Military Humanitarian Intervention and International Law

Introduction

History has seen numerous instances of systematic violations of human rights in certain countries and regions. Although widely condemned by the global community, it is rare that there are direct interventions to end human rights abuses due to the international legal concepts of sovereignty and self-determination. This paper will examine a hypothetical scenario of military humanitarian intervention in violation of the UN Security Council (UNSC) resolution, debating whether such actions are justifiable in the context of international law, humanitarian legal instruments, and national practices.

Concept of Humanitarian Intervention

Human rights are a set of universal fundamental values and freedoms that are guaranteed by natural law and should not be restricted by governments, culture, laws, or history. This concept has evolved through history from ancient Babylonians in 2000BC and was outlined in the 1960 United Nations Universal Declaration of Human Rights. The United Nations has nine core human rights treaties and although most of them are optional protocols that countries are not required to sign, in the modern world, these human rights are universally accepted and any violation of them is strongly condemned by international leaders, organizations, and courts.

However, the complexity of global politics often makes organized interventions and actions difficult to implement and international actors have consistently failed to create effective responses to crimes against humanity. This has given rise to the concept of the doctrine of humanitarian intervention which permits a government to exercise on an exception basis measures that would help alleviate a humanitarian crisis. It has become a central concept of foreign policy in the US and other Western democratic nations in the post-Cold War era. Humanitarian interventions commonly refer to the deployment of military force across borders with the primary objective of ending a human rights crisis and to prevent suffering and loss of human life in foreign states.¹

Perspectives of International Law and Precedents

The UN Security Council has continuously declined any resolutions calling for military humanitarian intervention in human rights “hotspots” around the world. This is largely due to permanent members of Russia and China (both known to some extent to support human rights abuses in their own countries) placing a veto in fear that such interventions will effectively be used by Western powers for a regime change of unfavorable governments. Due to a lack of agreement on these issues in the UN Security Council, countries often resort to their own interventions or rely on regional organizations such as NATO.²

States initiating humanitarian interventions often believe they are justified if not covered under international law. The legal basis for the use of force must meet at least the following three conditions:

1. There is overwhelming and convincing evidence of a humanitarian crisis on a large scale which is accepted by the international community and requires immediate relief;
2. It is clear that there are no available practical alternatives to force in the near future that can help in saving lives;
3. The use of force must be focused on providing relief to humanitarian suffering and be proportionate with the minimum to achieve the objective and not going outside the scope of relief.³

However, humanitarian intervention largely contradicts the UN Charter which emphasizes sovereignty and self-determination of each country. The international community cannot intervene in the domestic jurisdiction of a state and members of the UN must refrain from the threat or use of force against other countries, thus violating territorial integrity and political independence. It is important to examine recent examples of humanitarian intervention in the context of global politics.

Some prominent examples include the 1994 intervention in Rwanda, the 1999 NATO bombing in Kosovo, the 2011 coalition intervention in Libya, and bombing runs on Syria in recent years. Out of these major events, only the 2011 intervention in Libya was authorized by the Security Council Resolution #1973, although also facing severe criticism from some global powers. The other instances demonstrated unauthorized action, commonly by the United States and its allies under the premise of humanitarian intervention to prevent genocide. However, most often the outcomes resulted in exacerbating the crisis, failing to make significant impacts in the humanitarian situation, and led to a significant number of additional political and economic issues.⁴

Supporting Arguments

There is a widespread “cosmopolitan” perspective on humanitarian interventions suggesting that the international community has the responsibility to intervene directly (through the use of force if not alternatives are available) to protect vulnerable individuals and human rights. It is meant to establish a global rule of law that is justified by the responsibility to respond to symptoms of crisis.⁵ This approach is largely supported by the numerous human rights treaties established by the UN as well as regional organizations such as the European Court of Human Rights.

In fact, there are a number of conventions and mechanisms which can be used to fight against abuses of human rights, beginning with the Human Rights Council in the UN and ending with American and European Human Rights treaties which reiterate fundamental human rights as well as enforce a variety of laws in the specific regions.

However, the downside is that these conventions and legal institutions along with judicial decisions cannot be enforced, particularly in regions of the world which do not recognize their authority. This remains a critical supporting argument for humanitarian intervention, suggesting that since human rights are guaranteed by the rule of law in regional and international bodies, there is justification to impose it in places where they are grotesquely violated.

Scholars and policymakers have in support of humanitarian intervention have always regarded that Article 2 of the UN Charter can be interpreted relatively flexibly through customary law since there is no direct prohibition to use force for humanitarian purposes. The evaluation of state practice suggests two major legal principles. First, that the action by intervening state is motivated by the belief that it is lawful at the time and second, that it has the support of other countries for such conduct based on legal grounds. As noted in British foreign policy, “In fact, the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal.”⁶

The legality of humanitarian rests on the claim that the law changes as a direct consequence of a state’s behavior in violation of the UN Charter. It creates a dynamic relationship between international law and state practice, following the ideology of a moral imperative to respond to outrageous violations of the charter, such as that of the guarantee for human rights. The three distinct arguments for legalizing humanitarian intervention are based on the following concepts:

1. The ban on war in Article 2 of the UN charter does not have legal force since states constantly violate it, giving it no operational enforcement;
2. The reality of global politics that the policy of non-intervention has become irrelevant in the context of humanitarianism. Therefore, changes, in reality, should be supported by evolution in legal charters as well;
3. The concepts of sovereignty and humanitarian intervention are complementary rather than opposing since sovereignty is conditional to a ruling government protecting its population. Therefore, intervention becomes legal since by violating human rights, a government gives up its right to sovereignty.⁷

The consistent failure of international organizations such as the UN to effectively address crises led to the Canadian government and other allied countries to establish the International Commission on Intervention and State Sovereignty (ICISS). It was built on the principles outlined above and sought to begin to establish a legal basis for humanitarian interventions and the international responsibility for human rights violations, all while maintaining the sovereignty of states. The ICISS established what is known as the Responsibility to Protect (R2P) principle which began to shift the debate from the “right to intervene” to the “responsibility to protect” within the context of the international community.⁸

The principle was eventually incorporated as Chapter VII of the UN charter which allows for the use of military force by the international community if peaceful measures are inadequate. It was a shift in international politics and the concept of sovereignty, but the measure had to always be approved by the UNSC. Despite the tensions within the UNSC, the principle of R2P is cited as the legal justification and measure for the use of the humanitarian intervention.⁹ While the issue is inherently complex and requires global cooperation, it provides a judicial foundation for the practice as a mechanism of protection for human rights.

Opposing Arguments

Humanitarian intervention is an extremely subjective use of force and sets troubling precedents and potential for further military conflicts which could worsen or create new human rights crises. That is the reason why it should be unanimously approved by the UNSC and has significant guidelines to minimize disruptions to the state. However, the selective and uneven responses to human rights crises in the last decades by the UNSC and individual members or organizations demonstrates that humanitarian intervention is an illegitimate practice.

The approach suggests that humanitarian interventions, both approved and illegal under international law are motivated by political and economic interests of large world powers rather than genuine humanitarian concerns.¹⁰ The humanitarian argument is hypocritical as it retaliates to violence with force and sets a dangerous precedent in which international law and the UN charter can be overruled, particularly by states with influence.

The primary case of the illegality of humanitarian interventions lies in the UN Charter Article 2 which prohibits the use of force by states against other states no matter the motive. It is the backbone to the existence of the UN and the Security Council in the post-World War II era. Although the charter also notes the importance of human rights and condemns genocide as a crime, there is no legal obligation, precedent, or commitment to intervene. Legal formality and the importance of international law does not justify any type of use of force other than self-defense.¹¹

Examining the philosophical cosmopolitan argument from the previous section, it can be argued that supporters focus too narrowly on justifying the intervention instead of demanding a justification to resolve the structural causes which inherently caused the humanitarian crisis. Humanitarian interventions will continue to be ineffective due to the importance of Jus ante Bellum (right before war) or principles of distributive global justice that would provide a secure foundation for the human rights which such interventions are meant to re-establish.¹²

Discussion

One cannot argue against the existence of humanitarian intervention as an existing foreign policy widely practiced in the last 30 years in the post-Cold War era. It has become an unspoken “customary law” but is usually officially condemned by the international community in most instances.

The UN as an international body must abide by several principles when evaluating crises and determining a response, including the extent of human suffering, whether the crisis has spilled over to neighboring countries, the ability of a state to resist an intervention, and level of material resource available for resolution. Even in an ideal political world, the UN actions are severely limited, with the UN taking coercive measures only when the crisis has already begun to generate significant spillover effects, such as substantial refugee flows.¹³

In consideration of ethical and moral responsibility that may justify humanitarian interventions, it must have certain limits. There must be strict accountability during and after the intervention to use proportionate force within the scope of the military operation which does minimal damage to the population, property, and does not destabilize the state where the intervention occurs. Once atrocities end, the intervention must immediately stop.

To date, humanitarian interventions conducted with the blessing of the UN, such as the one in Libya, far overstepped its boundaries by initiating a regime change. It is important to reform the UNSC approach to interventions, primarily by avoiding narrow political interests. All UN member states must be expected to uphold international law and the protection of human rights while supporting measures to resolve the situation if necessary. A proposed solution would be to eliminate any state’s sovereignty and territorial integrity rights in favor of human rights and humanitarian principles.¹⁴ Meanwhile, the UNSC should clearly outline the threshold and rules of engagement during unofficial humanitarian interventions along with monitoring mechanisms.

Overall, humanitarian intervention is a grey area of international law, where it is not legal, but does not logically constitute a crime of aggression in the UN charter. The International Criminal Court crime of aggression jurisdiction justifies measures of humanitarian interventions as legally ambiguous, allowing for planned actions based on the responsibility to protect principle.¹⁵ Despite the moral and human rights clauses, humanitarian intervention should not be widely supported. As noted by Noam Chomsky, “virtually every use of military force is described as a humanitarian intervention.”¹⁶

This inherently summarizes the negative aspects of humanitarian intervention which is frequently justified and carried out but there is always an ulterior motive whenever a state decides to intervene. In the end, the discussion is not whether the state actions are legal but rather that the international law should be updated to include humanitarian interventions that countries can adhere to in its modus operandi.¹⁷

Conclusion

It is evident that the use of humanitarian intervention is a complex subject and while it may be justified, it remains illegal under international law that has been built around state sovereignty and self-determination. Unfortunately, few effective legal mechanisms exist that can prevent or disrupt human rights abuses without direct intervention. Therefore, it can be argued that military humanitarian intervention is justified due to the fundamentals of responsibility to protect. However, there must be stronger legal mechanisms in place to guide and hold accountable any involved states to prevent the worsening of the situation as international law is violated in the process.

Works Cited

Agwu, Fred A. ” The Challenge of Humanitarian Intervention Since Rwanda.” Council on Foreign Relations. 2014. Web.

Bajoria, Jayshree, and Robert McMahon. “The Dilemma of Humanitarian Intervention.” Council on Foreign Relations. 2013. Web.

Binder, Martin. ” Why Does UN Humanitarian Intervention Remain Selective.” Oxford Research Group. 2017. Web.

Brown, Garret W., and Alexandra Bohm. “Introducing Jus ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention.” European Journal of International Relations, vol. 22, no. 4, 2016, pp. 897-919. Web.

Hurd, Ian. “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World.” Ethics & International Affairs, vol. 25, no. 3, 2011, pp. 293-313. Web.

Jayakumar, Kirthi. “Humanitarian Intervention: A Legal Analysis.” SSRN Electronic Journal, 2012, pp. 1-5. Web.

Kreps, Sarah, and Sarah Maxey. “Mechanisms of Morality: Sources of Support for Humanitarian Intervention.” Journal of Conflict Resolution, vol. 62, no. 8, 2017, pp. 1814-1842. Web.

Sarvarian, Arman. “Humanitarian Intervention After Syria.” Legal Studies, vol. 36, no. 1, 2016, pp. 20-47. Web.

“Syria Action – UK Government Legal Position.” Gov.uk. 2018. Web.

Trahan, Jennifer. “Defining the ‘Grey Area’ Where Humanitarian Intervention May Not Be Fully Legal, But Is Not the Crime of Aggression.” Journal on the Use of Force and International Law, vol. 2, no. 1, 2015, pp. 42-80. Web.

Footnotes

1. Kreps and Maxey 1814.
2. Agwu.
3. “Syria Action – UK Government Legal Position”.
4. Jayakumar 2.
5. Brown and Bohm 897.
6. Sarvarian 26.
7. Hurd 302.
8. Bajoria and McMahon.
9. ibid.
10. Binder.
11. Hurd 298.
12. Brown and Bohm 898.
13. Binder.
14. Agwu.
15. Trahan 42.
16. Jayakumar 1.
17. ibid.