The State and Human Security in the Democratic Republic of Congo: Abstract.

This is the abstract to the researches that were conducted by Kudakwashe Kanhutu of Mashonaland Central (Zimbabwe), in fulfilment of the requirements of his Master of Science in Defence, Development & Diplomacy degree at Durham University in England. He will publish his full researches in the hope that he will instruct his fellow countrymen that when brother fights brother, no one wins but the outsider.

Zimbabwe: Pax Africana! The cover of my thesis is a tribute to my brother who fought in the DRC War.

Dedication 

To the people of Zimbabwe, may our peaceful polity long continue! 

Kudakwashe Kanhutu, Hatfield College, Durham University, School of Government & International Affairs, September 2014. 

Abstract 

The recurring civil wars and deaths of civilians from preventable causes in the DRC forms the puzzle for this paper: why has the state remained so weak over such a long period? This paper has cast the inability by the state's institutions to provide human security as state weakness. Human security is then used as a lens to interrogate where the international community and the local elites, through commission or omission, have been culpable for state weakness in the DRC. Human security is argued to be achievable under conditions where the state is legitimate and has a monopoly on the use of force - a strong state. This point necessitates a comparison between conditions faced by the consolidated European states in their creation and those which now confront the post-colonial states. The reasons for state weakness here are then argued to be on two levels: the international level and the state level. At the international level, the continued extractive relationship with the global North and the actions of the DRC's neighbours are inimical to the state's ability to maintain a monopoly on the use of force. At the state level, the most significant cause is the self-defeating short term strategies adopted by post-colonial elites to consolidate their power at independence. This paper argues that the ideal Weberian state, with its impersonal institutions, is the best possible way of achieving human security in the DRC and other post-colonial states. Human security provision would then be the remedy to legitimacy crises that arise due to the colonial legacy.

Professor David Held, who helped me formulate, even though I say so myself, an elegant thesis.

The United Nations Charter Prohibition On The Use of Force And Its Relationship To Customary International Law.

"Abstinence from all injustice to other first-rate powers is a greater tower of strength than anything that can be gained by the sacrifice of permanent tranquillity for an apparent temporary advantage" - Thucydides, The History of the Peloponnesian War, 5th Century B.C.

These Journals are delivered to this author's home for the single purpose of situational awareness. If something changes in the system, I must not be the last to know.

by Kudakwashe Kanhutu

To what extent, if at all, has there emerged a customary legal rule permitting pre-emptive self-defence (as an exception to the prohibition on the use of force in international law)?

Introduction:

The idea that a customary legal rule permitting an action in international relations has emerged, requires us to take a closer look at how customary international law is formed. There are controversies as to how customary law forms, but these controversies do not overburden the subject of this paper as the law on the use of force is well developed. The major issue, with regards this branch of public international law, seems to be differences in the interpretation of what the letter of the law says. 

As the prohibition on the use of force is codified in the UN Charter’s Article 2 (4), the relationship between treaty law and custom will also yield some useful insights as to whether this Article, in conjunction with Article 51 of the same Charter, have altered or reinforced a pre-existing customary rule of pre-emptive self-defence. The Caroline case of 1837 is cited by most authors as definitive of what pre-emptive self-defence implies (Brownlie, 2008: 734; Sands, 2012: 352) and others actually use it to argue that the right to pre-emptive self-defence has thus always existed as customary international law (Van Den Hole, 2003: 95; Arend, 2003: 89; Franck, 2002: 97).

This paper takes the view that the Caroline case is a specious argument when used as an example of the existence of a customary rule permitting pre-emptive self-defence. Pre-emptive self-defence as articulated in the Bush Doctrine has no legal basis, while anticipatory self-defence which adheres to the imminency, necessity and proportionality criteria of the Caroline case may be defensible in law.

The Prohibition on the Use of Force:

The most important prohibition on the use of force is Article 2 (4) of the UN Charter, which was affirmed to have attained jus cogens status by the International Court of Justice (ICJ) in the Nicaragua case (Gray, 2010: 617). Article 2 (4) itself is not widely contested with regards self-defence, it reads 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” (Gray, 2010: 617). Instead, it is the exception to this prohibition which raises disagreements among those who feel there is a longstanding legal rule permitting pre-emption which was not modified by the coming into force of the UN Charter.

Article 51 of the UN Charter allows the right to use force in self-defence as an exception to Article 2 (4). It reads;

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures to necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and the responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (Gray, 2010: 625).

The debate around whether pre-emptive self-defence is permitted after the Charter came into force revolves around the question whether Article 51 has reinforced or altered the customary right to self-defence. The protagonists in this debate look to the language of Article 51 and, depending on their interpretation, either argue that the right exists unaltered or it has been replaced by this treaty provision. We will turn to this debate after first having established how customary law is formed and its relationship to treaty law.

Customary International Law:
 

The definition of customary international law can be found in Article 38 (b) of the International Court of Justice Statute which refers to it as “international custom, as evidence of a general practice accepted as law” (International Court of Justice). Thus, customary law refers to how “the way things have always been done become the way things must be done” (Thirlway, 2010: 101). This only becomes law if it is seen to be done out of a sense of legal obligation rather than as a courtesy towards other bearers of rights (Thirlway, 2010: 102; Malanczuk, 1997: 39). So, for the formation of customary law, there is a requirement of the existence of these two elements: an established, widespread and consistent state practice accompanied by, opinio juris sive necessitatis – the belief that to do so is required by law (Thirlway, 2010: 102). Evidence of widespread and consistent practice can be found in actual state practice and statements of legal principles, while opinio juris can be found in such things as United Nations General Assembly Resolutions, compatible treaties and, statements made by state representatives (Dixon, 2007).

The first controversy in the formation of customary law arises with regards a paradox noted by Thirlway (2010: 102) that; “how can a practice ever develop into a customary rule if States have to believe the rule already exists before their acts of practice can be significant for the creation of the rule?” There are two ways out of this paradox which are significant for the subject of this paper. The first way articulates the likely origins of opinio juris, as well as, more importantly: the role of other States’ acquiescence or objection in the creation of customary law. The second way out of the paradox is useful for establishing what the rule is in cases such as that of pre-emptive self-defence where there is bound to be insufficient practice.

The first way out of this controversy is as advanced by Cassese (2005: 157) who says;

usually a practice evolves among certain states under the impulse of economic, political or military demands. At this stage the practice may thus be regarded as being imposed by social or economic or political needs (opinio necessitatis). If it does not encounter strong and consistent opposition from other states but is increasingly accepted, or acquiesced in, a customary rule gradually crystallizes.

For our subject at hand, a group of states may attempt to use force pre-emptively, compelled by military or political needs, if other states do not object persistently in various international fora available to them, or instead if they actually endorse this activity; a customary legal rule permitting pre-emptive self-defence will then emerge.

The second way out of the above stated paradox is whereby opinio juris is made the essential element and State practice merely evidence, this then would be useful in establishing what customary law is in instances where there is insufficient practice anyway (Thirlway, 2010: 103). Case in point: pre-emptive self-defence would not satisfy the test of widespread and consistent practice anyway because of the nature of the activity. So, by looking at General Assembly Resolutions on the matter, we would then be able to establish whether, although there is no widespread practice, if; opinio juris supports the existence of the rule. It is from this formula that we can argue that anticipatory self-defence (as formulated in the Caroline case and not the Bush Doctrine) is a crystallized customary rule, despite limited practice, because its affirmation in international multilateral fora such as the UN High-Level Panel is evidence of opinio juris. The same formula thus rejects the Bush Doctrine of pre-emptive self-defence as many states objected to it at the same UN High-Level Panel summit. Also, the 120 member countries of the Non Aligned Movement invariably issue statements objecting to this doctrine (Ruys, 2011: 342), so it could not possibly have emerged as a customary legal rule if there is such widespread and persistent objection to it.

The other significant controversy that attaches itself to the discussion of the formation of customary international law is; “regional or particular custom” whereby customary law can emerge because it is particular to either two states or a regional block such as in the early stages of the law concerning space (Klabbers, 2013: 28). These nuances do not apply to the subject of the use of force, because every state in the world is concerned by this branch of law. 

The Relationship between Custom and Treaty Law:

Thirlway, (2010: 114) does not see any reference to a hierarchy of sources between custom and treaty in the text of Article 38 of the International Court of Justice Statute. The only possibility he sees of a hierarchy is in this formulation: lex specialis derogat generali: the special rule overrides the general rule (Thirlway, 2010: 113). In that regard, treaty law can be a higher source as “it will normally be the case that a treaty is lex specialis, and as such prevails over any inconsistent rules of customary law, or at least as existed at the time of the conclusion of the treaty” (Thirlway, 2010: 114; Dixon, 2007: 38). An example would be the modifications made to any pre-existing customs that were contrary to Article 2 (4) when the UN Charter came into force (Ruys, 2011: 18). Conversely, should a customary rule accepted as jus cogens emerge, then “any existing treaty which is in conflict with that norm becomes void and terminates” (Thirlway, 2010: 114; Dixon, 2007: 39). What this tells us about the relationship between the two sources is that, in theory, they are capable of replacing or modifying each other. With this in mind we can now turn to the debate about whether pre-emptive self-defence as customary law pre-dates the UN Charter, and if so, has it remained unaltered? This debate as noted above is, in essence, rooted in the different interpretations of what the text of Article 51 of the UN Charter implies.

Anticipatory or Pre-emptive Self-Defence in International Law:

Having looked at how customary law is formed and what that implies for this paper, it is important to now clarify the distinction this paper has made between anticipatory and pre-emptive self-defence. Anticipatory self-defence and pre-emptive self-defence are different in this author’s eyes, even though the existing literature tends to use the terms interchangeably. Anticipatory self-defence, for this essay, is seen to be as was articulated by the United States Secretary of State Daniel Webster in his exchange of letters with his British counterpart – Lord Ashburton – over the Caroline incident (Franck, 2002: 97; Doyle, 2008: 12).  

In Webster’s formulation, justifiable anticipatory self-defence arises only when the defender can show the existence of “…necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Brownlie, 2008: 98). This formula then means anticipatory self-defence is permissible when the conditions of necessity, imminency, and proportionality are met. The majority of states are not opposed to use of force that meets this criteria as can be the discerned from Bowen’s logic that “no state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and jeopardise its very existence” (Franck, 2002: 98). As was shown above in the section discussing how customary international law forms – despite insufficient practice – states’ opinio juris can be argued to support the existence of this custom. Evidence of such opinio juris can be found in the UN High-Level Panel on Threats Challenges and Change which says that "a threatened State… can take military action as long as the threat is imminent, no other means would deflect it and the action is proportionate" (UK Parliament, 2013). What on the other hand is indefensible as customary law; is the so-called Bush Doctrine.

Pre-emptive self-defence, properly conceived, refers to the doctrine articulated post 9/11 by President George W. Bush in his 2002 National Security Strategy (NSS). The aspect that makes it necessary to distinguish this doctrine from the anticipatory self-defence as advanced by Webster in his Caroline incident communications with the British, is that the Bush Doctrine seeks to ignore all the criteria set by Webster and instead sets a new subjective standard. The 2002 NSS document pronounces that;

The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively (The White House, 2002: 15).

This pronouncement, insofar as it seeks to relax the rigour of imminency and necessity, finds no support among even the United States’ closest allies and, again, as was shown above in the section dealing with how customary law forms; objection by a majority of states to a practice or statement of intent will stop a customary legal rule from crystallizing.

To the above Bush Doctrine, the UK Parliament (2013) rejected it and said “it is difficult to find any legal justification for pre-emptive self-defence in international law.” Furthermore, international lawyers and scholars such as Brownlie (2010: 734; Sands, 2012: 352) also say that this doctrine lacks a legal basis. Brownlie (2010: 734) also, further notes that Operation Iraqi Freedom, which came in March 2003 after the doctrine had already been pronounced, was not justified on the basis of this doctrine but, instead on a “revived” Security Council Resolution (SCR) 678. This does not bode well for the existence of a customary rule if the chief proponents of it did not rely on it in a situation which arguably fitted their set criteria. So, anticipatory self-defence as described above finds a basis in law but the Bush Doctrine of pre-emption does not.
 

With regards to the question whether pre-emption is permitted under customary law today, we still have to look at the arguments advanced by the scholars who defend that position. Their arguments revolve around the proposition that the current technological advances in weaponry and, an expansive interpretation of Article 51 supports the legality of pre-emptive self-defence.

Article 51 and Pre-emptive Self-Defence:

The claim and counter claims as to what Article 51 means is between “restrictionists” and “counter-restrictions.” A “restrictionist” reading of Article 51 would require states to only act in self-defence after an armed attack has commenced or is so imminent that it satisfies the conditions of imminency, necessity and proportionality as set out in the Caroline incident (Doyle, 2008:). “Counter-restrictionists,” on the other hand, argue that there has always existed a legal rule permitting anticipatory self-defence and that this was not modified by Article 51 as the text refers to the “inherent” right to self-defence (Arend, 2003: 92). They further argue that the term “armed attack” was just one circumstance that invokes the right to self-defence among others, and to this end they cite Judge Stephen Schwebel’s dissenting opinion in the Nicaragua case that; “Article 51 does not say, if and only if an armed attack occurs” (Arend, 2003: 93). They then factor in technological advances in weapons delivery systems and increased destructiveness of modern weapons so as to allow the right of pre-emptive self-defence more or less as articulated in the Bush Doctrine (Doyle, 2008: 18; Arend, 2003: 97).

The restrictionist view seems to be the one that is supported by international law as it currently stands. The condemnation by both United Nations General Assembly and the Security Council of the Israeli pre-emptive attack on the Iraqi Nuclear Reactor at Osirak in 1981 is evidence that the expansive interpretation does not find support in international opinio juris (Gray, 2010: 628). With regards the concern that the current weapons of mass destruction and the changed environment since 9/11 require a different approach than the restrictionist view permits, this concern was dismissed too. Gray (2010: 631) observes that; “a UN High-level Panel of Experts was set up to respond to the new challenges to the collective security system after 9/11; in its Report of December 2004 it accepted the controversial right of anticipatory self-defence, but firmly rejected the doctrine of pre-emptive self-defence. It said that there is no right to self-defence if the attack is not imminent.” Thus, the counter-restrictionists’ arguments are not supported by existing law.

Conclusion:

This paper has attempted to answer the question whether a customary legal rule permitting pre-emptive self-defence has emerged as an exception to the prohibition to the use of force in international law. Proponents of the view that it has, claim that it has always existed as evinced by the Caroline case and, was not modified or replaced when the UN Charter came into force because Article 51 refers to the “inherent right” to self-defence. Further, they say it is urgent that this rule be recognized because the new threats from Weapons of Mass Destruction and the myriad threats from new actors demand that Article 51 be expansively interpreted. In this essay, such a position has been said to be disingenuous since the Caroline case which they cite actually set the strict criteria of imminency, necessity and proportionality. It also does not reflect customary law because there is neither widespread and consistent state practice nor opinio juris. Israel’s pre-emptive attack on Iraq in 1981 was rejected by the majority of states. The Bush Doctrine was also rejected by the UN and even the United States and its allies did not invoke this doctrine of pre-emptive self-defence when they invaded Iraq in 2003. Because customary law requires widespread state practice and acceptance, any multilateral forum that objects to this doctrine means it will not crystallize. This has been the case with pre-emptive self-defence. Those who are arguing that this rule exists are not arguing on the basis of law as it exists (lex lata) but perhaps with a view to either what the law ought to say (lex ferenda) or on the basis of military or political exigencies (opinio necessitatis).

Continuing with our theme of situational awareness; technology ought to support a sound doctrine.

Video Essay:

My paper above has pandered to the institution of law. The video below, on the other hand, addresses the same subject of pre-emptive strikes in accordance with military and political necessities but without any reference to law. 

Bibliography:

Arend, Anthony (2003), ‘International Law and Pre-emptive Use of Military Force.’ The Washington Quarterly,26: 89 – 103.

Brownlie, Ian (2008), Principles of Public International Law. Oxford: Oxford University Press.

Cassese, Antonio (2005), International Law. Oxford: Oxford University Press.

Dixon, Martin (2007), Textbook on International Law. Oxford; Oxford University Press.

Doyle, Michael (2008), Striking First: Pre-emption and Prevention in International Law. New Jersey: Princeton University Press.

Franck, Thomas (2002), Recourse to Force: State Action Against Threats and Armed Attacks. Cambridge: Cambridge University Press.

Gray, Christine (2010), ‘The Use of Force and the International Legal Order,’ in Malcolm Evans (ed.), International Law. Oxford: Oxford University Press, 615 – 647. 

International Court of Justice, Statute of the Court, http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0&#CHAPTER_II Accessed 20 March 2014.

Klabbers, Jan (2013), International Law. Cambridge: Cambridge University Press.

Malanczuk, Peter (1997), Akehurst’s Modern Introduction to International Law. London: Routledge.

Ruys, Tom (2011), 'Armed Attack' and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge: Cambridge University Press.

Sands, Phillippe (2012), Operationalizing The UN Charter Rules on the Use of Force,’ in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law. Oxford: Oxford University Press, 343 – 348.

The White House, (September 2002) The National Security Strategy of the United States of America, http://www.state.gov/documents/organization/63562.pdf Accessed 20 March 2014.

Thirlway, Hugh (2010), ‘The Sources of International Law,’ in Malcolm Evans (ed.), International Law. Oxford: Oxford University Press, 95 – 121. 

UK Parliament, (November 2013), Intervention: When, How and Why? http://www.publications.parliament.uk/pa/cm201314/cmselect/cmdfence/writev/intervention/int10.htm Accessed 20 March 2014.

Van Den Hole, Leo (2003), ‘Anticipatory Self-Defence Under International Law.’ American University International Law Review, 19: 69 – 106.

What International Law Says On Humanitarian Intervention.

The only value we can extract from studying international law where the use of force is concerned is that; when specious arguments, or utterly false premises are being used to justify wars of aggression, we will know them to be false. Other than that, the only guarantor of a nation state's independence is being militarily strong itself.

by Kudakwashe Kanhutu

What value can we extract from understanding the Laws of Armed Conflict?

Critically evaluate the claim that there is now a “norm” of humanitarian intervention in international law. 

The idea of a humanitarian intervention in international law raises controversy when attempted without a United Nations Security Council (UNSC) Resolution (Krisch, 2002: 331), because then, it strikes at the heart of the sovereignty principle that ensures order in the international system. The definition of humanitarian intervention, as it will be discussed in this paper, is as advanced by Holzgrefe (2003: 18); “…use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied.” The issue at discussion then, is whether states have this right, and if so, where is it enshrined? 

The most relevant norm with which to measure whether humanitarian intervention is recognised in international law is Article 2 (4) of the United Nations Charter, which prohibits the use of force in international relations, except in self-defence as articulated by Article 51 of the same document. Those who argue against unilateral humanitarian intervention, site these Articles as the point at which the matter should rest but, in contrast, those who argue for unilateral humanitarian intervention say that treaties are not the only sources of international law and offer other sources instead. 

This paper will try to evaluate whether the norm of humanitarian intervention is now recognised by public international law. First I will discuss the philosophical and theoretical approaches underpinning the debate, and, what the debate involves. Having established these, attention will turn to the sources of international law to see whether the norm is enshrined in any of them. This paper’s position is that the norm of unilateral humanitarian intervention does not exist in international law and, further, that derogations from it do not constitute customary international law. It will also be argued that the Responsibility to Protect (R2P), if it was not for Libya, would have been the closest the international community has come to successfully reconciling the divergent views on humanitarian intervention. The examples of Zimbabwe, Kosovo, Libya and Syria will be used to illustrate what the debate means in practice. 

Theoretical and Philosophical Approaches Underpinning the Debate: 

In discussing questions of justice and order in the international system, the opposing starting points can be found in naturalist and consensualist interpretations of what this entails. Naturalist theories propose that morally binding international norms naturally exist and can be discovered through reason; while the contrasting consensualist view is that any given international norm can only have force, if – explicitly or tacitly – consented to by the legal personalities (Holzgrefe, 2003: 19) (Amstutz, 2013). The natural law approach further says that because of their common humanity, human beings have the moral duty to protect human rights everywhere, to this; the corollary is that humanitarian intervention is permissible in some instances (Holzgrefe, 2003: 25) (Amstutz, 2013). 

The consensualist approach looks to treaties, customary law, and state declarations as to which norms can bind states (Amstutz, 2013). For the consensualist approach then, the place to look in order to find out whether humanitarian intervention is permissible; is in the sources of international law as articulated by Article 38 of the International Court of Justice Statute. This, however, does not resolve the debate once and for all, as there are still competing claims as to how to interpret even the text of the treaties. As will be shown below in the section discussing treaty and customary obligations, there is a further sub-division to the debate whereby, for example, a reading of Article 2 (4) of the UN Charter can be used to support opposing claims as to whether humanitarian intervention is permissible. First, we will establish what is at stake in the debate and why it has remained central in humanity’s deliberations. 

The Debate That Refuses To Go Away: 

In A Few Words on Non-Intervention, Mill (1859: 4) argues that wars that are not waged in self-defence are criminal, but avers that: “there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are.” Hugo Grotius, in an earlier age, grappled with the same question. The question then and now is; when is it just for nations to go to war for reasons other than self-defence? There is a consensus among scholars that the question of humanitarian intervention evinces the tension between the principle of non-intervention in the domestic affairs of sovereign states and that of universal protection of human rights (Wheeler N, 2000: 11; Cassese, 1999: 24; Krisch, 2002: 329; Tams, 2012: 360). This tension is because wars of aggression are deleterious to international order, while grave human rights violations have the same effect for humanity.

Hilpold (2012: 51) argues that without limitations on the use of force, civilization would cease to exist. Armed invasions, which were a feature of the times of empires, resulted in two catastrophic world wars (Graham, 1997: 93). The international community’s response to this was to make it unlawful for states to invade other countries as enshrined in Article 2 (4) of the UN Charter, and supplemented in Article 15 of the Charter of the Organization of American States; the African Union Charter; and the United Nations Declaration on Principles of International Law (Graham, 1997: 94). The principle of non-intervention is in this case seen as conducive to international order. The worst case scenario for the international community, if the use of force is not proscribed in this manner, is a Third World War.  

The problem that arises due to this respect for sovereignty is that it would leave outsiders unable to act in instances when the state turns against its own citizens, as happened in the Holocaust (Wheeler, 2000: 1). It is on the grounds of the possibility of states grossly violating citizens’ human rights with impunity that proponents of humanitarian intervention object to the non-intervention principle. Contiguous with the natural law claim that universal human rights exist and should be protected, Hugo Grotius thought that “the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins” (Hilpold, 2012: 54). According to this view then, where a state is committing gross human rights violations, it will have forfeited this right to sovereign equality. This view is objected to by ‘pluralists’ who, justifiably, feel that permitting unilateral humanitarian intervention on that count is to “accept that it is always going to be based on the cultural predilections of those with the power to carry it out” (Wheeler, 2000: 29).  

The case of Zimbabwe goes some way in showing the possibility that if the right to unilateral interventions were to be enshrined in law, lower case issues would be misrepresented as cases of outrage upon humanity. Tony Blair (2010: 229) writes that: 

“Should this regime remain in power? Should these people continue to suffer? .... People used to say to me: if you got rid of the gangsters in Sierra Leone, Milosevic, the Taliban and Saddam, why can’t you get rid of Mugabe? The answer is I would have loved to; but it wasn’t practical (since in his case, and for reasons I never quite understood, the surrounding African nations maintained a lingering support for him and would have opposed any action strenuously).”

  

Thabo Mbeki (2013), who mediated a peaceful resolution to the Zimbabwe crisis corroborates this when he claims that Tony Blair was pressuring neighbouring countries and planning for a unilateral humanitarian intervention.  Considering that this intervention did not come and the Zimbabwe crisis ended with peaceful elections on 31 July 2013, it is worth considering whether interventions do not actually leave the people on whose behalf they are putatively being made, worse off. Amnesty International (2009: 6) records the number of violence related deaths at the height of the crisis in 2008 as 180. While the reasons claimed for the would-be intervention in Zimbabwe and the actual intervention in Iraq are different; post invasion Iraq chaos and civilian deaths are a comparable point of caution for the would-be intervener. 

The above Zimbabwe example points to two possibilities, either to a genuine misconstruing of the situation since observers cannot really tell outcomes of crises in advance, or, the masking of national interest by the intervener as protection of human rights. Indeed, there is a genuine concern that allowing unilateral humanitarian interventions will lead to its abuse by self-interested states (Goodman, 2006: 107; Wheeler, 2000: 29). 

We have thus far discussed the debate as if it is primarily about the tensions between human rights protection and the non-intervention into the sovereign affairs of states. Krisch (2002: 331), however, questions whether this dichotomy captures the true picture since states are not opposed to humanitarian interventions if they are authorised by a UNSC Resolution. But before we show that states are not opposed to UNSC sanctioned interventions, we turn to what the letter of the law – lex lata – says on the right to intervene in domestic jurisdictions. 

Humanitarian Intervention in International Law:

The discussion so far had avoided a look at what public international law says on the matter. The attempt thus far was to ground the debate in its normative context and, as well, to show how irresolvable the debate can be if left to the philosophical inclinations of the individual interlocutors. Fortunately there was a watershed moment in international law: this was 1945 and the entry into force of the United Nations Charter. The negotiations for the Charter represent a distillation of the competing claims highlighted in the preceding parts of this paper. The Charter set down the rules and procedures necessary for international order, and as it is a treaty, it is binding on all signatories. Although Tams (2012: 368) suggests that “to assess the legality of humanitarian intervention, one cannot draw support from pre-Charter practice, as the Charter ushered in a new era,” customary law still has a bearing on public international law. 

So, turning to the sources of international law, Article 38 of the International Court of Justice Statute lists the sources as treaties and conventions; international customs; general principles of law; and subsidiary sources of judicial and legal teachings (Thirlway, 2010: 95). Treaties and international custom will suffice for the enquiry as to whether the norm of humanitarian intervention now exists. For Cassese (1999: 25) the letter of the law is unequivocal: “under the UN Charter system as complemented by the international standards which have emerged in the last 50 years, respect for human rights and self-determination of peoples, however important and crucial it may be, is never allowed to put peace in jeopardy.”  

Treaty and Customary Obligations: 

The norm that underlines peace’s primacy for the international community is Article 2 (4) of the UN Charter which states that; 

"All States shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any other manner inconsistent with the purpose of the United Nations" (Zifcak, 2010: 505). 

This is further reinforced by Article 2 (7): “nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state” (Zifcak, 2010: 505). As has been noted throughout the discussion thus far, the exception to the injunction on the use of force can be found in Article 51 of the Charter which allows it in cases of self-defence. Under these terms then, the Charter’s aim is to prohibit unilateral use of force and centralize its control by the UNSC acting under Chapter VII powers (Gray, 2010: 616). Under Chapter VII, Articles 39 – 42, the Security Council can still authorise use of force if it determines that an issue of domestic jurisdiction poses a threat to international peace and security (Zifcak, 2010: 505).  

From the foregoing, most scholars agree that a good faith reading of the UN Charter yields that unilateral humanitarian interventions are illegal (Tams, 2012: 359; Zifcak, 2010: 505; Cassese, 1999: 23; Gray, 2010: 617; Goodman, 2006: 111). This concordance proceeds from reading the UN Charter in accordance with the stipulation of Article 31 of the Vienna Convention on the Law of Treaties (VCLT) that, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Evans, 2011: 133).

However, those who argue for a right to unilateral humanitarian interventions can also site Article 31 of the VCLT to claim that since the preamble to the UN Charter and Article 55 emphasize the protection of human rights, their interpretation too is valid. Their interpretation is that the protection of human rights is not inconsistent with the purposes of the UN Charter, so use of force towards that end if it does not affect the territorial integrity and political independence of the target State, should be permissible (Gray, 2010: 619; Holzgrefe, 2003: 37). This interpretation is rejected as specious by Zifcak (2010: 506) for the reason that the terms such as ‘territorial integrity,’ ‘political independence,’ and ‘inconsistent with the purposes’ in Article 2 (4), were meant “as supplements to, not as detractions from, the general prohibitions on the use of force.” Still, this argument is said by Holzgrefe (2003: 38) to evince the debate between ‘classicists,’ who see treaties in terms of original intention, and ‘legal realism’ which avers that laws should not be allowed to become anachronistic on the basis of strictly adhering to original intent. 

The ‘legal realism’ view finds some traction in the argument that global agreements such as the Genocide Convention; International Covenant on Civil and Political Rights, and other related regional instruments have now established protection of human rights as a matter of international concern (Greenwood C, 2002: 154). If this view were correct, then a test case should have found global acceptance. The Kosovo Intervention by NATO in 1999 is a clear case of a unilateral intervention as it lacked UNSC authorisation. It found little express support from the international community and, France and Germany (members of NATO) even argued that they did not regard the intervention as a precedent for future humanitarian interventions (Gray, 2010: 622). The G77, a group of 132 developing states, condemned the so-called right of humanitarian intervention in Paragraph 69 of their Ministerial Declaration of 24 September 1999 in response to the Kosovo intervention (Doyle, 2012). This consistent rejection of the humanitarian intervention norm by the majority of states also damages any case that can be made that the doctrine is now a part of customary international law. 

Customary law is cogently said to mean “the way things have been done becomes the way things must be done” (Thirlway, 2010: 101). To become law, this has to ensure from two elements: widespread and consistent practice by states and opinio juris sive necessitatis – the belief that it is a legal obligation (Thirlway, 2010: 101). Customary international law does not support the norm as the States that have intervened in instances that could have been justified as humanitarian, such as India in 1971 or Tanzania in 1979, instead justified them as self-defence (Gray, 2010: 622). 

The Responsibility to Protect: 

A way to resolve this debate then can be discerned from Bull’s position that: 

“Ultimately we have a rule of non-intervention because unilateral intervention threatens the harmony and concord of the society of sovereign states. If, however, an intervention itself expresses the collective will of the society of states, it may be carried out without bringing that harmony and concord into jeopardy” (Roberts, 2000: 15). 

Such an attempt to express what the collective will of states is, got attempted in the enquiry that resulted in the Responsibility to Protect (R2P). Although it was unanimously adopted by states in 2005, the R2P concept should not be misconstrued as a legally binding source of law, because it is only a United Nations General Assembly (UNGA) Resolution and, it is not a treaty (Doyle, 2012). Its acceptance in principle by the UNGA, however, can be said to support Krisch’s argument that states are not against intervention per se, they are only against those without UNSC authorisation (Krisch, 2002: 331). What may prove to be this new concept’s undoing, is the view that NATO overstepped its mandate as given to it in Libya by UNSC Resolution 1973 since it ended up engaged in regime change there (Reuters, 2011). It this author’s view that; a similar resolution on Syria has not been forthcoming owing to the perceived abuse of UNSC Resolution 1973. Thus the humanitarian intervention debate remains as important as it was in Grotius’ time. 

Conclusion: 

This essay has attempted to evaluate whether the humanitarian intervention norm now exists in international law and has found that it does not. It has been argued that if the question is left to the philosophical leanings of individual interlocutors, it is irresolvable as natural law adherents and consensualist approaches each have valid arguments to make. Instead, the entry into force of the UN Charter was seen as a watershed moment with which to assess whether there is now a right to humanitarian intervention. A good faith reading of Article 2 (4) of the UN Charter yields that there is no legal right to humanitarian intervention and, customary international law does not support such a right either. Any derogation from the law should not be mistaken as creating the norm, because of this principle: ex injuria jus non oritur (injustice does not create law). Most States are opposed to unilateral interventions but would accept those interventions authorised by the Security Council as, then, they could be argued to represent the collective will of the international society of states.  

The author, quite seized by this matter at Durham University Library circa 15.01.2014

Kudakwashe Kanhutu

BA (Hons) Conflict, Peace & Security. University of Kent, Canterbury.

School of Politics and International Relations.

MSc Defence, Development & Diplomacy. Durham University.

Durham Global Security Institute (DGSi)

"A wise man proportions his belief to the evidence" - David Hume. 

Connect with me on Facebook: www.facebook.com/kanhutu

Via email: kuda4rl@yahoo.co.uk