Legitimizing Unauthorized Intervention for the Protection of Human Rights
by Michael Hatley
Abstract: This essay argues that there is a ground on which to build a legal case for a doctrine of humanitarian intervention. Instances of armed intervention to protect human rights without the prior authorization of the United Nations Security Council represent a conflict between core norms of the international community: the prohibition of the use of force, on one hand, and the prohibition of grave violations of human rights, on the other. Though many of the legal justifications put forth in the literature are inadequate, such action is legally defensible as a balancing between peremptory norms of international law. But to ensure proper balancing of these norms, a system must be adopted to regulate such intervention.
Since the end of the Cold War, the international community has witnessed a sharp increase in armed interventions carried out by states or groups of states responding to gross violations of human rights in other nations. In some instances, these interventions have occurred without the blessing of the United Nations Security Council. Such situations highlight a major conflict between two core principles of the United Nations (UN): the prohibition of the use of force, on one hand, and the protection and promotion of human rights, on the other.
Academics and lawyers disagree on the legality of unsanctioned humanitarian intervention.1 Moreover, even if two critics share the same reasoning vis-à-vis the legality of unilateral intervention, they may differ as to the desirability or morality of such action. This essay argues that there is in fact a ground on which to build a legal case for a doctrine of humanitarian intervention. But the legal, moral, and practical integrity of this doctrine depends on the extent to which it can be brought into a systematic and clearly defined framework.
The argument proceeds in two major parts. First, it is contended that instances of unsanctioned humanitarian intervention represent a clash between central norms of the UN. In the second section, important arguments seeking to resolve this conflict by offering legal justifications for such operations are considered. The case will be made that there is a window for humanitarian intervention in international law. In the conclusion, the implications of legalizing a doctrine of unilateral humanitarian intervention will be examined.
Humanitarian Intervention as a Struggle Between Core Principles of the UN
The UN Charter was signed in 1945 with the primary aim of preventing a repetition of the horrors the international community had experienced during two World Wars. The Charter not only forbids war as an instrument of national policy, but also goes beyond previous global treaties by placing a general prohibition on the use of force. According to Article 2 (4) of the Charter, “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.”
Nevertheless, this ban is not absolute; the Charter allows for the use of force in certain narrowly defined circumstances. One exception to the prohibition of the use of force envisaged by the Charter involves self-defense. Article 51 recognizes “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” It is important to note that the use of force in self-defense is only legal in reaction to an armed attack against the territory of a state that imperils its life or government.
Resort to force is also legal if authorized by the UN Security Council. The Charter invests the Security Council with the primary responsibility for maintaining international peace and security. Under Chapter VII of the Charter, the Security Council alone is granted both the authority to recognize threats to international peace and the power to decide which actions should be taken in response to such threats, including the use of armed force. Article 39 provides that “[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken…to maintain or restore international peace and security.” One of these measures, especially relevant for the discussion of humanitarian crises below, is elaborated in Article 53 (1), which states: “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Consequently, with a vote of 9 of 15 members, including the favorable vote of the 5 permanent members—China, France, the UK, Russia, and the U.S.—the Security Council may classify a situation as a violation of international security and sanction enforcement measures by member states under Chapter VII.
Alongside the maintenance of international peace and security in Article 1, the Charter also lists promotion of human rights as one of the founding purposes and principles of the UN. In fact, the Charter was the first treaty in history to recognize universal human rights explicitly. Article 55 states that “the United Nations shall promote…universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Since the drafting of the Charter, the UN has taken many important strides towards translating this vague and general ideal into practical results. In 1946, the UN Human Rights Commission was established. For the first twenty years after its inception, the Commission constrained itself to standard setting and promotion. In June 1948, for instance, when the body completed the final draft of the Universal Declaration of Human Rights, it was adopted by the General Assembly as a non-binding guideline for state conduct merely setting forth general principles and standards. Throughout this early period, the Commission avoided adopting any measures, even indirectly, to protect human rights or address infringement upon them. This was due to the view that the body had no authority to question the behavior of specific states. Thus, initially, the Commission was content with mere affirmation of human rights standards, refusing even to name states that violated those standards.2
Eventually, however, the UN began to develop practical mechanisms that expanded human rights norms and chipped away at the inviolability of state sovereignty. Starting in 1966, the UN established a number of voluntary treaties overseen by bodies designed to monitor and legally enforce adherence to certain universal rights. On June 6, 1967, the Economic and Social Council (ECOSOC) passed Resolution 1235, allowing the Commission to examine and respond to human rights violations and to engage in public debate over them.3 In 1970, ECOSOC Resolution 1503 established a confidential procedure through which private petitions could be examined in order to identify “a consistent pattern of gross and reliably attested violations.”4 “Thematic Procedures” were also adopted to explore certain human rights issues in a range of nations. The first of these, the Working Group on Enforced or Involuntary Disappearances, was created in 1980 to look into reports involving Argentina and Chile.5
Since the end of the Cold War this trend has continued. In response to major abuses in some parts of the world, protection of human rights has, on occasion, moved beyond mere investigation and exposure to public criticism. For example, in order to prosecute perpetrators of massive violations of human rights such as genocide and other crimes against humanity, the Security Council established the International Criminal Tribunal for the Former Yugoslavia in 19936 and the International Criminal Tribunal for Rwanda the following year.7 In addition, the Rome Statute of the International Criminal Court (ICC), ratified by a growing number of states since its adoption in 1998, gives the ICC jurisdiction over genocide, crimes against humanity, and war crimes, labeling them “the most serious crimes of concern to the international community as a whole.”8
All of this is not meant to be taken as a eulogy extolling the virtues of the UN’s human rights mechanisms. In fact, time and time again the UN has demonstrated itself woefully inadequate when it comes to protecting the human rights of individuals on the ground. But even if the results rarely meet the rhetoric, what this brief historical outline indicates is the increasingly prominent position human rights ideals have assumed in the international community. Once seen as a domestic matter outside of the purview of the international community, human rights are now recognized as occupying the highest level of the hierarchy of public goods.9 In his March 2005 follow-up to the Millennium Summit, In Larger Freedom, Secretary-General Kofi Annan asserted that “no legal principle—not even sovereignty—should ever be allowed to shield genocide, crimes against humanity and mass human suffering.”10 This reflects a view, gaining strength in the international community over the last half-century, that certain doctrines of international law, such as state sovereignty, must be redefined to reflect the ascendancy of human rights norms.
Thus, both the maintenance of peace and security through the Security Council’s monopoly on the use of force outside self-defense and the promotion and protection of universal human rights constitute core principles of the UN system. In most cases, these two goals have been pursued independently, with the Security Council dealing with matters involving international security and the various human rights mechanisms managing human rights-related developments. But the emergence of certain major humanitarian crises of the last few decades, often characterized by massive human rights violations such as genocide, ethnic cleansing, and the flight of refugees across national borders, has brought these primary objectives face-to-face.
In some cases, the core principles of security and human rights protection have been taken up in relative legal harmony in response to large-scale human tragedy. For example, by defining humanitarian crises as “threats to the peace,” the Security Council invoked Chapter VII in order to authorize member states to act “using all necessary means” in Somalia in 1992,11 in Bosnia and Herzegovina in 1993,12 and in Rwanda in 1994.13 In so doing, the Council significantly expanded the concept of “threat to the peace” contained in Article 39 of the Charter to include humanitarian concerns once believed a matter of domestic jurisdiction.
At other times, however, these basic values of the UN have proved to be at odds with each other when it comes to military intervention in the name of human security. This becomes clear when one considers the great number of conflicts resulting in systematic human rights abuse that have not spurred the Security Council to act, either because of the veto power of one or two of the permanent members, or because of a general lack of political will. In these instances, the Security Council’s monopoly on force works against the protection of human rights. Indeed, even on those occasions listed above, when the Security Council has authorized intervention it has often been too little too late. The most striking example of this was Rwanda, widely deemed one of the most spectacular failures in the history of the UN, where a more timely intervention might have prevented the deaths of hundreds of thousands of Rwandans.14
Yet the conflict between the UN’s prohibition on the use of force and its human rights objectives is more dramatically illustrated in those cases where states have carried out humanitarian interventions in other sovereign nations without the prior authorization of the Security Council. Such were the circumstances of the Economic Community of West African States (ECOWAS) operations conducted in Liberia starting in August 1990 and in Sierra Leone starting in May 1997, of Operation Provide Comfort conducted by members of the First Gulf War coalition in Iraq in April 1991, and of the North Atlantic Treaty Organization (NATO) campaign to contain humanitarian abuses in Kosovo in March 1999.
These occurrences are quite remarkable. When the Security Council fails to act to protect human rights, while it may be viewed as a great moral failure and a betrayal of one of the UN’s core principles, such inaction does not amount to a breach of international law. In fact, even when force has been sanctioned on humanitarian grounds, it has been quite controversial because it has depended on a restriction of the doctrine of state sovereignty and an expansive interpretation of “threat to the peace,” as mentioned above. But for a regional organization to intervene militarily in another sovereign state, without invoking self-defense and in the absence of prior authorization of the Security Council, would seem to be a clear violation of the UN Charter.
Legal Justifications of Humanitarian Intervention
Should the disregard of the Security Council or the veto power of one or two of its permanent members mean that the UN’s human rights ideals must simply be forgotten? Should the international community sit idly by as countless innocents are slaughtered, even when it has the will and the means to prevent it? Understandably, these events have produced a torrent of literature debating the legality and desirability of unsanctioned humanitarian intervention. In this section, some of the more important arguments seeking to justify such measures will be examined in greater detail.
Often, governments and scholars have made the case for the legality of humanitarian intervention by trying to draw a link to the Security Council, despite the lack of an explicit prior resolution sanctioning the use of force. One of these lines of reasoning rests on the idea of “implicit” authorization. In the case of Kosovo, for example, the UN Security Council passed resolutions which, under Chapter VII, identified the deteriorating humanitarian situation as a threat to peace and security in the region,15 and authorized a NATO air verification mission over the province.16 Some have argued that these resolutions provide a level of legitimacy for the NATO bombing campaign that began in March 1999.17 In fact, another thesis posits that the mere silence or inactivity of the Security Council constitutes an implicit authorization.18
A similar argument seeks to legitimize humanitarian operations under Article 53 by claiming that Security Council resolutions passed after the intervention represent ex post authorizations.19 Indeed, the Council adopted resolutions accepting or even commending the solutions achieved by regional organizations in the wake of unauthorized interventions in Liberia,20 Sierra Leone,21 and Kosovo.22 And certainly it is worth mentioning that the Council never approved any resolutions condemning these actions. Belarus, India, and Russia put forth a draft resolution accusing NATO of violating Articles 2 (4), 24, and 53 of the UN Charter, but it was defeated by a vote of 12 to 3.23
While it may be true that these resolutions and the lack of truly widespread condemnation demonstrate a degree of acceptance for such action, arguments for “implicit” or ex post authorization have no basis in international law. Both the wording of Article 53 and a consideration of the intent of the UN Charter as a whole indicate that a regional organization requires the explicit and prior permission of the Council. If this were not the case, the Security Council monopoly on the use of force would be rendered virtually ineffective in the face of regional military operations conducted in the name of implicit permission or in hopes of a future ex post authorization. Thus, it is quite unrealistic to suppose that this sort of intervention can be brought back within the UN framework through a reinterpretation of Article 53.
Other scholars take a different route by arguing that Security Council permission is not necessary for unsanctioned humanitarian intervention to be legal within the UN framework. One such point of view hinges on a literal reading of Article 2 (4) and claims that humanitarian intervention is a legal use of force since it does not violate the territorial integrity or political independence of a state.24 Furthermore, it is consistent with the purposes of the United Nations as it seeks to protect human rights, one of the principal objectives of the organization.
Yet this theory, too, has been discredited. It has long been established by both scholars and states that any armed action in a foreign territory can be seen as a violation of Article 2 (4), even if the action does not involve annexation of territory or regime change. In addition, nothing in the preparatory work of the UN Charter at the San Francisco Conference suggests that the states involved intended anything less than an absolute prohibition on force outside the two legal uses previously mentioned.25
Another hypothesis claims that military action for the protection of human rights is legal because a doctrine of humanitarian intervention has emerged as customary international law. But for a customary law to be manifest, it must be evident in the uniform practice of a great majority of states in all geographical regions. Furthermore, this practice must be accompanied by opinio juris, that is, a belief that such a practice is justified by international law. The debates in the various bodies of the UN after Kosovo, however, leave little doubt that no rule of general custom can be said to have emerged. Though states expressly opposing a doctrine of humanitarian intervention were in minority, neither was there an overwhelming majority of states uniformly supporting such a doctrine.26
A related view suggests that, while a rule of general custom has not yet crystallized, we may be witnessing the first trends in the emergence of a new customary doctrine of humanitarian intervention.27 This certainly seems possible, though at this point there is no way of knowing for sure. As mentioned earlier, the fact that the greater part of the international community did not appear hostile to NATO’s operations in Kosovo lends some credence to this view.
Nevertheless, there is another justification for unilateral humanitarian intervention that would not require waiting indefinitely for a new custom to surface. One might argue that such intervention is justified as a result of the balancing of equally fundamental norms: the prohibition of the use of force, on one hand, and the prohibition of massive human rights violations, such as genocide and crimes against humanity, on the other. From this perspective, in extreme situations where gross and systematic violations of human rights endanger the lives of thousands, the need to uphold fundamental human rights may overcome the necessity to abstain from the use of force when the Security Council is unable or unwilling to act.28
Against this position, it has been contested that these norms, while they may both be central to the UN, are not equal. According to a number of scholars, it is clear that peace trumps human rights in the eyes of the international community; this is borne out in the text and context of the UN Charter, in rulings of the International Court of Justice, and in state practice.29 Consequently, it is not necessary to balance between these two ideals, and so this cannot be a starting point for legalizing unilateral intervention.
Although this may have been true even a few decades ago, it can no longer be assumed that the maintenance of peace and security overrides the protection of human rights. For one, as shown above, human rights standards have come a long way since the drafting of the Charter. Currently, some such standards are considered public goods binding on all states of the international community. More central in this regard, however, has been the development of the principle of jus cogens, or peremptory norms of general international law. Article 53 of the 1969 Vienna Convention on the Law of Treaties explains peremptory norms as follows: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
Thus, certain norms, having attained the status of jus cogens, are given a higher rank than ordinary rules of treaty or custom. Norms commonly characterized as peremptory include those prohibiting torture, genocide, slavery, and aggression. This means that protection of certain fundamental human rights and the prohibition on the illegal use of force are all at an equal level as jus cogens rules of international law.
Another, more forceful, attack against this attempt to establish unilateral humanitarian intervention maintains that, even if human rights ideals have reached a level on par with the prohibition of aggression, there is no justification for such action. It has been argued that the preponderance of human rights obligations must be separated from legal means of enforcing compliance. Even though gross and systematic violations of human rights are the legal interest of the entire international community, this does not somehow legalize unilateral invasion. The UN’s human rights instruments provide mechanisms for the enforcement of human rights goals, such as monitoring institutions and procedures for individual petition. Again, there is simply no rule of custom providing for the unsanctioned use of force to protect human rights.30
While there is no custom legitimizing humanitarian intervention, it is an established custom, both in national legal systems and in the international realm, that equal norms should be weighed against each other. Therefore, it is clear that the equally ranked jus cogens norms prohibiting the use of force and violations of core human rights norms must be balanced somehow. When the Security Council is unable or unwilling to act and thousands are subjected to torture and acts of genocide, constraining the actions of nations capable of putting an end to such abuse represents a total lack of balance favoring the security of nations over the security of human beings.
Nor are existing human rights mechanisms capable of remedying humanitarian crises. The politicization of the UN human rights bodies and their ineffectiveness in offering concrete protection to those on the ground suffering from massive violations of their dignity and right to life are common knowledge. Situations such as those that occurred in Kosovo and Rwanda require armed force, which is far beyond the scope of any human rights institution. When the Security Council refuses to fulfill its mandate, the only hope in these situations lies in the action of nations. To divorce the character of human rights obligations from the only effective means of securing their enjoyment condemns the international community’s stated human rights ideals to the level of rhetoric. In this light, the argument that unilateral humanitarian intervention is defensible as a weighing between two peremptory norms is quite compelling.
Conclusion: Implications of Intervention as a Balancing Of Peremptory Norms
The adoption of a doctrine providing for unilateral humanitarian intervention could be quite dangerous, whatever the legal rationale behind it. The fear is that permitting nations to use armed force without official authorization would undermine the Security Council and even the whole UN system. It is conceivable that this could open Pandora’s Box, allowing states to mask acts of aggression under the guise of human rights protection.
Yet proper application of the justification put forward above could nullify many of these ills. A balance between the prohibition of the use of force and the norms forbidding gross violations of human rights would prevent the scales from tipping too far in either direction. In this view, arbitrary aggression or invasion for selfish reasons using human rights as a mere excuse would be just as unacceptable as ignoring the plight of populations suffering from acts of genocide or torture. Establishment of a doctrine of humanitarian intervention in this fashion would prevent recourse to sheer aggression in a way that the other justifications mentioned could not. Even if there were some legal basis for them, implicit authorization, ex post authorization, or a current or future custom of humanitarian intervention could prove much more dangerous for international security.
It is not enough, however, merely to state that jus cogens norms must be balanced in the case of unsanctioned humanitarian intervention. What is needed is a system that can be used to ensure that they are balanced properly. This is not far-fetched; one such system has been expounded already: in 2001, the International Commission on Intervention and State Sovereignty, launched by the Canadian government to examine the issues surrounding situations such as Kosovo and Rwanda, released a report entitled The Responsibility to Protect.31
This report makes certain stipulations for determining when humanitarian intervention might be permissible. In some detail, the report insists that in response to large-scale loss of life, genocide, or ethnic cleansing, groups of states may intervene as long as they have first attempted to secure the permission of the Security Council, if the primary purpose is to halt human suffering, if the action is conducted proportionately, if it is a last resort, and if there is a reasonable prospect of success. The document also covers a number of operational principles to be followed to ensure that such an intervention would be carried out effectively and provide maximum protection for the population. Though it can be argued that the criteria developed in this report require more precise definition in order to be effectively applied, it is nonetheless the most complete system yet advanced for balancing human rights protection against the need for international peace and stability.
At present, given the ideological differences between the permanent members of the Security Council, it seems reasonable to assume that there will be further cases of unilateral humanitarian intervention in the decades to come. It is equally likely that these future operations will be met by strident objections from some members of the international community. Even if such interventions are defensible as a balancing of peremptory norms, they will undoubtedly remain controversial in the larger international community until crystallized as customary international law.
Still, if nations carrying out interventions in the future were to explicitly justify their actions as representing a balance between jus cogens norms, and if they were to make clear that they were employing guidelines similar to those in The Responsibility to Protect report, a custom of unilateral intervention could develop that would respect the ideals of peace and human rights. An effectively controlled doctrine of humanitarian intervention along these lines would ensure harmonious interaction between core norms of the UN and the international community as a whole, protecting the security of nations and human beings alike.
- The divergence of views on this issue is clearly illustrated, for example, in scholarly articles examining the North Atlantic Treaty Organization’s action in 1999 in response to the situation in Kosovo. For arguments in favor, see W. Michael Reisman, “Kosovo’s Antinomies,” The American Journal of International Law, Vol. 93, No. 4 (Oct. 1999), 860-862; and Ruth Wedgwood, “NATO’s Campaign in Yugoslavia,” The American Journal of International Law, Vol. 93, No. 4 (Oct. 1999), 833. For arguments against, see Jonathan I. Charney, “Anticipatory Humanitarian Intervention in Kosovo,” The American Journal of International Law, Vol. 93, No. 4 (Oct. 1999), 835-836; Peter Hilpold, “Humanitarian Intervention: Is There a Need for Legal Reappraisal?” The European Journal of International Law, Vol. 12, No. 3 (July 2001), 437-468; and Bruno Simma, “NATO, The UN and the Use of Force: Legal Aspects,” The European Journal of International Law, Vol. 10, No. 1 (March 1999), 1-22.
- For a detailed analysis of the evolution of the Human Rights Commission, see Philip Alston, “The Commission on Human Rights,” The United Nations and Human Rights (Oxford: Clarendon Press, 1992), 126-210.
- ECOSOC Res. 1235 (1967).
- ECOSOC Res. 1503 (1970).
- HRC Res. 20 (XXXVI) (1980).
- SC Res. 827 (1993).
- SC Res. 955 (1994).
- UN Doc. A/CONF.183/9, Rome Statute of the International Criminal Court (July 17, 1998).
- Christian Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law”, Recueil des cours, Volume 281 (1999), 220-223.
- UN Doc. A/59/2005/Add. 1, In Larger Freedom: Towards Developments, Security and Human Rights for All-Addendum (23 May 2005), paragraph 129.
- SC Res. 794 (1992).
- SC Res. 836 (1993); SC Res. 844 (1993).
- SC Res. 929 (1994).
- For an in depth critique on the UN and the Rwanda crisis, see, generally, Michael Barnett, Eyewitness to a Genocide, (London: Cornell University Press, 2002).
- SC Res. 1199 (1998).
- SC Res. 1203 (1998).
- Wedgwood, 829-830.
- Leonard C. Meeker. “Defensive Quarantine and the Law,” The American Journal of International Law, Vol. 57, No. 3 (Jul. 1963), 522.
- For a description of the ECOWAS interventions in Liberia and Sierra Leone, and an analysis of their possible justifications, including implicit and ex post arguments, see Marco Gestri, “ECOWAS Operations in Liberia and Sierra Leone: Amnesty for Past Unlawful Acts or Progress Toward Future Rules?” Redefining Sovereignty, (Ardsley, New York: Transnational Publishers, Inc., 2005), 211-250.
- SC Res. 788 (1992); SC Res. 866 (1993).
- SC Res. 1132 (1997).
- SC Res. 1244 (1999).
- See UN Doc. S/1999/328, Belarus, India, and Russian Federation: Draft Resolution (Mar. 26, 1999), reprinted in UN Press Release SC/6659, Security Council Rejects Demand for Cessation of Use of Force against Federal Republic of Yugoslavia (Mar. 26, 1999).
- This view is mentioned, for example, by Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (The Hague: Martinus Nijhoff Publishers, 1985), 6; and Charney, 835.
- See Ronzitti, 6-10.
- For an overview of the events leading up to the NATO bombing of Kosovo, and a general survey of the response of the international community, see Marc Weller, “Forcible Humanitarian Action: The Case of Kosovo,” Redefining Sovereignty (Ardsley, New York: Transnational Publishers, Inc., 2005), 277-333.
- See, generally, Antonio Cassese, “Ex Injuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Counter-Measures in the World Community?” The European Journal of International Law, Vol. 10, No. 23 (1999).
- Such views have been advanced by Gestri, 236-238, 247; and Tomuschat, 223-226.
- See, for example, Antonio Cassese, International Law 2nd ed. (New York: Oxford University Press, 2005), 374-374.
- See Weller, 321.
- International Commission on Intervention and State Sovereignty, The Responsibility to Protect, (2001), http://www.iciss.ca/pdf/Commission-Report.pdf.