Humanitarian intervention: to protect state sovereignty.

AuthorGulati, Jasmeet
  1. INTRODUCTION

    Is it possible to resist evil without succumbing to the dangers of righteousness?

    This question, posed by Tzvetan Todorov, aptly sums up the debate over the issue of humanitarian intervention. (1) The heart of the debate is the perceived conflict between the notion of state sovereignty and the concept of humanitarian intervention. While NATO's intervention in Kosovo was seen as a direct attack upon the state sovereignty, the silence of the international community to intervene in gwandan genocide at the same time has also been criticized as a failure of the community of nations to protect the lives of those people. Many jurists seem to contend that these two concepts can never co-exist. (2) They hold humanitarian intervention as inconsistent with the concept of sovereignty. However, as former Secretary-General Kofi Annan asserted in September 1999, "if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica--to gross and systematic violations of human rights that offend every precept of our common humanity?" (3)

    This paper does not intend to suggest that the principle of sovereignty of individual states is violable in favor of humanitarian intervention. Rather, it tries to demonstrate that when an authority appointed to enforce sovereignty starts to violate that sovereignty, the international community must step in to stop the violation of this impregnable principle. This argument centrally rests on a standard assumption that the concept of sovereignty is separable from the authority appointed as sovereign. The authority appointed as a sovereign is the one governing its people, and could be termed as government. The purpose of government is to secure the people's rights. Thus, the sovereign is meant to protect the rights and interests of its citizens. Therefore, if the sovereign engages in policies that threaten the basic purpose for the enforcement of sovereignty, he will be said to be violating the sovereignty of his state and his people. Due to this, sovereignty can no longer vest in its violator, and he will not be able use its inviolability as a defense when international actors intervene on humanitarian grounds to protect the sovereignty of that state by preventing the ruling sovereign from violating it. This paper will also explicate the basic purpose of sovereignty along with the principles of self-determination, non-intervention, and Article 2(4) of the U.N. Charter along with various moral and ethical limitations in the context of humanitarian intervention.

    A. Research Methodology

    This paper is divided into four sections. The first section discusses the basic concept of humanitarian intervention. Here, we will argue that the basic criticism of this concept revolves around the principle of state sovereignty. The second section tries to delineate the core features of sovereignty that have survived the interpretations of numerous jurists throughout history. The third section discusses the legality of humanitarian intervention by testing its validity using the core features of sovereignty in light of other principles, including self-determination and non-intervention. The final section highlights the emerging doctrine of responsibility to protect and its acceptance of a genial relation between the concept of sovereignty and humanitarian intervention.

    B. Scope and Limitations

    The research is limited to only one aspect of humanitarian intervention, namely, its relation with the concept of sovereignty. Most of the issues raised in this paper are only incidental to this main issue of sovereignty and its relation to humanitarian intervention. In this paper we do not deal with other disputes regarding humanitarian intervention--for example, the debate whether sufficient state practice and opinio juris exists to establish humanitarian intervention as a customary law or not. Also, because the topic of sovereignty is very vast and extensive, the research is limited to only a few important jurists of sovereignty, and further, to only their main ideas.

  2. THE CONCEPT OF HUMANITARIAN INTERVENTION

    In the last two decades, the issue of humanitarian intervention has emerged as one of the most hotly debated topics amongst both theorists and practitioners of international law. (4) This paper seeks to answer one straightforward question--is there actually any conflict between the concept of humanitarian intervention and the protection of state sovereignty, especially in the situation of grave humanitarian crises that is posed by the ruling sovereign himself?. However, before starting with the main arguments, it is important to define the concept of humanitarian intervention in order to make clear the end and scope of the matter that is to be discussed.

    A. Humanitarian Intervention Defined

    J. L. Holzgrefe defines humanitarian intervention as:

    [T]he threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the government of the state within whose territory force is applied. (5) According to James Pattison, there are four defining conditions of humanitarian intervention. (6) First, humanitarian intervention is always a forcible military intervention that is carried out without the consent of the government of the state. (7) The lack of consent and forcible nature distinguishes it from the humanitarian assistance, which involves relief work done by international actors (mainly non-governmental organizations such as the International Committee of the Red Cross or Oxfam) that is done with the consent or at the request of the government. (8) The second defining condition is that "humanitarian intervention takes place where there is actual or impending grievous suffering or loss of life." (9) Intervention after the occurrence is not allowed.

    Third, humanitarian intervention must have a humanitarian purpose. (10) It should only be carried out with the purpose of "preventing, reducing, or halting actual or impending loss of life and human suffering." (11) This also means intervention that is mainly for self-defense may not be a humanitarian intervention. The use of force in self-defense has its origin in Article 51 of the U.N. Charter, wherein use of force is legal only if the armed attack has occurred against the state using force. (12) The use of force in humanitarian intervention is merely for the protection against violations of human rights in another state, (13) This feature distinguishes between a humanitarian intervention and the War on Terror. While humanitarian intervention is aimed toward protecting against loss of life in the target state, the War on Terrorism is mainly concerned with eliminating the risk posed by some militants of the target state to the citizens of the intervening state. (14) Thus, the War on Terror may be argued as being limited only to self-defense. Finally, humanitarian intervention is always carried out by an external power. (15) A state using force to protect its own territory from rebels is not an example of a humanitarian intervention, as it comes under the domestic jurisdiction of a state. (16)

    B. Sovereignty,: The Biggest Limitation In The Legitimacy Of Humanitarian Intervention

    It is conspicuous that the acceptability of the concept of humanitarian intervention can only rest upon its legal validity. (17) It seems that any test for corroborating or refuting the legality of humanitarian intervention mainly rests upon the interpretation of Article 2(4) of the U.N. Charter, which has codified the customary norms of "state sovereignty" and "non-intervention." (18)

    Proponents in favor of establishing the legitimacy of humanitarian intervention argue that Article 2(4) of the U.N. Charter does not expressly bar humanitarian intervention because the prohibition under Article 2(4) of the Charter only applies when the use of force is in a "manner inconsistent with the [p]urposes of the United Nations." (19) However, the duty to prevent human rights violations is consistent with the aforementioned purposes. (20) This is because preventing these violations is, at its essence, about "reaffirm[ing] faith in fundamental human rights" and "sav[ing] succeeding generations from the scourge of war," text that is found in the Preamble to the U.N. Charter and is indicative of the purposes of the United Nations. (21) This is highlighted in Article 1(3) of the Charter. (22)

    Other provisions of the U.N. Charter, such as Article 55 (23) and 56, (24) also reflect the importance of protecting human rights as a fundamental purpose and objective of the United Nations. Another argument justifying the validity of humanitarian intervention relates to the customary nature of humanitarian intervention and how it is validated by state practice and opiniojuris. (25) A foreign office minister of the United Kingdom wrote that a limited use of force without the Security Council's express authorization is justifiable in support of the purpose laid down by the Council when that is the only means to avert an immediate and overwhelming humanitarian catastrophe. (26)

    Critics of humanitarian intervention have also used Article 2(4) of the U.N. Charter to formulate a major criticism that directly attacks the validity of humanitarian intervention. According to these critics, the principle of humanitarian intervention conflicts with the principle of sovereignty of a state, which is considered to be inviolable. (27) The principle of the inviolability of sovereignty is codified in Article 2(4) of the U.N. Charter, (28) which expressly prohibits the use of force against the sovereignty and integrity of a state. Critics of humanitarian intervention argue that since Article 2(4) is a jus cogens norm, (29) and thus, that it imposes an absolute restriction on...

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