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The Legality of Humanitarian Intervention without UN Security Council Authorization

Authors:
Jana Dadova May 22, 2016
University of Southern Denmark
1
The Legality of Humanitarian Intervention without UN
Security Council Authorization
1. Introduction
The concept of humanitarian intervention poses significant challenges and rises a number
of questions which fuel an ongoing academic debate in regard to current international legal
framework. The debate concerns several issues, such as the legality and legitimacy of
humanitarian intervention under the UN Charter; existence of the right of humanitarian
intervention under customary international law; possible threshold and conditions for such
intervention; or, most recently; its relation to new concept of responsibility to protect (R2P)
1
.
Overall, it also brings attention to broader matters considering especially the role of the Security
Council (and its action, or, rather, inaction in cases of humanitarian crisis), or the status of
protection of human rights and its position under international law in regard to principles such
as those of sovereignty and non-intervention.
To focus on one concrete issue, this paper will deal specifically with the question of
the legality of humanitarian military intervention without UN Security Council (UNSC)
authorization of the use of force under Ch. VII of the UN Charter (UNCH), while
considering two main ways of how the right of humanitarian intervention could be established:
1) under UN Charter and its interpretation; 2) under customary international law.
2. Definition of Humanitarian Intervention
The SC practice has showed that when there is the political will and sufficient interest of
the major and regional powers the SC is, indeed, prepared to authorize a use of force in response
to humanitarian crisis, and in such cases, if the SC does so, there is no dispute over the legality
of respective intervention as it has generally recognized legal basis and as such will posses a
presumption of legality under relevant articles of UNCH.
2
1
Most significantly, R2P works rather as a political concept, a normative guide for States, and does not
address situations in which the SC is for some reason inactive (as in principle, R2P presupposes that
such situation should not occur on the first place).
2
T. D. Gill, “Humanitarian Intervention: Legality, Justice and Legitimacy”, in: T. Gazzini and N.
Tsagourias (eds.), The Use of Force in International Law, Ashgate, 2012, 548.
Jana Dadova May 22, 2016
University of Southern Denmark
2
However, when the SC is for some reason unable or unwilling to provide such
authorization, the discussion over the legality of military intervention takes place and arguably,
there is consequently the need to justify the use of force on the basis of separate doctrine of
“humanitarian intervention”.
3
Thus, as there is in fact no common definition of the humanitarian intervention, I list here
one I find the most appropriate for the purpose of this paper: humanitarian intervention is
military activity by one or more States irrespective of whether they are part of a military
alliance or regional organization aimed at putting an end to or protecting persons not of its
(their) nationality who are subjected to serious violations of fundamental human rights, in
particular the right to life, without the consent of the target State and without any form of
authorization by the UN Security Council.
4
3. A Right of Humanitarian Intervention?
3.1. The UN Charter
3.1.1. Relevant Rules
3.1.1.1. Prohibition of the Use of Force
Prohibition of the use of force under Art. 2(4)
5
of the UNCH is now considered to be a
vital rule governing relations among States and also the principle of jus cogens.
6
As such,
together with Art. 2(1) - acknowledging sovereign equality of states, and Art. 2(7) - anchoring
the principle of non-intervention, thus represents primary rule with respect to military
interventions undertaken for humanitarian reasons.
Art. 2(4) provides 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
There are only two exceptions to this prohibition under the UNCH: hereafter mentioned
UNSC’s power to authorize the use of force under Ch. VII, and the right to self-defence in
accordance with Art. 51.
3
Gill, supra note 2, 549.
4
Gill, supra note 2, 550.
5
For all hereafter mentioned provisions, see United Nations, Charter of the United Nations, 24 October
1945.
6
I.e. fundamental principle of international law accepted as a norm from which no derogation is
permitted.
Jana Dadova May 22, 2016
University of Southern Denmark
3
3.1.1.2. Threat to Peace and the Role of the SC
The UN Charter provides the SC with significant powers in the maintenance of
international peace and security, most crucially within the Ch. VII and its practice of
determination of whether a given situation constitutes a threat to or a breach of the peace, or
act of aggression in accordance with Art. 39, while it can decide what measures would be
taken, including the use of force under Art. 42. Thus, it has the power to authorize the use of
force in response to respective situation under the Ch. VII. Importantly, in the situations which
the SC marks as threatening the peace, the SC is not already bound by the principle of non-
intervention under Art. 2(7) and in principle, it can authorize a military intervention under
whichever grounds it finds in this regard sufficient, may it be also in response to humanitarian
crises or serious violations of human rights.
7
3.1.2. Interpretation of the UN Charter: Strict Vs. Extensive
Prevailing opinion stands that, under the above mentioned provisions, it is clear that
humanitarian intervention without SC authorization is considered as illegal under UNCH
regime per se. There are, however, several arguments to be found, aiming at more extensive
interpretation of the UNCH, especially regarding the provisions in Art.2(4):
A) “the territorial integrity or political independence of the state
One of the reasoning goes that the Art.2(4) only prohibits force directed against the
political independence and territorial integrity of another state. Thus, there is a claim that, as
long as it is properly conducted, humanitarian intervention does not seek territorial change, nor
to challenge the political independence of the respective state, and so, it is compatible with
Art.2(4) prohibition on the use of force.
8
There is, however, a great number of advocates of stricter approach, claiming that an
analysis of the relevant rules within their context in the UNHC, together with drafting history
of the UNHC supports rather clearly that these extensive interpretations has little plausible
foundation (see hereafter), and can be also easily abused. Moreover, the principle of non-
7
Gill, supra note 2, 548-9.
8
J. L. Holzgrefe, ‘The humanitarian intervention debate’, in: J. L. Holzgrefe and R. O. Keohane (eds.),
Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, Cambridge, 2003, 36; S. Zifcak,
‘The Responsibility to Protect’, in: United Nations Reform: Heading North or South?, London:
Routledge, 2009, 107.
Jana Dadova May 22, 2016
University of Southern Denmark
4
intervention remains solid, further acknowledged for example in the UN Declaration on
Friendly Relations of 1970.
B) or in any other manner inconsistent with the purposes of the United Nations”
Another view uses different interpretation of relevant rules within the full context of the
UNHC, when it suggests that if the objective of the intervention is consistent with the UNCH’s
fundamental purposes namely with the promotion of respect for and observance of human
rights under Art.1(3), the use of force is permitted, especially in the case when the UNSC fails
to realize the purposes and to act accordingly.
9
This, however, stands in conflict with alleged travaux préparatoires of the UNHC, while
the supposed intention was to ban states from using force against both the territorial integrity
and political independence of other states and in any other manner inconsistent with the
promotion of human rights.
10
Moreover, this is said to be further reinforced by interpretative
ICJ decisions, e.g. those in Corfu Channel and Nicaragua cases.
11
3.2. Customary International Law
To argue there exist a right of humanitarian intervention under the customary
international law (CIL), it would need to be demonstrated that its both elements of state practice
and opinio juris are satisfied.
Regarding the pre-Charter practice, it should be noted that there have occurred a large
number of cases in which States appeared to intervene on behalf of local populations in other
states, and some may conclude that there has been some consistency since the latter part of the
19th century.
12
Pre-Charter practice is thus said to form the historical basis for the right of
humanitarian intervention as CIL, only further developed in UNCH era through the practice of
a number of interventions for allegedly humanitarian reasons.
13
9
Zifcak, supra note 8, 108; Holzgrefe, supra note 8, 39.
10
Holzgrefe, supra note 8, 40.
11
Ch. Grey, International Law and the Use of Force, 3rd ed., Oxford, 2008, 32.
12
J-P. L. Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention: Its
Current Validity Under the U.N. Charter”, in: T. Gazzini and N. Tsagourias (eds.), The Use of Force in
International Law, Ashgate, 2012. E.g. interventions in Greece (1827-30); Syria (1860); Bosnia and
Hercegovina (1877-78); Cuba (1898); or Macedonia (1903-08, 1912-13).
13
From the interventions in the period since 1945 not mentioned in the text e.g. Bangladesh (1971);
Uganda (1978-79); Cambodia (1978-79); or Central African Republic (1979). See Gill, supra note 2,
552-553.
Jana Dadova May 22, 2016
University of Southern Denmark
5
However, opposing views argue that, firstly, it is dubious that the hand of cases is enough
to establish a right of humanitarian intervention as CIL, and also, such a right was not invoked
in the face of some greatest humanitarian catastrophes, e.g. those in Armenia (1914-19), and
Ukraine (1930s).
14
Moreover, in the pre-Charter practice, states were rather reluctant to invoke the doctrine
in respective situations, and similar tendency then may be seen in the Charter era, when states
have based their right to intervene more often rather upon the claims of self-defense than upon
a right of humanitarian intervention.
15
Requirement of opinio juris thus in this case seems difficult to fill up, even more when
taking into account the reactions of other states, which from the most part condemned the
respective interventions. For this point, often mentioned intervention in Kosovo (1999), which
according to some marked the rise of humanitarian intervention as a norm in international law,
16
cannot be seen as a clear precedent.
17
Indeed, there might have been seen a shift in the attitude of the international community,
in its lack of reaction and explicit condemnation of some interventions, such as in case of
Kosovo.
18
The opinion, however, prevails there were specific conditions and context which
applied in those cases, and we cannot claim any form of common acceptance of such a right.
Rather, this might be described as a form of tolerance or condonement, provided certain
conditions are met.
19
In other words, these unilateral interventions could be considered as
exceptional, and shall remain so.
14
Holzgrefe, supra note 8, 45-47. Similar argument of selectivity can be used also in recent practice,
e.g. in cases of Rwanda (1994), Sudan (2005) or in Syria (2013).
15
Gill, supra note 2, 553-55. Probably the closest to invoking humanitarian intervention as a distinct
legal basis for military action has came the UK which based the justification on similar grounds of
overwhelming humanitarian necessity, although with listing certain criteria that need to apply; and
Belgium, which argued that action in Kosovo was a lawful armed humanitarian intervention to protect
fundamental jus cogens values, such as the right to life, and was compatible with Art.2(4). See J.
Stromseth, “Rethinking humanitarian intervention: the case for incremental change”, in: J. L. Holzgrefe
and R. O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas,
Cambridge, 2003, 236-7.
16
Zifcak, supra note 8, 109. Arguably, as another precedent may be seen the 1991 creation of a no-fly
zone in Nothern Iraq, explicitly justified on the basis of the right of unilateral humanitarian intervention
but only by one of the three intervening states (UK). See M. Beyers and S. Chesterman, “Changing
the rules about rules? Unilateral humanitarian intervention and the future of international law”, in: J. L.
Holzgrefe and R. O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political
Dilemmas, Cambridge, 2003, 184.
17
Indeed, Independent International Commission on Kosovo in 2000 later stated that although perhaps
legitimate, the intervention was illegal.
18
Example may be Russia’s proposal of a resolution condemning NATO’s actions was defeated in SC
by a majority of three to twelve, and later adopted Res. 1244, approving the terms of cease-fire.
19
Gill, supra note 2, 555.
Jana Dadova May 22, 2016
University of Southern Denmark
6
Overall, there is thus little support under both requirements, the state practice and opinio
juris, for the existence of a customary right of humanitarian intervention outside the context of
the UN system, nor there are sufficient basis for claiming the right have achieved the status of
jus cogens, which could possibly override conflicting treaty provisions.
20
4. Conclusion
From above implies that humanitarian intervention carried without UNSC authorization
cannot be legally justified on the basis of the UNCH, nor customary international law.
Although there is still an ongoing debate among those who defend an existence of either
customary right of humanitarian intervention, or the extensive interpretation of the UNCH and
propose humanitarian intervention as the exception to current regime of the prohibition of the
use of force, there is little doubt that none of these can be sufficient to establish such a right,
and there is, indeed, no wide acceptation of it. Rather, the debate moves from the alleged
legality of humanitarian intervention as it is almost certain illegal in principle - to its
legitimacy, and the conditions under which it may be considered as morally and politically
acceptable, and under which the consequences of its illegality could be mitigated.
21
20
Beyres and Chesterman, supra note 16, 183.
21
See e.g. H. H. Koh, ‘Syria and the law of humanitarian intervention’, Just Security, 2013, available
at: https://www.justsecurity.org/1506/koh-syria-part2
Jana Dadova May 22, 2016
University of Southern Denmark
7
Bibliography
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intervention and the future of international law”, in: J. L. Holzgrefe and R. O. Keohane (eds.),
Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, Cambridge, 2003, 177-
203
J-P. L. Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention:
Its Current Validity Under the U.N. Charter”, in: T. Gazzini and N. Tsagourias (eds.), The Use
of Force in International Law, Ashgate, 2012, 477-544
T. D. Gill, “Humanitarian Intervention: Legality, Justice and Legitimacy”, in: T. Gazzini and
N. Tsagourias (eds.), The Use of Force in International Law, Ashgate, 2012, 545-571
Ch. Grey, International Law and the Use of Force, 3rd ed., Oxford, 2008
J. L. Holzgrefe, ‘The humanitarian intervention debate’, in: J. L. Holzgrefe and R. O. Keohane
(eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, Cambridge, 2003,
15-52
H. H. Koh, ‘Syria and the law of humanitarian intervention (Part II: International law and the
way forward)’, Just Security, 2013, available at: https://www.justsecurity.org/1506/koh-syria-
part2
J. Stromseth, “Rethinking humanitarian intervention: the case for incremental change”, in: J. L.
Holzgrefe and R. O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political
Dilemmas, Cambridge, 2003, 232-272
United Nations, Charter of the United Nations, 24 October 1945
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969
S. Zifcak, ‘The Responsibility to Protect’, in: United Nations Reform: Heading North or
South?, London: Routledge, 2009, 105-127
ResearchGate has not been able to resolve any citations for this publication.
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Cambridge Core - Humanitarian Law - The Use of Force and International Law - by Christian Henderson
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The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter
  • J-P L Fonteyne
J-P. L. Fonteyne, "The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter", in: T. Gazzini and N. Tsagourias (eds.), The Use of Force in International Law, Ashgate, 2012, 477-544
Syria and the law of humanitarian intervention', Just Security, 2013, available at: https
  • See E G H H Koh
See e.g. H. H. Koh, 'Syria and the law of humanitarian intervention', Just Security, 2013, available at: https://www.justsecurity.org/1506/koh-syria-part2
Vienna Convention on the Law of Treaties
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969