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
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| 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.
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| 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.
Via email: kuda4rl@yahoo.co.uk
