Humanitarian intervention at the margins: an examination of recent incidents.

• Author: Tzeng, Peter

ABSTRACT

Scholarship on humanitarian intervention is plentiful, but actual examples of state practice and opinio juris are sparse. Thus, critics conclude, the doctrine of humanitarian intervention has no legal basis in international law. This Article challenges this viewpoint. It does so by departing from the traditiotial framework of international law and adopting an alternative framework of analysis: the study of incidents. Through an examination of seven incidents over the past decade, this Article reveals that the doctrine of humanitarian intervention, though not yet an established norm of international law, functions to widen traditional exceptions to the prohibition on the use of force.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. The Prohibition on the Use of Force B. The Responsibility to Protect III. HUMANITARIAN INTERVENTION A. Humanitarian Intervention as a Customary Exception B. The History of Humanitarian Intervention C. Kosovo, Libya, and Syria D. The Study of Incidents IV. RECENT INCIDENTS OF HUMANITARIAN INTERVENTION A. The Proposed IGAD Intervention in Somalia (2005-2006) B. The NATO Intervention in Libya (2011) C. The UNOCI/French Intervention in Cote d'Ivoire (2011) D. The French Intervention in Mali (2013) E. The Proposed U.S./U.K. Intervention in Syria (2013) F. The U.S. Intervention at Mount Sinjar in Iraq (2014) G. The U.S.-Led Intervention in Syria (2014-2016) V. HUMANITARIAN INTERVENTION AT THE MARGINS A. Mission Creep B. Antiterrorism C. Partisan Support VI. CONCLUSION I. INTRODUCTION

For over five years, the Islamic State of Iraq and the Levant (ISIL) has been committing gross violations of human rights on Syrian territory. (1) As of August 2016, eleven states have submitted letters to the United Nations justifying military action against ISIL in Syria. (2)

All eleven letters invoke the right of self-defense under Article 51 of the Charter of the United Nations. (3) Four of the letters additionally stress how the Syrian government is "unwilling or unable" to prevent attacks originating from the concerned territory. (4) And two of the letters note that the Syrian government no longer exercises "effective control" over the territory in question. (5) One justification, however, is notably missing from all eleven letters: the doctrine of humanitarian intervention. (6)

This story should sound strikingly familiar. In 1999, the North Atlantic Treaty Organization (NATO) proceeded, without express Security Council authorization, to bomb the Federal Republic of Yugoslavia for the purpose of ending widespread human rights violations in Kosovo. Although undoubtedly motivated by humanitarian concerns, the NATO states subsequently justified their actions before the International Court of Justice (ICJ) and the Security Council by making reference to Security Council resolutions. (7) The words "humanitarian intervention" did not even appear in most of the states' pleadings before the ICJ. (8)

What does this mean for the status of the doctrine of humanitarian intervention in international law? According to critics, if intervening states consistently refuse to invoke the doctrine when it would seemingly apply, the doctrine must not exist. (9) Although a vibrant topic in academic scholarship, the doctrine does not have the requisite state practice and opinio juris to support its existence in international law. (10) In order for such a doctrine to exist, these critics argue, states need to expressly rely on it as a legal justification for a military intervention. (11)

This Article challenges this viewpoint. It does so by departing from the traditional framework of customary international law based on state practice and opinio juris. Instead, this Article adopts a modern framework of analysis: the study of incidents. By examining seven recent incidents, this Article concludes that the doctrine of humanitarian intervention, though not yet an established norm of international law, has been actively developing at the margins over the past decade. In particular, these incidents reveal that the doctrine of humanitarian intervention functions to widen traditional exceptions to the prohibition on the use of force.

This Article is organized as follows. Fart II provides background on the prohibition on the use of force and the Responsibility to Protect. Part III discusses the doctrine of humanitarian intervention, examines its history, and explains the reasons why a study of incidents is appropriate for its analysis. Part IV then examines seven incidents of humanitarian intervention over the past decade. Part V explains how these incidents reflect the development of the doctrine of humanitarian intervention at the margins. Finally, Part VI draws conclusions regarding humanitarian intervention in light of this study.

2. BACKGROUND

   There is a growing tension between two fundamental notions of international law: state sovereignty and human rights. (12) Although both concepts are enshrined in the U.N. Charter, (13) for several decades after 1945, the former took precedence over the latter. This phenomenon resulted, at least in part, from the relative clarity of the prohibition on the use of force enshrined in Article 2(4) of the U.N. Charter, and the relative lack of clarity of the normative force of fundamental human rights. (14)

   1. The Prohibition on the Use of Force

      Article 2(4) establishes the prohibition on the use of force in international relations. (15) Not only has the prohibition been deemed a "cornerstone" of the U.N. Charter, (16) but it is widely considered a jus cogens norm. (17) There are only three widely accepted exceptions to the prohibition. (18)

      First, under Article 42 of the U.N. Charter, a state may use force if authorized by the Security Council under Chapter VII of the U.N. Charter in response to a threat to the peace, breach of the peace, or an act of aggression. (19) Although Article 42 vests the authorization power solely in the Security Council, the General Assembly's Uniting for Peace resolution (20) and the ICJ's Certain Expenses (21) and Wall (22) advisory opinions recognize that the General Assembly may exercise Chapter VII powers if the Security Council proves to be paralyzed. (23)

      Second, under Article 51 of the U.N. Charter, a state may use force in individual or collective self-defense in response to an armed attack. (24) As the ICJ clarified in Military and Paramilitary Activities and later confirmed in Oil Platforms, only "the most grave forms of the use of force" constitute an "armed attack." (25) The Court in those cases also emphasized that the use of force in response to an armed attack must comply with the principles of necessity and proportionality. (26)

      Third, a state may use force if the host state consents. (27) Although this exception is not enshrined in the U.N. Charter, the ICJ, in Military and Paramilitary Activities, expressly accepted consent as an exception to the prohibition, (28) and, more recently, in Armed Activities, appeared to apply this principle in its analysis of the merits of the case. (29) Moreover, the International Law Commission's Articles on State Responsibility recognize consent as a means of precluding the wrongfulness of an otherwise wrongful act. (30)

      Aside from these three traditional exceptions to the prohibition on the use of force, some scholars have asserted an exception of "protective intervention," which has not gained universal support. (31) Under this theory, a state has the right to intervene militarily in the territory of another state for the purpose of protecting its civilians. (32) Some argue that this exception is best assimilated into the exception of self-defense under Article 51, (33) whereas others posit that it does not constitute an exception to the prohibition on the use of force at all. (34)

      Humanitarian intervention is another proposed exception to the prohibition on the use of force. As a matter of lex lata, most scholars agree that humanitarian intervention does not have a legal basis in international law. (35) Indeed, whenever the ICJ has broached the prohibition on the use force, it has not left any room for an exception based on humanitarian grounds. In Corfu Channel, the Court affirmed the mandatory nature of the prohibition, specifying that the inabilities of an international organization could not be invoked to justify noncompliance. (36) In Military and Paramilitary Activities, the Court expressly held that humanitarian objectives cannot justify the use of force under international law. (37) In Nuclear Weapons, the Court seemed to confirm the exclusive nature of the aforementioned exceptions. (38) In Oil Platforms, the Court affirmed the narrowness of the exception of self-defense to the prohibition. (39) And, most recently, in Armed Activities, the Court held that even Security Council resolutions requiring states to bring peace and stability to a region could not justify the use of force. (40) In short, the ICJ's jurisprudence over the past seven decades has reaffirmed the importance and nearly absolute nature of the prohibition on the use of force.

   2. The Responsibility to Protect

      This is not to say, however, that concern for human rights has completely disappeared. In fact, there is no question that, over the past two decades, international human rights norms have gained considerable traction. This development can most easily be seen in the emergence of the Responsibility to Protect (R2P).

      The history of R2P dates back to two tragic events in the mid-1990s. In 1994, the United Nations and the rest of the international community watched from the sidelines as the Hutu majority in Rwanda slaughtered approximately eight hundred thousand Rwandans over the course of a mere one hundred days. (41) Then in 1995, the international community once again stood idly by as the Bosnian Serb Army of Republika Srpska massacred eight thousand Muslim Bosniaks in Srebrenica within a mere ten days. (42) In a...