Humanitarian intervention and international law.

• Author: Rogers, A.P.V.

Nothing seems to have divided international lawyers as much in recent years as the question of humanitarian intervention. Discussions on the subject seem to produce an explosive mixture of ethics, politics, and law; and it is not always clear where scholars are drawing the dividing lines among the three, if at all.

1. USE OF FORCE

   The United Nations Charter envisages lawful use of force in only two cases: (i) in individual or collective self-defense; (1) or (ii) as a result of a mandate from the United Nations Security Council ("Security Council") acting under Chapter VII of the Charter. (2) Some international lawyers have claimed that a state may also use force to rescue or evacuate its nationals who are in danger abroad. (3) Further, a standard textbook on international law advocates that international use of force without Security Council mandate may be justified: (i) in self-defense (which includes collective self-defense, protection of a state's nationals abroad under certain conditions, and possibly anticipatory self-defense) (4), (ii) with the genuine consent of the territorial state, (5) or (iii) in necessary and proportionate response to an unlawful but small-scale armed action by another state. (6) The author in question, however, does not consider legally permissible the use of force to stop atrocities within other states. (7)

   It has, nevertheless, been argued by some that interfering by force in the internal affairs of another state to prevent an overwhelming humanitarian catastrophe is justified. (8) According to this argument, international law is not set in concrete and must adapt to meet new situations. The U.N. Charter cannot cover every eventuality that occurs and individual states must have the legal power to intervene to prevent genocide or widespread crimes against humanity until such time as the Security Council takes control. The North Atlantic Treaty Organization (NATO) intervention in Kosovo in 1999 was said to be justified on the grounds of such a humanitarian crisis coupled with non-compliance by the parties with Security Council Resolutions. (9)

   Other scholars are more skeptical. They maintain that the U.N. Charter allows for no exceptional cases. Further, they claim that because the "enforcers" of the law have a right of veto in the Security Council, international law is controlled by the whim of the few. That procedure is said to amount to a new form of imperial colonialism. (10) Regardless of these viewpoints, the peace agreement secured between the NATO states and Yugoslavia following the Kosovo intervention was later ratified by the Security Council in Resolution 1244 of June 10, 1999.

   Admittedly, the concepts of self-defense, consent of the territorial state, and "atrocities" can be very subjectively interpreted and thus used as a pretext for intervention for other reasons. Such conduct would be an abuse of law. The potential for abuse, however, is not a reason to say that the right does not exist as a matter of law.

2. UNITED NATIONS CHARTER

   Article 2, paragraph 4, of the Charter provides: "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." (11) Does this provision mean that one can threaten or use force for other purposes? (12) The International Court of Justice has answered this question in the negative. It held that the United Kingdom's forcible intervention in Albanian waters violated Article 2, paragraph 4, rejecting the United Kingdom's argument that its actions did not threaten the territorial integrity or political independence of Albania. (13)

   Article 2, paragraph 7, goes on to provide: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State ... but this principle is without prejudice to the application of enforcement measures under Chapter VII." (14) Chapter VII enables the Security Council in the event of any threat to the peace, breach of the peace, or act of aggression, to take measures to maintain or restore international peace and security. These measures may include the use of armed force, if necessary. Article 51, however, specifically declares "[n]othing in the present Chapter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." (15) It is to be noted that Article 51 says nothing about any right of self-defense of a province in a member state or an oppressed minority in a member state. (16)

3. POST-UNITED NATIONS CHARTER PRACTICE

   The problem with the United Nations Charter in the realm of humanitarian intervention is that it was drawn up to regulate interstate dealings. It does not really address serious humanitarian problems within a state or the international response to such problems. The lack of emphasis on the human rights question may be somewhat justified since even the proponents of humanitarian intervention do not claim the right to intervene to protect all human rights. These proponents do, however, claim a right of intervention in severe cases, such as genocide, crimes against humanity, and other serious infringements of the right to life. A number of commentators have pointed out that protection of human rights has become a matter of international, not merely domestic, concern. Indeed, one of the purposes of the United Nations is to promote and encourage respect for human rights. (17)

   In recent years, the Security Council has in several cases decided that problems within a state do represent a threat to international peace and security and has taken appropriate measures to remedy these problems. There is not, however, unanimity among the five permanent members on this issue. China and Russia, in particular, support the principle of non-intervention. Many states have therefore often had to deal with these situations without a United Nations mandate. India's U.N. representative explained its annexation of the Portuguese colony of Goa in 1961 as terminating an illegal occupation by the Portuguese. Although the United States representative condemned the indian action, the Soviet Union vetoed a draft Security Council resolution calling for the withdrawal of Indian forces. In the case of the United States intervention in Grenada in 1987, the Governor-General of Grenada had invited international action. (18) The interventions of India in what was East Pakistan in 1971, (19) Vietnam in Cambodia in 1978, Tanzania in Uganda in 1979, and the Israeli operation at Entebbe in 1976 were claimed by the states concerned to be in self-defense. According to the United Kingdom representative at the United Nations, United Kingdom operations in the Falkland Islands in 1982 were an exercise of the inherent right of self-defense. It is of interest here that the United Kingdom must have...