The Law of Urnlateral Humanitarian Intervention by Armed Force: A Legal Survey

• Author: Captam Thomas E. Behuniak
• Pages: 03

The opm~lonr and ~ m e l ~ s i ~ n s expresd II rhn article are those ai the author

a-,d do not nrce~~anl$reoresent the >ie~,eof The Jvdee Adroeate General 5

1. INTRODUCTIOK

   Two major goals of the world community appear to be in conflict: that of peace and that of justice. The former objective IS Bet forth in the provisions of the U.S Charter which supposed13 prohibit the use of farce by States except in seKdefenae.' The latter goal is found m several Charter proriamns and in various U S. resolutions. declarations. and conventions relating to the recognition and protection of human

   The baac question for lawyers 1s whether or not the law accords a pnority to human rights protection over other norms of international conduct. including legal remaints on the use of armed force by States. This article surreys the law and practice of unilateral humanitarian intervention by armed force in an attempt to reach some conclusion ad to the present state of the law in this area. and further, to ret forth alternatives in some outstanding conflicts of opinion on the subject. This study ail1 cover customaq 8% well as post-L.S. Charter practice and doctrine.

   Throughout this article, the term "unilateral' ~1.111 be used to de-note mterrention by a amgle State (individual intervention) or by a p u p of States (eollectiw intervention). Unilateral intervention is charactenzed by the absence of formal authorization by any international body and collective intervention by the naninstitutionalized iiature of the poup of states conducting the intervention.

   "Humanitanan intervention" has been defined aa "[Tlhe justifiable use of farce for the purpose of protecting the inhabitants of another State from treatment so arbitrary and consistently abusive as to exceed the limits within which the sovereign is presumed to act with reason and justice." The primary purpose of the doctrine of humanitarian intervention \

   recogmized measure of self-help bared upan the inherent right of self-defense,6 in that invocation of the doctrine of humanitarian interrention did not depend upon a link bet!%-een the injuxd individu-als and the intervening State.'

   For purposes of this article, the term "mtervention" is defined as "the dictatorial interference by a State or group of States m the affairs of another State for the purposes of maintaining or altering the actual conditions for things" thereha llrnile the term "dietatorial" does not neceasarily require the actual use or threat of force for an interference to be eonridered an mterrention,a this study will foeus pnmaril) on armed intervention.

   11. PRE-CHARTER PRECEDENTS

   The leading instances of unilateral humanitarian intervention, re-fleeting world community expectations concerning its lawfulness, are considered in two periods. (11 the cumulative practice before the framing of the U.S.

   Charter; and (2) the practice rub8equent to the

   Charter.

   Grotiur traced the practice of humanitarian intervention to an-cient tirnes.'O However, modern practice has been charted from the 19th Century. In addition, the analysis of modern pre-Charter praetice focuses an the notorious c a m in Eastern Europe because of their seemingly genuine humanitarian motives and highly coercive character."

   a A noted sehalar obeerves that rhe pioteefim of nafionali is an Integral pari of the mere general ripht of self-defense and further rha! this view

   1. THE GREEK I.YTERVE.TTI0.T OF 1x2912

      As a result of numerous massacres perpetrated in pnar )ears by

      The Turkish government rejected the London propoial. insisting that the case wad a matter of domeaticjunsdiction

      TVith 110 alternative. the three major powere conducted an armed intervention in Greece, which resulted in the acceptance by the Porte of the prai~ionsof the 1827 London Treat) on 14 September 1829, and in the independence of Greece in 1830.'5 In the London Treaty. the major powers rhemaelrea indicated that their action aai dictated "no iess by sentmema of humanity. than by interest for the tranquhty of Europe." thus Invoking. fa the fmt rime ir, history. humanitarian concern as a justification for intenention li

      It has been stated that "the vast majarit! of scholars have appraised this intervention as a lanful action. based as it u a s on exigent humanitanan considerations."

   2. THE SYRIAY IXTERVETTIOSS OF 1860 Folloaing the massacre of thousands of Christians 111 Syria b) the local lloalem population uith the complicity of the Turkish authorities. Austria. France, Great Britain. Prussia and Russia met uith Turkey at the Conference of Paria in 1860 lB

      The Conference produced a protocol authorizing France. on behalf of the powers. to interrene militarily in Sina to restore order Six thousand French troops ivere dispatched to Syria. and on j October 1860. an International Cornm~ssmn consisting of the six powers was created to inyestigate the iiature and extent of the problem. This Commis adopted a bet of rule8 regulating French presence in Syna and

      drafted a new constitution for the Lebanese region, which provided for a Christian governor nho was responsible to the Porte. Thereafter, the French force, having completed its mission, withdmn in 1861.20

      Although the Sultan \%-as a formal party to the Syrian intervention through adherence to the protocol of Paris, hi8 partieipatian and consent were less then voluntar?. It is clear that Turkey assented to the French expedition "only through constraint and a desire to avoid worse 'I The constraint was deemed lawful by virtue of the humanitarian considerations of the ease. Yoreover, the disinterestedness of the powers was elearly written into the Paris Protoeol.z2 This case has been viewed by moa scholars as one of lawful human. itarian intervention.z3

   3. IYTERVESTIOS Ih' BOSXIA, HERZEGOVISA Follo\iing harsh Turkish treatment of the Christian populations in thew countries in breach of obligations assumed by the powers, and a formal declaration of war in June 1876 by Serbia and Montenegro against the Porte in support of the oppressed people, Austria-Hungarb, France. German?., Great Bntam, Italy and Russia insisted upon a conference with Turkey at C~nstantinaple.~'When the

      Porte refused to agree to the establishment af an International Commission to control the implementation of reforms they proposed to tarry out In the Balkan area, Austria-Hungary France, German?, Great Britain, Italy, and Russia met separately and agreed upon the London Protocol of March 1877. In this Protocol, the European powers reaffirmed their concern for the oppressed people in the Balkans and declared their intenrion to oversee the fulfillment of the reform promised by the Porte in the 1866 Treaty of Paria. Thev also reserved to themselves a rieht of action should the

      AXD BC'LGARIA mrfi-isr8)

      Porte fail to maintain the minimum conditions demanded in Bosnia, Herzegovina and Bulgaria.2s

      After rejection of the Protocol by Turkey on the grounds of domestic jurisdiction in general, and of the restrictire terms of Ar- -"Id ar2ffl-82

      11 See E STOWELL, 9up7m note 3. at 66

      51 B F S P 279See Fonre~ne. wpra note 11. at209: Reisman. mpra note 18, at 181 68 B € S P 823*'Id at 524

      bi the overriding humanitarian COIICCI'IX of the major Europear. pO,,W3.

      As indicated by Professor Re~srnar.,~~this ca>e also pomta out the

      inherent nrks m permitting humanitarian intervemon. Here. th was a lack of melu%ipe supervision in m~plementatmn. This. LII tu fditated abuse by one of the mtenenmg powrs. Russia. and o partial relief for the iictims of !he oppression Thus. the c clearly illustrates the need for substantive and procedmal contra s upon an armed humanitarian intenention so as [o anticipate and prevent the possibility of abuse a i w l l as to mure the marimurn fulfillment of humanitarian objectives.

      D THE .MACEDO.\-IAS ISTERVE'ESTIOS After several serious insurrPetioni ~n Macedonia1893 and in response to the atrocities commmrted by Tupon the civilian population, whereby scores of rilla

      19781 HUMANNITMWY INTERVENTIOS

      stroged with a considerable loss of life. Austria-Hungar) and Rus-sia, acting an behalf of the Concert of Europe, demanded that the Porte provide in vanous ways for future protection for the Macedonian people, and that taxes be remitted for a year b!- waj- of reparation for the lose and destruction suffered by the local

      The Porte assented to the demands but a subsequent revolution mTurkey led to new atrocities in Macedonia. part of the basis for the decluation of war on Turkey by Greece, Bulgaria and Serbia.33 In >fay 1913, after some seven months of fighting. the war ended with the signing of the 1913 Treaty of London, wherein Turkey ceded the greater part of Macedonia for partition among the Balkan allies.

      Although the Balkan allies were not able to invoke treaty commitments of the 1878 Berlin Treaty (since they were only subjects of and not parties to the Treaty), it IS significant that they did not hestitate to resort to armed force. They justified their action on grounds of humanitanan concern for the continuing atrocities that were being inflicted upon the Macedoman pap~lation.~'

   5. CSITED STATES IYTERVE.TTI0.T I S CL'BA

      €olloi~+ng the rebellion af the Cubans against Spanish rule, the President of the United States of America reserved to the United States the nght of humanitarian inter~ention.~'

      Soon thereafter, a joint reeolution of Congress authorized an armed intervention in Cuba for altruistic motives.3B After Spanish forces were defeated, a general eleetian was held on the Island under United States authority, a eaneititutional convention was convened and, within two years. the Republic of Cuba was establi~hed.~'

      r" hl GAPn mupra note 9. at 36-7 OmId at37

      14 106B.F S.P. 1069-60

   7. BWRE m p m "de 10, at 222 President MeKinler dedared

      F SOTE O S LEAGCE OF SATIOSS PRACTICEIt has been submitted that many of the policies of humanitarian mterl-ention were mstitutionalized by the League in minorit) treaties and specific third-party procedures for the...