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Humanitarian Intervention under International Law: the Strife for Humanity

Published online by Cambridge University Press:  21 July 2009

David Schweigman
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Extract

Is the concept of humanitarian intervention part and parcel of customary law? In order to answer this question the or gins of the concept, (alleged) pre- and post-Charter state practice and the relation with the principles of non-interference in the domestic jurisdiction and the non-use of force will be considered. It will be concluded that the aforementioned question must be answered in the negative, notwithstanding the fact that genuine humanitarian interventions tend to be tolerated by the international community.

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Student Contributions
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Leiden Journal of International Law , Volume 6 , Issue 1 , April 1993 , pp. 91 - 110
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1993

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References

1 Armed force is meant here, so economic or political coercion that in some views amounts to a use of force is not included.

2 The protection of nationals abroad is excluded from this definition as this concept is legally qualified as self-defense and not as intervention on humanitarian grounds. These concepts incidentally may coincide, as a state intervening on behalf of the nationals of a third state may also encounter its own nationals. The protection of these nationals, however, would not be the major purpose of the intervention.

3 L. Oppenheim and H. Lauterpacht (eds.), I International Law: A Treatise 305 (1967).

4 See II De Jure Belli ac Pads, Ch. XXV, Sec.8. Quoted in A.J. Thomas and A. Thomas, Non-Intervention, The Law and its Import in the Americas 372–373 (1956).

5 Quoted in F.R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality 55 (1988) [hereinafter Tes´n].

6 Supra note 3, at 312. Stowell lists these scholars: they include Wheaton, Heiberg, Woolsey, Bluntschli, Westlake, Rougier. See E. Stowell, Intervention in International Law 55 (1921) [hereinafter Stowell].

7 L. Oppenheim, International Law 347 (1905). Quoted in W.M. Reisman et al.. Humanitarian Intervention to Protect the Ibos 170 [hereinafter Reisman].

8 Supra note 3, at 312.

9 “Some rights are not created by states for the benefit of their nationals or of foreigners; namely the right to life, the right to liberty and the right to own property […]. Before these rights, nationality sinks into the background, because they belong to the man as a human being, and are not, accordingly, subordinate to the will of the State”. Report of the Sub-Committee of the League of Nations Committee of Experts for the Progressive Codification of International law on Responsibility of States for Damage Done in Their Territories to the Person or Property of Foreigners, 20 AJIL Spe. Supp. 177 at 182 (1926). Cited in A.J. Thomas and A. Thomas, The Dominican Republic Crisis 22 (1967). See also Judge Tanaka in his dissenting opinion in the South West Africa Cases (Second Phase), ICJ Rep. 1966, 297–300.

10 In this respect Reisman has stated that: “The validity of humanitarian intervention is not based upon nation-state-oriented theories of international law; these theories are little more than two centuries old. It is based upon […] ultimately, the confirmation of the sancity of human life, without reference to place or transient circumstance”. Reisman, 168.

11 See A.J. Thomas and A. Thomas, supra note 4, at 384. Stowell states: “Humanitarian intervention may be defined as the reliance upon force for the justifiable purpose of protecting the inhabitants of another state from treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within which the sovereign is presumed to act with reason and justice”. See E.C. Stowell, supra note 6, at 53 (1921).

12 Asylum Case, 1950 I.C.J. Rep. 276–277.

13 North Sea Continental Shelf Cases, 1969 I.C.J. Rep. 43.

14 Other instances include the 1866 Cretan intervention and the 1903 Macedonian intervention. See Reisman, supra note 7, at 179ff.

15 See Stowell, 63–64. Stowell states that this was a humanitarian intervention to prevent religious persecution.

16 Id., 64.

17 See Reisman, 181.

18 Turkey stressed the fact that this was a matter of domestic jurisdiction: “une affaire interne de la Sublime Porte”. British and Foreign State Papers 633 (1826–1827), cited in Reisman, 180.

19 Quoted in Reisman, 183.

20 Id..

21 Quoted in Stowell, 54.

22 Cited by W.D. Verwey, Humanitarian Intervention, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force 57 (1986). at 60.

23 “An examination of the practice provides only one possibly genuine example of altruistic action, namely the intervention of 1860 in Syria”. I. Brownlie, Humanitarian Inteivention, in J.N. Moore (ed.), Law and Civil War in the Modem World 221 (1974). See also Franck, T.M. and Rodley, N.S.. After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AJIL 275 (1973), at 285.CrossRefGoogle Scholar

24 Quoted in Tesén, supra note 5. at 56.

25 Not surprisingly, this argument has most vigorously been brought forward by states that alledgedly violated human rights. South Africa, for instance, claimed that the discussions regarding the system of apartheid within the GA constituted an interference in its domestic jurisdiction. In general a tendency can be seen of Western states emphasizing the importance of human rights and the (former) Third World and Socialist states emphasizing Article 2(7). See for instance A. Roberts and B. Kingsbury (eds.), United Nations, Divided World: The UN's Roles in International Relations 16 (1991).

26 The Preamble and Articles 1, 55, 56, 62, 68 and 76. Article 55(c) e.g., reads that the United Nations shall promote “[u]niversal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.

27 Universal Declaration of Human Rights, U.N. G.A. Res. 217(iii), December 10, 1948. Adopted with 48 votes in favor and 8 abstentions.

28 See J.C. Salcedo, Human Rights, Universal Declaration (1948); P. Sieghart, The International Law of Human Rights 53–54 (1983); McDougal, M.S. and Reisman, W.M., Rhodesia and the United Nations: The Lawfulness ofInternational Concern, 62 AJIL (1968), at 12CrossRefGoogle Scholar; T.J. Farer, The UN and Human Rights: More than a Whimper, Less than a Roar, in A. Roberts, supra note 25, at 95ff; J. Humphrey, The Universal Declaration of Human Rights: Its History, Impact and Judicial Character, in B.G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration (1979), at 29ff.

29 Judge Tanaka in his dissenting opinion in the 1966 South West Africa Cases (Second Phase), 1966 I.C.J. Rep., 291 et seq..

30 Case Concerning the Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain), 1970 I.C.J. Rep., Para. 34, at 32.

31 Id., Para. 33 at 32.

32 See, e.g., Res. 1904 (XVIII) Nov. 20, 1963 and Res. 3068 (XXVIII), Nov. 30, 1973. See also the Teheran declaration stating that it “[i]s therefore imperative for the international community to use every possible means to eradicate this evil. The struggle against apartheid is recognized as legitimate”. Para. 7 of the Final Act of the International Conference on Human Rights, Teheran, May 13,1968, U.N. Doc. E.68.XIV.2.

33 U.N. S.C.Res. 418, 1977.

34 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986 I.C.J. Rep., judgement at 107–108.

35 Id..

36 See Tesón, supra note 5, at 212. This obviously does not exclude such intervention from violating another principle of international law, notably the prohibition on the use of force.

37 M. Akehurst, A Modem Introduction to International Law 207 (1988).

38 See Schachter, O., Coercion and Self-determination: Construing Charter Article 2(4), 78 AJIL 642 (1984)Google Scholar; see also N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity 21 (1985).

39 See A J. Thomas and A. Thomas, supra note 9, at 20.

40 See N. Ronzitti, supra note 38, at 92.

41 Brownlie for instance has stated: “It is my view it would be an instrument open to abuse”. See I. Brownlie, Thoughtson Kind Hearted Gunmen, in R.B. Lillich (ed.), Humanitarian Intervention and the United Nations 139 (1973), at 146. See also R.A. Falk, Legal Order in a Violent World, 161 ff (1968); D.W. Bowett, The Interrelation of Theories of Intervention and Self-defense, in J.N. Moore, Law and Civil War in the Modern World 45 (1974); R.C. Hingorania, Modern International Law 322 (1984).

42 As a precedent the invasion in Czechoslovakia by Hitler in 1938 is mentioned. This was claimed to be a humanitarian intervention for the protection of minorities.

43 Emphasis added. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, U.N. G.A. Res. 2625(XXV), Adopted 1971, U.N. Doc. A/8028.

44 Corfu Channel case (United Kingdom v. Albania), 1949 I.C.J. Rep. 35.

45 Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J. Rep., judgement at 134–135.

46 See Verwey, supra note 22, at 70. See also T.J. Farer, Humanitarian Intervention, The View from Charlotsville, in R.B. Lillich, supra note 41, at 152.

47 Authors holdig this view include McDougal, Reisman and Lillich.

48 M.S. McDougal, H.D. Laswell, L.C. Chen, Human Rights and World Public Order, The Basic Policies of an International Law of Human Dignity 241 (1980). Cited by N. Ronzitti, supra note 38, at 7.

49 See Reisman, supra note 7, at 177.

50 This does not have to be the case with the political independence, as it is possible to argue that in view of the maltreatment of the people, these people of which the state is composed did not possess any political independence in the first place. The better view, however, is that territorial integrity and political independence together indicate all rights and duties resulting from territorial sovereignty.

51 U. Beyerlin, Humanitarian Intervention, in R. Bemhardt (ed.), 3 Encyclopedia of Public International Law 211, at 212.

52 See Reisman, supra note 7, at 172–175.

53 Art. 55 holds that”[…] the UN shall promote: […] (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.

54 In this view,”[…] rights cannot be presumed to have been created without an effective remedy. The failure of the international community to establish effective collective enforcement thus could be taken to mean that it was intended to leave enforcement measures to states or groups of states acting on their own discretion”. See T.M. Franck and N.S. Rodley, supra note 23, at 291.

55 This obligation, however, refers to a state's own territory only, not to the territory of a third state. See N. Ronzitti, supra note 38, at 17.

56 See Verwey, supra note 22, at 67. Verwey somewhat curiously defines this as falling under the domain of the clausula rebus sic stantibus. He remarks that this approach has the general disadvantage of reviving all the ‘inherent’ rights of states to resort to force in defence of national interests. Id., 73.

57 Other -more controversial- instances include ihe 1948 Arab intervention in Palestine, the 1964 Stanleyville dropping, the 1965 intervention in the Domimican Republic, and the 1978 intervention by Vietnam in Cambodia. For accounts of these interventions see Reisman, 183ff; T.M. Franck and N.S. Rodley, supra note 22, at 286ff; R.B. Lillich, Forcible Self-help by States to Protect Human Rights, 53 Iowa Law Review 325 (1967), at 338 ff; N. Ronzitti, supra note 38, at 98ff [hereinafter Ronzitti].

58 In 1974 Bangladesh became a member of the United Nations.

59 Quoted in Ronzitti, supra note 38, at 96.

60 The USSR strongly supported India and proposed a resolution that called for a political settlement in East Pakistan and a halt to all the acts of violence by Pakistan forces in East Pakistan. This support led to allegations that the USSR had directed India's actions. On the other hand China submitted that the government of India had openly invaded East Pakistan and that the Council should demand that India immediately and unconditionally withdraw all its armed forces.

61 U.N. G.A. Res. 2793(XXVI), adopted on December 7, 1971, with 104 in favor, 11 against and 10 abstentions. Reprinted in UN Yearbook 160 (1971).

62 This remains a controversial issue ever since the occupation of Tanzanian territory occurred between the end of October and November 29,1978, when a mission of the Organization of African Unity reported that the occupation had ceased. Apparantely Tanzania was claiming a right to anticipatory self-defense.

63 Le Monde, April 14, 1979. Quoted in Ronzitti, supra note 38, at 103.

64 M. Shaw, International Law and Intervention in Africa, 8 International Relations (Journal of D. Davies Memorial Institute), No. 4, 341 (1985), at 354.

65 In fact Libyan troops fought alongside presidential troops against Tanzanian and Ugandan liberation forces.

66 In the words of Tesón:”[…] the international community virtually approved the Tanzanian intervention […] the international community as a whole recognized in this case the primacy of a modicum of human dignity over sovereignty considerations”. See Tesón, supra note 5, at 170.

67 Nanda, , The United Slates Action in the Dominican Crisis: Impact on World Order, 43 Denver JL 439 (1966), at 475Google Scholar. Cited in Reisman, supra note 7, at 187. Nanda stresses the importance of concurrence of the intervened nation, a concurrence that according to Lillich will conclusively legalize the intervention, but is not to be regarded as a condition on which intervention may be taken. See R.B. Lillich, supra note 57, at 349.

68 See Report of the Fifty-Fifth Conference of the International Law Association 555 (1972). Reprinted in Hingorania, supra note 41, at 329 (1984).

69 A disinterest (hat appears to be more likely in the case of collective instead of unilateral intervention.

70 See T.J. Farer, supra note 46, at 153. Farer, however, states that in case the invading troops “[a]id one side where the threat coincides with civil strife, […] fairly uniform condemnation can be anticipated”. Id., 159.

71 Simultaneously the Shi'ites in southern Iraq were engaged in a rebellion against the Baath regime.

72 Keesings' Record of World Events, News Digest for April 1991,38126 [hereinafter Keesings'].

73 Id..

74 On April 3, 1991 Turkey stated that “[approximately 220,000 Iraqi citizens […] are currently massed along the Turkish border”. U.N. Doc. S/22435. And in a letter dated April 4, 1991 Iran stated that more than 110,000 refugees had entered Iran and that “[a]bout 500,000 Iraqi civilians will try to cross the borders into Iran within a very short period of time of the next few days”. U.N. Doc. S/22447.

75 According to Iraq necessary as a means of “[restoring public order […] and putting an end to the sabotage and the criminal acts perpetrated against the population by armed groups”. U.N. Doc. S/2240, April 3, 1991.

76 P. Malanczuk, The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War, 2 European JIL, 114 [hereinafter Malanczuk], 118. Details of the intervention have been taken from this account.

77 See Keesings', supra note 72, at 38127.

78 See P. Malanczuk. supra note 76. at 119.

79 Resolution submitted by France and Belgium and adopted with 10 votes in favor, 3 votes against and 2 abstentions.

80 U.N. Doc. S/PV.2982.

81 The representative of Ecuador for instance stated that: “It might perhaps have been a question of internal jurisdiction of Iraq, if the situation had not gone beyond the borders of the country”. U.N. Doc. S/PV.2982, at 36. Mention was also made of violations of humanitarian law by Iraq. See the comments of the Chairman speaking as representative of Belgium, id., 62.

82 This position was taken by Turkey, Romania. Pakistan, the UK, France and Germany. Mention of genocide was made by Germany, see U.N. Doc. S/PV.2982, at 71, and by France of crimes against humanity. Id., at 53.

83 U.N. Doc. S/PV.2982. at 63.

84 The second paragraph of the preamble of Res. 688 ‘recalls’ Art. 2(7) of the Charter.

85 Zimbabwe, Yemen, Cuba and Iraq voted against Res. 688 on the grounds that it violated Art. 2(7).

86 Statements respectively of 6th, 7th and 8th of April. Cited in Keesings', supra note 72, at 38127.

87 See J.A.E. Vermaat, Humanitaire Interventie als Volkenrechtelijk Probleem: over Koerden en Precedenten. 9 International Spectator 567 (1991). at 572.

88 See Keesings', supra note 72, at 38128. The Iraqi representative to the United Nations labelled the safe haven plan as ‘wild idea’ and Iraqs' Prime Minister stated that the idea of a safe zone was “another circle of plots against Iraq and its sovereignty”. Id..

89 This marked a profound change in policy as on the fifth of April president Bush had reaffirmed that the United States would not intervene in the civil war. Keesings', supra note 72, at 38127.

90 See P. Malanczuk, supra note 76, at 121.

91 Memorandum of Understanding signed on April 18, 1991. Reprinted in 30 I.L.M. 860 (1991).

92 Approximately 5000 allied soldiers, aimed at intervening in Iraq if necessary, remained in southern Turkey until October 1991.

93 A position taken by Flinterman at a discussion about humanitarian intervention, organized by the Nederlandse Vereniging voor Intemationaal Recht, The Hague, February 18, 1992.

94 As the representative of Germany stated: “The brutal use of weapons and other agents of destruction against the Kurdish minority and other parts of the Iraqi population, and the mass exodus it has percipitated, harbour the danger of genocide”. U.N. Doc. PV S/2982, at 71.

95 See P. Malanczuk, supra note 76 at 123.

96 Declaration on the situation in Iraq issued on June 29, 1991 by the European Council, enclosed as an annex to a Letter dated July 1, 1991 from the Chargé a'Affaires a.i. of the Permanent Mission of the Netherlands to the UN addressed to the Secretary-General. U.N. Doc. S/22767.

97 See I. Brownlie, supra note 23, at 223ff.

98 In this respect Nico Schrijver stated at the discussion mentioned in note 93 that “need has no law”.

99 It may be noted that the concept of international peace and security is open to flexible interpretation, as e.g. U.N. S.C. Resolution of January 21, 1992, regharding the ‘Lockerbie affair’ shows.

100 Adopted September 25, 1991.

101 U.N. S.C. Res. 781, October 9, 1992.

102 U.N. S.C. Res. 733, January 23, 1992.

103 U.N. S.C. Res. 794, December 3, 1992.