Is Unilateral Humanitarian Intervention lawful?
Lilian Nyamwaro
The lawfulness of Unilateral Intervention has long been a subject of international debate. Some scholars have argued that it’s an emerging norm under customary international law while some have argued that it lacks a clear legal framework therefore it does not accord with customary international law. For the purpose of this short article it is important to establish a definition of U.H.I. Unilateral humanitarian intervention refers to a military intervention undertaken by a state (or a group of states) outside the umbrella of the United Nations in order to secure alleged human rights in another country.
Under International Law, Article 2(4) of the UN Charter expresses a general prohibition on the use of force with only 2 exceptions to this rule. One is under Article 51 which provided for Use of Force in Self Defence of a State and the other is under a Security Council authorisation acting under chapter VII of the UN Charter. The Principle of Non-intervention is echoed by the General Assembly in its resolution 2625 which outlaws forcible intervention in absolute terms. It states that no state or groups of states have the right to intervene directly or indirectly in the internal or external affairs of another state.
Recent state practice has however raised questions as to the validity of the doctrine on U.H.I as more states are now willing to rely openly on this doctrine. An example of this is the UK, which has openly supported the doctrine of U.H.I. The UK commonwealth office has stated that international law needs further development to be able to meet new situations. The first sign of U.H.I emerging was in the UK, France and US intervention in 1991 to protect the Kurds and Shiites in Iraq. Although they did not invoke the U.H.I as a justification for their intervention, it gave an indication that states would intervene without the express authorisation from the UNSC with the aim of providing safe havens and humanitarian relief in conflict areas.
More recently though, NATO’s actions in Kosovo have revealed a fundamental split as to the legality of U.H.I. NATO forces undertook operation allied force in response to the repression of ethnic Albanians in the region of Kosovo by the FRY under the leadership of the late President Milosevic. The justification that NATO used force in its intervention in Kosovo was that the crisis threatened peace and security within that region and NATO needed to put a stop to the violence to avert a humanitarian catastrophe. NATO’s justification primarily focused on moral and political rather than legal reasons.
Following NATO’s air strikes in Kosovo, there was a mixed reaction from the international community. Some have argued against whilst others have expressed support for NATO’s actions. The main argument against NATO’s actions was that it was in clear breach of article 2(4) of the UN charter which prohibits the use of force. Secondly, that there was no express authorisation from the UNSC for the use force. The UK on the contrary has provided a more extensive argument in support of NATO’s actions. The UK argued that the actions were legally justified as an exceptional measure on the grounds of an overwhelming humanitarian necessity. The UK contended that the action was taken as a last resort as all other diplomatic efforts to find a peaceful solution failed and therefore military intervention would be legally justifiable to prevent an overwhelming humanitarian catastrophe.
Kritstiosis[1] in his article on ‘Reappraising Policy Objections to Humanitarian Intervention’ raised three main objections to the doctrine on U.H.I. The first is that it provides a basis for abusive use of force from other states and the long term effect of this would be disruption to the international legal order. However, if the codification of U.H.I is done with strict measures put in place, this would prevent and most certainly limit abuse from states in applying U.H.I. Secondly, Kritstiosis argues that U.H.I would be highly selective and mostly dictated by political or strategic interests. This is true, but as established earlier, only the Security Council can authorise the use of force outside Article 51 right of Self Defence. The UN Charter under chapter VIII recognises the role of regional organisation in the maintenance of international peace and security therefore if the use of force is orchestrated by a Security Council mandate, this will minimise selective application of force by states in case of a humanitarian crisis. Thirdly, he argues that most interventions are done when states have personal interests in the matter. It is very hard to reconcile this reservation. However, even when the true motives of an intervention are discernible, using these motives to trump the lawfulness of an intervention is unreasonable where the sole purpose of the intervention of a greater advantage, especially if it is to preserve human life.
Michael Bayer and Simon Chesterman[2] argue that although the Kosovo intervention was clearly illegal, there needs to be respectful consideration given to the legal scholars who defend U.H.I. They argue that there would need to be radical changes to the international legal system in order to accommodate U.H.I, a view which they find unwarranted and unsound. In addition to this, they argue that the traditional approach taken to the interpretation of international treaties and customary international law need to stand.
From the arguments presented above, there is clearly a split over the legality of the doctrine of U.H.I. There is continued opposition against this doctrine from some of the world’s most powerful states. Without the Security Council authorisation, this doctrine is far from being firmly established. However the recent atrocities in countries such as Rwanda present a need to re-evaluate the international legal norms and perhaps make some reforms to accommodate intervention in certain cases of humanitarian crisis, either unilaterally or collectively without the use of force.
[1]Dino Kritstiosis, “REAPPRAISING POLICY OBJECTIONS TO HUMANITARIAN INTERVENTION”, 1998, 19 Michigan Journal of International Law 1005.
[2]Michael Byers and Simon Chesterman. “Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law.” Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge: Cambridge University Press, 2003
Lilian Nyamwaro is International Relations Officer for Facilitate Global. She can be contacted at lilian.nyamwaro@facilitateglobal.org