By Iseult O’Callaghan
Iseult O’Callaghan is a BCL (with Politics) graduate from UCD. In this article she critically discusses humanitarian intervention as a legal justification for the use of force.
‘Debate over the legality of humanitarian intervention is too often divorced from the political and moral questions that provide its impetus.’[1] In an era characterised by human rights, globalisation and international cooperation, is it permissible to allow the systematic violations of human rights to occur in places like Rwanda and Kosovo simply because there lacks a UN mandate? This article submits that humanitarian intervention is not legally defensible, though it may be morally excusable. It begins by defining the parameters of ‘unilateral humanitarian intervention’ (UHI) and the ‘responsibility to protect’ (R2P) doctrine and examines some of the ethical justifications for and against humanitarian intervention. Then it turns to an analysis on the debate surrounding the legality of humanitarian intervention. Finally, it presents the argument that there is no humanitarian exception to the prohibition on the use of force under the UN Charter.
Defining ‘Unilateral Humanitarian Intervention’ and the ‘Responsibility to Protect’
UHI and the more recently developed R2P doctrine must be conceptualised in order to understand the sundry ethical and legal arguments surrounding humanitarian intervention presented in the following sections. This article defines UHI according to Holzgrefe’s interpretation:
‘the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending 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 force is applied.’[2]
The International Commission on Intervention and State Sovereignty (ICISS) published its 2001 report, The Responsibility to Protect, in the aftermath of NATO’s bombing campaign in Kosovo. The report echoed the sentiments of the pro-intervention movement, claiming in essence that a state which fails to meet certain basic standards of humanity forfeits its right to be treated as legitimate. It argued that deference to state sovereignty and the non-intervention principle had changed in nature towards a responsibility to protect people from atrocious crimes. The report further acknowledged that R2P imposes a duty of care on those who live in peaceful zones towards those in zones of danger.[3] Since the publication of the Brahimi Report at the turn of the century, the language of self-defence in peacekeeping mandates has been phased out in favour of calls for early interventions with clear mandates.[4] Thus, the normative interventionist agenda appeared to be effecting radical change. R2P has been eclipsed to a degree, however, by the ‘war on terror’ and residual cynicism as to the extent to which the interventions in Afghanistan and Iraq were legitimised on humanitarian grounds instead of countervailing justifications of counter-terrorism.[5] It is also important to note that the concept of R2P as envisaged by the ICISS has never been widely embraced by the UN. Though increasingly prevalent in the post Cold War era, the doctrine is yet to be formally enshrined as a legal principle and has had a limited impact on the UN legal framework regarding peacekeeping and enforcement.[6]
The Ethical Rationale Underlying Humanitarian Intervention
In the wake of the Cold War, the UN expanded its agenda and revolutionised the relationship between the realm of state sovereignty and the subjects of international intervention, placing much more emphasis on ‘peace enforcement’ and ‘war making’ than in the decades previous.[7] Writing in the Economist in 1999, former UN Secretary-General Kofi Annan opined about the two conflicting concepts of sovereignty, namely the principle of territorial integrity under Article 2(4) of the UN Charter, and individual sovereignty which places respect for human rights to the fore.[8] Annan cast a light on the fundamental moral dichotomy of humanitarian intervention. He questions whether it is legitimate to use force without a UN mandate on the one hand, and whether it is permissible to allow gross and systematic violations of human rights go unchecked on the other. The inability of the international community to reconcile these two interests can be observed by the reluctance to intervene in Kosovo and Rwanda, conflicts which led to heinous human rights abuses. Annan’s position encapsulates the moral argument in favour of intervention that the international community cannot stand idly by and witness the further slaughter of innocent civilians. One of the key arguments opposing the legalisation of intervention, however, is the concern that states would use UHI as a pretence or a pretext to wage war for ulterior motives.[9] Luttwak and Posen also raise the issue of disinterested warfare and the consequences that arise when states are not totally committed to imposing a solution once they decide to intervene and wage war, thereby leading to humiliating withdrawals of troops in instances such as Somalia, Yugoslavia and Afghanistan.[10]
The Legal Quandary of Unilateral Humanitarian Intervention
Article 2(4) of the UN Charter sets out two legal exceptions to the prohibition on the use of force against the territorial integrity or political independence of any state. A state may legally use force against another state in instances of self-defence or with the authorisation of the Security Council by way of a Chapter 7 resolution.[11] Humanitarian intervention should not be confused with peace enforcement or a forceful resolution which is legally set out under Chapter 7. It is also distinct from the use of force and rules of engagement in peacekeeping operations, the scope of which have been gradually broadening since the Cold War.[12] Because humanitarian intervention implies the use of force without a legal mandate and it is not covered under the legal exceptions, it is evident that it is not legally permissible under the UN Charter. However, there is some consensus that UHI would have to comply with a number of stipulations if it were to be considered a legitimate exception to the prohibition on the use of force. In order for an intervention to even be deemed pardonable, it would have to be predicated on the following; the gravity of the situation, political neutrality, security council paralysis, necessity, proportionality, and accountability.[13] Satisfying all of these conditions is a high threshold to meet. It is also important to bear in mind the Luttwak and Posen logic that successful intervention is premised upon two important operational questions; does the intervener have the necessary will and means to defeat the local actor, and do they have the capability and willingness to assume control after the intervention? The duty of care towards the territory post-conflict is a clear legal and political commitment that must be upheld regardless of the legality of the intervention.
There is growing dissent regarding the illegality of UHI as interpreted under Article 2(4). Certain legal scholars claim that the phrase ‘or in any other manner inconsistent with the Purposes of the United Nations’ permits UHI or the use of force where the Security Council fails to realise its chief purpose, i.e. protecting human rights. Others argue that unauthorised humanitarian intervention exists as a matter of customary right as established by 19th and 20th century state practice.[14] Contrary interpretations of Article 2(4) have twice been rejected by the International Court of Justice and there is little to no evidence that the international community considers UHI to be a principle of customary international law before or after the creation of the Charter.[15]
Conclusion
This article steadfastly rejects the notion that any humanitarian exception to article 2(4) of the UN Charter is legitimate or legal under international law. However, unauthorised humanitarian intervention may be morally excused upon the fulfilment of the criteria stipulated by Rodley, and as long as due consideration is given to Luttwak and Posen’s will and capability test. The UHI and R2P doctrines were defined in the context of a post-Cold war era, in which individual sovereignty is increasingly emphasised in comparison to state sovereignty. This was followed by a discussion of the ethical arguments submitted by various scholars in favour of and in opposition to humanitarian intervention. A reasoned contention was then provided that humanitarian intervention does not constitute a legal exception to the prohibition on the use of force under Article 2(4) and is therefore not legally defensible in spite of contrary opinion. While UHI cannot be read as legally justifiable in traditional international law, it is important to bear in mind that illegality does not necessarily equate to immorality. The possibility, therefore, that UHI could be pardonable upon satisfaction of a means test in certain, exceptionally dire, circumstances cannot be precluded.
[1] Michael Byers and Simon Chesterman, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’ in JL Holzgrefe and Robert O Keohane (eds) Humanitarian Intervention: Ethical, Legal, Political Dilemmas (Cambridge University Press 2003) 177, 179.
[2] JL Holzgrefe, ‘The Humanitarian Intervention Debate’ in JL Holzgrefe and Robert O Keohane (eds) Humanitarian Intervention: Ethical, Legal, Political Dilemmas (Cambridge University Press 2003) 15, 18.
[3] Niels Blokker, ‘Reconfiguring the UN System of Collective Security’ in Marc Weller (ed) The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2015) 180, 193.
[4] Aidan Hehir, ‘Humanitarian Intervention: Past, Present and Future’ (2008) 6(3) Political Studies Review 327, 337. See also James Sloan, ‘The Evolution of the Use of Force in UN Peacekeeping’ (2014) 37(5) Journal of Strategic Studies 674; Lakhdar Brahimi et al., ‘Report of the Panel on United Nations Peace Operations’ (2000) UN Doc A/55/305 – S/2000/809.
[5] ibid 328.
[6] James Sloan, ‘The Evolution of the Use of Force in UN Peacekeeping’ (2014) 37(5) Journal of Strategic Studies 674, 695ff.
[7] Michael W Doyle and Nicholas Sambanis, Making War and Building Peace: The United Nations since the 1990’s (Princeton University Press 2000) 7.
[8] Kofi Annan, ‘Two Concepts of Sovereignty’ The Economist (New York, 16 September 1999).
[9] Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ (2006) 100(1) American Journal of International Law 107.
[10] Edward N Luttwak, ‘Give War a Chance’ (1999) 78(4) Foreign Affairs 36; Barry R Posen, ‘Military Responses to Refugee Disasters’ (1996) 21(1) International Security 72.
[11] Byers and Chesterman (n 1) 181.
[12] Scott Sheeran, ‘The Use of Force in United Nations Peacekeeping Operations,’ in Marc Weller (ed) The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2015) 347, 350.
[13] Nigel S Rodley ‘Humanitarian Intervention’ in Marc Weller (ed) The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2015) 775, 786-791.
[14] Holzgrefe (n 2) 39-44. See also Jean-Pierre L Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter’ (1974) 4 California Western International 203.
[15] ibid 40-45; Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 35; Nicaragua v. US (Merits) [1986] ICJ Rep 14, 97.
Sutherland Symposium 