Whether international law recognizes a right and/or a duty for states to pursue humanitarian intervention  by military force.

Humanitarian intervention, though once considered to be a rogue path taken from the usual methods of international policy, became a very controversial matter whenever it did happen and when it failed to happen and still is. A lot of states, right now, are either dealing with internal difficulties and confusion or dealing with the strains on international relationships with other states. The present situation compels us to visit the troubled law of Humanitarian Intervention by the use of military force.

With a rise in intrastate conflicts, the 1990s also saw an increased sense of responsibility towards the protection of human rights and the concept of human security which chose the protection of individuals over the threat of national security. The idea was to use force and end any kind of conflict which was violating the basic human rights of citizens within that state, preventing any kind of humanitarian crisis from arising or escalating.

The United Nations plays a very important role here. Any action, taken by a member state or a coalition of member states without the approval of the United Nations Security Council (UNSC), which interferes with the domestic workings of a state and essentially challenges the sovereignty of that state is considered to be illegal by the United Nations.

The issue of humanitarian intervention arises when there has not been an authorization by the UNSC under Chapter VII to use force, but it is clear that there is a humanitarian catastrophe ongoing that has to be dealt with.[1] Here comes in, International law which gives utmost importance to the sovereignty of states along with the consent of the states being the key factor.

The United Nations also in Article 2(1) of its charter states that the organization is based on the principle of sovereign equality of all its members.[2] The major debate is about the clash between moral obligations and state sovereignty. The UN in its Charter clearly states the exceptions to military force.

The sanctity of state sovereignty is based on the assumption that outside involvement in internal strife will escalate and broaden a conflict.[3] The international law seeks to protect the rights of people within a state and to exercise their political will free from outside interference which is commonly referred to as the right of self-determination. [4]

The 1990s saw the emergence of the concept with the incidents in Rwanda, Srebrenica, and Kosovo. The United Nations had been absent and did not intervene in any of the crises, which lead to states taking matters into their own hands. In 1994 the country of Rwanda saw the heinous crime of genocide—perpetrated on a massive scale. The members of Rwandas Hutu ethnic majority murdered up to one million people, mostly of the Tutsi minority. With the support of the United Nations (UN), France led a military mission into Rwanda.

The French mission was ostensibly meant to aid the Tutsi population being exterminated by the Hutu regime and the militias, however, France, in fact, misled the UN and acted in its interest. Rather than protecting the Tutsis under siege, France sided with its longtime ally, the genocidal Hutu regime, and ushered them safely out of the country into neighboring Zaire, providing them with weapons and logistical support along the way.[5]

Then again, three years into the civil war in Bosnia, on July 11, 1995, the Bosnian Serb militants stormed into the town of Srebrenica, a safe space established by the UN. They separated 8000 men and boys from the shelter and massacred them over the course of three days. The Bosnian Serbs had been attempting to wipe out the Bosnian Muslims, in an attempt to establish a Greater Serbia out of the ruins of Yugoslavia[6]. This massacre had taken place in the zone demilitarized by the United Nations in 1993. The lack of support in the ongoing struggle showed the inability or maybe the unwillingness of the international community towards Bosnia.

It was only after the inevitable killings that NATO states which had remained indecisive about action, even after the genocidal intentions of the Serbians, dropped bombs on Serbian locations, ending the war but also leading to the internal partitioning of Bosnia.

The Kosovo incident came in January 1999, the military response by NATO, however, aroused more controversy than any use of force since the end of the cold war. NATO's intervention was, in the end, effective in stopping the mass expulsion and persecution of Kosovo Albanians but it involved the large scale use of force against a State, not because of its aggression against other countries but because of the way it was treating its own citizens.[7]

The intervention in Kosovo led by the NATO states was an action taken by the states after the UN Security Council decided not to intervene, making it an illegal action taken by the states. NATOs intervention had won the war for Kosovo. NATO ceased its air campaign on June 10, 1999, and on the same day, the UN passed the resolution 1244.

This resolution stated the guidelines that were to regulate the response by the international community in the postwar situation in Kosovo and also provided for the deployment of civil and security presence under the guidance of the UN.[8] NATOs intervention in the war was deemed to be illegal but legitimate by the Independent International Commission on Kosovo.

The intervention did not receive any kind of approval or authorization from the Security Council which made it illegal, but it also took place after all diplomatic actions had been exhausted and something had to be done to stop the atrocities occurring within the state. The manner of the intervention was still criticized in the report by the Commission.[9]

After 3 wars within 6 years, the International Commission on Intervention and State Sovereignty (ICISS) was established in September 2000 and the Responsibility to Protect was born. The Commission started with the fact that the responsibility to protect resides, firstly on the state where the population is getting directly affected as the domestic authority is in the best position to take action to prevent the problems from escalating.[10]

After the default responsibility which resides in the affected state, some residual responsibility also resides in the states of the international community, which gets activated when the affected state is either unable or unwilling to fulfill its responsibility to protect or is itself the perpetrator of those crimes or even if the people living outside that particular state are threatened by the atrocities going on within the state.[11]This responsibility requires the international community to take action to aid the people who are under threat.[12]

The Commission goes on to talk about the manner and the authorization of humanitarian intervention and emphasises on how the UN Security Council is the first port of call but then again it also provides for solutions in the case of a deadlock in the Security Council by calling for an Emergency Special Session of the UN General Assembly under the Uniting for Peace procedures. Such an action along with a vote of the members of the General Assembly would help the Security Council in rethinking its position in any case and coming to a decision.[13]I believe this was a very crucial part of the report which would have given intervention on humanitarian grounds a greater legitimacy.

The World Summit in 2005 agreed on the agreement that the international community has a responsibility to protect but also the kept it limited to the categories of crimes against humanity, war crimes, genocide, and ethnic cleansing. The alternative method to decide whether the UN would authorise an intervention that was suggested by the General Assembly was also discarded, which I believe, had it been adopted, would have made a difference in the role that the UN Security Council and its permanent five members play.[14]

There have been many situations where states have been accused of using force against a particular state, there have been times where humanitarian intervention is then used as a defence along with self defence. The self defence by a state, according to Article 51 of the UN Charter, is the only exception for the use of force against a state, since humanitarian intervention is anyway illegal. Self defence by a state can be because of an armed attack by another state or in the face of imminent threat of an armed attack.

The 2003 war in Iraq changed the perspectives of self defence and added another part to the actions under which self defence is allowed. Though this new addition remains controversial and has not been a reason for armed attacks around the world till now it certainly justified the USAs position and actions in 2003 in Iraq, which I believe is the main reason for the USA's push behind pre-emptive self defence.

This what Bushs Doctrine is all about, pre-emptive self-defence is the idea that a state can take action to defend their territory and interests even before an attack becomes imminent. Proponents of pre-emptive self-defence (mainly the United States) have argued that imminence is too restrictive a concept, as sometimes it can be too late to deter an imminent attack and action has to be taken sooner.[15]

While on the other hand, the UK also took part along with the USA in the invasion of Iraq but the Prime Minister Tony Blair had a different perspective which differed from the Bush Doctrine which was a little more aggressive compared to the Blair Doctrine or something which he described as a Doctrine of International Community.

He justified intervention through the doctrine as something which was done to save the civilian population from gross atrocities and he also said that when diplomacy or sanctions fail, then preventative intervention was warranted.[16]

The future of humanitarian intervention still depends on the United Nations and its various organs. The Independent International Commission on Kosovo proposed a principled framework that included three threshold principles, which must be satisfied in any legitimate claim to humanitarian intervention.

These principles included the suffering of civilians owing to severe patterns of violations of human rights or the breakdown of government, the overriding commitment to the direct protection of the civilian population, and the calculation that the intervention has a reasonable chance of ending the humanitarian catastrophe.[17]

Following stricter guidelines but also making humanitarian intervention a real solution, in my opinion, would make a lot of difference as right now its either illegal or legal only for four exact categories. Making some changes in the process of deciding whether to intervene or not would definitely help in minimising loss of life and loss of financial resources.

End-Notes:

1. Julie Lenarz and others, 'Intervention: When, Why And How? (28Th November 2013)' (Publications.parliament.uk, 2013) accessed 14 July 2019.
2. Charter of the United Nations 1945
3. Taylor B Seybolt, Humanitarian Military Intervention (Sipri, Stockholm International Peace Research Inst 2012).
4. ibid
5. Ross Conroy, 'The Paradox Of Humanitarian Military Intervention In Rwanda | Center For African Studies' (Africanstudies.stanford.edu, 2017) accessed 13 July 2019.
6. Alex Lockie and Armin Rosen, 'Here's The Awful Story Of The Worst European Massacre Since World War II' (Business Insider, 2019) accessed 15 July 2019.
7. Christopher Greenwood, Humanitarian Intervention: Case Of Kosovo (2002).
8. The Independent International Commission on Kosovo, The Kosovo Report' (Oxford University Press 2000) accessed 16 July 2019.
9. The Kosovo Report (Reliefweb.int, 2019) accessed 16 July 2019.
10. International Commission on Intervention and State Sovereignty, 'The Responsibility To Protect' (International Development Research Centre 2001) accessed 16 July 2019
11. ibid
12. ibid
13. ibid
14. The 2005 World Summit: An Overview (Un.org, 2005) accessed 18 July 2019.
15. Julie Lenarz and others, Intervention: When, Why And How? (28Th November 2013) (Publications.parliament.uk, 2013) accessed 18 July 2019.
16. John Laidlaw, Bush And Blair: The Impact Of A Special Relationship On National Interests (E-International Relations, 2011) accessed 18 July 2019.
17. The Independent International Commission on Kosovo, The Kosovo Report (Oxford University Press 2000) accessed 19 July 2019.