HUMANITARIAN
INTERVENTION
IRENA GIORGOU
&
EMANUELA PARISCIANI
Definition
• Humanitarian intervention can be defined as the threat
or the use of force against a State by another State or
group of States or regional organizations with the aim
of preventing or ending widespread and grave
breaches of fundamental human rights, mostly without
the acquiescence of the State in whose territory force
is to be applied.
• It hinges on the foundational legal quandary about
whether or not States may breach the prohibition to
resort to force in their international relations in order to
protect fundamental human rights of third State
nationals.
‘Just war’ theory
• It may be argued that, even if humanitarian
intervention is authorized by the UN, the action
undertaken with legitimacy and moral sanction of the
SC does not necessarily have a moral quality superior
to that of a state or group of states acting unilaterally.
Humanitarian intervention authorized by the SC as the
enforcement action under Chapter VII of the Charter
presumably has greater legitimacy than a unilateral
action, but it is not clear whether it is any more just, as
the politics of the UN is not more different in its
character from that of its member states.
Legal Analysis
• Article 2.4 UN Charter “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 Nations”
• The UN was created for underpinning
territorial integrity, political independence and
national sovereignty of its member States;
• but the UN has an equally compelling mission:
protect and promote the interests of “We the
Peoples”.
• Does the Charter privilege peace over dignity
and human rights?
• HUMAN RIGHTS
• Article 55 UN Charter
• With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among
nations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote:
• a) higher standards of living, full employment, and conditions of
economic and social progress and development;
• b) solutions of international economic, social, health, and related
problems; and international cultural and educational co-operation;
and
• c) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion.
• Article 56 UN Charter
• All Members pledge themselves to take joint and separate action in
co-operation with the Organisation for the achievement of the
purposes set forth in Article 55
The Non Intervention
Principle
• Article 2.7 UN Charter:
• “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 VII”
• GA Res 2625 (XXV) 1970, Declaration on Friendly Relations
• Considering that the progressive development and codification of the
following principles:
• (a) The principle that States 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 Nations,
• (b) The principle that States shall settle their international disputes by
peaceful means in such a manner that international peace and security
and justice are not endangered,
• (c) The duty not to intervene in matters within the domestic
jurisdiction of any State, in accordance with the Charter,
• (d) The duty of States to co-operate with one another in accordance with
the Charter,
• (e) The principle of equal rights and self-determination of peoples,
• (f) The principle of sovereign equality of States,
• (g) The principle that States shall fulfill in good faith the obligations
assumed by them in accordance with the Charter
SC Powers under Chapter
VII
• Article 39 UN Charter:
• “The Security Council shall determine the
existence of any threat to the peace, breach of
the peace, or act of aggression and shall
make recommendations, or decide what
measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore
international peace and security”
It entitles the security council to pass a
resolution to protect human beings in any
sovereign state also by authorizing the use
of force
A threat to peace?
• SC acting under Chapter VII: what constitutes a
threat to peace?
• The Charter is silent on the term and the travaux
préparatoires indicate that this was done
deliberately. Then it was decided “to leave to the
Council the entire decision, and also the entire
responsibility for that decision, as to what
constitutes a threat to the peace, a breach of the
peace, or an act of aggression”. Hence for Kelsen
“it is completely within the discretion of the SC to
decide what constitutes a threat to the peace”
• The changing definition of a “Threat to Peace”:
• “Une menace pour la paix au sens de l’Article
39 est une situation dont l’organe compétent
pour déclarer une action de sanctions dèclare
qu’elle menace effectivement la paix”
(Combacau, 1974)
• Tadić Case §28-30
An Example
• Res 687(1991) Affirming the commitment of all
Member States to the sovereignty, territorial
integrity and political independence of
Kuwait and Iraq, and noting the intention
expressed by the Member States cooperating
with Kuwait under paragraph 2 of resolution
678 (1990) to bring their military presence in
Iraq to an end as soon as possible consistent
with paragraph 8 of resolution 686 (1991)
State Practice
• The practice of the SC during the nineties was towards
setting up the most of the basic legal elements for the
right of humanitarian intervention
UNILATERAL INTERVENTIONS
HUMANITARIAN INTERVENTION
AUTHORIZED BY THE SC
Tanzania in Uganda, 1979
Iraq’s treatment of Kurds, 1991 (Res.
688)
France in Central Africa, 1979 (SC ex Somalia, 1992-1993
post facto Resolution)
December 1992)
(Res
794,
3
India in Bangladesh, 1971
Haiti, 1994 (Res 940, 31 July 1994)
USA in Grenada (1983)
Rwanda, 1994 (Res 929, 22 June 1994)
USA in Panama (1989)
Bosnia, 1994 (Res 770,13 August 1992)
ECOWAS Intervention in Liberia,
1992 (but consent of all factions) ex Albania, 1997 (Res 1101, 28 March
post facto SC Res S/21485, 9 August 1997)
1992)
Sierra Leone, 1997 (Res 1132, 8
October 1997) (a kind of ex post facto East Timor, 1999 (Res 1264)
authorization)
• Article 43 UN Charter:
• The plasticity of the Council’s mandate and the contingency of
Council authorization on the willingness of a state or states to
take action were suggestive leitmotifs throughout the
interventionist 1990s.
• The general trend of SC delegated actions in the 1990s, then,
was towards intervention only when such action coincided
with the preparedness of a regional power to act – NATO in
Europe, France and ECOWAS in West Africa, and the United
States in the Americas. Evidence of such a trend has been
shown in the form of authorizations, but this has been
accompanied by a more troubling shift in the practice of the
SC away from debating international peace and security
issues in open session to granting its formal imprimatur to
prearranged deals.
Authorized humanitarian
intervention
• “The purpose of the enforcement action under Article 39 is not
to maintain or restore the law, but to maintain, or restore
peace, which is not necessarily identical with the law” Hans
Kelsen, 19503
• Most governments and scholars accept that the UN SC may,
in appropriate cases, authorize the use of force to end or
prevent humanitarian crises. In spite of the categorical
language of Article 27, the limitation to intervene in matters
which are essentially within the a State’s domestic jurisdiction
does not apply to enforcement measure taken by the UN SC
under Chapter VII. Simply, nowadays, human rights are not
longer part of the exclusive domestic jurisdiction of states.
•
Since 1990, the council has explicitly authorized one or more nominated
states, regional organizations, or ‘coalitions of the willing’ to use ‘all
necessary means’ (or ‘all measures necessary’ or ‘all necessary measures’)
in the following situations:
•
•
•
•
•
Operations Desert Shield and Desert Storm in Kuwait and Iraq (1990–91);
Operation Restore Hope (UNITAF) in Somalia (1992–93);
Operation Turquoise in southwest Rwanda (1994);
Operation Uphold Democracy in Haiti (1994–95);
Implementation Force (IFOR 1995-1996) and Stabilization Force (SFOR) in
Bosnia and Herzegovina (1996-2004);
NATO-led Kosovo Force (KFOR) operations in Kosovo (1999 - )
International Force in East Timor (INTERFET) (1999);
International Security Assistance Force (ISAF) in Kabul and its surrounding
areas (2001– ).
The council has also authorized more limited uses of force under Chapter VII
in the following situations:
UN Protection Force (UNPROFOR) and member-states providing air support
in respect of safe areas in Bosnia and Herzegovina (1993–95); and
Operation Alba in Albania (1997).
•
•
•
•
•
•
• In reality, apart from the exception of
Resolution 940 (Haiti), all SC resolutions
authorized the use of force to protect
humanitarian relief and rescue operations, but
not to conduct operations effectively
intervening in the conflict and aimed at
influencing its outcome.
• How to avoid tragedies like Rwanda and
Srbrenica?
• States’ action ultra vires
Legality vs Legitimacy
• The problem arises when legality and legitimacy come into
conflict, that is, when something that is deemed to be
legitimate is prohibited by law and vice versa. Legitimacy is
an inherently subjective concept, so agreement is not
always possible on what is legitimate and illegitimate.
Without institutional endorsements of a particular action by
the SC of the UN, for instance, which create a sense of
consensus as a result of a successful political process on
what is seen as legitimate, a tension between law and
legitimacy may weaken the bidding force of legal rules that
are necessary for the very existence of the society of states.
If this situation prevails, the breakdown of any international
legal regime is unavoidable.
NATO intervention in
Kosovo
A “legitimate” illegal
intervention
• Aggression
intervention?
or
legitimate
• In the current framework of the
international community, three
sets of values underpin the
overarching system of interstate relations: peace, human
rights
and
selfdetermination:
• to promote Human Rights
NATO violated the other two
The resort to non authorized
armed
force
• "the alleged right of intervention as the
manifestation of a policy of force, such as has, in
the past, given rise to most serious abuses and
such as cannot, whatever be the present defects in
international organization, find a place in
international law. Intervention is perhaps still less
admissible in the particular form it would take here;
for, from the nature of things, it would be reserved
for the most powerful States, and might easily lead
to perverting the administration of international
justice itself." (Corfù Channel, ICJ Reports 1949, p.
35.)
Moving towards the Human
Rights Era
• The previous resolutions of the SC didn’t allow the
recourse to force, indeed they reaffirmed the
sovereignty and territorial integrity of FRY
• ex post facto - ex post lecito? a return to legality with
res. 1244
• The only possible explanation is that the NATO
intervention was unlawful but characterized by a state
of necessity due to the humanitarian catastrophe on
the go
• but Art. 25 and 26 States Responsibility Draft
• Article 25 Necessity
• 1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that State
unless the act:
• (a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
• (b) Does not seriously impair an essential interest of the State or States towards which
the obligation exists, or of the international community as a whole
• 2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
• (a) The international obligation in question excludes the possibility of invoking
necessity; or
• (b) The State has contributed to the situation of necessity (b) question.
• Article 26 Compliance with peremptory norms
• Nothing in this chapter precludes the wrongfulness of any act of a State which is
not in conformity with an obligation arising under a peremptory norm of general
international law.
NATO intervention
• An erosion of UN’s primacy in
peace and security?
• Kosovo moral action was
contrary to current international
law but based on nascent
trends in the world community,
under certain conditions resort
to armed forces may gradually
become justified, even in the
absence of any SC res
de lege lata
Darfur Crisis
Darfur
*2003 and 2004: SC demands access to
humanitarian assistance, disarmament of
militias, civilian protection and investigation
and punishment of HR violations.
SCRes 1556 (2004): the conflict in Sudan
is a ‘threat to international peace and
security’
*International Commission of Inquiry on
Darfur
*Referral of the situation to the ICC
SCRes 1706 (2006):‘supreme
humanitarian emergency’
-Sudan refused UN interference and SC
was unwilling to authorize non-consensual
intervention given there was a standing
government.
• Darfur Peace Agreement (5/5/2006)
• Individual UN members support AU mission in
Darfur (AMIS), which had the consent of the
Sudanese government
• Aim: monitoring ceasefire and protection of
civilians (but supplementary-primary
responsibility rests upon the Sudanese
government)
• Some UN (mainly technical) support; minimal
effectiveness
• SCRes 1706 (2006) ‘invites’ Sudan to consent
to UN force in Darfur. The Sudanese
government refuses.
• SCRes 1769 (2007): establishment of
UNAMID (hybrid AU-UN force) authorized
under Ch.VII to implement DPA and protect
civilians and its own personnel.
• Vague purpose and mandate, unsatisfactory
results
Conclusions
Practice and theory of Humanitarian Intervention:
where are we moving on?
1. Before the 1990s the humanitarian doctrine was not recognized
and the justification for any intervention tended to be couched in
the language of self-defence or demographic aggression (refugees)
2. The failure of Rwanda, Kosovo and Darfur
3. Shifting from humanitarian intervention to R2P:
States still want to retain their sovereignty
-DEBATE-