarian necessity’, Coventry Law Journal, 2005

⁵⁷ Ibid, See also C. Greenwood, ‘International Law and the NATO Intervention in Kosovo’, 49 International and Comparative Law Quarterly, 2000 926, 929-934

⁵⁸ Op Cit, ‘Humanitarian Intervention in cases of overwhelming humanitarian necessity’, Coventry Law Journal, 2005

⁵⁹ Op Cit, ‘Humanitarian Intervention to protect the ibos’, pg 171; B. Benjamin, Unilateral humanitarian Intervention: Legalizing the use of force to prevent human rights Atrocities, 16 Fordham International Law Journal, 1992-1993, pg 126, See also M. Ganji, International Protection of Human Rights (Librairie E. Droz, Geneva, 1962; Its proponents argue that any debate concerning it should only relate to its limits and not its existence.

⁶⁰ J. Holzgrefe, R. Keohane, ‘Humanitarian Intervention: Ethical, Legal and Political Dilemmas’, Cambridge University Press, 2003, pg 46T. Franck and N .Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67, American Journal of Internal Law (1973), pp 279-85,I.Brownlie, ‘International Law and the Use of force’, pp 339-41; The Classicists posit that Interventions by Britain, France and Russia in Greece [1827-30, ]France in Syria[1860-61], Russia in Bosnia Herzegovina and Bulgaria[1877-78], United States in Cuba 1898, Greece, Bulgaria and Serbia in Macedonia [1903-08, 1912-13] are insufficient to establish a customary right of humanitarian Intervention.

⁶¹ See Chapter VII of the United Nations Charter.

⁶² Op Cit, Has humanitarian intervention become an exception to the prohibition on the use of force in Article 2(4) of the UN Charter?’, University of Edinburgh, pg 5; See also Articles 42 and 51of the UN Charter

⁶³ V. Lowe & A. Tzanakopoulous, ‘Humanitarian Intervention’, Max Planck Encyclopedia of Public International Law , 2011

⁶⁴ See Article 2(4) of the United Nations Charter

⁶⁵ N. Blokker & N. Scrijver, The Security Council and the Use of Force, Brills Academic Publishers, 2005 at Pg 82

⁶⁶ J. Sigman, Unauthorized Humanitarian Intervention: Should Sovereignty be ignored?’, 2013, https://www.academia.edu/3386882/Unauthorized_Humanitarian_Intervention_Should_Sovereignty_Be_Ignored assessed on 15/09/2014

⁶⁷ J. Lobel and M. Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use force, Cease Fires and the Iraqi Inspection Regime’, 93 AJIL (1999) 124-154

⁶⁸ R. Guraziu, ‘Is Humanitarian Military Intervention in the affairs of another state ever justified?’ Middlesex University School of Health and Social Science, 2008 at pg 3; N. Wheeler and A. Bellamy, ‘Humanitarian intervention in world politics’ in John Baylis and Steve Smith ed, , Oxford University Press, 2005, pg 561; See also O. Ramsbotham & T. Woodhouse, ‘ Intervention in Contemporary Conflict: A Reconceptualization’ , polity press, Cambridge, 1996, p 61

⁶⁹ The Legality of Unilateral Humanitarian Intervention, International Law Essay, Law teacher, http://www.lawteacher.net/international-law/essays/the-legality-of-unilateral-humanitarian-intervention-international-law-essay.php assessed at 15/09/2014

⁷⁰ Ibid; The Non-restrictionists draw strength from Articles 2(4) & 2(7) of the Charter and General Assembly Resolution 2625 which deals with cooperation and relations among states and further stipulates that a state should not intervene in the affairs of another

⁷¹ I. Brownlie as quoted in Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization, Polity press, Cambridge, 1996 pg 64

⁷² Op Cit, ‘Humanitarian Intervention in World Politics’, 2005 at pg 561

⁷³ I. Hurd, ‘Is Humanitarian Intervention Legal? The Rule of Law in a coherent world’, at pg 298 https://www.law.northwestern.edu/colloquium/international/documents/Spring2012_Hurd_Humanitarian_Intervention.pdf assessed at 15/09/2014

⁷⁴ T. Weiss, ‘Humanitarian Intervention’, Cambridge, UK: Polity Press, 2007, pg 19

⁷⁵ A. Hehir, ‘Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society’, (Basingstoke, UK: Palgrave Macmillan, 2008) at pg 65

⁷⁶ J. Delbruck, ‘A fresh look at humanitarian intervention under the authority of the United Nations’, 67 IND. L.J. 887, 891, (1992)

⁷⁷ As seen in J. Rosenthal & C. Barry, Ethics and International Affairs, 3rd edn, Georgetown University Press, 2009 at pg 139

⁷⁸ T. Franck & N. Rodley, ‘After Bangladesh: The law of humanitarian intervention by military force’, 67 AM.J.INT’L L.275 at 284

⁷⁹ Ibid

⁸⁰ T. Franck, ‘Recourse to force: State action against threats and armed attacks’, Cambridge: Cambridge University Press, 2002, 185

⁸¹ A. Abass, ‘International Law, Text, Cases and Materials’, Oxford University Press, 2012 at Pg 422

⁸² Ibid

⁸³ Op Cit, ‘A fresh look at humanitarian intervention under the authority of the United Nations’, 67 IND. L.J. 887, 891, (1992)

⁸⁴ Ibid

⁸⁵ Op Cit, After Bangladesh: The law of humanitarian intervention by military force, 67 AM.J.INT’L L.275 at 290

⁸⁶ M. Bazylar, ‘Re-examining the doctrine of humanitarian intervention in light of the atrocities in Kampuchea and Ethiopia’, 23 STAN.J.INT’L 1987, 591-592

⁸⁷ N. Ronzitti, ‘Rescuing nationals abroad through military coercion and intervention on grounds of humanity’, 1985 pg 103

⁸⁸ N. Krish, ‘Legality, morality and the dilemma of humanitarian intervention after Kosovo’, European Journal of International Law, 2002

⁸⁹ N. Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’, European Journal of International Law, 2000 at pg 542

⁹⁰ Ibid

⁹¹ M. Reisman, ‘Coercion and self-determination: Construing charter article 2(4)’, 78 AM.J.INT’L. 642 (1984), J. Fonteyne, the customary international law doctrine of humanitarian intervention: its current validity under the UN Charter, 4 CAL.W. INT’L L.J. 203(1973)

⁹² Universal Declaration on Human Rights G.A. Res. 217A, 3(1) U. N. Doc. A/810 (1948) calls on all states to recognize and affirm general human rights for all people without limitation; International Covenant on the prevention and punishment of the crime of genocide, Jan. 21, 1951, 78 U. N. T.S 277 also outlaws all practices which intend to destroy a specific national, ethnic, racial or religious group

⁹³ A. Abass, ‘International Law, Text, Cases and Materials’, Oxford University Press, 2012 Pg 422

⁹⁴ B. Benjamin, ‘Unilateral humanitarian intervention: Legalizing the use of force to prevent Human Rights Atrocities,’ Fordham International Law Journal, vol 6, Issue 1, 1992 , pg 138

⁹⁵ P. William, ‘Nations must lead when collective security stalls’, Int’l herald trib, july 11, 1992

⁹⁶ See F. Teson, ‘Humanitarian Intervention’, 2nd edn, 1997

⁹⁷ R. Lilich, Humanitarian Intervention: A Reply to Ian Brownlie and a plea for Constructive Alternatives in law and civil war in the modern world’, John Moore ed. 1974 Self-help at 344; Lilich notes that the doctrine appeals to the average person’s sense of morality and justice corresponding to the natural feelings and reactions of the average person

⁹⁸ A. Leff ‘Food for Biafrans’, N.Y.TIMES, Oct, 4, 1968 at A46

⁹⁹ Ibid

¹⁰⁰ J. Mackinlay & J. Chopra, ‘Second generation multinational operations’, 15 Wash. Q. 113, 1992

¹⁰¹ Op Cit, ‘Unilateral humanitarian intervention: Legalizing the use of force to prevent Human Rights Atrocities,’ Fordham International Law Journal, vol 6, Issue 1, 1992 , pg 138

¹⁰² Op Cit, ‘Unilateral humanitarian intervention: Legalizing the use of force to prevent Human Rights Atrocities,’ Fordham International Law Journal, vol 6, Issue 1, 1992 pg 141

¹⁰³ Ibid

¹⁰⁴ Op Cit, Fonteyne, 243 at 243-258

¹⁰⁵ D. Bethlehem, ‘Stepping Back a Moment- The Legal Basis in favor of a Principle of Humanitarian Intervention’, Blog of the European Journal of International Law, 2013 http://www.ejiltalk.org/stepping-back-a-moment-the-legal-basis-in-favour-of-a-principle-of-humanitarian-intervention/ assessed on 15/09/2014

¹⁰⁶ Ibid

¹⁰⁷ Op Cit, ‘Unilateral humanitarian intervention: Legalizing the use of force to prevent Human Rights Atrocities,’ Fordham International Law Journal, vol 6, Issue 1, 1992 at pg 143; in 1964, Op Cit, ‘Re-examining the Doctrine of Humanitarian Intervention in light of the Atrocities in Kampuchea and Ethiopia’ 23 STAN J. INT’L at pg 587 (1987), A rebel army in Congo took foreigners from 18 nations hostage to aid their cause. When compliance from the Congo government was not forthcoming, the rebels threatened to kill the hostages, Belgian, US and British forces combined in a military venture and intervened and rescued the hostages within four days. The Congo government approved this use of force and the military forces departed after the crisis was over.

¹⁰⁸ M. Glennon, The Fog of Law: Self Defense, Inherence and Incoherence in Article 51 of the United Nations Charter, The Harvard Journal of Law and Public Policy, 25 (2002) pp 539-58 at 539; Glennon uses this line of reasoning to justify United States’ military interventions in Afghanistan, and Iraq

¹⁰⁹ Ibid

¹¹⁰ J. Stone, ‘Aggression and World Order: A Critique of United Nations World Theories of Aggression’, 95 Stevens, London, 1958

¹¹¹ A. Amato, International Law: Process and Prospect 59 (1987)

¹¹² S. Simon, ‘The Contemporary legality of Unilateral Humanitarian Intervention’, 24 Cal. W. Int’l L.J. 117, 130 (1993)

¹¹³ N. Krylov, Humanitarian Intervention: Pros and Cons, Loyola of Los Angeles International and Comparative Law Review , 1995 at pg 381

¹¹⁴ M. Mcdougal et al, human rights and world public order 241, 1980

¹¹⁵ I. Hurd, ‘Is Humanitarian Intervention Legal? The Rule of Law in a coherent world’, https://www.law.northwestern.edu/colloquium/international/documents/Spring2012_Hurd_Humanitarian_Intervention.pdf assessed at 15/09/2014 pg 302

¹¹⁶ Ibid

¹¹⁷ Ibid at pg 302

• College: University of Hertfordshire (Faculty of Law)
• Course: International Law
• Grade: DISTINCTION
• Author: Yewande Abiodun (Author)
• Publication Year: 2014
• Pages: 74
• Catalog Number: V584787
• ISBN (eBook): 9783346189622
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