The brutality and devastation brought about by the Second World War is still considered to be the most barbaric attack on world peace, more specifically, on individual human rights. As a consequence of the effects of the war, the United Nations was established with a primary objective of maintaining peace and security coupled with the intent to prohibit the use of force in the international sphere. Despite the prohibition imposed on the use of force, international law makes room for two exceptions that legalise the use of force against a state. This article is an attempt to create a third exception to the prohibition of force. The author believes that every state has an inherent duty of humanitarian intervention by any means necessary, including the use of military force, provided there is sufficient cause to intervene.
Humanitarian Intervention can be of any kind. There are various ways of carrying out intervention, through diplomacy, state practice, economic sanctions, statements made in the press and through the use of force. Humanitarian Intervention by military force is the use of force by one state in the territory of another, distinct from legal justifications, aimed against the gross and systematic violation of human rights being carried out against the people of that other state.[1] The attack is only against the body carrying out these vicious human rights violations, be it the government or a group within the state.
Traditional International law was birthed with the idea of ‘just war’ as proposed by Hugo Grotius, the father of international law. He tried to regulate international law by introducing new political and moral standards that would regulate the use of force in the international sphere.[2] The concept of humanitarian intervention through military use finds its origin and applicability from the times of the late 18th and 19th century, when state intervention was considered legal, only when the subjects of a third state were treated with barbaric cruelty and tyranny by its ruler. The international law of the time allowed any state to declare war against another when the people residing in its territory were subjected to large scale discrimination and threat to life, essentially forcing them to live in a land of totalitarianism. The law emphasised on the moral duty to intervene by giving the states a right to go to war. At the same time, there was also a legal duty imposed on the states to not interfere with the sovereignty of another state when there was no sufficient reason or purpose to declare war. Therefore, the use of force was not prohibited but limited to circumstances when the states would feel obliged by their moral duty to intervene and save the people belonging to a territory from its ruthless and inconsiderate ruler. The American intervention in Cuba in 1898 to save its own citizens, property and commercial interest was justified in accordance with the existing law of the time. The act of the Great Powers to intervene in the moribund Ottoman Empire in order to protect the Empire’s Christian and Jewish population is also hailed by several as an act of humanitarian intervention for the protection of the masses.[3] The state practice of the use of force to protect the people of another territory was popular mainly in the period between 1827 and 1908 when the European Concert recognised most of these attacks as justified for being acts of humanitarian intervention.[4]
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However, after the first world war, the state practice saw a considerable change and international law was modified as a result, to prohibit the use of force completely, with the exceptions being self defence and the maintenance of international peace and security only. In 1945, the United Nations emerged as the governing body for international law and codified most of its laws under the United Nations Charter. In order to discover the validity of humanitarian intervention through the use of force in the modern day, the charter should be the first point of consideration.
The United Nations Charter sets out the objectives and purpose of the establishment of the organisation. In the preamble of the Charter, the determination of the United Nations is aimed at protecting the fundamental human rights of individuals to live in dignity and equality.[5] Article 1 of the Charter sets out the organisation’s purpose to maintain international peace and security and invites a collective effort from all the states to remove any threats to peace across the world.[6] Further, in article 2(4) of the Charter, the members are refrained from exercising any threat or use of force against the territorial integrity and sovereignty of another state.[7] Finally, article 51sets out the two exceptions for the use of force in the international sphere. A literal reading of the text enables a narrow interpretation of the law where the act of humanitarian intervention would be considered illegal. However, what is required is a purposive interpretation of the law. On a close analysis, this maintenance of peace and security is aimed mainly at the protection of individuals from mis-treatment and unwarranted danger. The preservation of human kind is the ultimate objective and any act that serves as a threat to the existence and survival of humans through a violation of their fundamental rights is considered a threat to international peace and security. The preamble of the Charter re-emphasizes this fact and the first article complements it by inviting the states to take collective action against any such threat. This action, many scholars believe cannot be an armed attack, as the use of force is limited by Article 2(4). But a closer reading of the article sets out its intent to prohibit the use of force against the territory or sovereignty of the state. When a humanitarian intervention is caused through the use of military force, the attack is not against the sovereign status of the state, nor its territorial integrity, instead it is an attack against those forces within a state who are causing a grave and immediate danger to the lives of innumerable individuals by violating their fundamental human rights. The attack is not launched against a nation or a state, but the evil actors of that state who are illegitimate structures operating to disbalance the world order by causing a threat to peace and security. Therefore, a purposive reading of the Charter creates a duty on the states to act collectively when there is a serious threat to international peace and security- especially when there is a gross violation of human rights, prevention of which is the objective of the United Nations.
In recent years, humanitarian intervention through military use has gained considerable ground in customary international law. The State practice to pursue humanitarian intervention when necessary has gained recognition through many events. In the Kosovo war of 1999, the NATO attacks were widely recognised as effective intervention to save the Balkans from the aggression they faced in the form of ‘ethnic cleansing’ from the Serbian Government. The recognition of the state of Kosovo is an example of the how the states have recognised the rightness of the duty to intervene when the necessity arises. Another example, is the collective retaliation organised by several states against Syria, when a chemical attack was launched against its citizens, supposedly by the ruling regime itself. When most of the power holding states across the international sphere came out in unison, there seemed to be a recognition of a legitimate state practice that could enable intervention when gross acts of human rights violation occur. The practice of humanitarian intervention through military force is striving towards becoming a rule of international customary law. With the increase in tyrannical attitude of governments and the growth of illegal non-state actors across the world, it is not far before the practice becomes a concrete rule of international customary law.
The necessity to intervene in a state on humanitarian grounds has become a necessity within the existing structure of the United Nations. The procedure laid down to resort to the use of force in the Charter is impractical in application as the international organisation is dominated by the permanent actors who possess a veto in the security council. The existing permanent members of the United Nations seem to have a perpetual conflict of interest within their ranks, the consequence of which is suffered by the rest of the world. The interests of these 5 nations dictate the working of the international framework due to which, the passage of any resolution in the security council becomes impossible, specially when it includes the question of an armed attack. The Charter permits the security council to take military action when necessary, provided a resolution is passed in that regard. But with America and the United Kingdom always at logger heads with Russia and China, any resolution seems impossible to be passed. For example, the NATO attacks were heavily criticised by Russia and China who did not recognise the gross violations occurring in the territory of Kosovo. Similarly, the Russian attack on Ukraine was also equally criticised by some of the members of the Security Council. These major powers resort to individual action to escape from the impractical restrictions imposed by the security council. They do what they want, despite the guarantee of sanctions, merely because they consider it to be legitimate. These powerful states indulge in intervention through their moral obligation but also consider it to be their legal duty to save individual lives from gross human rights violations. In the existing structure of the United Nations, the security in an incompetent body where a military action is almost impossible and the need for individual action is gaining ground.
Thus, Humanitarian intervention is a legal duty enjoyed by the states, although not explicitly mentioned in the Charter. It serves as a third possible exception to the use of force, not creating a right in the current world order but certainly a duty to protect individual human rights. The evolution of customary international law has given a solid ground for the development of humanitarian intervention and it is not long before it becomes an established practice across the world, primarily due to three reasons-
- The increasing ill treatment of its citizens by illegitimate and despotic governments.
- The advent of terrorist organisations and extremist non-state actors.
- The incapability of the security council to take necessary action at the required time due to its inherent power dominated structure.
The evolution of the Responsibility to Protect in the last decade has imposed a greater role on the states to play an active role in the prevention of severe crimes such as genocide, ethnic cleansing, war crimes and crimes against humanity. Although the requirement is to go to the security council, the failed structure of the council to take effective measures shifts the duty on the independent states to take timely action to fulfil their responsibility.
In a world that is changing rapidly with the rise of new forces threatening the peace and security of the world, individual human rights are always in danger. The resort to force should always be the last option but should be available when necessary. States in the present day, do not hesitate to use force when there is a serious violation of human rights in any territory as they do not consider it to be an internal issue but one that affects the entire international sphere. States should not resort to the use of force at every possible opportunity but must first seek other methods of dispute resolution and resort to force only at the end as they shall always be obligated by their duty to protect individual human rights.
[1] Vaughan Lowe, Antonios Tzanakopoulos, Humanitarian Intervention, Max Planck Encyclopaedia of Public International Law, May 2011
[2] Humanitarian Intervention: Legal and Political Aspects, Danish Institute of International Affairs, 1999
[3] Supra at 1
[4] Supra at 2
[5] United Nations Charter, 1945
[6] Supra at 5
[7] Supra at 5
This article is authored by Satvik Upadhya, student of B.A. LL.B (Hons.) at Jindal Global Law School
