The concept of Humanitarian intervention has been discussed in International Relations discourse as well as under International Law. It is used as an acceptable practice under International Law and a normative practice of the states. However, it seems that such a practice is contradictory to the basic principles of International Law because the authority to intervene is one of the most pertinent questions being raised today. In the name of humanitarian intervention, the powerful countries are trying to have access to the natural resources of the underdeveloped countries. In case of an actual violation of fundamental human rights, intervention might be legitimized and legalized, which has to be initiated by international organizations, especially by the United Nations Security Council. The objective of this paper is to analyze the practices and challenges of humanitarian interventions and doctrine of ‘Responsibility to Protect’ focusing on the mandate of International Law and UN Charter concerning the prohibition of intervention and legality of humanitarian intervention. It further analyzes the doctrine of humanitarian intervention in the frame of International Law in the second half of the nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal Laws of Humanity.
States and International communities are bound to recognize the obligation to protect human rights, mostly in a time of war, when there are massive human rights violations. According to the International Commission on Intervention and State Sovereignty (ICISS), it is a universal responsibility to protect individuals from cruel assaults when the states fail to protect their citizens. The United Nations (UN) General Assembly (GA) expressed the conspicuous failure of the national authorities to safeguard their citizens from ethnic cleansing, war crimes, crimes against humanity, and genocide. Therefore, it is a universal duty to be involved in humanitarian interventions in the presence of the member states of the UN, providing safeguards for individuals. In order to fulfill the duty, Chapter VII of the UN Charter authorizes its Security Council (SC) to carry out interventions and permits to take action to regulate and maintain international security and peace and respond to the incident of a threat to stability under Article 41 and 42. To settle interstate hostility and domestic antagonism, the UNSC has broadened the limits of authorizing action on a humanitarian basis since the 1990s. Consequently, the UN in 2005 agrees with the Responsibility to Protect (R2P) in the condition where the states are unable to protect its citizens from genocide, war and crime, denying and violating fundamental human rights. The state’s obligation to protect its citizen’s fundamental rights matters, and the primary purpose is to protect human rights during conflict. However, it is argued that those involved are somehow becoming unconscious of the valid process. As a result, the dilemma between humanitarian intervention and state sovereignty is continuing. Some states are unwilling to engage in humanitarian interventions when a conflict starts because sometimes the state must sacrifice its sovereignty to maintain its security and save lives. Even though humanitarian interventions claim to have a universal responsibility to protect the victims, in some cases, it is argued to be used as a political or economic instrument. For instance, the 2011 UN military intervention led by the Obama administration was mainly intended to accomplish a regime change instead of saving civilians. This debate is not recent; it has its ancient origin linked with the European powers’ humanitarian intervention in the Ottoman Empire period in the second half of the 19th century and at the beginning of the past century. The intervention was to protect the Christian minority in foreign lands. However, the use of military power has been controversial because their lives and economic affairs are at risk. Hence, the question of humanitarian interventions has felt more pressure over the last two decades given the massive humanitarian crises of the 1990s, particularly Rwanda’s genocide and Yugoslavia’s ethnic cleansing. The purpose of this study is to analyze the current controversy regarding legality and humanity in humanitarian interventions.
Defining Humanitarian Intervention
The origin of humanitarian intervention dates back to the Ancient Greeks when the concept of just war marked its presence. The principles that underpin humanitarian intervention trace their origins in 15th-century religious and ‘just-war’ theories, although the term itself was not used. Vitoria (1492–1546) viewed it as ‘the duty of civilized’ states to intervene in ‘backward’ states to end inhumane practices such as cannibalism and human sacrifice and to spread Christianity. The legal doctrine of humanitarian intervention traces its roots to the treatise by the seventeenth-century Dutch jurist Hugo Grotius. Upon introducing the idea, Grotius tackled the prospect of its being abused as a pretext for war. Philosophers of political liberalism, such as Mill related the concept of humanitarian intervention to the concept of human rights throughout the eighteenth and nineteenth centuries.
Humanitarian Intervention has gained great controversy in recent years, yet a standard definition is neither readily nor succinctly achieved. The adjective humanitarian is very broad and in common parlance is used to describe a wide range of activities by governmental and non-governmental actors seeking to improve individuals’ status and well-being. Humanitarian interventions can briefly be described as interference by a state, states, or International Organizations in the domestic affairs of other states for preventing and ending human rights abuse without the target state’s consent. It is unlike peacekeeping operations that occur with the consent of the relevant parties to preserve a peace that has already been achieved. It can be described as the interference of one or more states in the domestic affairs of another state employing armed force, to make that state adopt a more humanitarian policy. However, it should be understood to encompass non-forcible methods, namely intervention taken without military force to alleviate mass human suffering within sovereign borders.
Read More: Peacekeeping Operations As Implied Power Of The United Nations: A Critical Assessment
The Legality of Humanitarian Intervention
The cardinal authority on the law on the legality of the recourse to war by states is the UN Charter. It makes two essential contributions; firstly, it outlaws the use of force on the part of individual states, and secondly, it empowers the SC to make all decisions on collective measures that involve military force. Article 2(4) of the Charter explicitly secures the first element by providing that;
“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.”
This can be said to be a very general prohibition, spelled out by the UN Charter that defines the primary obligations of UN membership and the organization itself. It proceeds in a similar vein as that of Article 2(3) insisting UN members settle their interstate disputes by peaceful means. Since World War II, international law has mandated states from threatening or using force except in self-defense or SC authorizations. However, the UN Charter does not contain the slightest hint to the effect that the validity of Art. 2(4) might be in any way conditioned by the effectiveness of the collective mechanism for the protection of human rights. The humanitarian intervention appears to contradict the UN Charter, but developments in state practice since 1945 might have made it legal under certain circumstances. Some try to justify humanitarian intervention by referring to the need for balancing the sometimes opposite goals of conflict-minimization and protection of human rights, which is why it is argued forcible humanitarian intervention should be recognized in certain extreme situations. However, such a balancing of interest would be contrary to the systematic interpretation of the Charter, which clearly shows that the individual states are to be divested of the use of armed force as an instrument of their international policy. Thus, there is no room for the concept of the humanitarian intervention being deduced from the UN Charter.
Some scholars argue that the right of humanitarian intervention existed under customary international law claiming that state practice was neither terminated nor weakened by the creation of the UN. They support it via various instances of humanitarian interventions like that of Britain, France, and Russia in Syria in 1827-30; France in Syria in 1830-1831; Russia in Bosnia-Herzegovina and Bulgaria in 1877-1888; UN in Cuba in 1888, etc. Most publicists admitted that a right to humanitarian intervention existed by the end of the nineteenth century. However, much of the time, it appeared as a cloak for imperialism episodes, including the US invasion of Cuba in 1898. The theory was replaced post-1919, e.g. the Indian invasion in Bangladesh (1971), the Tanzania action in Uganda (1979), the Vietnamese invasion of Cambodia (1979) were all possible examples of humanitarian intervention, where the belligerents chose to justify their actions under self-defense rubric.
Under the UN Charter, forcible humanitarian intervention cannot, therefore, be considered lawful, and also the right of self-defense under Art 51 of the Charter cannot be interpreted as encompassing that kind of intervention. It is clear from the above discussion that there is no evidence of sufficient State practice or opinion Juris that could have led to a new rule of customary international law, establishing humanitarian intervention as a legitimate exception to the prohibition laid down under Article 2(4). Therefore, it is clear that from the Charter to the present day existing treaty laws, humanitarian intervention cannot be considered as a legal category under international law. The illegality of humanitarian intervention rests on the plain language of existing treaties emphasizing the clarity of the UN Charter and its near constitutional status in international politics and its universal adoption.
The debate prolongs and some scholars argue the legality or illegality of humanitarian intervention depends on one’s understanding of how international law is constructed, changed, and represented. These questions cannot be answered precisely, and the uncertainty prevails, and the legality of humanitarian intervention is still undefined. No amount of debate over the law or recent cases will resolve its status; it is, at the same time, both legal and illegal. The researcher believes that the practice of humanitarian intervention remains in a space between legality and illegality, one where each case of the practice can plausibly be seen as either compliance or non-compliance with international law.
Humanity in Humanitarian Intervention
The new interventionism, or willingness to use force in the name of humanitarian values, played a significant role in shaping international relations during the 1990s. Issues about the legality and morality of humanitarian intervention again began to dominate the international legal and political agenda as a result of actions such as that undertaken by NATO in response to the Kosovo crisis, or the authorization of the use of force in EastTimor by the SC. The jurisprudence of humanitarian intervention emanated predominantly from three sordid humanitarian catastrophes during the 1990s, namely Rwanda, Srebrenica, and Kosovo. In each of these, the UN had abstained from taking action, which either led to a humanitarian crisis materializing, or another player taking action transgressing the boundaries of the law to prevent the humanitarian catastrophe from transpiring.
The concept of humanitarian intervention has incepted primarily as a subset of the laws governing the use of force. However, very quickly, it has come to occupy an institutional position alongside self-defense. The Court did seem to reject the doctrine of humanitarian intervention in Nicaragua v. the United States of America. In the case, the Court stated that:
“while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect.”
The other states often look that humanitarian intervention is a new way of re-colonization. When the powerful states are trying to protect the territories, the main motive behind every state is not transparent. The use of the word “humanitarian” to justify military action has always been a bone of contention. The argument that is purported is that whilst the military can do good deeds, there is always an underlying political agenda to their actions.
Responsibility to Protect
In recent years, attention has shifted away from humanitarian intervention to the concept of the responsibility to protect, often called “R2P”. More minor a doctrine of its own than a refocusing of humanitarian intervention, the term responsibility to protect emerged in 2001 in a Report of the ICISS. It states that in the event of genocide and other large-scale killings, ethnic cleansing, and serious violations of humanitarian law that sovereign governments have proved powerless or unwilling to prevent, there is a collective international responsibility exercisable by the SC authorizing military intervention as a last resort. It is intended to permit and require international action to prevent the most severe human rights abuses or international crimes in situations where a state fails to perform its duty to protect its citizens. Although initially labelled a new approach or a recharacterization of sovereignty, support for the concept was soon considered to be an emerging norm of international law by some. The Report purported to identify three situations where the ‘residual responsibility’ of the states to take action was activated when a state is unwilling or unable to fulfil its R2P; where a particular state is itself the perpetrator of crimes or atrocities; or people living outside a particular state are directly threatened by actions taking place there. Nevertheless, it remains clear that the R2P cannot be used to justify the unilateral use of force within the framework of Articles 2(4) and 51. The various resolutions and statements endorsing the concept are subject to the crucial qualifier that collective security and the UN system remain the primary military intervention forum.
Humanitarian Intervention and R2P
The newly developed concept of R2P has been suited to establish a humanitarian intervention as a new rule of international law. Insofar it is supposed to be more than just a political concept; it appears to be based on the competence of the SC to adopt measures against the State concerned. Thus, it refers to the authority to use armed force in Chapter VII of the UN Charter. The concept, as it has been incorporated in UN documents, stops short of including the autonomous right of individual states to use armed force against another State and does not, therefore, from the viewpoint of international law, add anything new to the debate on humanitarian intervention. The international community has limitations concerning the initiatives in a manner that is vital to discharge the Responsibility to Protect efficiently; i.e. the recent representatives of the humanitarian intervention have several remarkable flaws. The R2P has the potential to make changes in the legal norms, but still, it has not been able to alter the hitherto legal position. Humanitarian intervention remains illegal under international law though there have been exhausting palavers to vindicate the same. The Libyan intervention had vociferously advanced the cause of the R2P doctrine. The ICISS had shown its predilection to create a right of humanitarian intervention beyond the auspices of the UN Charter but this was met by the international community with immediate rejection. Therefore, what can be asserted is that the R2P has not been able to alter the legal position on humanitarian intervention.
Recent events from Rwanda to the Balkans to Libya and ahead have forced the tensions between humanitarianism and sovereignty. The resulting debates have produced an identifiable set of positions on each side. As long as international law does not contain a recognized exception on humanitarian intervention, the international community may continue to face situations in which there is a divergence of law and morality. For some states, it becomes increasingly unacceptable to see grave violations of human rights occurring within another State and still be banned by international law from intervening. If the SC does not act in those cases based on Art 39 and 42 of the Charter to stop human rights violations as occurred in the Kosovo case, states will again be tempted to intervene independently. Thus, eventually, a rule of customary international law-making humanitarian intervention lawful might develop. Above all, the SC could prevent by extending its practice under Chapter VII to grave human rights violations, thereby making the development of such a rule unnecessary.
LLM, South Asian University
LLB, Daffodil International University
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