Humanitarian Intervention (HI) is;
‘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 fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied.’ [5]
HI is a ‘pressing legal challenge in international law,’ the challenge arising from the tension between human rights, sovereignty and security.[6] Human rights have gained increased importance globally[7] and international human rights law has developed out of necessity when states fail to protect their citizens.[8] Although legal instruments and enforcement mechanisms exist (for example International Covenant on Civil and Political Rights and Optional Protocol 1[9]), they can only protect and punish ‘normal’ human rights violations (sporadic and individual)[10] thus leaving a void in the law for protecting citizens against mass human rights violations.[11]
The law relating to the use of force is outline in the United Nations (UN) Charter, an international convention which created the international organisation the UN.[12] The preamble outlines the ambitions of the UN to ‘save succeeding generations from the scourge of war’ and ‘to reaffirm faith in fundamental human rights.’ Article 1(1) declares the UN’s purpose, including, maintaining international peace and security by ‘taking effective collective measures’ to prevent and remove ‘threats to peace,’ acts of aggression or ‘other breaches to the peace.’ Article 2(1) requires states to respect ‘the principle of ‘sovereign equality’- this includes the right of a state to freely ‘choose and develop its political, social, economic and cultural systems.’[13] Article 2(4) prohibits the threat of 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 UN.’ The violation of Article 2(4) constitutes an act of aggression and aggression cannot be justified by any consideration, whatever its nature, including political or other considerations.[14] The ICJ in Nicaragua concluded this prohibition was custom, with the Declaration on Friendly Relations resolution providing opinio juris.[15] Article 2(7) outlines the principle of non-intervention in domestic affairs, further confirmed in the Declaration on Friendly Relations.[16] An exception to the prohibition on the use of force is force authorised under Chapter VII.[17] Under Article 39 the Security Council (SC) is responsible for determining the existence of a threat to or breach of the peace, or an act of aggression. Upon such a determination Article 41 permits the use of non-forceful measures, but if non-forceful measures are or would be inadequate, Article 42 permits the use of force. Force is to be exercised by member states.[18] Article 43(1) obliges member states to have forces available for maintaining international peace and security; qualified to special agreements. Thus states should have ‘combat ready units,’ however no special agreement has ever been concluded and states have failed to make advanced preparations.[19] Instead the UN developed the practice of authorising states and regional organisation use force ‘in sharply defined situations’ and states volunteer forces.[20] Chapter VIII of the Charter concerns regional organisations and Article 53 permits the use of force by regional organisations with SC authorisation.
The development of peacekeeping must be noted. Peacekeeping has no express basis in the UN Charter however it is a significant part of the UN’s work, highlighted by the current fifteen operations.[21] Traditionally peacekeeping was impartial, required state consent and only light force was permitted in self defence.[22] However in 1992 the Secretary General (SG) declared ‘peacemaking’ as preferable[23], whereby peacekeepers can use force to enforce ceasefires instead of the traditional monitoring only.[24] Resolution 814 on Somalia created the first Chapter VII peacekeeping mission.[25]
The SC is conferred ‘primary responsibility for the maintenance of international peace and security’ by Article 24(1). The SC is composed of fifteen members, five of which are permanent (P5) (UK, US, China, France and Russia)[26] and the P5 must concurringly vote on SC resolutions, creating a veto power.[27] In the Namibia Advisory Opinion the ICJ confirmed that abstaining from voting does not constitute a veto.[28] Member states are legally bound to carry out SC decisions.[29] The SC explicitly authorised the use of force in the humanitarian catastrophes of Somalia[30] and Bosnia-Herzegovina.[31] Both missions were officially aimed at restoring peace and stability, with no explicit reference to protecting human rights. The SC’s powers to determine a threat under Article 39 have been extended by broadening perceptions of what constitutes a threat.[32] Alston asserts that mass human rights violations can legally constitute a threat because the preamble of the Charter ‘links peace and human rights’ making respect of human rights a precondition of peace.[33] Humanitarian concerns have been linked to international threats to peace and security to satisfy Article 39 by the SC. The SC noted that the humanitarian crises in Haiti ‘including mass displacement of population’ aggravated the threats to international peace and security and expressed concern of repercussions of refugee flows on the region.[34] In resolution 794 on Somalia the SC determined ‘the magnitude of the human tragedy’ equated to a threat.[35] Resolution 688, regarding Iraq, recognised the consequences of the repression, namely the mass refugee flows and cross border incursions, as creating a threat.[36] However in the event of SC failing to authorise a HI other justifications may be sought for intervening.
A further legal tool is The Convention on the Prevention and Punishment of the Crime of Genocide,[37] to which 137 nations are party.[38] Article 1 confirms genocide is a crime under international law and parties confirmed their intention to ‘prevent and punish it.’ Genocide is defined in Article 2 as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’ Intention equates to purposefulness, directly proven by orders or statements or ‘inferred from a systematic pattern of coordinated acts.’[39] The intention does not have to be to destroy the whole group but for government authorities intention to be satisfied a substantial part of that group must be affected.[40] National groups are connected by ‘a common country of nationality or national origin,’ members of an ethnic group are connected by ‘common cultural traditions, language of heritage,’ individuals of a racial group share the same ‘physical characteristics’ and a religious group ‘is defined by common religious creed, beliefs, doctrines, practices or rituals.’[41] Acts constituting genocide are[42];
a. ‘Killing members of the group,’ (‘includes direct killing and actions causing death’[43])
b. Causing them ‘serious bodily or mental harm,’ (including rape and sexual violence [44])
c. Inflicting deliberately ‘conditions of life calculated to bring about its physical destruction in whole or in part,’ (including ‘the deliberate deprivation of resources needed for the group's physical survival’ for example clean water or and the ‘deprivation of the means to sustain life’ for example by confiscating harvests, or forcible relocation.[45])
d. Preventing births within the group
e. ‘Forcibly transferring children of that group.’
Article 3 declares committing genocide, incitement to commit, intention of committing and complicity during genocide are punishable crimes. Article 8 permits UN member states to call upon the SC and GA to take appropriate action ‘for the prevention and suppression of genocide or any action under Article 3.’ The Convention creates a legal obligation on parties to prevent genocide, however wide discretion is afford upon deciding a preventative method. Genocide has the potential to, and should, constitute as a threat to international peace and security and require coercive action for prevention; thus placing the situation in the concern and ambit of the SC. The SC has discretion to decide the ‘appropriate action’ under Article 8. The Convention places a legal and moral duty on states to prevent genocide and a moral duty on the SC to authorise a HI when the use of force is the only effective preventative method.
A further potential option is unauthorised humanitarian intervention. Unauthorised humanitarian interventions could only be legal if HI was an established exception to Article 2(4) in customary law. Customary law is created by state practice and opinion juris. In 1971 India invaded East Pakistan, the main justification was self defence but necessity of stopping the genocide and human rights violations, and justifications based on the UNs failure to prevent were also articulated.[46] India received resentment from the international community (IC) who thought India was advancing national interests.[47] Vietnam justified the intervention in Cambodia on the basis of providing humanitarian support,[48] however the French warned of setting a dangerous precedent.[49] Although the US recognised the need to balance sovereignty and human rights protection,[50] the IC was generally suspicious of Vietnam’s motives.[51] When the collation intervened in Iraq (1991) the legal argument was implied SC authorisation, for example the UK justified committing forces ‘in response to the refugee crisis’ and claimed consistency with the objectives SC Res 688.[52] In Nicaragua the ICJ said for custom to be established the practice does not have to ‘show absolute conformity’ but should be generally consistent.[53] For a right of HI to exist ‘fundamental modifications’ to the customary principle of non intervention would be necessary.[54] The ICJ concluded HI was not customary law because states failed to justify the interventions ‘by reference to a new right of intervention or new exception.[55] Nicaragua confirmed there was not an existing customary right to conduct unauthorised interventions however the law could be modified through state practice and opinio juris.
[3] found in the states settled practice and opinio juris- the belief that the action is a legal obligation see North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and the Netherlands) ICJ Report 1969, p.3 para.77
[4] 15 UNCIO 26 June 1945 All four sources contribute to the assessment of whether the international community is failing in its responsibility to protect.
[5] J.Holzgrefe ‘The Humanitarian Intervention Debate’, in J.L Holzgrefe and R.O Keohane Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Oxford University Press 2003
[6] E.Macdonald and P.Alston ‘Sovereignty, Human Rights, Security: Armed Intervention and the Foundational Problems of International Law’ in Alston.P and Macdonald.E Human Rights, Intervention and the Use of Force (OUP 2008) p.7
[7] Ibid
[8] H.Ruiz Fabri ‘Human Rights and State Sovereignty: Have the Boundaries been Significantly Redrawn?’ in Alston n.5 p.33
[9] Adopted General Assembly resolution 2200A (XXI) 16 December 1966
[10] Ruiz Farbi n.7 p.53
[11] Ibid
[12] 1945 862 UNTS 199 (adopted on 26 June 1945) available at www.un.org/aboutun/charter <last accessed 12/11/10>
[13] Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations UNGA Res 2625 (XXV) 24 October 1970
[14] Definition of Acts of Aggression 1 UNGA Res 3314 (XXIX) 14 December 1974 Article 1 and Article 5(1)
[15] Nicaragua v United States of America (Merits) (1986) ICJ Rep. 4 para.188 Declaration on Friendly Relations n.12
[16] Ibid
[17] Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. Note Pacific Settlement of Disputes is covered in Chapter VI
[18] Charter n.11Article 42
[19] Y. Dinstein War, Aggression and Self-Defence (4th Ed Cambridge University Press 2005) p.305-306
[20] Ibid p.101
[21] 2011; <http://www.un.org/en/peacekeeping/operations/current.shtml>(last accessed 16/03/11)
[22] C.Gray International Law and the Use of Force (3rd Ed. OUP 2008) p.282
[23] Agenda for Peace, ILM 1992 953 para.44
[24] Gray n.21 p.282-283
[25] S/RES/814 26 March 1993
[26] Charter n.11Article 23(1)
[27] Ibid Article 27
[28] Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding SC Res 276 (1970) ICJ Rep 16 (1971) para.22
[29] Charter n.11 Article 25
[30] S/RES/794 3 December 1992 para.16
[31] S/RES/770 13 August 1992 para.1
[32] M.Shaw International Law (6th Ed Cambridge University Press 2008) p.1237
[33] Ruiz Fabri n.7 p.49
[34] S/RES/841 16 June 1993
[35] S/RES/794 n.29
[36] S/RES/688 5 April 1991
[37] (1948) 78 UNTS 277 <available at http://www2.ohchr.org/english/law/genocide.htm> (last accessed 13/2/11)
[38] for specific country membership see; <http://www.preventgenocide.org/law/convention/index.htm#ratifications> (last accessed 16/03/11)
[39] Genocide Watch ‘What is Genocide’ <http://www.genocidewatch.org/aboutgenocide/whatisit.html >(last accessed 10/11/10>)
[40] Ibid
[41] Ibid
[42] Genocide Convention n.36 Article 2(a-e)
[43] Genocide Watch n.38
[44] Ibid
[45] Ibid
[46] UNSCOR (XXVI) 1608 Mtg 6 December 1971 para.70,71
[47] Holzgrefe n.4 p.271
[48] UNSCOR (XXXIV) 2108th mtg 11 January 1978 p.5 para.56
[49] UNSCOR (XXCIV) 2109th mtg 12 January 1979 p4 para.36
[50] UNSCOR (XXXIV) 2110th mtg 13 January 1979 p.6-7 para.65-75
[51] Holzgrefe n.4 p.218
[52] 1992 British Memorandum Increased Role of UN 2 Dec 1992, quoted in O.Corten Human Rights and Collective Security: is there an emerging right of humanitarian intervention in Alston n.5 p.101
[53] Nicaragua n.14 para.186
[54] Ibid para.207
[55] Ibid
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