Is Humanitarian Intervention Legal? |
*Preserved and republished as part of our archive project. Get E-International Relations delivered to your inbox, free of charge. As you sign up, consider becoming a paid subscriber, or make a donation, to support our work.
Where collective security avenues are blocked, could a State, or States acting jointly, lawfully intervene militarily in another State’s territory without the permission of the Government of that State to halt or prevent it from committing atrocities against its own people? What about intervention where the territorial Government is unable or unwilling to provide basic humanitarian assistance to its people in the face of natural or human-made disaster? Were the US and its coalition partners right after all to invade Iraq, if not to search for weapons of mass destruction or to destroy Al Qaeda (dubious claims from the outset), but to topple Saddam Hussein and to spread democracy, human rights and the rule of law? Should a country have stepped in militarily to save millions from starvation in North Korea a decade ago, or to extend urgent life-saving humanitarian assistance to the tens of thousands of Burmese people whose lives were devastated by tropical cyclone Nargis in May 2008? If the African Union-United Nations Mission in Darfur ultimately fails, should a State or States intervene to stop the mass slaughter, rape, torture, summary executions and forced displacement of hundreds of thousands of civilians? What about humanitarian intervention to aid people at risk from war, famine and disease in places where the State has failed, such as in Somalia, Sudan or Chad?
UN Secretary-General Kofi Annan underlined the problem in his 1999 General Assembly address: “... in the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defense of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” He urged that “the world cannot stand aside when gross and systematic violations of human rights are taking place” and he challenged the world community to develop the notion of humanitarian intervention “based on legitimate and universal principles”.
Proponents of the classic ‘doctrine of humanitarian intervention’ argue that customary international law authorizes a State (State A) to take military action in the territory of State B, without State B’s consent, to protect State B’s nationals. As such, it should be distinguished very clearly from collective security under established UN or regional frameworks, such as ‘peace keeping’ or ‘peace enforcement’ or other similar blue helmet multilateral operations. ‘Humanitarian intervention’ involves the unilateral or joint use of armed force by a State or States against another State on such grounds as ‘humanity’, ‘democracy’ or ‘human rights’ and is based on the intervening State’s own unilateral evaluation of the factual situation as well as its legality. The doctrine presupposes an exception to the general customary prohibition on the use of force in international relations. Humanitarian intervention must not be confused with a State’s use of military force to protect the intervening State’s nationals - an entirely separate and distinct ground which classic international law recognizes, perhaps as a form of the inherent customary right of self-defense. A controversial example arose in August 2008 when Russia sought to justify its use of military force in Abkhazia and South Ossetia on grounds it had to protect Russian nationals (many of whom seemed to be ethnic Russians with Georgian nationality who had been issued Russian passports in fact only very recently) - tactics Russia might conceivably employ also in Transdniestra (Moldova) or the Crimea (Ukraine).
The key distinguishing criterion of humanitarian intervention is that the intervening State acts strictly and purely out of genuine humanitarian motives, rather than out of any element of self-interest. First, the beneficiaries of intervention therefore must not be nationals of the intervening State. Second, the requirement that the intervening State must have no self-interest at all for the intervention to qualify as a humanitarian one has to be applied very strictly, otherwise it would open the door for more powerful States to legitimize their invasion and occupation of weaker States merely on the grounds that their actions were not based purely on self-interest, but also to a degree on a humanitarian element. Such a permissive rule of international law would conflict with the basic principle of sovereign State equality, and it would risk a dramatic rise in inter-State violence.
In the Fifth Century AD, St. Augustine advocated........