A note to states defending humanitarian intervention: examining viable arguments before the International Court of Justice.

• Author: Cooper, Matthew C.

INTRODUCTION

Humanitarian Intervention (HI) has been a central topic of controversy within international law scholarship for many years. This controversy is unsurprising because HI inevitably pits several of the most fundamental international norms as opposing forces: state sovereignty and the prohibition on the use of force versus the duty of states to prevent human rights atrocities and protect human life. HI takes many forms, but it is best defined as intervention into the sovereign territory of another state, without the host state's consent, for the purpose of halting atrocity crimes, such as genocide, ethnic cleansing, crimes against humanity, and war crimes. (1) It is conducted in one of two ways, with Security Council (SC) authorization or without such authorization. (2) In either case, HI categorically conflicts with notions of state sovereignty, and, in most instances, the prohibition on the use of force. Despite such conflict, HI through the SC has been universally accepted. (3) "Unauthorized" HI, on the other hand, has been more controversial. The primary question addressed herein is whether states would have a good faith means to justify HI if one day brought before the International Court of Justice (ICJ).

The central concentration with regard to this question is on the evolution of HI within customary international law. This subject is not new, and since the inception of the UN Charter (hereinafter the Charter) numerous authors have examined the component parts of custom (state practice and opinio juris) with regard to HI. (4) This process has revealed many different approaches to this perplexing problem, as well as a myriad of conclusions. This study differs primarily in method, as it is written with a focus on the practical application of the HI doctrine and viable good-faith arguments for states before the ICJ. This study also differs by demonstrating the importance of evaluating opinio juris in a contemporaneous fashion. In other words, through historical analysis of several humanitarian interventions, this study illustrates that when investigating custom it is much more telling to assess the statements and actions (or inactions) of states at the time an intervention is taking place. Subsequent diplomatic statements cannot be ignored, but undue weight should not be given to statements most likely aimed at discouraging abuse of this potentially dangerous doctrine and not the doctrine itself. Doing so is the only viable means of truly understanding whether the international community believes an intervening state should be exonerated for undertaking a true humanitarian intervention. Through such an approach, it is possible to discern an acceptance by states that unauthorized HI is lawful (or at least legally justified) in extreme circumstances, when truly taken for humanitarian reasons and when conducted proportionately to that purpose.

Existing in conspicuous parallel with HI is the newly emerged "Responsibility to Protect" doctrine (R2P). (5) While HI and R2P are intertwined, it is erroneous to refer to the doctrines interchangeably. HI deals with a "right" of states to intervene in the affairs of other states, whereas R2P deals with the "responsibility," and perhaps even a legal duty, to prevent "atrocity crimes." (6) Notably, R2P primarily places the onus of protection on the state in which atrocities are occurring, (7) and only secondarily upon the international community. (8) However, the 2005 World Summit Outcome clearly articulates that the international community, including each Member State of the United Nations (UN), also has some form of responsibility for crimes of mass atrocity, even when occurring outside their own state borders. (9) While R2P's contours are still evolving, its unanimous adoption by the General Assembly (GA) has solidified the doctrine somewhere in international law. (10) While the predominant focus herein is on the legal "rights" of states to respond to atrocity crimes and not their "responsibility" to do so, this study will conclude by evaluating the potential interplay between the two doctrines in front of the ICJ.

THE UNITED NATIONS CHARTER ALLOWS FOR HUMANITARIAN INTERVENTION

The Charter is the necessary starting point when analyzing whether HI is lawful, and for that matter, whether it is even possible for such a doctrine to arise through customary law alongside the Charter. Although HI is admittedly nowhere to be found within the Charter, it is well accepted that customary law and the Charter can exist in parallel. (11) However, some authors have rightly pointed out that the Charter could preclude the possibility of a customary exception to the prohibition on the use of force, even for strictly humanitarian reasons, if the customary norm were inconsistent with the terms of the Charter. (12)

With regard to HI, the opponents' syllogism goes like this: the Charter, in Article 2(4), specifically prohibits 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"; this prohibition is comprehensive, except for the explicit exceptions articulated in the Charter, namely Security Council authorization and Article 51 self-defense; and, therefore, even if HI arose through the component elements of custom (state practice and opinio juris), HI would still be a violation of international law because it would violate the superior and affirmative obligations under the Charter. (13) In its essence, the argument is based on principles of lex specialis, and also grounded in the provisions of Article 103 of the Charter, which affirms that the Charter prevails over all inconsistent norms. (14)

This is an admittedly compelling argument. Indeed, if the prohibition on the use of force were absolute, apart from the Charter's explicit exceptions, then Article 103 would bar a customary norm from overriding its terms, unless of course it rose to the level of jus cogens (a status HI has clearly not achieved). (15) This recognition is extremely important, but many proponents of HI have regrettably overlooked it. Nevertheless, there is an answer to this sound argument, and it rests in the fundamental principles of treaty interpretation, as articulated in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), (16) which are also considered to be custom. (17)

The reason states have recourse to these principles lies in the ambiguity of the terms of Article 2(4). (18) Some argue the language "against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations" is not ambiguous, and that the provision is a comprehensive ban on force. (19) However, the inability of both states and international jurists to come to agreement over the Article's full extent lends credible evidence to the contrary. (20) Consequently, recourse to principles of treaty interpretation is necessary to resolve the contours of Article 2(4) and to determine if HI is absolutely prohibited. Doing so provides insight into the modern meaning of the provision as well as the underlying purposes of the UN Charter.

VCLT Article 31 mandates three primary means of interpretation. (21) The first requires "good faith" interpretation in accordance with the ordinary meaning of the terms "in their context and in the light of [the treaty's] object and purpose." (22) The second calls for examination of the context surrounding the treaty, including the preamble and annexes, any agreement relating to the treaty's conclusion, and any instrument made in connection with the conclusion of the treaty. (23) The third, which is of utmost importance here, entails examination of "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation," as well as any relevant rules of international law. (24) It bears explicit mention that all steps are required; none is mutually exclusive to the others. (25)

With regard to the first step, there are good faith arguments on both sides. Opponents of HI can legitimately argue that the Charter was put in place in the wake of WWII to prevent states from abusing their power and invading the sovereignty of others--abuse that during WWII led to the most horrendous atrocities the world had ever seen. Specifically, it could be argued that the context of the Charter's inception points to a full prohibition on the use of force, except when authorized by the Security Council, for the very purpose of preventing such abuse. (26) Likewise, the very first words of Article 1(1) are "[t]o maintain international peace and security," thereby indicating the primary importance of respecting state sovereignty and refraining from using force against other states. (27) Going a step further, opponents could even argue, in good faith, that the principles regarding respect for human rights are subsidiary to this fundamental purpose. (28)

On the other hand, proponents of HI can point to the second part of UN Charter Article 1(1), which envisions "effective collective measures" to respond to threats to the peace, (29) Article 1(3), which highlights the need "[t]o achieve international co-operation in solving international problems, and in promoting respect for human rights," (30) as well as Article 55, which recognizes that conditions of stability, which includes universal observance of human rights, "are necessary for peaceful and friendly relations among nations." (31) Moreover, proponents of HI can certainly argue, likewise in good faith, that the very same purpose that underlies the rationale for both non-use of force and HI are one in the same--the protection of human life. Therefore, though collective forceful measures through the SC may have been the ideal means envisioned for protecting human life at the time the Charter was...