Humanitarian Intervention

Content

1. Definition and history

2. The classical debate about humanitarian intervention
2.1. Principles and main issues
2.2. The English School- arguments for and against humanitarian intervention
2.3. A customary international law and an emerging norm for intervention?
2.4. Criteria for justifying forcible humanitarian intervention

3. New approaches to the classical debate

4. Conclusion

Bibliography

Especially since the post-1945 era and the United Nations-establishment, international political theory has been concerned with the topic of humanitarian intervention and a complex debate, touching principles of international society and our human existence, has emerged. It focuses on two levels: the traditional debate is concerned with the arguments for and against intervention in relation to the principles of sovereignty, non-intervention and non-use of force versus global human rights norms. The critical approach to humanitarian intervention moves beyond the classical debate and its limits in providing new aspects.^[1]

Additionally, the international society recently has to deal with lots of problems. 9/11 and the war in Iraq have given rise to new challenges and terrorism prescribes a new and unique dimension for humanitarian intervention.

This essay aims to provide a clearer understanding of current issues and the complex debate concerning humanitarian intervention. Due to lack of space it can only give a rough overview about the topic. Thus it first offers a definition of humanitarian intervention and a brief historical overview about the UN. Secondly, it deals with the classical debate and related issues. The third section is concerned with critical approaches to and new ways of looking at intervention. The essay concludes by offering possible solutions to the debate.

1. Definition and history

First it is necessary to emphasise that the classical debate refers mainly to forcible humanitarian intervention^[2] when discussing humanitarian intervention.

Humanitarian intervention has been defined by Murphy (1996: 11-12) as the

threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.^[3]

This refers to a humanitarian context as act to stop the abuse of fundamental human rights.^[4]

Therefore conditional to the debate about humanitarian intervention is the existence of universal human rights. These have been established in the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948.^[5]

The United Nations was founded at the end of the Second World War as an international body to protect and uphold international peace and security.^[6] The UN is crucial to humanitarian intervention since it is both - the basis for the international society and its main principles, laid down in the United Nations Charter (the UN- founding document), and the core source for universal human rights. It is the only international body that can authorize an act of intervention.

Having defined humanitarian intervention, the focus will now turn to the classical debate about intervention.

2. The classical debate about humanitarian intervention

This section will first give an outline of the main issues related to the classical debate, which has been dominated by the English School. It then addresses the legal, moral and political arguments in favour or against humanitarian intervention. The third part of the chapter focuses on whether a new norm of humanitarian intervention is emerging. The section concludes by analysing criteria for justifying an intervention.

2.1. Principles and main issues

The English School advocates a state centric approach to forcible humanitarian intervention. It focuses on arguments for and against intervention in discussing an underlying contradiction: the international society, formed by states, is built on the principles of sovereignty^[7], non-intervention, non-use of force and self-determination. These norms conflict with humanitarian intervention since the breach caused by intervention would violate them. They are enshrined in customary international law^[8] and the UN Charter^[9].

Articles 2(3) and 2(4) of the Charter express a clear prohibition on violations by states of the sovereignty of other states and self-defence against armed attack is the only justification for the

use of force under Article 51.^[10]

These Articles and Chapter VII^[11] of the Charter are main mechanisms for the protection of the fundamental UN-purposes - peace and security- since they defend the principles crucial for upholding these purposes. The traditional principles also conflict with the humanitarian notion of intervention and the global human rights culture.^[12] Furthermore no mechanism equivalent to the one for the protection of peace and security can be found in the Charter for the protection of human rights.^[13] The question now is what happens with a sovereign state as guardian of its citizens’ security in the case of abuse^[14]. Should such a state be protected by sovereignty and non-intervention and what responsibilities do other states then have as guardians of human rights?^[15] The issue of order versus justice is a central topic of the English School.

2.2. The English School- arguments for and against humanitarian intervention

The debate between restrictionists and counter-restrictionists^[16] concerns the legality of forcible humanitarian intervention in international law.^[17] Restrictionists argue that Article 2(4) of the UN Charter states the prohibition of the use force^[18] and that therefore forcible intervention is illegal. The only exception is the right of self-defence.^[19] Counter-restrictionists claim the legal right of unilateral and collective intervention based on the UN Charter and on customary international law. The first claim concerns their argument that “(…) the promotion of human rights should rank alongside the maintenance of international peace and security.” (Wheeler and Bellamy, 2001: 475) They refer to the preamble and Articles 1(3), 55 and 56 of the Charter as human rights provisions. Counter-restrictionists see humanitarian intervention as legitimate exception to Article 2(4). Some go further by arguing that unauthorized intervention is a legal right if the UN fails to protect human rights and to take action.^[20] The second claim refers to the existence of a right of humanitarian intervention in customary international law, which is rejected by restrictionists.^[21] Another controversial argument for intervention is the expansive interpretation of Article 39 to consider human rights violations as a threat to international peace and security.^[22]

[...]

^[1] The complexity of the debate has been perfectly expressed by Hoffman: “The very act of intervention and non-intervention and the justification offered tells us a great deal - about how we conceive of ourselves, how we construct our identities and how we conceive of and construct the world in which we live.” (1993: 194)

^[2] Wheeler and Bellamy define forcible humanitarian intervention as “(…)military intervention which breaches the principle of state sovereignty where the primary purpose is to alleviate the human suffering of some or all within a state’s borders.” (2001: 477)

^[3] The definition refers to actions against the will of the target state and the latter phrase includes acts committed by state and non-state actors. The definition of forcible humanitarian intervention/ humanitarian intervention provided here is important for the understanding of section 2. It excludes economic, diplomatic and other sanctions such as trade embargos as well as conflict resolution, national reconciliation, nation building, interventions to protect the intervener’s own nationals and other non-forcible means. For further definitions of humanitarian intervention see Tesón (2003: 94)- a definition from a liberal point of view- and Holzgrefe (2003: 18).

^[4] In contrast, an intervention has been defined by Wheeler as “(…) forcible breach of sovereignty that interferes in a state’s internal affairs.” (2001: 472-473). See also Vincent (1974: 13) for a traditional definition of intervention. Please note that if the term ‘intervention’ is used in this essay it will from now on only refer to humanitarian intervention.

^[5] For a discussion of the Universal Declaration Model see Donelly (2003: 22-37). For a discussion about universal human rights versus ethnocentrism see Booth (1995: 112-120) and Forbes (1993: 217).

^[6] The UN currently maintains the membership of 200 states. For an overview about the United Nations see Taylor (2001: 331-352).

^[7] For a definition of sovereignty see Heywood (2000: 37-39). For a discussion of sovereignty see Brown (2001: 127-131) and Holsti (2004: 112-142).

^[8] Compare footnote 17.

^[9] The principles have first been established in the Treaty of Westphalia 1648. Compare de Waal and Omaar (1994:3).

^[10] The Charter even limits the UN itself from intervening in domestic and internal matters of states with Article 2(7). But the Article also states that the application of enforcement measures under Chapter VII (see footnote 11) can override Article 2(7) itself. Compare Roberts (1993: 433).

^[11] Article 39 of Chapter VII authorizes the Security Council to “(…) decide what measures shall be taken in accordance with Articles 41 and 42, to maintain international peace and security.” Article 42 gives the Security Council the power to “(…) take such action by (…) forces as may be necessary (…).”Wheeler and Bellamy (2001:477) The issue of authorized and unauthorized humanitarian intervention is to be seen in this context. An authorized intervention is an action legitimated with a resolution by the UN Security Council under Chapter VII of the Charter. Authorized and unauthorized intervention are controversial issues in the classical debate, which will also be discussed under section 2.2.-2.4.

^[12] The international human rights regime, established with the Universal Declaration of Human Rights, subscribes itself to prevent and outlaw massive abuses of fundamental human rights such as genocide or torture. This sometimes is only possible through an intervention but according to the UN Charter intervention is prohibited apart from the exceptions discussed under 2.2. and footnote 19.

^[13] Compare Peterson (1998: 872, 879).

^[14] Abuse has been defined by Wheeler and Bellamy as situation when “(…) states cloak power political interests in the guise of humanitarianism.” (2001: 477)

^[15] Compare Wheeler and Bellamy (2001: 471)

^[16] For both terms compare Wheeler and Bellamy (2001: 477).

^[17] International law consists of international conventions (UN Charter, human rights conventions) and customary international law. (Compare Holzgrefe, 2003: 39-49) “Customary international law is the law of state practice. (…) Not only must states actually engage in the practice that is claimed to have the status of customary law, they must do so because they believe that this practice is permitted by the law. This is described (…) as opinio juris.” (Wheeler and Bellamy, 2001: 475)

^[18] This is considered to be a rule of jus cogens- a peremptory norm of international law from which no subject of international law may derogate. Compare O’Connell (2000: 58). Peremptory norms are considered to be customary in origin and include the prohibitions on genocide, torture and aggressive use of force. Compare Byers and Chesterman (2003: 180).

^[19] The second exception to the general prohibition of force would be Article 42 of the UN Charter (compare footnote 11). Other exceptions would be a state collapse or the approval of the target state but in this sense the intervention would be conform to the UN Charter.

^[20] Compare Holzgrefe (2003: 39) and section 2.3.

^[21] See Wheeler and Bellamy (2001: 475) and Holzgrefe (2003: 44-49). For an affirmation see de Waal and Omaar (1994: 4)

^[22] Compare Holzgrefe (2003: 41). As we may see in 2.3. the Security Council’s practice supports this view.