International Law and the Use of Force (LG566) Topic 9: Humanitarian Intervention and the Responsibility to Protect Doctrine

Introduction The use of force to intervene in the domestic affairs of a State has been justified in recent times as a legitimate use of force if the force is used for humanitarian reasons. BUT is this use of force legal?

Definition A humanitarian intervention is 'an armed intervention in another state, without the agreement of that state, to address (the threat of) a humanitarian disaster, in particular caused by grave and large-scale violations of fundamental human rights.' This definition was adopted by a NATO seminar in Scheveningen, November 1999

Definition There are 3 main aspects of humanitarian intervention: the use of force sovereignty human rights Use of Force: not in line with Art. 2(4) UN Charter Sovereignty: not in line with Art. 2(7) UN Charter Human Rights: in line with wording and spirit of Charter? Are Human Rights Supreme?

Development of Doctrine of Humanitarian Intervention Old Idea – as far back as Grotius Various example in 19th and 20th century First instance of intervention for ‘humanitarian purposes’ in Charter era: Palestine 1948 Also intervention of Belgium in Congo in 1960; Indonesia in Timor Leste in 1975 and Kosovo in 1999. ‘Just War’? / Political Agenda?

Justification UN Charter has 2 main Purposes: Maintenance of international peace and security and protection of human rights Pre-Charter Practice on Intervention gave rise to customary law States lose right to sovereignty if they commit serious violations of human rights But NO EXPLICIT RIGHT in UN Charter

Criteria for Humanitarian Intervention Suggestion that Criteria be created for Humanitarian Intervention to confer more legitimacy on doctrine. Who sets criteria?; Who oversees? Examples of these criteria would be: urgency, threat of large-scale human rights abuses, use of force should be a last resort, laws of war should be applied in relation to the use of force.

UN Security Council and Humanitarian Intervention UN Charter gives the Security Council the power under Article 24(1) and Chapter VII to take any measures necessary to ‘restore international peace and security’ These provisions allow the Security Council to authorise action based on subsequent agreements, such as the Universal Declaration of Human Rights. If consensus can be reached in the SC that a humanitarian disaster is a threat to international peace and security then the UN can take action.

UN Security Council and Humanitarian Intervention Some States feel that certain members of the Council might prevent humanitarian interventions from taking place or might be unable to come to a decision on a certain situation. Does primary responsibility equal exclusive authority?

Intervention Without Security Council Authorisation The 'Kosovo model' suggests that a state or coalition of states may intervene without explicit Security Council approval, however, this model has many critics. If UN authority were not required for humanitarian intervention then this would be an alteration to the present restrictions on the use of force and a major dilution of UN power. Should UN Charter be amended?

Humanitarian Intervention: The Case for Legitimacy There are strategic and moral advantages to expressly articulating a right of humanitarian intervention (jus ad interventionem) under international law to stop or prevent genocide or violent mass ethnic expulsions. Last resort Deterrent Just War / Social Contract - Fits into legal framework?

Humanitarian Intervention: The Case for Legitimacy This right to intervene must be limited in purpose, scope, and means in order to prevent its abuse and to quell concerns that this is a carte blanche for the use of force. Where feasible, the use of force should be applied in concert with pacific means of dispute settlement (Art, 33, UN Charter) and economic sanctions (Chapter VII)

Humanitarian Intervention: The Case for Legitimacy The use of force may be applied when the UN Security Council is unable or unwilling to act to prevent or halt genocide and there is broad collective support for action to intervene in the otherwise sovereign affairs of the state affected. This collective support may be evidenced by a decision of the UN General Assembly or other major international representative bodies.

Humanitarian Intervention: The Case for Legitimacy The use of force must observe the customary principles of proportionality, discrimination / humanity, and necessity by avoiding unnecessary harm to non-combatants and directing force against the actual wrongdoers. The intervention should end as soon as practical and sovereignty be restored to the target state, but only after reasonable assurances that the acts of genocide will not be resumed and after reserving the right to re-intervene if need be.

Humanitarian Intervention: The Problems There are no sources that explicitly and authoritatively grant a right to humanitarian intervention. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which entered into force in 1951, provides for prosecution of violators but does not authorize armed intervention to prevent or stop genocide. Neither the Universal Declaration of Human Rights, nor the International Covenant on Civil and Political Rights, authorize humanitarian interventions. Under customary international law, sovereign states are protected by the rule of non-interference or non-intervention: states must refrain from interfering in the domestic affairs of other states. New customary law of intervention?

Humanitarian Intervention: The Problems There is a lack of consistent consensus (opinio juris communis) in relation to humanitarian intervention under international law. An example of an intervention which led to growing disrepute for the doctrine was Hitler’s use of force to ‘defend’ ethnic Germans in the Sudetenland as a pretext for his invasion of Czechoslovakia. It is one thing to recognize that, in case of human rights violations, sovereignty is not an absolute right (for example, it may be breached by non-military intervention, such as diplomatic and medical personnel) and quite another to breach sovereignty by the non-consensual intervention of military forces.

Responsibility to Protect Doctrine International Commission on Intervention and State sovereignty – report 2001 A New Approach to Intervention – Responsibility to Protect The Responsibility to Protect populations from genocide, ethnic cleansing, war crimes and crimes against humanity is an international commitment by governments to prevent and react to grave crises, wherever they may occur

Evolution of Doctrine 2004 High Level Panel on Threats, Challenges and Change – A More Secure World; Our Shared Responsibility 2005 Secretary-General’s Report In Larger Freedom: Towards Development, Security and Human Rights for All

R2P – International Doctrine Member States embraced the Responsibility to Protect populations in the Outcome Document of the 2005 World Summit. In the World Summit Outcome Document, world leaders agreed, for the first time, that states have a primary responsibility to protect their own populations and that the international community has a responsibility to act when these governments fail to protect the most vulnerable among us.

R2P and the UN The Security Council reaffirmed the responsibility to protect in the April 28th 2006 resolution on Protection of Civilians in Armed Conflict. It then invoked R2P for the first time in a August 31st 2006 country specific resolution relating to Darfur. Doctrine not accepted by all States