1worldinternational presents the concluding part of its analysis on humanitarian intervention. The examination has sought to investigate the legality of the concept of 'humanitarian intervention' and whether it is recognised by the UN Charter. We also sought to ascertain whether such action can only be sanctioned by the UN and also to examine the legality of military action triggered by one or more states acting in tandem where mass crimes are being perpetrated by a third state. One wishes that there was enough time to explore this topic in more depth; however, we hope to cover this matter extensively in the future therefore please watch this space.
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ii. Humanitarian intervention brought about by disruption to democracy
It may also be argued that disruption to democracy which results in a humanitarian crisis could possibly constitute a 'threat to peace and security'. The Security Council passed two resolutions - 217(1965) and 221(1966) - by which an internal situation which was established by the white, racist, minority regime was declared as the existence of a 'threat to peace'. This evidence could be said to imply that the Security Council outlaws illegitimate and anti-democratic governments and their existence constitutes a 'threat to the peace'. Resolution 940(1994) authorising Operation Restore Democracy in Haiti legitimised the use of force in support of democracy. The Council recognised the potential of a humanitarian crisis following the overthrow of the democratic government led by President Jean-Bertrand Aristide which resulted in the exodus of Haitians seeking refuge in neighbouring member states and the recognition by the UN of the existence of a potential 'threat to peace and security in the region'.
The Council consequently passed a resolution authorising a multinational force to use "all necessary means to facilitate the departure from Haiti of the military leadership…the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government". Certainly, ‘the climate of fear of persecution, economic dislocation and humanitarian crisis’ recognised by resolution 841(1993) in terms of the Haiti situation is comparable to the present situation in Syria, and potentially constitutes a threat to international peace and security in the region were it to continue.
THE ABSENCE OF A CONSENSUS ON THE CONCEPT OF ‘HUMANITARIAN INTERVENTION’
The various attempts to justify a right to humanitarian intervention based on customary international law provides an uncertain basis for claims and is at present still subject to general consensus. The International Court of Justice’s position in the Nicaragua case explicitly indicated no such support for a customary international law right of humanitarian intervention. Responding to the United States’ claim, it stated: “While the United States might form its own appraisal of the situation as to the respect for human rights in Nicaragua, the use of force could not be an appropriate method to monitor or ensure such respect…the court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford legal justification for the conduct of the United States".
The Court in the Nicaragua case also outlined the criteria for the formation of new rules of customary international law asserting, “either the states taking such action or other states in a position to react to it must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a new rule of law requiring it". The Court therefore found that this line of reasoning, that is one in which most countries believed in the existence of a right to intervene where mass crimes are being perpetrated, was not only redundant, but also could not justify the intervention of the US in the internal affairs of another country. In this context, the assertion of the illegality of NATO’s actions in the Security Council by various countries, the reservations made again regarding the illegality of NATO’s action at the thirteenth meeting of the Human Rights Commission and the condemnation of all military actions outside the UN Charter framework without authorisation by the Security Council expressed in the final document issued at the 8th Ministerial Conference of the Non-Aligned Movement clearly do not support the use of force beyond Charter purposes.
It is also argued that the scope of a customary international right of humanitarian intervention opens doors to ‘self-serving formulations’ that may assert that illegal acts are consistent with the rule of law as states may intervene on the pretext of such principle. It is therefore unsurprising that a majority of interventions based on humanitarian grounds such as the United State’s incursions in Grenada and Panama have been disclaimed by the international community. Significantly, the International Court of Justice was also unwilling to recognise the possibility that every state has a responsibility (termed erga omnes obligations) to resort to countermeasures involving the use of force if another state is engaging in grave breaches of fundamental obligations. In this regard the Court stated: "the acts of which Nicaragua was accused could not justify countermeasures taken by a third state, the United States, and particularly could not justify intervention involving the use of force". This authoritative assertion seems to categorically preclude the existence of a right to ‘humanitarian intervention’, which permits a state or group of states intervening where mass crimes exist without UN authorisation.
CONCLUDING REMARKS
To conclude, the former UN Secretary-General, Kofi Annan, in view of the Kosovo intervention surmised: "there are times when use of force may be legitimate in the pursuit of peace...under the Charter, the security council has primary responsibility for maintaining international peace and security, therefore the council should be involved in any decision to resort to the use of force". The nature of the Security Council's power under Chapter VII will be invoked if regimes are deemed a threat to peace. It is unlikely here that disruption to democracy will constitute sufficient grounds for intervention in for example, Burma as it lacks the 'humanitarian' element present in Haiti and Sierra Leone. However, the magnitude of the humanitarian crisis in Syria and Sudan provides a probable ground for intervention, buttressed by the existence of internal conflicts in both countries. Attempts have also been made to construe the protection of human rights as compatible with a customary international law right of humanitarian intervention. The acceptance of such a right would legitimise recourse to the use of force by a state or group of states on the basis of humanitarian intervention when necessity prevails.
However, firm evidence of global opinion is still yet to emerge. Further, it is of note that none of the existing international courts decisions have explicitly legitimised such interventions. Most notably, General Assembly resolutions and declarations as to intervention on humanitarian grounds and importantly the reluctance of NATO members to give detailed arguments pertaining the lawfulness of the intervention is perhaps evidence of widespread opposition to the rule. Also, while contemporary international law suggests that some breaches of international law could entail enforcement by states as whole, international legal instruments such as the International Law Commission’s Articles on State Responsibility and the UN commissioned Responsibility to Protect report which seems to accommodate the prospect of collective security action albeit expressly excluding countermeasures. Therefore while the UN’s staggered response to repressive regimes where necessity is required such as in Rwanda and latterly in Bahrain and Syria where grave violation of human rights persist has been subject to criticism, Security Council action still seems to constitute the sole legal basis for the removal of such regimes.
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