INTRODUCTION
Within the realm of public international law, humanitarian intervention remains engulfed in a sea of controversy. The term “humanitarian intervention” connotes military interference across borders by a state to prevent widespread human rights violations in another. Such involvement is not authorised by the state subject to intervention and is solely the prerogative of the outsider state. Intervention can also include tinkering in a country’s internal affairs. The intention of this meddling is meant to be noble, with the end goal of ending or minimising civil war, genocide, or mass death.[1]
When a state is incapable of protecting its own or is complicit in persecution, humanitarian intervention brings direct action. The sovereign state must not have committed any acts of aggression against the other state. Despite the murky legal footing of humanitarian intervention, the practice has only surged since the conclusion of the Cold War. Many point to the 1990s as a “decade of humanitarian intervention authorised by the UN”.[2] Situated at the intersection of realism and liberalism, intervention marks a collision of state power with sovereignty.
Keeping the legal basis of the doctrine in mind, it is pertinent to question the legitimacy of coercive actions for humanitarian ends. In an increasingly globalised world, the legal and political conundrum of humanitarian intervention is a central question. We will evaluate the legal background of the principle, as well as how the debate around intervention was brought into the limelight. Lastly, we will propose what the path going forward could be for the same.
LEGAL BASIS
Territorial sovereignty is one of the foundations of international law. Sovereignty is inviolable, and territorial integrity is the norm in international systems.[3] Article 2(4) of the UN Charter keeps the territorial integrity of states alive by prohibiting the use of threat or force, calling upon the member states to uphold sovereignty and political independence.[4] This principle is a cornerstone of the UN Charter and only a few exceptions can negate it. First, Article 51 of the UN Charter describes the right to self-defence in the event of an armed attack against a member state of the United Nations. Aside from this, Chapter VII of the UN Charter assigns rights to the United Nations Security Council (UNSC), inclusive of collective security measures to maintain peace around the globe.
Before the formation of the UN Charter in 1945, author Hugo Grotius, a pioneer of international law, spoke of the doctrine of humanitarian intervention.[5] Though there was some support by states, World War II significantly altered worldwide political paradigms. All use of force was banned except in the case of self-defence. Upon the passing of the UN charter, previous work on customary international law was divorced from the law formed by the United Nations. Critical analysis of UN legislation shows that the intention was to ban all justifications for applying military force except the handful outlined in the Charter.[6] Usage of humanitarian intervention in the current day seems to contradict with provisions of Article 2(4) of the UN Charter. A prima facie reading of the Charter provides no legal right to intervention – the only way this would be possible is by method of radical misinterpretation of the text.
Further, in Nicaragua v. United States (1986), the International Court of Justice (ICJ) set a precedent for the use of force to not be an adequate tool to preserve human rights.[7] They ruled that there is no right to intervention in international law. As a result, humanitarian intervention was rendered a violation of the law. Despite the existence of this ruling, there is an ample amount of real-life practice of humanitarian intervention. Article 38(1)(a) of the Statute of the ICJ declares state practice as a valid source of law.[8] However, overwhelming evidence denouncing military intervention can be derived from other sources of law which are more hegemonic. In international relations, customary laws and treaties take precedence over state practice.[9]
Even though humanitarian intervention has achieved repute as being illegal, the lack of legal consensus surrounding the topic has led to states interpreting the Charter to their convenience. No proper law governs humanitarian intervention, unlike self-defence or collective security.
HISTORY
The contemporary debate regarding humanitarian intervention rose to prominence around the time of the Kosovo debacle in 1999. Since 1989, a direct rule was imposed on the primarily Albanian population of Kosovo by Belgrade. The North Atlantic Treaty Organisation (NATO) launched Operation Allied Force in March of 1999 to bring an immediate solution to the calamity unfolding within Kosovo at the time.[10] Lasting a total of 78 days, it served as a last resort after all other mechanisms, like diplomacy, had failed to halt hostilities. None of the aforementioned actions received prior approval from the UNSC or the General Assembly. In the summer preceding the operation, China and Russia vehemently opposed possible NATO intervention and attempted to veto official UN authorisation of the decision.[11] The event transformed the debate around foreign policy and built the policy dilemmas of today.
The March 1999 intervention poses a pressing concern. Communal strife cannot be ignored in the era of globalisation, where countries are interdependent for survival. Witnessing gross human rights abuse in another country incentivises another country to intervene out of a sense of moral obligation. At the same time, permitting military force without proper authorisation by the UNSC could lead to an erosion of the UN, as states’ relationships will worsen. Slowly, the debate became less about whether humanitarian intervention was permissible and more about whether intervention needed the approval of the UNSC.
UN Secretary at the time, Kofi Annan, was aware of the conflicting opinions. He first presented the issue to the UN General Assembly and persuaded states to develop specific criteria based on which humanitarian intervention can be evaluated if the UNSC does not provide authorisation.[12] To those against the Kosovo operation, he asked what they would have done in the 1994 Rwandan genocide if a coalition of states prepared for humanitarian intervention but this was not approved by the UNSC. To those in support of the intervention, he questioned if such force was justifiable after the system was created in light of World War II.
PATH GOING FORWARD
In this world, humanitarian intervention exists and will continue to exist. The law must accommodate the phenomenon through regulation, without which violation of sovereignty is bound to occur. The lack of clarity surrounding the legality of humanitarian intervention is worrying. Luckily, one of the unique aspects of international law is its ability to formulate a new law in case an older one is being violated, therefore setting an international custom.
Some proponents of humanitarian intervention argue that such measures should first be authorised by the UN Security Council, as the debate was following the crisis in Kosovo. The logic is simple: if humanitarian intervention is first authorised by the UNSC then it can be considered legal under the ambit of Section VII of the Charter.[13] Though this is understandable in theory, in practice, the UNSC has often failed in its purpose of maintaining collective security for the globe. Global organisations in general tend to stay inactive in times of duress except under exceptional circumstances where there is no other option remaining. Take the current case of Palestine where the death toll in Gaza has exponentially risen, yet the effectiveness of humanitarian aid is either barely present or non-existent.[14] Meaningful measures stay elusive or are implemented with reluctance among the member states.
Chapter VII of the Charter additionally lacks any explicit guidance on humanitarian intervention, leaving crucial questions unanswered as to how, when and why the intervention would take place. To acknowledge the UNSC as the governing authority around humanitarian intervention is a step in the right direction, but a comprehensive framework should also incorporate certain key elements. There should be an emphasis on “humanitarianism” as the dominant motive behind the intervention. Second, it should be a last resort. Third, there should be UN provisions for oversight and accountability during the intervention. The aim should be a balanced and principled approach to humanitarian intervention.
CONCLUSION
While there are limitations to legal instruments as a safeguard against improper use of humanitarian intervention, the establishment of a legal framework provides a baseline for accepted behaviour and procedures. Currently, there is a chaotic state of affairs and the introduction of an accepted standard within the legal framework is crucial. Instead of debating the permissibility of humanitarian intervention, scholarly discussions should focus on evaluating expected standards and criteria for behaviour in interventions. Intervention is a persistent reality and is here to stay in today’s world. Eliminating humanitarian intervention is not a possibility so a more prudent approach would include regulation under the law. By clearly defining an “expected yardstick” of what constitutes acceptable humanitarian intervention, there can be streamlined implementation of policies.
Author(s) Name: Eshal Zahur (National Law University, Odisha)
References:
[1] Alton Frye, Humanitarian Intervention: Crafting a Workable Doctrine: Three Options Presented as Memoranda to the President (Council on Foreign Relations 2000)
[2] Mary Kaldor, Human Security (John Wiley & Sons 2013) 16
[3] Malcolm N Shaw, International Law (Cambridge University Press 2021)
[4] UN Charter 1945
[5] Yasuaki Onuma, “Hugo Grotius,” Encyclopedia Britannica (1998) <https://www.britannica.com/biography/Hugo-Grotius> accessed November 11, 2023
[6] Taylor B Seybolt, Humanitarian Military Intervention: The Conditions for Success and Failure (Oxford University Press, USA 2007)
[7] Nicaragua v. United States (1986) ICJ 14
[8] Statute of the International Court of Justice 1946
[9] Brownlie I, International Law and the Use of Force by States (Oxford University Press on Demand 1963)
[10] NATO Library, “Operation Allied Force”: NATO in Kosovo, 10 Years Later (NATO 2009)
[11] de Jonge Oudraat C, “Humanitarian Intervention: The Lessons Learned” (2000) 99 Current History 419
[12] Nikolaos K Tsagourias, “Critical Theory of International Law and Humanitarian Intervention,” Jurisprudence of international law (Manchester University Press 2022) <http://dx.doi.org/10.7765/9781526170538.00010> accessed November 11, 2023
[13] Pogge T, “6 MORALIZING HUMANITARIAN INTERVENTION: WHY JURYING FAILS AND HOW LAW CAN WORK,” Humanitarian Intervention (New York University Press 2022) <http://dx.doi.org/10.18574/nyu/9780814758960.003.0011> accessed November 11, 2023
[14] Action for Humanity, “Aid into Gaza Is ‘Simply Not Enough’ – Action For Humanity – Occupied Palestinian Territory” (ReliefWeb, October 20, 2023) <https://reliefweb.int/report/occupied-palestinian-territory/aid-gaza-simply-not-enough-action-humanity> accessed November 11, 2023
