Nwamarah Uche

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O= University of Nigeria, Nsukka

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Faculty of Law

DEPARTMENT OF INTERNATIONAL LAW AND JURISPRUDENCE

HUMANITARIAN INTERVENTIONS AND THE UNITED NATIONS CHARTER: RE

EXAMINING THE LEGALITY OF THE USE OF FORCE IN

ENFORCEMENT

ATTOH NONSO ROBERT

REG NO: PG/LLM/O4/ 38392

1

: Content manager’s Name

Weabmaster’s name

a, Nsukka

OU = Innovation Centre

DEPARTMENT OF INTERNATIONAL LAW AND JURISPRUDENCE

HUMANITARIAN INTERVENTIONS AND THE UNITED NATIONS CHARTER: RE-

EXAMINING THE LEGALITY OF THE USE OF FORCE IN HUMAN RIGHTS

392

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CHAPTER ONE

1.1 Background of the Study

States are prohibited in their international relations from the threat or use of force

against the territorial integrity or political independence of states1. The United Nations

is also prohibited from requiring a member state to submit any matter that is within its

domestic jurisdiction to international arbitration2.

These are primary and fundamental rules of international relations codified in the

United Nations Charter, and held sacrosanct in international law. These rules

recognize the primacy of states as actors in the international forum and respect the

doctrine of state sovereignty as formulated after the treaty of Westphalia, which ended

the 30 years war.

However with the emergence of new states and the consequent changes in the

international environment along with the recognition of new actors in international

affairs, human rights have attained a level of prominence and states are now deemed

to have certain responsibilities towards their citizens, which duties are incorporated as

part and parcel of sovereignty.

Authoritarian regimes that disregard and violate human rights of their citizens have

also sprung up on different portions of the globe, thereby intensifying concern over

egregious human right violations.

Consequently, the idea of humanitarian intervention which has always been frowned

upon as an unacceptable assault on sovereignty has gradually been developing an aura

of legitimacy in international law. This has been most prevalent in the 1990’s as

1 United Nations Charter, article 2(4)

2 Ibid., article 2(7)

3

witnessed in the intervention in Iraq, in the NATO intervention in Kosovo and the

recent intervention in Libya. Currently the debates and political manoeuvring

continue regarding the likelihood of intervention in Syria in the light of the human

right violations and atrocities reported to be going on in Syria.

In the wake of such concerns the International Commission on Intervention and State

Sovereignty was set up in 2001 by the Canadian government and formulated the

“Responsibility to Protect” doctrine popularly called R2p at the end of its

deliberations3.

Despite controversies trailing the concept, it was adopted with some modifications by

the General Assembly in the World Summit Outcome Document and has been

mentioned in a Resolution of the Security Council4.

Scholars are sharply divided as to the current status of humanitarian intervention and

even on the R2p doctrine in international law especially in the light of the United

Nations Charter and customary international law.

The recent NATO (North Atlantic Treaty Organisation) invasion of Libya and the

continuing debacle in Syria has once again raised fundamental questions about

unilateral interventions in the affairs of sovereign nations and about the role of the

United Nations Security Council in authorising humanitarian interventions. In this

work, we have analysed the current state of the debate, generally examining

humanitarian intervention vis-à-vis the use of force, human rights, sovereignty and the

new concept of responsibility to protect as formulated by the Committee on

3 http://www.responsibilitytoprotect.org/index.php/about-rtop/learn-about-rtop accessed on 10/10/2011

4 Ibid.

4

Intervention and State Sovereignty and incorporated in the World Summit Outcome

Document.

We have also examined the purpose of the United Nations as it relates to ensuring

universal respect for human rights and fundamental freedoms without any untoward

distinctions, pointing out an often neglected aspect of this purpose viz- the need to

achieve international co-operation in this regard.

1.2 Statement of the Problem

The United Nations Charter prohibits the use of force against the territorial integrity

or political independence of a state or in any manner contrary to the purposes of the

United Nations.5

It also recognizes the principle of sovereign equality of states and prohibits the

organisation itself from requiring any state to submit any matter within its domestic

jurisdiction to settlement6

The Charter also seeks to achieve international co-operation in promoting and

encouraging respect for human rights and for fundamental freedoms for all without

distinction as to race, sex, language, or religion.7However the mechanisms provided

for enforcing these rights in international law have proven ineffective and do not

include the use of armed force.

In the light of these seemingly conflicting values and the existence of dictatorial

regimes that violate the human rights of their subjects, the problem of the most

effective means of enforcing human rights in the light of the claims of sovereignty

5 Ibid., article 2(4)

6 Ibid., articles 2(1) and 2(7)

7 Ibid. article 1(3)

5

and domestic jurisdictions put up by these autocratic states, is one which has proven

difficult to solve effectively.

It is in the light of this dilemma, that humanitarian intervention which is the use of

force to stop egregious violations of human rights within the territory of another state,

has once again been touted as the best solution to this dilemma. A modification of the

idea of humanitarian intervention referred to as the “responsibility to protect” is also

advanced and hailed as the solution to the problem.

This research work therefore sets out to determine the legality and legitimacy of this

proposed solution, taking into cognisance the difficulties posed by the United Nations

Charter rules on the use of force and the concept of sovereignty. Recent developments

in this field are also examined in an attempt to arrive at a solution to this problem.

1.3 Research Questions

1. Are Human rights and the rights of citizens in a state within the domestic

jurisdiction of states or international law jurisdiction?

2. Is the use of force to correct human rights violations, a use of force in a

manner inconsistent with the purposes of the United Nations?

3. What is the appropriate means for correcting human right violations and when

is it justified to use force to correct human right violations in other states?

4. Is the doctrine of state sovereignty jeopardised by Humanitarian interventions?

5. How should the international system respond to gross and systematic

violations of human rights which shock the conscience of mankind?

6. How effective is the “responsibility to protect” as a solution to egregious

violations of human rights?

6

1.4 Objectives of the Study

The importance of maintaining international peace cannot be overemphasized as well

as the importance of ensuring universal respect and promotion of human rights. The

objective of the study therefore is to examine the pros and cons involved in the

unilateral use of force to promote human rights and to demonstrate that the unilateral

use of force for ensuring respect and promotion of human rights is a dangerous

practice contrary to the United Nations Charter and capable of destroying

international peace and security. It is also an attempt to proffer a suggestion on how to

successfully reconcile these two seemingly opposed values recognized by the UN

Charter.

1.4 Methodology

This being a doctrinal research, concentration was focussed on study of primary and

secondary sources of law. Being a topic in international law, recourse was had to

treaties, and customary international law especially state practice in humanitarian law

and use of force, in an attempt to determine whether there has developed an opinio

juris for humanitarian intervention.

This work is divided into seven chapters dealing with various aspects of the

controversy surrounding humanitarian intervention, viz. the use of force, sovereignty,

human rights and domestic jurisdiction, and the responsibility to protect doctrine. The

first chapter is a general introduction, while chapter two examines the meaning of

humanitarian intervention adopted in the work as well as its history. Chapter three

examines humanitarian intervention in the light of sovereignty and human rights

protection while chapter four examines the use of force in international law vis-à-vis

humanitarian intervention. Chapter five is a case study of humanitarian interventions

7

in the post cold war era in an attempt to discover whether customary international law

rule has been established in this area. Chapter six examines the new concept of

responsibility to protect while chapter seven concludes the work and sets out our

recommendations.

1.5 Scope of the Study

Humanitarian intervention has had a chequered history and very voluble discourse has

attended every phase of its development. We have tried to do a broad review to

encapsulate the major and pressing issues surrounding humanitarian intervention viz.

the use of force, sovereignty and human rights. The case studies have also been of

contemporary happenings in the 1990’s and early 21st century.

1.6 Literature Review

It is generally accepted that humanitarian intervention violates a fundamental

principle of international law which is the prohibition on the use of force. This is

borne out by the ipse dixit of the former Secretary General of the United Nations,

Kofi Annan

“…if humanitarian intervention is, indeed, an unacceptable assault on

sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and

systematic violations of human rights that affect every precept of our common

humanity?”8

Therefore in the light of the importance of the subject of humanitarian intervention for

world peace and stability, a lot of juristic ink has flown in an attempt to justify or cast

an aura of legitimacy on the practice of humanitarian intervention. The literature is

vast and embraces the legal and ethical justifications for humanitarian intervention.

8 K. Annan, Two Concepts of Sovereignty, available at http://www.economist.com/node/324795

8

Michael Walzer grapples with this subject in his touchstone work on just war

principles titled Just and Unjust wars9. He viewed sovereignty as a moral good

because the concept of self determination which is part and parcel of sovereignty is

the only way that a people can be free10

, but, he however weighs communal liberty

and human rights on a higher scale of values than state sovereignty.

He however feels that intervention is justified when states grossly violate their own

citizen’s rights and also “... when it is a response to acts that shock the conscience of

mankind.”11

He writes

“When a government turns savagely against its own people, we must doubt the

very existence of a political community to which the idea of self-determination

might apply. ...People who initiate massacres lose their rights to participate in

the ...processes of domestic self-determination. Their military defeat is morally

necessary”12

In another of his works, he identifies two types of legitimacy regarding states which

he terms internal and external legitimacy. Internal legitimacy, he explains, has to do

with the moral standing of government with respect to its people while external

legitimacy has to do with the moral standing of a state with respect to other states13

.

Thus if a government is internally legitimate then it is entitled to obedience of its

laws from the people and if it is externally legitimate, then it is entitled to military

non-intervention from other states.

9 M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3

rd

ed., (New

York: Basic Books, 2000). 10

Ibid. p.82 11 Ibid. 12

Ibid. 13

N. E. Mueller, “Michael.Walzer on the Moral Legitimacy of States and the Morality of Killing in

War”, available at http://scholar.lib.vt.edu/theses/available/etd-05232006-

155309/unrestricted/Thesis.pdf accessed on 21/10/2011

9

According to Walzer, each type of legitimacy is determined based on the notion of

“fit” between a government and its people14

. This fit is meant to describe “the degree

to which the government really reflects the political life of the people”15

.

It therefore stands to reason that Walzer’s thesis requires that for there to be internal

legitimacy, the fit between a government and its people has to be “of a democratic

sort”16

, and then the government is internally legitimate, entitling it to obedience of its

law from the people. Conversely if the fit is not “of a democratic sort”, then the

government is not legitimate and thus not entitled to obedience of its laws from the

people.

As for external legitimacy, he claims that “the judgments we make reflect our

recognition of diversity and our respect for communal integrity and for different

patterns of cultural and political development.”17

In other words, our decisions about the legitimacy of states normally reflect our

appreciation of the diversity in human experiences and ideas and as such will accord

legitimacy once there are proofs of communal integrity and cultural political

development even where the political set-up varies from the norm.

This external legitimacy then entitles the state to military non-intervention from other

states. But if “there is no fit at all”, then the state is not legitimate and is not entitled to

military non-intervention from other states.

Walzer’s external legitimacy is dependent on self-determination. This means that as

long as there is “a ‘fit’ of some sort” between a government and its people, the

14 Michael Walzer, “The Moral Standing of States: A Response to Four Critics,” Philosophy and Public

Affairs, vol. 9, no. 3 (Spring 1980), 212. 15

Ibid. 214 16

Ibid. 216 17

Ibid. 215-216

10

political community is a self-determining entity. And as long as a political community

is self-determining, it is entitled to non-intervention from other states.

Intervention in a political community that is self-determining violates the

community’s right to self-determination and would therefore be morally wrong.

If there is no fit between the government and the people, then the political community

is not a self-determining entity, which means that the community is not entitled to

non-intervention. Intervention in a political community that is not self-determining

would not violate the community’s right to self-determination and therefore would not

be morally wrong. Intervention when it is morally permissible restores the

community’s ability to be self-determining.

However, regardless of the ingenuity and idealism behind this argument, it is our

opinion that this position contradicts the tenets of the international order which

ascribes legitimacy to states once they have met the traditional requirements of the

Monte-video Convention as to the prerequisites for statehood and have been properly

recognized by other states.18

Without delving into the theoretical controversy of the nature of recognition, whether

it is constitutive or declaratory, we submit that international law as it presently exists

does not impose this additional requirement of a “fit between the government and the

people”, before a state is entitled to legitimacy and non-intervention.

Equally the United Nations Charter did not make any such distinction between states

that have a “sort of fit” between the government and the people and those who do not,

18

These prerequisites are 1. a permanent population, 2. a defined territory 3. government 4. Capacity

to enter into relations with other states. Article 3 of the Convention reads “The political existence of the

state is independent of recognition by the other states. Even before recognition the state has the right to

defend its integrity and independence, to provide for its conservation and prosperity, and consequently

to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the

jurisdiction and competence of its courts.”

11

in its prohibition of the use of force against the territorial integrity and political

independence of a state.19

Therefore, once a state possesses the attribute of statehood as enumerated in the

Monte-video Convention and has been duly recognised by a sufficient number of

states, it is legitimate and as a member of the United Nations, is entitled to the

principles of sovereign equality of states as protected by the United Nations Charter.

It is therefore, protected by the prohibition of use of force against its territorial

integrity and political independence.20

Walzer enumerated three types of cases in which military intervention is morally

permissible, one of which was to rescue peoples threatened with massacre. 21

This

encompasses the notion of humanitarian intervention while other acts that he listed as

indicating that there is “no fit at all” between the government and the people such as

enslavement and “the expulsion of very large numbers of people” also justifies

humanitarian intervention.

Walzer also argues that armed humanitarian intervention is morally justified when it

is a response to "'massacre, rape, ethnic cleansing, state terrorism, and contemporary

versions of bastard feudalism, complete with ruthless warlords and lawless bands of

armed men."22

While recognizing that intervention is contrary to the concepts of anti-imperialism

and self-determination and the presumption against intervention in another nation's

19 United Nations Charter, article 2(4) 20

Ibid. 21

M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd

ed., (New

York: Basic Books, 2000). 22 M. Walzer, Arguing About War (New Haven, CT Yale University Press, 2004), 68.

12

internal affairs, he thinks it is "morally necessary whenever cruelty and suffering are

extreme and no local forces seem capable of putting an end to them." 23

Walzer adds that armed intervention cannot be morally justified to promote

"democracy ... or economic justice or ... other social practices and arrangements" that

exist in other countries. In his view, it must be limited to ending conduct that "shocks

the conscience of humankind."24

Walzer does not accept the idea that humanitarian intervention can be referred to the

realm not of law but of moral choice, and be regarded as unlawful but permissible, in

order not to corrupt the rule of law. He believed that even where the law is

insufficient to provide criteria for judging moral choices, the lacuna can always be

filled up from our common morality. He wrote

“That is only a plausible formulation if one doesn’t stop with [the law], as lawyers are

likely to do. For moral choices are not simply made; they are also judged, and so

there must be criteria for judgment. If these are not provided by the law, or if legal

provision runs out at some point, they are nevertheless contained in our common

morality, which doesn’t run out, and which still needs to be explicated after the

lawyers have finished.”25

Walzer’s account and justification of humanitarian intervention and legitimacy of

states is indeed ingenious, though one may question his idea of internal legitimacy as

expressed in our judgement of democracy as the only acceptable fit and reflection of

the political life. Many Islamic states may not be totally agreeable to that concept

despite the current upheavals arising from the Arab uprisings.

23

Ibid. 24

Ibid.p.101-106 25 Ibid.

13

It is also a valid observation that most of his conclusions are based on moral

reasoning and might have neglected the jurisprudential distinction between law and

morality. This has prompted the observation that humanitarian intervention can be

justified de lege feranda, but hard to justify lex lata26

.

For David Luban, state legitimacy is predicated on the idea of consent. Thus once the

people within the state consent to be governed the state is internally legitimate and the

government is legitimate27

. He believes that the same condition of consent determines

both internal and external legitimacy.

Therefore if a people consent to be governed, it confers legitimacy on the state and

entitles it to non-intervention from other states. Intervention in this case would be

morally wrong. But if the contrary situation obtains where the people do not consent

to be governed, the state is illegitimate and intervention is not morally wrong in such

a case28

.

A bloody repression by the government is considered by him to be a clear indication

or evidence that a state is not based on consent and is therefore illegitimate and

susceptible to humanitarian intervention which is morally permissible in this case.

A bloody repression in Luban’s view would justify humanitarian intervention because

such an act violates “socially basic human rights”, which he defines as “a right whose

26

E. Adjei, “The legality of Humanitarian Intervention” available at

http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article accessed on 12/09/2012 27

D. Luban, “Just War and Human Rights,” Philosophy and Public Affairs, vol. 9, no. 2 (Winter

1980)168 28

D. Luban, “The Romance of the Nation State,” Philosophy and Public Affairs, vol. 9, no. 4 (Summer

1980), 393

14

satisfaction is necessary for the enjoyment of any other rights”29

. He opines that these

rights are universal, since they are indispensable and “no one can do without them.”30

.

From Luban’s account of legitimacy and just war therefore one extrapolates that

violations of “socially basic human rights” are sufficient just cause for military

intervention, as long as the proportionality requirement of just war theory is adhered

to.

Verwey’s argument centres on the need for international law to provide room for

genuinely unselfish and morally obligatory, last-resort humanitarian intervention, or

else risk the loss of respect for law in general in international relations.”31

He writes that there should be no overriding selfish interest involved on the side of the

intervenor, thus precluding the use of humanitarian intervention as an excuse for

selfish political and economic motives. He further states that the magnitude of the

military involvement should be proportionate to the gravity of the human right

violation and should not cause more lives, loss and tragedy than it purports to prevent

or else should not constitute a threat to peace and security32

He also presents the theory of legal necessity as ultimate justification of the right of

humanitarian intervention. In rejecting the idea of humanitarian intervention as an

illegal act which was morally permissible he wrote;

“We would open another Pandora’s box and jeopardize respect not only for the UN

Charter but for the rule of law in general. The point is that international law must be

able to cope with such situations. .For if international law does not provide room for

genuinely unselfish, morally obligatory, last-resort humanitarian intervention, then it

29 Ibid. op cit.174 30

D. Luban, op.cit. 31

V.D. Verwey Humanitarian Intervention under International Law (1985) 32 Netherlands ILR 357 at

358. 32 Ibid.

15

would lose control of, and become irrelevant in, some of the most dramatic

situations.”33

Verwey noted that the International Law Commission in its Draft Articles on State

Responsibility has recognised the principle of necessity as a ground for precluding the

wrongfulness of an act of that State. The International Law Commission has held in

its interpretation of the Draft Articles, that this is applicable particularly where it is

necessary to protect a humanitarian interest of the population.

Therefore, Verwey asserts that humanitarian intervention can be legalized by

introducing a principle of necessity as supporting the right of humanitarian

intervention, and in the same way avoid the naturalist controversy.34

Fernando Teson, arguing against the backdrop of the UN Charter rules on the use of

force asserts that a genuine humanitarian intervention neither impairs the territorial

integrity of the target state nor results in political subjugation.35

He stated thus:

“Since a humanitarian intervention seeks neither a territorial change nor a challenge to

the political independence of the State involved and is not only inconsistent with the

purposes of the United Nations but is rather in conformity with the most peremptory

norm of the Charter it is a distortion to argue that it is precluded by Article 2(4)”36

.

Teson argued that the inflexible prohibition on force exhibited in Article 2(4) of the

UN Charter should be tempered by acknowledging that prior to the legal

developments in the 19th

century, it was legitimate to use force to protect the

oppressed.

33 Ibid. 34

Ibid. 35

F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality 2nd

edn. New York:

Transnational.1997 36 Ibid.

16

He therefore suggests that the use of force for benign humanitarian purposes today

should be considered both legal and morally legitimate.37

He equally asserts that that the United Nations purpose of protecting and promoting

human rights has a primacy over respect for state sovereignty and as such force used

in defence of fundamental human rights is not a use of force inconsistent with the

purposes of the United Nations.

“The human rights imperative underlies the concepts of state and government and the

precepts that are designed to protect them, most prominently article 2(4). The rights of

states recognized by international law are meaningful only on the assumption that those

states minimally observe individual rights. The United Nations purpose of promoting

and protecting human rights found in article 1(3), and by reference in article 2(4) as a

qualifying clause to the prohibition of war, has a necessary primacy over the respect for

state sovereignty. Force used in defense of fundamental human rights is therefore not a

use of force inconsistent with the purposes of the United Nations.”38

Antonio Cassesse analysed the NATO intervention against Yugoslavia in response to

an article by Bruno Simma39

. He agreed that the threat of force followed up by the use

of armed violence by NATO countries was contrary to the United Nations Charter40

.

This was because they acted without any authorisation of the Security Council under

Chapter VII of the Charter and their action could not be justified as collective self

defence under Article 51 of the Charter. This placed the recourse to force outside and

against the United Nation Charter framework.

He recognised three set of values that underpin the overarching system of inter-state

relations which are peace, human rights and self-determination. He however

37 Ibid. 38

Ibid. 173-`74 39

B. Simma, “NATO, the UN and the Use of Force: Legal aspects, EJIL 10 1999 1-22 40

A. Cassese, “Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible

Humanitarian Countermeasures in the World Community?” EJIL 10 1999 23 – 30

17

recognized the primacy of peace as the ultimate or prevailing factor once there was a

conflict or tension between these three values. He stated expressly

“Under the United Nation Charter system, as complemented by the international

standards which have emerged in the last 50 years, respect for human rights and

self-determination of peoples, however important and crucial it may be, is never

allowed to put peace in jeopardy. One may like or dislike this state of affairs, but

so it is under lex lata”41

.

He pointed out that once a group of powerful states has realised that it can freely

escape the strictures of the United Nations Charter and resort to force without censure,

except for that of public opinion, a Pandora’s Box would have been opened. There

will therefore be nothing to restrain the states once a situation that in their opinion

warrants resort to armed violence occurs.

Basing his argument on NATO’s official grounds of justification for their resort to

force, he argued that there were important moral values that necessitated the military

action. The main justification of NATO had been that the authorities of FRY (Federal

Republic of Yugoslavia) had carried out massacres and other gross breaches of human

rights as well as mass expulsion of thousands of their citizens belonging to a

particular ethnic group. They contended that this humanitarian catastrophe would

most likely destabilize neighbouring countries, thereby constituting a threat to the

peace and stability of the region42

.

It was on this ground that Cassesse held that from an ethical viewpoint, resort to

armed force was justified but that as a legal scholar, the moral action was contrary to

international law.

41

Ibid. 42 Ibid.

18

He posed two questions for consideration by legal scholars

1. Was the NATO armed intervention at least rooted in and partially justified by

contemporary trends of the international community?

2. Were some parameters set, in this particular instance of use of force that might

lead to a gradual legitimation of forcible humanitarian countermeasures by a

group of states outside any authorisation by the Security Council?43

In examining the trends he first identified that in today’s international law, human

rights are no longer of exclusive concern to the particular states where they are

violated. He recognized that human rights are increasingly becoming the main

concern of the whole world community who now recognize that they cannot and

should not be trampled upon with impunity in any part of the world.

Secondly, obligations to respect human rights are now commonly accepted as

obligations erga omnes and as such any state, individually or collectively, has the

right to take any step short of force to secure such respect.

Third, the emerging idea in international community is that large scale and systematic

atrocities may give rise to an aggravated form of state responsibility, entitling other

states to respond by resorting to countermeasures different from that used to respond

to delictual responsibility.

Fourth, in line with this trend, is the increasing intervention by international bodies in

internal conflict where human rights are in serious jeopardy. He cited examples of

OAU’s intervention in Liberia (1990), UN in Iraq (1991-1992), UN in Somalia

(1992), UN in Bosnia and Herzegovina (1992- 1993), UN in Rwanda (1994) and OAS

and UN in Haiti (1993-94).

43 Ibid.

19

Sixth, some non- regional organisations and government officials have asserted that

under certain exceptional circumstances, where atrocities reach a scale that shocks the

conscience of all human beings and jeopardises international stability, the need to

forcibly protect human rights may outweigh the necessity to avoid friction and armed

conflict44

.

It was in the light of these nascent trends in the world community, that Cassesse

submitted that under certain strict conditions, resort to armed force may gradually

become justified, even without any authorisation of the Security Council. The

conditions he enumerated are;

1. Gross and egregious breaches of human rights involving loss of life of

hundreds or thousands of innocent people, and amounting to crimes against

humanity are carried out on the territory of a sovereign state, by the state itself,

or with their connivance and support, or in circumstances where the state is

helpless to impede the atrocities.

2. Proof that the central authorities are utterly unable to put an end to those

crimes, while at the same time refusing to call upon or allow other states or

international organisations to enter the territory to assist in terminating the

crimes. . If, on the contrary, such crimes are the work of the central

authorities, it must be shown that those authorities have consistently withheld

their co-operation from the United Nations or other international

organisations, or have systematically refused to comply with appeals,

recommendations or decisions of such organisations.

3. The Security Council is unable to take any coercive action to stop the

massacres because of disagreement among the permanent members or because

44 Ibid.

20

one or more of them exercises its veto power. Consequently, the Security

Council either refrains from any action or only confines itself to deploring or

condemning the massacres, plus possibly terming the situation a threat to the

peace.

4. All peaceful avenues which may be explored consistent with the urgency of

the situation to achieve a solution based on negotiation, discussion and any

other means short of force have been exhausted, notwithstanding which, no

solution can be agreed upon by the parties to the conflict.

5. A group of states (not a single hegemonic power, however strong it’s military,

political or economic authority, nor such a power with the support of a client

state or an ally) decides to try to halt the atrocities, with the support or at least

the non opposition of the majority of the member states of the United Nations.

6. Armed force is exclusively used for the limited purpose of stopping the

atrocities and restoring respect for human rights, not for any goal beyond this

limited purpose.45

Consequently, the use of force must be discontinued as soon as this purpose is

attained. Moreover it is axiomatic that use of force should be commensurate with and

proportionate to the human right exigencies on the ground. The more urgent the

situation of killings and atrocities, the more intensive and immediate may be the

military response thereto. Conversely, military action would not be warranted in the

case of a crisis which is slowly unfolding and which still presents avenues for

diplomatic resolutions aside from armed confrontations.

He applied these criteria to justify the NATO intervention while still emphasizing that

the action was unlawful and contrary to the United Nations Charter.46

45 Ibid.

21

He concluded on the note that the Kosovo breach of international law by NATO may

gradually lead to the crystallization of a general rule of international law authorising

armed countermeasures for the exclusive purpose of putting an end to large scale

atrocities amounting to crimes against humanity and constituting a threat to the peace.

Once such a rule evolves, it would constitute an exception to the United Nations

Charter system of collective enforcement based on the authorisation of the Security

Council.

In a follow up article47

Cassese examined the views of states expressed during and

after the Kosovo crisis. He expressed the opinion that though states may have

conceded the moral and political necessity of the NATO intervention, yet such

concession comes short of accepting that such conduct was legitimate under existing

international law.

Since no consistent usus has crystallized, he suggested that in cases where conduct of

states is clearly in breach of existing law, but the state nevertheless considers it to be

politically, economically or morally necessary to act in such manner, one may speak

of opinio necessitatis instead of opinio juris.

He held that in the case of Kosovo, the opinio necessitatis has been forcefully and

loudly proclaimed by the states engaging in military action. Even though there were

protests and criticisms from a limited number of states like Russia and China, the

opinio necessitatis was strong and widespread.48

46

Ibid. 47

A. Cassese, “A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis”, EJIL

10 (1999), 791 -799 48 Ibid.

22

He concludes that even though the psychological element of customary law has come

into being, it does not yet possess the requisite element of generality and non

opposition. He however cautions that the new customary rule in the process of

formation can only have a limited content and be subject to the stringent condition he

had outlined in the earlier article. It does not give states authority to use force

individually unless the Security Council is crippled by a veto or is unable to act

because of the possibility of a veto.

Such use of forcible countermeasures can only be legitimized if

1. It is a collective reaction of states to systematic massacres amounting to

serious crimes against humanity

2. Prior to the military action, the situation must have been considered by the

Security Council to constitute a threat to peace and security

3. The resort to forcible countermeasures must not be condemned by a

majority of states.

4. Implementation must remain fully in accordance with humanitarian

principles and rules.

Thus this crystallizing rule is only a fallback solution in cases where inaction would

be contrary to any principle of humanity.

The ICRC’s position on humanitarian intervention was expressed by Anne Ryniker of

the ICRC’s legal division49

.

According to her, from the viewpoint of humanitarian law, it is a contradiction to

speak of humanitarian ‘intervention’ or ‘interference’ because the term humanitarian

49 A. Ryniker, “The ICRC’s position on “humanitarian intervention” ICRC June 2001 Vol. 83 No 842

23

should be reserved to describe actions intended to alleviate the suffering of the

victims, and yet ‘humanitarian intervention’ refers to armed intervention, often carried

out with a political agenda.

She cited the 1986 ruling by the international Court of Justice in a case involving

military and paramilitary activities in Nicaragua, recognising that if humanitarian

assistance is to escape condemnation as an intervention in the internal affairs of

another state, it must be limited to the purposes hallowed in the practice of the Red

Cross. Also, the Court noted that the use of force could not be the appropriate method

to monitor or ensure respect for human rights.

Therefore, she was of the view that the most one can speak of is “armed intervention

in response to gross breaches of human rights and international humanitarian law”.

On the legal status of “humanitarian intervention” and its relationship to international

humanitarian law, she states that “humanitarian intervention is a jus ad bellum

question which is dealt with explicitly by the United Nations Charter”.

She posits that it is not currently possible to say that there is any right to take

unilateral action or use force against a state that commits abuses of human rights or

breaches of international humanitarian law. Thus the ICRC is of the opinion that

international customary law has not yet been established in this field.

She pointed out that humanitarian law only provides that when grave breaches of its

provisions are committed, those responsible are to be prosecuted as criminals either

by national courts or international courts.

24

Illustrating from article 1 of the Geneva Convention, she further buttressed the fact

that the question of measures to be taken by the states and United Nations to put an

end to those breaches is not dealt with by humanitarian law, but by the United Nations

charter in Chapter VII or VIII. This leaves the Security Council with a variety of

means at its disposal.

She finally adopts the position that in the event of extremely serious violations of

international humanitarian law or genocide, the ICRC must sound the alarm and

inform the states that humanitarian assistance has reached its limits. But that however

it is not the business of the ICRC to signify the means that should be employed to

bring an end to the violation

The ICRC therefore does not express an opinion on the legitimacy of operations

carried out in response to breaches of human rights or humanitarian law.

For Thomas M. Frank, humanitarian intervention may be morally justified;

"if the wrong perpetrated within a state against a part of its own population is of a

kind specifically prohibited by an international agreement (e.g., the Convention on the

Prevention and Punishment of the Crime of Genocide; treaties regarding racial

discrimination, torture, the rights of women and children; the International Covenant

on Civil and Political Rights (ICCPR); and agreements on humanitarian law

applicable in civil conflict.)"50

Political scientists Jerome Slater and Terry Nardin argue that "intervention is justified,

at least in principle, in many cases where governments are responsible for substantial

and systematic violations of human rights, even when such violations fall short of

50 T. M. Franck, Recourse to Force (Cambridge University Press, 2002), 135, cited in Daniel Rice,

Armed humanitarian intervention and international law: a primer for military professionals available at

http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20071231_art008.pdf

accessed on 08/07/2011.

25

genocidal proportions." Slater and Nardin believe the seriousness of the human rights

violation determines the degree of protection against intervention to which

governments are entitled, arguing that "the grosser the violation [of human rights], the

weaker the claim to such protection [from intervention.]"51

Franck & Rodley are also of the view that there are sound moral grounds for

humanitarian intervention, because there is ‘common’ agreement in a number of

ethical traditions that crimes such as the mass killing of civilians are universally

punishable52

.

As we had already mentioned, the literature on humanitarian intervention is indeed

very vast and still increasing geometrically daily and the limitations of the work did

not permit us to consult all the authorities. However, the authorities we analysed,

seemed to have neglected an important phrase in the UN Charter as it relates to

“achieving international co-operation” in promoting and ensuring respect for human

rights and fundamental freedoms without prohibited discrimination.53

This has resulted in their arguing from the position that the purpose of the United

Nations is simply to promote and ensure respect for human rights and fundamental

freedoms without paying attention to the diverging views on human rights referred to

as cultural relativism.

The gravamen of our thesis is that the UN Charter recognizes this cultural diversity

and that is why it did not recognize the use of force in achieving this purpose, but

51

J. Slater and T. Nardin, "Nonintervention and Human Rights," The Journal of Politics, 48, no. 1

(February, 1986), 92 52

Franck and Rodley ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’,

(1973) 67 American Journal of International Law 275; 53

UN Charter, article 1(1)

26

rather made provisions for achieving consensus and co-operation on questions of

human rights.

Analysis of other portions of the Charter will also buttress this position.

27

CHAPTER TWO

HUMANITARIAN INTERVENTION IN INTERNATIONAL LAW

INTRODUCTION

There have been many attempts by several writers to define the term humanitarian

intervention. But Verwey notes:

“There may be few concepts in international law today which are as conceptually

obscure and legally controversial as .humanitarian intervention... This results from a

lack of agreement on the legal meaning of both the term .intervention and the term

humanitarian...”54

As has been rightly pointed out by the learned writer, the true meaning of the term

humanitarian intervention can only be arrived at via an agreement of the meaning of

its two constituent terms, “intervention” and “humanitarian”. Unfortunately both

terms are subject to varying usages and interpretations. It is therefore pertinent and

fundamental from the onset to first delineate and pinpoint the particular meaning of

the term adopted in this work, in order to contextualize the discourse that follows.

We will accomplish this, by first examining various meanings adopted by various

scholars and jurists before elaborating the particular meaning we are adopting in this

work.

2.1 DEFINITION AND MEANING OF HUMANITARIAN

INTERVENTION.

The international Commission on Intervention and State Sovereignty comments

“Part of the controversy over “intervention” derives from the potential width of

activities this term can cover, up to and including military intervention. Some would

regard any application of pressure to a state as being intervention, and would include

in this conditional support programmes by major international financial institutions

54

V.D. Verwey, “Humanitarian Intervention under International Law” (1985) 32 Netherlands ILR 357

at 358.

28

whose recipients often feel they have no choice but to accept. Some others would regard

almost any non-consensual interference in the internal affairs of another state as being

intervention – including the delivery of emergency relief assistance to a section of a

country’s population in need. Others again would regard any kind of outright coercive

actions – not just military action but actual or threatened political and economic

sanctions, blockades, diplomatic and military threats, and international criminal

prosecutions – as all being included in the term. Yet others would confine its use to

military force”55

.

Thus the International Commission on Intervention and state sovereignty

recognized that different commentators conceive of intervention as any outside

interference in the affairs of a state which is not consented to by the state and thus

incorporates a wide range of activities that impinge on a state’s right to decide

freely in matters within its competence and jurisdiction.

Despite this reality, this work adopts a restricted notion of intervention.

George Wright further explains that intervention has been defined broadly to include

even verbal remarks of government actors concerning another state’s affairs while

other writers have defined it narrowly to include only “dictatorial interference by a

state in the internal affairs of another state or in the relations between other states.56

According to Fernando Teson, there are three forms of intervention, which are

distinguishable based on the degree of coercion employed in influencing the activities

of the target state.

In the first category, he classifies intervention simply as discussions, examinations

and recommendatory action.

55 Report of the international Commission on Intervention and State Sovereignty, available at

http://responsibilitytoprotect.org/ICISS%20Report.pdf accessed on 10/09/2011

56 G.R. Wright, “A Contemporary Theory of Humanitarian Intervention”, 4 Fla. Int’l L.J. 435 (1989)

29

In the second category, intervention refers to the taking of measures that are coercive,

but short of the use of force.

Finally, in the third category, intervention is used to refer to the use of force in the

domestic affairs of other states.57

According to Teson intervention denotes “dictatorial interference in the affairs of

another state for purposes of altering or maintaining the actual order of things” in a

matter which is essentially within the discretion of the target state”58

According to H. Bull, intervention is commonly defined as “dictatorial or coercive

interference by an outside party or parties, in the sphere of jurisdiction of a sovereign

state”59

The operative words in these definitions are dictatorial, coercive and interference. It

therefore connotes the idea of an external imposition on or dictation to, a sovereign

state, by a third party or parties, in a manner or through means that compel obedience,

on a subject that is essentially within the jurisdiction of the sovereign state.

In other words, intervention is an external imposition from outside parties to compel a

sovereign state to act in a particular manner in matters that are peculiarly within its

domestic jurisdiction.

This compulsion or dictatorial interference includes not only military interference but

also non military measures, which might be predominantly coercive. R. Little, cites an

example where a government takes a stand against foreign governments to promote

57

F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality 3rd

ed.(New York:

Transnational,2005)

58 Ibid.

59 H. Bull, 'Introduction' in H. Bull (ed.), Intervention in World Politics, (Oxford, Clarendon Press,

1984), p. 1.

30

their human rights practices and links its relation to some economic and political

bilateral relations. He considers this action as an interventionary policy which is

against the very essence of the sovereign state system.60

Coady defines intervention as follows

“I define intervention as an intentional act of one state or group of states or an

international agency, aimed at exercising overriding authority on what are normally the

“internal” policies or practices of another state or group of states. It is crucial here,

therefore, that the target state (as I will call it) does not consent to the intervention”.61

This definition simply echoes the same idea of non-consensual interference in the

internal policies of states aimed at usurping the traditional authority of the state to

decide its own internal policies. It views intervention as an intentional act carried out

wilfully with the aim of overriding the authority of the state in matters that are usually

internal matters or policies of the state. It is also important in this definition that the

intervention should take place without the consent of the target state.

In Eric Adjei’s work on the legality of humanitarian intervention, he states that the

principle of non-intervention denounces all interference in the internal affairs of

sovereign states. The principle postulates that each state should freely make its own

choice in respect of the political and socio-economic policies and the culture to be

adopted and so on.62

60

R. Little, 'Revisiting Intervention: a Survey of Recent Developments', Review of International

Studies, Vol. 13, 1987, p. 49. 61

C.A.J Coady, “The Ethics Of Armed Humanitarian Intervention”, United States Institute of Peace,

Peacework no 45, New York, 2002.

62 E. Adjei, “The legality of Humanitarian Intervention”, available at

http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article accessed on 12/11/2011

31

We can therefore extrapolate from his argument that intervention is interference in the

internal affairs of sovereign states, in order to influence or fetter their discretion as to

choices in respect of political or socio-economic policies or culture to be adopted by

the state. As we have already noted, this interference can be achieved in various

coercive ways.

T.Bordachev, argues that any kind of intervention is more about an attempt of

―fundamental influence on the internal affairs of another state, without its consent

and that intervention involves a bold violation of state sovereignty63

.

According to the Commission on Intervention and State Sovereignty, obviously the

use of armed force against another state without its consent constitutes intervention,

but so too does the use of such non-military measures as political and economic

sanctions, arms embargoes, and international criminal prosecution. The distinct

character of intervention lies in the use of “forcible” or “non-forcible” measures

against a state, without its consent, solely on account of its internal or external

behaviour. It held that although intervention has most frequently been employed for

the preservation of the vital interests – legitimately or illegitimately perceived – of

intervening states, there is also a long history of intervention justified on the grounds

of grave human suffering64

63 H. Nikoghosyan, “Back to the theory of humanitarian Interventions”, The centre for strategic and

international studies available at

http://www.nceeer.org/Programs/Carnegie/Reports/Hnikoghosyan_Final_NCEEER.pdf accessed on

10/09/2011 64

http://responsibilitytoprotect.org/ICISS%20Report.pdf accessed on 10/09/2011

32

Finally, the Black’s law dictionary, defines intervention as “one nations interference

by force, in another nation’s internal affairs or in questions arising between other

nations”65

It elaborates further by citing Philip C. Jessup’s “A Modern Law of Nations”

“Intervention may or may not involve the use of force. It is frequently possible for a

powerful state to impair the political independence of another weaker state without

actually utilising its armed forces. This result may be accomplished by lending open

approval, as by the relaxation of an arms embargo, to a revolutionary group headed by

individuals ready to accept the political or economic dominance of the intervening

state. It may be accomplished by the withholding of recognition of a new government,

combined with various forms of economic and financial pressure until the will of the

stronger state prevails through the resignation or overthrow of the government

disapproved”.66

From the various legal definitions examined above a common denominator emerges

in the definition of intervention. It is the element of interference in the domestic or

internal affairs of a state, whether through the use of armed force or not. It is

traditionally condemned as a violation of one of the basic tenets of sovereignty, that

is, the principle of non-intervention as enacted in the United Nations Charter.

Eric Adjei further comments,

“The United Nations Charter recognized state sovereignty as one of the fundamental

principles of international law. The Charter accordingly adopted the principle of the

sovereign equality of all states. Flowing from the importance of the principle of the

sovereign equality of all states, the Charter sought to prohibit interference in the

domestic affairs of sovereign states by other sovereign states, especially the threat or

65

Bryan A. Garner,(ed) Black’s Law Dictionary, 8th

edition, Thomson and West 2004, p. 840

66 Philip C. Jessup’s “A Modern Law of Nations”(1949) 172-173. Cited in Bryan A. Garner, (ed.),

Black’s Law Dictionary ibid.

33

use of force. The Charter went further in its desire to promote the sovereignty of states

by stating that “nothing contained in the present Charter shall authorize the United

Nations 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”. Thus, not even the global body has the right to interfere in the

domestic affairs of a sovereign state and therefore interfere in its enjoyment of its

sovereign status”67

We will further comment on this principle of non-intervention in our chapter

dealing with sovereignty, but suffice it at this point to observe that intervention in

matters within the domestic jurisdiction of sovereign states are prohibited in

international law as a violation of sovereignty.

Further elaboration of the meaning of humanitarian intervention would therefore

reveal a fortiori why it is such a controversial concept in international law, and

whether it can be excluded from the traditional prohibition against intervention.

The second term in the concept of humanitarian intervention is the word

“humanitarian”.

Sean Murphy posits that the word "humanitarian" commonly describes a wide range

of activities of governmental and non-governmental actors, seeking to improve the

status of individuals and contribute to their well-being.68

The above clearly portrays the essence of the term humanitarian which is a

benevolent, philanthropic act directed towards improving the living conditions and

status of individuals and contributing to their well-being. It is an action that seeks to

67

E. Adjei, op cit.

68 S.Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order,

(Philadelphia, University of Philadelphia Press, 1996)

34

promote our common humanity. This can be found in the concept of human rights as

rights necessary for subsistence as a human being.

Therefore couched crudely or simplistically, humanitarian intervention is interference

in the internal affairs of a sovereign state, for purposes of improving the status of

individuals and contributing to their well-being. We will however still examine

various ideas represented in this concept as propounded by various commentators and

writers both in the legal and political fields. This will enable us isolate the necessary

features that have been agreed on in the definition of humanitarian intervention.

According to Robert Kolb,

“In the legal sense, humanitarian intervention is one form of foreign forcible

intervention. It may be defined as the use of force in order to stop or oppose massive

violations of the most fundamental human rights (especially mass murder and genocide)

in a third State, provided that the victims are not nationals of the intervening State and

there is no legal authorization given by a competent international organization, such as,

in particular, the United Nations by means of the Security Council”69

Thus Robert Kolb, identifies humanitarian intervention as synonymous with the use of

force to oppose large scale humanitarian crises or violation of fundamental human

rights. He also provides two other distinguishing factors, which are that the victims of

the violation are not citizens of the intervening state and that the intervention was

carried out unilaterally without legal authorization.

69

R. Kolb, Note on humanitarian Intervention, available at

http://www.icrc.org/eng/assets/files/other/irrc_849_kolb.pdf accessed on 12/10/2011

35

The first factor of non-connection of the victims with the intervening state might be

rationalised on the basis that such defence of nationals by a state can be brought under

the right of self defence70

.

The second factor recognizes the exclusive responsibility imposed on the United

Nations Security Council to handle threats to the peace and breaches of the peace in

international relations and also to regulate the use of force only in enforcement

actions when other less forceful means have proven abortive. It is this second criterion

that gives rise to the debate about the legitimacy of humanitarian intervention. This is

because once the Security Council has authorised an intervention then its legitimacy is

no longer in question.

According to K. Grimstad,

“The term humanitarian intervention normally denotes armed interference by one or

several states in the internal affairs of another state, without its prior consent or the

authorisation of the United Nations Security Council, to prevent a situation where the

most basic rights of the people of that state are being violated71

”.

This definition recognizes the absence of consent from the target state and absence of

prior authorisation from the United Nations Security Council. It also recognizes the

motivation for the intervention as prevention of the violation of the basic rights of the

people. The means for bringing this about is also recognized as the use of armed

force.

Eric Adjei defines as follows

70

http://responsibilitytoprotect.org/ICISS%20Report.pdf accessed on 10/09/2011

71 K. Grimstaad, Humanitarian Intervention: Historical, Legal and Moral Perspectives, available at

http://www.publiclaw.uct.ac.za/usr/public_law/LLMPapers/grimstad.pdf accessed on 12/10/2011

36

“The term normally denotes an armed interference by one or several states in the

internal affairs of another state, without its prior consent, in order to curtail gross

human rights violations in the state”72

.

This definition is almost similar to that of K. Grimstad, but identifies as one of the

features of humanitarian intervention, the absence of consent from the targeted state.

In other words humanitarian intervention is carried out against the wishes of the target

state.

According to Daniel Rice, armed humanitarian intervention is the use of military

force by a nation or nations to stop or prevent widespread, systematic human-rights

abuses within the sovereign territory of another nation.73

In the context of

humanitarian intervention, military force strictly refers to operations involving direct

attacks against persons and places. It does not refer to other military operations, such

as providing humanitarian aid, peacekeeping, or stability and support operations that

might result in the need to use force after units peacefully arrive with the consent of

the host nation or parties to a conflict.74

In “Humanitarian Intervention and the Legitimacy of the Use of Force”, Peter

Malanczuk, adopts the approach of excluding various intervention definitions, from

the definition of humanitarian intervention. For example, he excluded state action to

rescue nationals, UN or unilateral humanitarian operations performed at the invitation

of a state, and interventions by states with interests other than humanitarian, from the

“humanitarian intervention” definition.

He posited that humanitarian interventions

72

E. Adjei, op.cit. 73

D. Rice and J. Dehn, Armed Humanitarian Intervention: A primer for Military Professionals,

available at

http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20071231_art008.pdf

accessed on 10/08/2011.

74 Ibid.

37

include military operations not merely economic, diplomatic, and political

interference in a sovereign state’s affairs to protect human rights recognized under

natural, customary, or positive international law.75

J. L. Holzgrefe defines humanitarian interventions as: "the threat or use of force

across state borders by a state (or group of states) aimed at preventing or ending the

widespread and grave violations of the fundamental human rights of individuals other

than its own citizens without the permission of the state within whose territory the

force is applied" 76

Holzgrefe’s definition incorporates the elements already identified from the other

definitions. These are, the purpose of an intervention which is humanitarian namely to

prevent or end widespread and grave violations of fundamental human rights of

individuals within the target state.

Second is the requirement that the citizens being aided are not citizens of the

intervening state.

Third is the absence of consent from the target state.

However we are of the opinion that mere threat of use of force across state borders

does not qualify as a humanitarian intervention, especially in the light of the accepted

criteria of actual use of armed force.

Sean Murphy gives a wider definition for humanitarian interventions, which is the

most commonly cited one among all others:

"Humanitarian intervention is the threat or use of force by a state, group of states or

international organization primarily for the purpose of protecting the nationals of the

75 P. Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (Amsterdam: Het

Spinhuis Publishers,1993), 2.

76 JL Holzgrefe, ‘The Humanitarian Intervention Debate’ in LJ Holzgrefe & Robert O Keohane (eds),

Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University

Press, 2003) 15 at 18.

38

target state from widespread deprivations of internationally recognized human rights”.

77

Sean Murphy’s definition truly widens the ambit of humanitarian intervention by

including international organisations as possible actors who can carry out

humanitarian intervention. This definition seems to be in consonance with

contemporary realities of international law as we have witnessed interventions from

regional organisations like ECOWAS and NATO.

Another approach, offered by Murphy, distinguishes 3 types of humanitarian

interventions: UN-authorized, regional (under the authority of a regional organization)

and unilateral78

.

Unilateral intervention which is initiated without authorization of the United Nations

Security Council is the subject of this work. It is basically in respect of unilateral

interventions that the issue of legality arises.

Another political scientist, Bhikhu Parekh, defines humanitarian intervention as "an

act of intervention in the internal affairs of another country with a view to ending the

physical suffering caused by the disintegrations or gross misuse of authority of the

state, and helping create conditions in which a viable structure of civil authority can

emerge"79

.

Bhikhu Parekh, in the political science preoccupation identifies in his definition the

precipitating factor which leads to the physical suffering and thus triggers

77

S. D. Murphy, Humanitarian Intervention. The United Nations in an Evolving World Order,

University of Pennsylvania Press, Philadelphia 1996, pp. 11-12. 78 Ibid.

79 B. Parekh, 'Rethinking Humanitarian Intervention', International Political Science Review, Vol 18,

No 1, 1997

39

humanitarian intervention. This is disintegration or gross misuse of state authority. He

also adds an extra purpose for the intervention, which is the creation of conditions that

will enable viable structure of civil authority to emerge. This secondary purpose may

be controversial especially if it is viewed as contemplating regime change. Though

regime change might be inevitable in a humanitarian intervention, it has however

been held not to be a motivating factor for a legitimate humanitarian intervention by

various commentators.80

Sir Adam Roberts from the British Academy offers another wording, where he places

special emphasis on the notion of consent from the target state stating that

humanitarian intervention is “…a military intervention in a state, without the approval

of its authorities, and with the purpose of preventing widespread suffering or death

among the inhabitants81

"

Humanitarian intervention has also been defined by Hovhannes Nikoghosyan as a

trans-boundary use of force without appropriate UN mandate and the consent of target

authorities, authorized by a regional security organization or undertaken unilaterally

to stop human sufferings, with subsequent change of the political regime and political

landscape, including the punish of those guilty, and secure more peace in the target-

province/state82

.

80

M. Walzer, Arguing About War (New Haven, CT Yale University Press, 2004), 101-106,

81 A. Roberts, 'Humanitarian War: Military Intervention and Human Rights', International Affairs,

Vol. 69, No. 3, July 1993

82 H. Nikoghosyan, Back to the theory of Humanitarian Interventions, Centre for Strategic and

International Studies 2010, available at

http://www.nceeer.org/Programs/Carnegie/Reports/Hnikoghosyan_Final_NCEEER.pdf accessed on

10/09/2011

40

Humanitarian intervention has been defined by the Danish Institute of Foreign Affairs

as

“coercive action by States involving the use of armed force in another State without the

consent of its government, with or without authorization from the UN Security Council,

for the purpose of preventing or putting to a halt gross and massive violations of

human rights or international humanitarian law”83

.

The International Commission on Intervention and State Sovereignty (ICISS)

expressed the view that any action taken against a State or its leaders, without its or

their consent, for purposes that are claimed to be humanitarian or protective in nature,

amount to intervention84

.

A humanitarian intervention is an armed intervention in another state, without the

agreement of that state, to address (the threat of) a humanitarian disaster, in particular

caused by grave and large-scale violations of fundamental human rights85

. This

definition was adopted

by a NATO seminar in Scheveningen on humanitarian intervention in November

1999.

The key aspects of this definition are related to sovereignty and human rights. Firstly,

for an action to be intervention, sovereignty of the state being intervened in must be

breached. Secondly, for an intervention to be humanitarian, the desire to address

violations of human rights should be the driving force in the intervention decision86

.

83Crimes of War – Educator’s guide: Humanitarian Intervention, available at

http://www.hrea.org/index.php?base_id=132 accessed on 07/08/2011

84 http://responsibilitytoprotect.org/ICISS%20Report.pdf accessed on 10/09/2011

85 “Humanitarian Interventions: Definitions and Criteria”, CSS Strategic Briefing Papers, Vol. 3 Part 1,

June 2000

86 Ibid.

41

Bordachev speaks about 3 distinct definitions of humanitarian intervention, according

to the number of aims and problems the interveners face in the target-state. Thus, he

defines the first type of intervention as shaped with purely humanitarian aspects such

as delivery of humanitarian cargoes. This is what the author calls the Red Cross

approach.

The second type closely follows this by creating certain security neighbourhoods (or

safe havens) around the concerned area for the secure passage of humanitarian

assistance; or, as it was in case of Northern Iraq shortly after the Gulf War, imposing

non-fly zones to protect minorities (Kurds and Shiites in Iraq).

The last one seeks a more comprehensive solution to the emerging humanitarian

disaster and goes further with the efforts, apparently becoming wider as a crisis

management issue. Here the interveners face great challenges, beginning with the one

of creating new government structures with rule of law. This form of intervention

provides more about real occupation of the state, rather than just presence of

international peacekeepers87

The aspect of his definition which might be related to our subject of enquiry is the

second definition which creates safe havens around the concerned for safe passage of

humanitarian assistance especially when this is achieved through the means of

military force in the face of the intransigence of the government powers as occurred in

the Iraq situation.

E.A Heinze defines humanitarian intervention as “the use of offensive military force

by a state or group of states in the territory of another state for the purposes of halting

87

Cited by H. Nikoghosyan, op. Cit.

42

or averting large-scale and acute human suffering.88

” He continues by recognizing

the definition as crucially important because it is the aspect of military coercion that

forces us to consider that humanitarian intervention will itself do some harm to human

beings in the process of trying to achieve a greater good.

According to the Commission, the definition of “humanitarian,” as a justification for

intervention, is a high threshold of suffering. It refers to the threat or actual

occurrence of large scale loss of life (including, of course, genocide), massive forced

migrations, and widespread abuses of human rights. Actions do not amount to

intervention if they are based on a genuine request from, or with the unqualified

consent of, the target state. Consent, if it is to be valid in law, should emanate from

the legal government of a sovereign state and be freely given.89

All these definitions have several commonalities – human rights violations, ethnic

cleansing and genocide, failing/failed statehood and, in recent years, abuse of absolute

executive authority over the minorities or whole nation. Nearly in all humanitarian

intervention cases a coercive measure (use of military force) by third parties is

prescribed.90

The common elements identified in all these definitions we have examined are the

deployment of military force within the territory of another state, the lack of consent

by the target state, and the humanitarian motive of bringing to end gross violations of

human rights within the target state.

88

E. A Heinze, Maximising Human Security: A Utilitarian Argument for Humanitarian Intervention,

Journal of Human Rights, Vol. 6, No. 1, January - March 2007,

89 http://responsibilitytoprotect.org/ICISS%20Report.pdf accessed on 10/09/2011

90 H. Nikoghosyan, Op. Cit.

43

For the purpose of our work, we define humanitarian intervention as a dictatorial

interference in the affairs of a sovereign state by deployment of military force against

the state without the authorization of the United Nations and with the intention of

bringing an end to gross violations of human rights and loss of life perpetrated against

the citizens of the state by the government or with its collusion.

This definition encompasses the elements or features already identified in the general

definitions and recognize that humanitarian intervention involves a breach of the

international principle of non-intervention and seeks to dictate or impose on the target

state the responsibility of ceasing the violations of human rights and loss of lives.

2.2 Historical Development of Principles of Humanitarian Intervention.

The early development of the principles of humanitarian intervention can be traced

back to the natural law theories of the Greeks, especially Aristotle who developed a

coherent theory about the law of nature as something that was part of the structure of

the universe, and directed the actions of rational beings91

.

The foundation for humanitarian intervention is found in the just war theory of natural

law92

.

The ancient Greeks believed that war was not justifiable unless there existed a just

cause for waging it, while the early Christian church was pacifist and refused to

91

Aristotle, Ethics, Trans. J.A.K Thompson, London, Penguin Books, 1955

92 K. Grimstaad, op. Cit.

44

recognize war or justify war in any circumstance until the time of St Augustine (354-

430)93

.

St Augustine was the first major theologian to speak of a permissible just war. He

introduced a set of criteria that would make the waging of war a justifiable act, central

to which was the concept of just cause and intention94

Saint Augustine wrote

“Just wars are usually defined as those which avenge injuries, when the nation or city

against which warlike action is to be directed has neglected either to punish wrongs

committed by its own citizens or to restore what has been unjustly taken by it. Further

that kind of war is undoubtedly just which God Himself ordains”.95

Saint Thomas Aquinas (1225-74) propounded his own theory about just war based on

the model developed by St Augustine. He interpreted the pacifist commands in the

bible96

against taking the sword, as a prohibition that one should not fight without the

authorisation of the sovereign97

. He argued that for a war to be just, it had to meet

certain requirements.

93

Ibid.

94 In R. Mushkat, The concept of just war in International Law (LLD Thesis, UNISA, 1986) 278

95 P. Malanczuk, ‘Akehurst’s Modern Introduction to International Law’, quoted in Dunoff et al,

International

Law: Norms, Actors, Process; A Problem Oriented Approach 827 (2002).

96 Mathew 22:57

97 Summa Theologica (1260) II, II, 40, para 1, available at

http://www.basilica.org/pages/ebooks/St.%20Thomas%20Aquinas-Summa%20Theologica.pdf

accessed on 11/11/2012

45

First it must be waged by a competent authority, which is either by the authority of

princes or of the church.98

Secondly, there must be a just cause for the war, meaning that the side that is attacked

must merit the attack because of some fault (culpa).99

Such justification would be self-

defence, restoration of peace, assistance of neighbours against attack and the defence

of the poor and oppressed.

Finally, war had to be waged with the right intention. He wrote that, “Those wars are

not sins which are waged ... in quest for peace, so that the wicked may be coerced and

the good supported”100

The medieval literature on just war concerned itself with wrongs done by one

community to another and considered the mistreatment of Christians in non-Christian

“infidel” kingdoms as a kind of oppression that could justify intervention in such

“infidel” kingdoms.

In view of the Pope’s position as the universal authority during this period, the

question was ultimately framed as whether the Pope should intervene to stop such

oppression of Christians in non-Christian kingdoms. It was held that since the Pope

was responsible for seeing that all human beings obey God’s law, he could punish

98

Ibid. II, II, 188, para 4.

99Ibid. II, II, 40, para 1.

100 Summa Theologica (1260) II, II, 40, para.1

46

violations by anyone, Christian or infidel, and could authorise princes to intervene just

in the same way a UN mandate would authorise states to use armed force.101

Sinbaldi Fieschi who wrote on the relations between the Papacy and non-Christian

societies and also discussed the moral justification of the crusades, argued that the

Pope had the authority to act when infidels violate the natural law. This might happen

if infidel rulers violate this law, or if infidel subjects violate it and their rulers do not

prevent or punish them.102

So, for example, if infidels practice idolatry or sodomy, which he thinks are forbidden

by natural law, Christians are justified in punishing them. Christians can also seek to

promote the spiritual good of infidels by preaching the gospel among them. And

should infidels interfere with Christian missionaries; their right to preach can be

defended by armed force.

Finally, force can be used to prevent persecution of Christians in infidel kingdoms. In

short, the Pope can intervene in any community to enforce natural law. This right to

wage war by Christians against infidels to enforce natural law could be exercised only

with an authorization from the Pope103

.

Vittoria applied these principles about three decades later to the Spanish conquest of

America and argued that although natural law prohibits cannibalism and human

sacrifices practiced by the conquered inhabitants, this does not necessarily justify war

101 T. Nardin, “The Moral Basis of Humanitarian Intervention,” 16 Ethics and International. Affairs

(2002), 57–70 available at http://goliath.ecnext.com/coms2/gi_0199-1834529/ The-moral-basis-of-

humanitarian.html accessed on 10/08/2011

102 Ibid.

103 Ibid.

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against those who practice them. He rat