Marion Russell IS HUMANITARIAN INTERVENTION LEGAL IN INTERNATIONAL LAW? DOES THE LEGAL POSITION NEED TO BE CLARIFIED AND IF SO, HOW? Unilateral humanitarian intervention is not legal in international law. Assertions to the contrary are based on politics, ethics, or wishful thinking. The one process by which humanitarian intervention can be legal in international law is through Security Council authorisation. This legality is achieved not by virtue of the definition and standing of humanitarian intervention itself under international law, but through one of the two explicit exceptions to the prohibition on the use of force, as outlined in the Charter of the United Nations. 1 If the Security Council grants authorisation, humanitarian intervention gains a legal status through this process. If no such authorisation exists, humanitarian intervention is not legal. In a refreshingly concise statement on the topic, Corten asserts that due to the clarity in legal texts, the question at hand is “one of the least complex in contemporary international law”.2 International law on this topic is clear and it is sound. The requirement that an international body approve humanitarian intervention is a sensible one to prevent misuse of this justification of the use of force. As Holbrook succinctly puts it, “the idea that the interveners may determine the legality of a humanitarian intervention offends a fundamental principle of justice: that one may not be a judge of one’s own cause”.3 That is not to say that the implementation of the law, as prescribed in the Charter of the United Nations, General Assembly Resolutions, and International Court of Justice rulings, is adequate. The power of the veto in Security Council decision-making is too strong given the unfortunate reality that the political interests of states contribute to their official positions, even in matters of humanitarian intervention. Suggestions that the Security Council be expanded to include more members, and a rule of majority vote be adopted to dilute the extraordinary power of the veto, are ones that deserve more attention. Security Council reform is perhaps not 1 Charter of the United Nations, 1945, Chapter VII. Corten, Olivier, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law, (2010), 497. 3 Holbrook, Jon, ‘Humanitarian Intervention and the Recasting of International Law’ in Chandler, D. (ed.), Rethinking Human Rights: Critical Approaches to International Politics, (2002), 148. 2 1 Marion Russell entirely relevant to the matter at hand. The point here is that the focus of debate should reflect the fact that it is the process, not the law, which requires clarification and possible amendment. Aside from the defects of the Security Council approval process, state practice exists of unilateral intervention where authorisation was either never sought, or was sought but not granted. Some argue that unauthorised unilateral humanitarian intervention is, in fact, legal in international law. Others assert that such intervention may not be legal, but can be mitigated by being referred to as legitimate or justifiable. Both positions undermine the rule of international law. It must be emphasised that international law regarding humanitarian intervention is not violated because it is unclear – it is violated because it can be inconvenient. Arguments that assert a right of unilateral humanitarian intervention are entirely unconvincing. Convenient but deeply flawed interpretations of the Charter of the United Nations are adopted and the plain meaning of the words of the Charter is ignored. A right of unilateral humanitarian intervention under customary international law has also been claimed. Adequate state practice and opinio juris simply do not exist to justify the formation of such a right. At the other end of the spectrum, assertions that humanitarian intervention violates state sovereignty and should be outlawed completely overlook the fact that state sovereignty and human rights coexist in international law texts. Both concepts are provided for, and regarded as fundamental principles, in the Charter of the United Nations. State sovereignty and human rights should not be regarded as mutually exclusive in any way. It must be acknowledged, however, that human rights can no longer be regarded as an entirely domestic concern. The Security Council has the power to approve intervention, when human rights violations are occurring, by adopting a wide but not at all unrealistic reading of the term “international peace and security”4 which the Security Council is charged to “maintain or restore”.5 4 5 Charter of the United Nations, 1945, Article 39. Charter of the United Nations, 1945, Article 39. 2 Marion Russell Discussions that assert that humanitarian intervention can be legitimate but not legal are unhelpful at best. To add this grey, moral judgement aspect to what should be a legal debate, undermines the rule of law. It suggests that violation of international law can be acceptable, that such violations can occupy a space somewhere between legality and illegality. The clear and absolute position of international law, the power of reciprocity and adherence to the law is from where international law gains its power, if it is to have any at all. For the purposes of the current paper, the term “humanitarian intervention” will refer to authorised or unauthorised (unilateral) interference in a foreign state’s affairs that has the following qualities. Firstly, the interference must involve force, and not just refer to sanctions and other measures short of the use of force, that can be regarded as types of interference.6 Humanitarian intervention does not depend on “the consent of rulers”7 who may in fact be responsible for the humanitarian situation in their state. Furthermore, if not defined as humanitarian intervention, the action taken would otherwise be regarded as an aggressive act.8 Humanitarian concerns must be the primary motivation for the action taken.9 Lepard suggests a more pessimistic but realistic definition regarding the purposes of the intervention, describing them as “ostensibly humanitarian”. 10 Contrary to some definitions,11 it is not relevant to which state the individuals to be assisted belong. They may be nationals of the intervening state or states, or citizens of the ‘target’ state, or any other. Breau asserts that “threatened military actions” as well as actual 6 United Nations General Assembly Resolution 2131, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, (21 December 1965), 7 Cushman, Thomas ‘The Human Rights Case for the War in Iraq: A Consequentialist View’ in Wilson, Richard Ashby (ed.), Human Rights in the ‘War on Terror’, (2005), 86. 8 Cushman, Thomas ‘The Human Rights Case for the War in Iraq: A Consequentialist View’ in Wilson, Richard Ashby (ed.), Human Rights in the ‘War on Terror’, (2005), 85. 9 Roth, Kenneth, ‘War in Iraq: Not a Humanitarian Intervention’ in Byers, Michael, War Law: International Law and Armed Conflict, (2005), 155, Cushman, Thomas ‘The Human Rights Case for the War in Iraq: A Consequentialist View’ in Wilson, Richard Ashby (ed.), Human Rights in the ‘War on Terror’, (2005), 86. 10 Lepard, Brian D., Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions, (2002), 3. 11 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 29; “A major purpose of the intervention for the intervening state or states is for the protection of individuals or groups of individuals from their own state”. 3 Marion Russell military actions fall under the definition of humanitarian intervention. 12 The current paper will not adopt that position. Cushman adds the interesting requirement that the action “must be publicly acknowledged as a humanitarian intervention, and the humanitarian goals must be specified”.13 It is unclear whether this assertion is not commonly found in definitions of humanitarian intervention because it is regarded as obvious and intuitive, or because the explicit identification of humanitarian goals is not in fact a requirement of such action. Such specification of goals is certainly desirable and may go some way to clarify and present for scrutiny, the objectives of so-called humanitarian intervention. Article 2(4) Article 2(4) of the Charter reads as follows: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations14 The correct interpretation of this article is the most obvious one; “the use of force across borders is simply not permitted”.15 This position is supported not only by the commonsensical reading of the article, but also by the Vienna Convention on the Law of Treaties as well as the “context, object and purpose” of the Charter.16 Given the fact that international law draws its strength from such strong and thorough principles, it is unlikely that this language of the article should be construed in any other way. Essentially, there exists an “intention to provide a strong and prima facie general 12 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 29. 13 Cushman, Thomas ‘The Human Rights Case for the War in Iraq: A Consequentialist View’ in Wilson, Richard Ashby (ed.), Human Rights in the ‘War on Terror’, (2005), 86. 14 Charter of the United Nations, 1945, Article 2(4). 15 Byers, Michael, Simon Chesterman, ‘Changing the rules about rules? Unilateral humanitarian intervention and the future of international law’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (2003), 181. 16 Byers, Michael, War Law: International Law and Armed Conflict, (2005), 15. 4 Marion Russell prohibition on the use of force by States acting otherwise than with the authorization of the appropriate organ of the United Nations”.17 Despite this, there are those who contend that Article 2(4) does not represent a “flat prohibition”18 on the use of force or humanitarian intervention.19 Proponents of this view assert that Article 2(4) attempts to “establish three target prohibitions”,20 rather than a general prohibition. What follows is the argument that if humanitarian intervention or any act of force does not 1) breach the territorial integrity of the target state, or 2) jeopardise the political independence of the target state, or 3) cause inconsistencies to arise with the Purposes of the United Nations, then it is not an illegal use of force. Even if the argument that Article 2(4) establishes three specific prohibitions on the use of force rather than one general prohibition is accepted, this argument cannot be used to justify a legal basis for unilateral humanitarian intervention. Surely it is the case that any type of intervention, by virtue of the very definition of the term ‘intervention’ breaches the territorial integrity of the target state. The same could be said of the effect on the political independence of that state. The purposes of the United Nations were to encourage “international peace and security”, and to develop “friendly relations among nations” and “equal rights”. 21 The three specific prohibitions on the use of force are, then, in fact quite broad! Teson argues that “a genuine” humanitarian intervention is not deemed illegal by Article 2(4) as it does not “result in territorial conquest or political subjugation”.22 In an ideal world where all actions were honourable and ulterior motives did not exist, there may be some substance to Teson’s argument. Realistically, it is a naïve position that encourages a dangerous precedent and begs the question; who gets to decide if a particular humanitarian intervention is genuine? If “genuine” humanitarian Brownlie, Ian, ‘Thoughts on Kind-Hearted Gunmen’ in Lillich, Richard B. (ed.), Humanitarian Intervention and the United Nations (1973), 143. 18 Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, (1988), 130. 19 Sellers, Mortimer N. S., Republican Principles in International Law: The Fundamental Requirements of a Just World Order, (2006), 136. 20 Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, (1988), 131. 21 Charter of the United Nations, 1945, Article 1. 22 Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, (1988), 131. 17 5 Marion Russell intervention is simply considered legal, then any state or group of states could claim that that they are engaging in a genuine humanitarian intervention, valid under Article 2(4), without any independent scrutiny. This level of subjectivity undermines the rule of law. To eliminate this confusion and the element of subjectivity, intentions are not considered by Article 2(4) and nor should they be. Article 2(4) is an international legal text defining legal rights and obligations. As such it derives its power from having a clear stance that allows for very little subjectivity. The Preamble of the Charter affirms that member states of the United Nations will “ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest”.23 That common interest is not to be determined by one state, but rather an international representative body; the Security Council. At San Francisco in 1945, France “proposed an amendment to the draft Charter” that would effectively allow unilateral humanitarian intervention when human rights abuses occurred. The proposal was rejected on the grounds that it was, “too broad and vague an exception to Article 2(4)’s core ‘no violence’ principle. As an exception to that rule, it lacked clear standards and procedures for deciding who might invoke it and in what circumstances”.24 A clear and absolute position was clearly the planned interpretation of Article 2(4). The language of the text supports this, as Gray points out, the expression “use of force” and not “war” was employed in order to expand the prohibition as much as possible.25 In examining the travaux preparatoires of the Charter, Teson believes that the intuitive position would be that humanitarian intervention would not have been contrary to the intentions of those who composed the Charter of the United Nations; “fresh memories from the Holocaust would have led the framers to allow for humanitarian intervention, had they thought about it”.26 Equally, however, it must not be forgotten that Hitler justified some of his actions under the premise of 23 Charter of the United Nations, 1945, Preamble. Franck, Thomas M., ‘Interpretation and Change in the Law of Humanitarian Intervention’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (2003), 207. 25 Gray, Christine, ‘The Charter Limitations on the Use of Force: theory and Practice’ in Lowe, Vaughan, Adam Roberts, Jennifer Welsh, Dominik Zaum (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945, (Oxford University Press, 2008), 86. 26 Teson, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, (1988), 135. 24 6 Marion Russell humanitarian intervention regarding “atrocities against native German peoples in the Sudetenland portion of Czechoslovakia.” 27 The opportunity for misuse of the term ‘humanitarian intervention’ cannot be underestimated. The Exceptions There are two exceptions to the prohibition on the use of force. Article 51 of the Charter outlines the right of self-defence, the first exception: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.28 The second exception, as outlined in Chapter VII, Article 42 in particular, gives the Security Council sole right to take or authorise measures using force: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.29 Although this is where the power to authorise the use of force is derived, the idea that it is the Security Council that is responsible for all matters pertaining to peace and security, and the encouragement or enforcement thereof, is mentioned several times in 27 May, Larry, Aggression and Crimes against Peace, (2008), 276. Charter of the United Nations, 1945, Article 51. 29 Charter of the United Nations, 1945, Article 42. 28 7 Marion Russell the Charter.30 Orford declares that the fact that “the Security Council is invested with coercive power”31 is what distinguishes it from other international structures. While it is the central thesis of this paper that humanitarian intervention is not legal in international law, it must be acknowledged that the Charter does not explicitly and specifically rule it out. Essentially, it is so clearly a use of force that it does not require particular mention in the general prohibition on the use of force in Article 2(4). Furthermore, from the existence of the two exceptions mentioned above, it is clear that, if the composers of the Charter had meant to allow for humanitarian intervention, they would have explicitly and specifically ruled it in. Self-defence, for example, is an exception to the prohibition of the use of force. It has its own article in the Charter to convey this. If humanitarian intervention had the same standing, would it not also have its own article declaring it to be an exception to the prohibition on the use of force? The conclusion that must be reached here is that humanitarian intervention is not an exception to Article 2(4). The only way it can be legal, then, is if it constitutes part of one of the approved exceptions. The purposes of humanitarian intervention (which form an essential aspect of its very definition) are not compatible with those of selfdefence. There is no such tension regarding the other exception, however. If the Security Council sees fit to authorise a use of force primarily due to humanitarian concerns, then humanitarian intervention is legal in that particular circumstance. Unilateral Humanitarian Intervention Unilateral humanitarian intervention has no legal basis in international law. Those who argue otherwise are employing wishful thinking in the reading of legal texts, and overzealous interpretations regarding state practice and opinio juris in the formation of customary international law. Others assert an implicit right of unilateral Charter of the United Nations, 1945, Article 24: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”, Article 53, Article 54. 31 Orford, Anne, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, (2003), 2. 30 8 Marion Russell humanitarian intervention due to the Security Council’s unwillingness or failure to act on many occasions. General Assembly Resolutions as well as International Court of Justice rulings support the position that there remains no right of unilateral humanitarian intervention in international law.32 There is no text in international law that declares a right of humanitarian intervention. As has been discussed, a curious interpretation of Article 2(4), with very little intuitive or historical support, has been propagated announcing that humanitarian intervention is not considered in the text of Article 2(4). It is clear from an examination of the documented exceptions to the prohibition on the use of force, however, that if a legal right of humanitarian intervention had been intended, it would have been explicitly included in the Charter, rather than subtly excluded. In order to avoid these unconvincing interpretations of clear articles of the Charter, some proponents of unilateral humanitarian intervention assert that there is a legal basis in customary international law for allowing unilateral humanitarian intervention. While it is true that some state practice to this effect does exist, states have been, for the most part, “reluctant” to assert a positive right of humanitarian intervention in international law, thereby preventing the formation of opinio juris; an essential requirement of any customary international law. 33 This is because the law is not ambiguous. State practice of unilateral humanitarian intervention exists because the law deeming it to be illegal is inconvenient, not because it is unclear. Byers and Chesterman believe that arguments in favour of a customary international law right of unilateral humanitarian intervention are irrelevant anyway as “clear treaty provisions prevail over customary international law”.34 32 Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United States of America) ICJ Reports 1986, 18., Corfu Channel Case (United Kingdom v. Albania) ICJ Reports, 1949, 35. 33 Corten, Olivier, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law, (2010), 497. 34 Byers, Michael, Simon Chesterman, ‘Changing the rules about rules? Unilateral humanitarian intervention and the future of international law’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (Cambridge University Press, 2003), 182. 9 Marion Russell Article 2(4) is regarded by many as jus cogens. 35 Judge Sette-Camera argued in favour of non-intervention being regarded as jus cogens in a separate opinion in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua.36 If Article 2(4) is to be regarded as jus cogens, not only does it follow that customary international law would not be sufficient to displace the contents of the article, but it also makes it extremely unlikely that any subtle oversights or inclusions should be allowed to be argued as no derogation from the words or Article 2(4) would be permitted. 37 Breau contends, however, that there is uncertainty regarding the interpretation of Article 2(4) and, therefore, its potential jus cogens status. In support of this limited application of the jus cogens status, Breau argues that only aggressive uses of force are covered by jus cogens as was propagated by the International Law Commission; “the use of force could only violate jus cogens when it served conquest or forcible annexation, in other words constituted aggression.”38 Examinations of the potential for a customary international law right of unilateral humanitarian intervention are relevant while the jus cogens status of Article 2(4) is unresolved. Customary International Law Hehir asserts that, based on an analysis of state interference both before and after 1945, “humanitarian intervention does not have a place in customary international law”. 39 This is because there were, firstly, no “genuine” cases of humanitarian intervention and, secondly, no “unambiguous” opinio juris.40 The cases that are most often cited in examinations of customary international law on this topic are India’s intervention in East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978, Tanzania’s intervention in Uganda in 1979, and the intervention in Iraq by Britain, 35 Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 7. Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United States of America) ICJ Reports 1986, 18. 37 Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 15: “Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties states that this particular provision is part of jus cogens.” 38 Ud Doc. Report of the International Law Commission on the work of its thirty-second session, GAOR 35th session, Supp. No. 10 A/35/10 pp91-95, 105-108 summarised in Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 256. 39 Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 23. 40 Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 24. 36 10 Marion Russell France, Italy, the Netherlands, and the United States in 1991.41 In these cases, there is a “near absence of opinio juris”42 supporting a legal right of unilateral humanitarian intervention. The cases most likely to support the formation of customary international law, then, fail to do so. Most commonly, intervening states justified their actions on the basis of a clearly legal exception to Article 2(4); that of self-defence.43 It must be concluded that “it would be premature to argue the existence of a new rule of customary international law”.44 Furthermore, there is, in fact, substantial evidence of opinio juris to the contrary; supporting the position that unilateral humanitarian intervention is not legal in international law. The very fact that states do continue to seek Security Council authorization for humanitarian intervention suggests that they recognize the legal obligation to do so. In an attempt to justify the intervention in Kosovo, UK Foreign and Commonwealth Office in 1998 stated that the fact that the Security Council authorized humanitarian intervention in Bosnia and Somalia demonstrated that ‘Security Council authorisation to use force for humanitarian purposes is now widely accepted’ and that ‘force can also be justified on the grounds of overwhelming humanitarian necessity without a UN Security Council Resolution’.”45 The conclusion reached is quite a stretch from reality. What in fact is proved is that the Security Council not only continues to be the mandatory legal process by which intervention may be approved, but it is also recognised and acknowledged as such. The process of Security Council authorization may be flawed but it is not seen as outdated, irrelevant, or in need of replacement by unsubstantiated claims of a contrary customary international law. A resolution based on humanitarian intervention has been approved just a few months ago regarding the situation in Libya.46 If there existed a widespread belief that unilateral humanitarian intervention were legal, states would not go to the trouble of having matters considered by the Security Council. 41 Byers, Michael, War Law: International Law and Armed Conflict, (2005), 92. Byers, Michael, War Law: International Law and Armed Conflict, (2005), 92. 43 Byers, Michael, War Law: International Law and Armed Conflict, (2005), 97., Janzekovic, John, The Use of Force in Humanitarian Intervention, (2006), 141. 44 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 269. 45 Quoted in Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 21. 46 United Nations Security Council Resolution 1973, The Situation in Libya, (2011) 42 11 Marion Russell Expressions of opinio juris disputing a legal basis (in international law or customary international law) for unilateral humanitarian intervention are evident since the inception of the Charter. In response to the NATO intervention in Kosovo, the “133 states comprising the G-77 declared, ‘We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations charter or in the general principles of international law’.”47 Even regarding genocide, respect for the clear international law regarding humanitarian intervention is evident. At the Sixth Committee of the General Assembly, attendees considered whether intervention to prevent genocide in a foreign state would constitute aggression; “many of the delegates said that it would”.48 The French Prime Minister at the time said of the humanitarian intervention in Rwanda, “[This is a] humanitarian operation intended to save threatened populations [, and it is subject to a] number of conditions or specific principles governing this humanitarian intervention. First principle: France will only act with a mandate from the UN Security Council. The Government considered that action of this type, responding to a humanitarian duty, ought despite its urgency to be authorized by the international community”.49 In light of these comments, to convincingly argue for the existence of opinio juris in favour of a legal right under customary international law for unilateral humanitarian intervention, is near impossible. It has so far been established that unilateral humanitarian intervention has no basis in legal texts or in customary international law. An even more flimsy argument in favour of the legality of unilateral humanitarian intervention proclaims that there is an implicit right to such intervention when the Security Council is unwilling or unable to intervene in situations of humanitarian crisis. It is entirely counterintuitive to suppose that the legal right regarding something as fundamental as the use of force could be implicitly granted. Very little attention will be devoted to this justification due to its lack of valid basis in international law. It is described as a “holistic” approach that is “not in compliance with the specific provisions on the use of force but is within the 47 Quoted in Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 24. 48 Brownlie, Ian, International Law and the Use of Force by States, (1963), 340-341. 49 Quoted in Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 93. 12 Marion Russell spirit of the Charter taken as a whole.”50As has been propagated by this paper, such positions that encourage subjectivity rather than adherence to clear and strict legal texts, only serve to undermine international law. Lillich argues that “when the Security Council is unable to fulfill its responsibilities by taking enforcement action under Chapter VII the prohibiting provision of Article 2(4) is suspended”.51 This is an astonishing position that suggests that the Security Council authorization process is meaningless if force is going to be employed regardless of the will of the Security Council. The fact that the Security Council authorization process is inadequate is not disputed. That there is any basis in international law for taking matters into your own hands when the official system is seen as ineffective, however, is indefensible. The Danish Institute of International Affairs dispelled Lillich’s theory; “it is not legally sound to assert that the Charter must be suspended when the Security Council fails to act as there is simply no legal basis for this assertion.“52 State Sovereignty and Human Rights The description of humanitarian intervention as a “condoned anomaly in international law” 53 due to the “competing” aspects of international law that it attempts to reconcile, overlooks the fact that state sovereignty and human rights are both principles key to the Charter of the United Nations. As such, they are intended to, and must be able to, coexist. The fact that there is no right of unilateral humanitarian intervention in international law serves to limit potential tension between these two concepts. That humanitarian intervention must be subjected to scrutiny and deliberation by the Security Council, in theory, ensures that state sovereignty shall be upheld at all times unless a threat to international peace and security is identified. McDougal, Myers and W. Michael Reisman, ‘Response’ in 3 International Lawyer 438 (1969), 444. Lillich, Richard B. (1967) ‘Forcible Self-help by States to Protect Human Rights’, Iowa Law Review, vol. 53, 34. 52 DIIA paraphrased in Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (Palgrave Macmillan, 2008), 23. 53 Bagaric, Mirko, Future Directions in International Law and Human Rights, (Sandstone Academic Press, 2007), 143. 50 51 13 Marion Russell Article 2(7) affirms that: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll54 United Nations General Assembly Resolution 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty also addresses the issue of state sovereignty and the principle of non-intervention: No State has the right to intervene, directly or indirectly, for any reason whatever in the internal or external affairs of any other state. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic, or cultural elements are condemned55 This interpretation of non-intervention was confirmed in United Nations General Assembly Resolution 2625 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States.56 These documents, as well as the Charter contain the “critical”57 qualification that Chapter VII and the Security Council’s mandate regarding the maintenance and enforcement of international peace and security be upheld. In this way, although all forms of intervention, “for any reason whatever”58 are deemed unlawful, the one exception of Security Council authorized force (and therefore a legal right of humanitarian intervention) is preserved. 54 Charter of the United Nations, 1945, Article 2(7). United Nations General Assembly Resolution 2131, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, (21 December 1965), 1. 56 United Nations General Assembly Resolution 2625, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, (24 October 1970), Preamble. 57 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 231. 58 United Nations General Assembly Resolution 2131, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, (21 December 1965), 1. 55 14 Marion Russell Some have argued that the interpretation of what constitutes a threat to international peace and security has been “questionably broadened”.59 The authority of the Security Council to authorise action that impinges upon a state’s sovereignty hinges on the fact that human rights are no longer considered as exclusively within the domestic jurisdiction of states. Violations of human rights can, therefore, be interpreted as constituting threats to international peace and security, thereby engaging Chapter VII of the Charter, and legal humanitarian intervention. It is true that those who composed the Charter “probably did not contemplate situations of humanitarian emergency resulting from civil war or repression,”60 but that is no reason to ignore the reality that internal, intra-state conflicts now vastly outnumber inter-state conflicts, and the government of a state may itself be the perpetrator of human rights abuses on its own citizens. There is no evidence that any situations beyond inter-state conflict were considered in the framing of the Charter. 61 There has, however, been an “evolution in practice from an emphasis on what states do to each other to what states do to their own citizens.”62 While some may have difficulty appreciating how an internal conflict or human rights abuses could affect international peace and security,63 it must be appreciated that a wide interpretation of ‘international peace and security’ does not mean that the word ‘international’ simply needs to be ignored or seen as superfluous as some may argue.64 Without delving into semantic arguments or simply ignoring a key term, it is entirely reasonable to assume that ‘international peace and security’ can be threatened by conflicts that are otherwise seemingly contained within one state. 59 Hehir, Aidan, Humanitarian Intervention after Kosovo: Iraq, Darfur and the Record of Global Civil Society, (2008), 20. 60 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 236-237. 61 Danish Institute of International Affairs, Humanitarian Intervention, 1999, 62. 62 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 21, See also Stacy, Helen M., Human Rights for the 21st Century, (2009), 79: “governments … may send their human rights troubles abroad. Violent or careless governments may create opportunities for terrorists to train and organize across borders, and criminals may take advantage of a breakdown in order to export illegal drugs to neighbouring countries or traffic women and children for prostitution.“ 63 Holbrook, Jon, ‘Humanitarian Intervention and the Recasting of International Law’ in Chandler, D. (ed.), Rethinking Human Rights: Critical Approaches to International Politics, (2002), 143-144. 64 Holbrook in Chandler p 145 15 Marion Russell A wide reading of situations that constitute a threat to international peace and security is convenient in that it allows for a legal basis for humanitarian intervention, but it is also the realistic and appropriate reading of the mandate given to the Security Council through Chapter VII of the Charter. Humanitarian crises resulting from human rights violations can be regarded as threats to international peace and security for two reasons. Firstly, human rights have been “internationalised” by the existence of human rights treaties.65 Secondly, many “spill-over” effects can occur as a result of conflicts or situations that otherwise seem entirely intra-state. Refugees, destabilisation of regions and terrorist threats can constitute a threat to international peace and security.66 Legitimate but not Legal The claim that humanitarian intervention can be legitimate even if it is not legal is rife among so-called legal assessments of humanitarian intervention. The assertion of this paper is that such discussions should be confined to moral and political spheres of debate. In addition to complicating legal discussions, the claim is damaging to the rule of international law and establishes dangerous precedents by way of “sensible exceptions”.67 While it is hoped that law reflects intuitive values and beliefs, if it does not appear to do so, the law itself or its implementation should be examined and possibly amended through the appropriate processes. To simply ignore the legal position, to sweep it aside when it is not convenient, sets a dangerous precedent and undermines the rule of international law. Law does not draw its strength from being adhered to and implemented selectively, when it is convenient. The idea that morally “right” unilateral humanitarian intervention can be seen to hover somewhere between legality 65 Pease, Kelly-Kate S., International Organizations: Perspectives on Governance in the Twenty-First Century, (2000), 265., Garrett, Stephen A., Doing Good and Doing Well: An Examination of Humanitarian Intervention, (1999), 47. 66 Breau, Susan, Humanitarian Intervention: The United Nations & Collective Responsibility, (2005), 240. 67 Franck, Thomas M., ‘Interpretation and Change in the Law of Humanitarian Intervention’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (2003), 231. 16 Marion Russell and illegality detracts from what is actually a clear legal position on the subject and “mitigation and acceptance in principle are not always easy to distinguish”.68 In a legal debate, an act is either legal or illegal. Interpretation of legal texts, state practice, and opinio juris may contribute to that decision. This clarity is a strength of international law. Adding an ethical or political aspect to this debate takes it wholly out of the legal realm. Discussions of the legality of humanitarian intervention in international law are littered with terms such as legitimate, justifiable, exceptional illegality, moral necessity, tolerated, retroactively validated, and technical noncompliance. These terms should be clearly defined as only relevant to moral arguments and kept quite separate from discussions of legality. Most often described as ‘legitimate but not legal’ is NATO’s intervention in Kosovo. 69 To ignore international law in favour of adopting moral validation is a short-sighted and dangerous position. Instead of adding a new and complex aspect to the debate regarding the legality of humanitarian intervention, a more sensible response in such situations would be to examine why the proper process (Security Council authorisation) was not effective. It has been argued that, “NATO’s intervention in Kosovo should be treated as an ad hoc exception rather than a precedent for establishing a new rule allowing for unilateral uses of force.” 70 This naïve comment ignores the fact that precedent is automatically and necessarily set by such actions. Simma admits that “recognizing a right of unilateral humanitarian intervention would lead to abuse” and so “such uses of force should remain illegal but that the law should turn a blind eye to breaches in particular cases, such as Kosovo.”71 International law simply does not function on the assumption that sometimes a blind eye can or must be turned to certain ‘legitimate’ violations of international law. Roberts describes the legitimate but illegal approach Brownlie, Ian, ‘Thoughts on Kind-Hearted Gunmen’ in Lillich, Richard B. (ed.), Humanitarian Intervention and the United Nations (1973), 146. 69 Pattison, James, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, (2010), 44. 70 Roberts, Anthea, ‘Legality Versus Legitimacy: Can Uses of Force be Illegal but Justified?’ in Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 179. 71 Paraphrased in Roberts, Anthea, ‘Legality Versus Legitimacy: Can Uses of Force be Illegal but Justified?’ in Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 179. 68 17 Marion Russell as an, “intuitively attractive way of maintaining the prohibition on unilateral uses of force while permitting justice in individual cases”.72 While the clear prohibition on the use of force and unilateral intervention remains intact, it is in danger of being undermined by the ‘legitimate but illegal’ approach. Roberts concludes that this approach “does not maintain the integrity of the general prohibition on the use of force.” 73 Declaring the existence of an absolute prohibition is meaningless if exceptions are morally, politically, or in any other way accepted and international law is swept aside. Does the Legal Position Need to be Clarified? Essentially, the legal position regarding humanitarian intervention is simple; humanitarian intervention is legal if Security Council authorisation has been granted. The legal position regarding humanitarian intervention does not need to be clarified. Just because a law is broken, misused, or ignored at times, this does not necessarily lead to the conclusion that the law in question is unclear, rather it may simply mean that the law is in some circumstances, inconvenient. As has been demonstrated, arguments that attempt to define a valid basis in international law for unilateral humanitarian intervention, are flawed and unconvincing. Byers and Chesterman outline the convincing assertion that if “states were to admit – explicitly or implicitly – that they were violating international law, the effect would be to strengthen, rather than weaken, the rules governing intervention”74. Accordingly, international law is left intact and the issue becomes one of enforcement; “The greatest threat to an international rule of law lies not in the occasional breach of that law – laws are frequently broken in all legal systems, Roberts, Anthea, ‘Legality Versus Legitimacy: Can Uses of Force be Illegal but Justified?’ in Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 180. 73 Roberts, Anthea, ‘Legality Versus Legitimacy: Can Uses of Force be Illegal but Justified?’ in Alston, Philip, Euan Macdonald (eds.), Human Rights, Intervention, and the Use of Force, (2008), 184. 74 Byers, Michael, Simon Chesterman, ‘Changing the rules about rules? Unilateral humanitarian intervention and the future of international law’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (2003), 198. 72 18 Marion Russell sometimes for the best of reasons – but in attempts to mold that law to accommodate the shifting practices of the powerful.”75 When the law, clear as it is, is acknowledged as such, it will gain respect and persuasive power. Kenneth Roth agrees that while there is confusion and controversy regarding the legal standing of unilateral humanitarian intervention, abuse of the justification for the use of force will continue. A necessary and significant distinction that must be made is between law and the implementation of the terms of that law. The current paper calls for a redefining of the parameters of the debate regarding unilateral humanitarian intervention in international law. While states side-step around the law and find necessarily subjective, moral justifications for their actions, or attempt to find a legal basis for unilateral humanitarian intervention, the issue that should be debated, is how the Security Council authorisation process could be improved. Suggestions here include weakening the power of the veto, increasing the number of Security Council members, and employing a majority vote; a topic for another paper entirely. As Brownlie puts it, “The objective is, of course, shared by all: to prevent genocide, degradation of subject populations, and so on. However, as with other areas, such as the concept of development, it is the vehicle for attaining the shared objective that is the matter of controversy.”76 There is one sole mechanism by which humanitarian intervention is legal in international law; that is, by Security Council authorisation. Moral and political arguments aside, a Security Council authorisation produces legal humanitarian intervention. Unilateral humanitarian intervention, however, is never legal in international law. This position must be maintained as it is, “intended to keep out of circulation disastrously vague and unworkable principles of self-limitation.”77 Byers, Michael, Simon Chesterman, ‘Changing the rules about rules? Unilateral humanitarian intervention and the future of international law’ in Holzgrefe, J. L., Robert O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, (2003), 203. 76 Brownlie, Ian, ‘Thoughts on Kind-Hearted Gunmen’ in Lillich, Richard B. (ed.), Humanitarian Intervention and the United Nations (1973), 148. 77 Brownlie, Ian, ‘Thoughts on Kind-Hearted Gunmen’ in Lillich, Richard B. (ed.), Humanitarian Intervention and the United Nations (1973), 145. 75 19 Marion Russell Those who oppose this plain interpretation of the law grasp at invalid legal arguments – convoluted interpretations of Article 2(4), or an unestablished legal right under customary international law. Others sweep the law aside and argue that unilateral humanitarian intervention is legitimate even if it is not legal. While flawed legal arguments undermine the rule of international law, the ‘legitimate but not legal’ argument may be more damaging to the rule of law. It portrays an unlawful act as acceptable and demonstrates that a loophole can be exercised through this moral interpretation. “In general, while international law may be in flux about humanitarian intervention, legal scholars have not followed their colleagues in political and moral philosophy in urging wholesale changes in what appear to be straightforward applications of jus ad bellum concepts.”78 Moral and political considerations should not feature so prominently in discussions of humanitarian intervention in international law. The fact is that the status of humanitarian intervention in international law is clear. 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United States of America) ICJ Reports, 1986 Charter of the United Nations, 1945 Corfu Channel Case (United Kingdom v. Albania) ICJ Reports, 1949 International Covenant on Civil and Political Rights, 1976 International Covenant on Economic, Social and Cultural Rights, 1976 Report of the Secretary-General, 54 GAOR, 4th plen. Mtg., 20 September 1999 United Nations Declaration on Friendly Relations; Nicaragua Case, ICJ Reports, 1986, p.14 at p.134 (para.268), 1970 United Nations General Assembly Resolution 2625 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, (24 October 1970) United Nations General Assembly Resolution 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, (21 December 1965) United Nations Security Council Resolution 1973 The Situation in Libya, (17 March 2011) 24