Humanitarian Intervention
What Is Happening
In March 1999, the North Atlantic Treaty Organization (NATO) launched an aerial bombing campaign against the Federal Republic of Yugoslavia.1 The campaign was in response to the Kosovo War, during which ethnic Albanians clashed with Yugoslavian forces for Kosovo’s autonomy.2 At the time, the Yugoslav army forcefully removed hundreds of thousands of civilians out of their villages.3 The United Nations High Commissioner for Refugees reported that by the end of the war, in June 1999, nearly 850,000 Albanians had been expelled from Kosovo.4 In order to put an end to these atrocities, NATO forces targeted the Yugoslav military’s positions, as well as Serbian government buildings and key infrastructure.5 Between March and June 1999, NATO launched nearly 2,300 missiles in Kosovo.6 The bombings ended when Yugoslav forces withdrew, as Slobadan Milosevic, then President of Yugoslavia, accepted NATO’s terms for ending the 78-day campaign.7
Before the start of NATO’s operation, members of the organization had sought to get authorization from the United Nations Security Council for the use of force against Yugoslavia, but were met with veto threats from both Russia and China.8 The campaign was then carried out unilaterally, that is, without Council authorization.9 This led the intervention to be labeled as an “illegal but legitimate” act by the Independent International Commission for Kosovo, a multilateral body established to investigate the aftermath of NATO’s actions.10 The commission concluded that the intervention was illegal because it was unauthorized, but legitimate because it was done on humanitarian grounds, and contributed to the end of the atrocities in Yugoslavia.11 The NATO campaign did not merely constitute the unilateral use of force against a sovereign state. It was, first and foremost, a humanitarian intervention.
The lack of an unambiguous legal basis for NATO’s campaign in Kosovo, regardless of its humanitarian nature, stems from the provisions of the Charter of the United Nations, the principal legal framework for interstate relations. The Charter states in Article 2(4) that “All Members shall refrain…from the threat or use of force against the territorial integrity or political independence of any state.”12 This clause forms the basis for the prohibition of the use of force in international law – a fundamental feature of the contemporary world order. Several other clauses in the Charter both affirm and qualify this prohibition.13 Article 51 institutionalizes the permissibility of the use of force only in the case of self-defense. It states, “Nothing in the present Charter,” including Article 2(4), “shall impair the inherent right of individual or collective self-defense if an armed attack occurs.”14 In all other cases, the Charter denotes the UN Security Council as the sole legitimate decision-maker for authorizing the use of force. Article 24 states that the Council has “the primary responsibility for the maintenance of international peace and security.”15 Likewise, Article 42 emphasizes that the Council “may take action…as may be necessary” for this purpose, which can include “operations by air, sea, or land forces of the Members of the United Nations.”16 Therefore, a formalist reading of the Charter, which means that interpretation is minimized and all meaning is derived directly from the text of the law, does not permit the use of force against a state. The only exceptions to this are cases of self-defense, or those that have been authorized by the Security Council.
Even when the use of force is sanctioned by regional or other multilateral treaties, the Charter’s prohibition prevails.17 For instance, Article 4(e) of the African Union’s Constitutive Act states that the Union has “the right to intervene in a Member State” if there are “grave circumstances, namely: war crimes, genocide, and crimes against humanity.”18 Even though this provision has never been enacted, it is nonetheless made void by the existence of the Charter, which acts as a supranational constitution. Article 103 declares that “In the event of a conflict between the obligations of [UN member states] under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”19
Despite the seeming prohibition of the use of force in the Charter, however, both states and multilateral organizations have undertaken cross-border military operations in recent decades for “humanitarian purposes.” An often-cited example of this is the NATO campaign in Kosovo in 1999, but it is by no means a solitary case. For instance, in 1972, India unilaterally launched an operation in East Pakistan, now Bangladesh, in response to the genocidal repression of secessionist movements by the country’s military government.20 Although India’s intention to use force was not met with support from member states in the General Assembly, it was ultimately successful in stopping the military repression. In fact, India’s military operation was labeled as one of the first cases of humanitarian intervention in world history, both due to its outcome and to India’s humanitarian rhetoric surrounding it.21
Several other cases also illustrate the use of humanitarian intervention in international affairs. In 1992, for instance, the United States deployed troops in Somalia after Mohamad Siad, the country’s then-president, was overthrown by a coalition of warlords.22 The intervention aimed to protect civilians from “human rights abuses” and to deliver humanitarian aid.23 In 2000, the British military intervened in the civil war in Sierra Leone for the same purpose.24 Moreover, in 2011, a NATO coalition led by the United States, the United Kingdom, and France created a no-fly zone over Libya.25 In all of these cases, the intervening states did not face negative consequences for the unauthorized use of force beyond their borders. This was largely due to the humanitarian rhetoric justifying the interventions. The United States’ operation in Somalia, for instance, was named “Operation Restore Hope,” with the stated purpose of “assisting with famine relief.”26 The United States maintained that the military clashes were caused by the fact that humanitarian deliveries were met with “direct resistance” from the forces of the warlord Mohamed Farrah Aidid, and were not designed to be a part of the operation.27 These instances show that even though Article 2(4) of the UN Charter prohibits such uses of force, in practice, states or multilateral organizations that undertake military operations for humanitarian purposes do not ordinarily face legal consequences or sanctions for violating this principle.
The lack of legal consequences for the intervening states can be observed even in cases where the humanitarian intervention resulted in civilian deaths and in severe damage to public infrastructure.28 This emphasizes the need to investigate what legal or normative frameworks states and international actors rely on for bypassing the technically ambiguous status of humanitarian intervention in international law.
Why Is It Happening?
For decades, states, multilateral organizations, and scholars of international law have articulated a number of conceptual frameworks and secondary rules of state responsibility to ground humanitarian intervention as a legal practice. State responsibility primarily refers to a state’s breach of its obligations in the international order or to other states.29 It was institutionalized in 2001 with the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts.30 In the same year, the Articles were recognized in the General Assembly with the Resolution 56/83, which “commended [the Articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”31 In the context of humanitarian interventions, rules of state responsibility have also been applied to the breach of a state’s duties against its own citizens.32
A legal argument that derives from the rules of state responsibility is the “defense of necessity.”33 According to this argument, unauthorized intervention is justified on the grounds that it is carried out in an emergency situation in order to prevent greater harm from happening. The implications of this are threefold. First, it justifies the act of intervention. Second, it exempts the intervening state from the provisions against undertaking the act without Security Council authorization, or for a purpose other than self-defense. Third, it asserts that the extreme necessity of the act must be considered as a mitigating factor in the case that the intervening states face sanctioning for their actions.34
The primary legal basis for this argument stems from the International Law Commission’s aforementioned Articles.35 Article 25 states that necessity may be invoked by a state “as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State” if that is “the only way for the State to safeguard an essential interest against a grave and imminent peril.”36 Some scholars have argued that humanitarian intervention falls under this clause as the protection of human rights can be interpreted as an “essential interest.” This is because the preamble of the UN Charter reaffirms member states’ “faith in fundamental human rights [and] in the dignity of the human person.”37 A commitment to the universal protection of human rights and the prevention of atrocities is likewise made in Article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, known as the Genocide Convention. It states, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and punish.”38
Furthermore, some scholars have argued that humanitarian intervention, although not explicitly permitted in Article 2(4) of the UN Charter, is not explicitly prohibited under the same clause either.39 The Article prohibits the use of force on the basis that it is against the territorial integrity or political independence of a state.40 However, humanitarian intervention does not ordinarily seek to disrupt the territorial integrity of the target state, or jeopardize its political independence. On this basis, some scholars argue that the UN Charter does not specifically prohibit humanitarian intervention.
Lastly, several interpretations also maintain that, as a consequence of state practice, the scope of Article 2(4) of the Charter has shifted, and its legal force has decreased.41 This line of thought posits that humanitarian intervention is not a “violation” of international law, instead, it is “constructive noncompliance.”42 This reasoning was notably demonstrated by the Independent International Commission for Kosovo’s determination that NATO bombings in Kosovo were “illegal but legitimate,” and by the fact that NATO member states were not persecuted for their use of force.43
In these ways, although there is no clear and intended basis in international law for humanitarian intervention, a multitude of secondary claims, norms, and practices have been established in order to justify the use of force for humanitarian purposes.
What Is Being Done About It?
In order to shift the responsibility for humanitarian relief from third-party states, the UN has passed a multitude of provisions to address humanitarian crises in recent decades.
In 1991, the General Assembly adopted Resolution 46/182 to “strengthen the United Nations’ coordination of humanitarian assistance in complex emergencies.”44 As part of this framework, the Emergency Relief Coordinator and the Inter-Agency Standing Committee were established, the latter working to coordinate assistance between the UN and its partners.45 Furthermore, the Central Emergency Revolving Fund was created to accelerate the response to timecritical funding requirements. The most significant contribution of Resolution 46/182 was the creation of the Department of Humanitarian Affairs, which was renamed as the Office for the Coordination of Humanitarian Affairs (OCHA), in 1998.46 A year later, in 1999, the Protection of Civilians in Armed Conflict was made a specific item on the UN Security Council’s agenda, with the aim of limiting the humanitarian impact of conflict on civilians.47
Moreover, since the turn of the century, UN agencies have taken a more active role in addressing civil violence within the borders of its member states. There are currently twelve active UN Peacekeeping operations: seven in Africa, three in West Asia, two in Europe, and one in East Asia.48 The operations are supported by troops from 120 countries, totaling to 81,820 peacekeeping personnel.49 These troops operate under a UN mandate, regardless of their nationality. Since the violence-ridden days of the 1990s and early 2000s, the UN has become the foremost response mechanism to humanitarian conflicts, decreasing the need for humanitarian intervention by individual states.
That said, the UN’s bureaucratic processes have often resulted in delayed responses to urgent developments. A poignant example is the International Force East Timor (INTERFET), a multinational non-UN “peacemaking” operation in East Timor that was led by Australia.50 The operation, which started in September 1999, facilitated humanitarian operations amidst violent clashes between the anti-secessionist militia and supporters of East Timor’s bid for autonomy.51 The intervention, which contained over 5,500 personnel, was successful in easing tensions until the arrival of UN peacekeeping troops in February 2000.52
The delay in an official response from the UN was caused by the fact that, unlike unilateral operations, UN Peacekeeping operations require substantial bureaucratic approvals. In the initial stage, all relevant actors are consulted about potential UN involvement, including the target government and parties on the ground, member states, and relevant regional or intergovernmental organizations, as well as any other key external actors.53 During the consultation phase, the Secretary General may request a strategic assessment of the situation.54 When all relevant actors consent, the UN Secretariat conducts a more detailed technical assessment on the ground. Based on these findings, the Secretary General then presents a report to the Security Council, which provides options for the operation’s size, resources, financial implications, and estimated costs.55 If the Council decides a peacekeeping force is appropriate, a resolution to authorize the operation is proposed. As the UN does not have a standing army or a police force of its own, member states deploy personnel and troops for each peacekeeping operation on a case-by-case basis. In the meantime, logistical and administrative factions for the operation are established until the time of deployment.56
The process is time-consuming and extensive. In East Timor, the security vacuum established in the first months of the conflict was contained with the presence of the Australian-led force, which was able to organize and deploy troops months earlier than the UN Integrated Mission in Timor-Leste (UNMIT). However, this was a unique case where a third-party state was willing to provide troops and resources to contain a civil conflict. In most cases, for instance in Rwanda, the security vacuum persists and intensifies in the months it takes for a UN mission to arrive in a conflict-ridden state. Although the UN mechanism has made leaps in incentivizing multilateral UN-led humanitarian interventions, progress is still needed in terms of the response time and the efficacy of these missions.
What’s Next?
It is very likely that in the foreseeable future, the conceptual basis for humanitarian intervention will continue to be based on normative frameworks or secondary legal responsibilities. For a strict reading of the law to permit the use of force for humanitarian purposes, the principal legal document that regulates international relations, namely, the UN Charter, would need to be amended. This is because, as per Article 103 of the Charter, any treaties or regulations that can be enacted on this matter will be void if they contradict the provisions of the Charter.57 The only valid avenue for humanitarian intervention to become unambiguously permissible in international law is through its explicit inclusion in the Charter.
However, amendments to the Charter are subject to veto power.58 In addition to necessitating affirmative votes from two-thirds of the General Assembly, proposed amendments need to be approved by the five permanent members of the Security Council.59 This is highly unlikely, and not merely because of different ideological leanings. Instead, the implications of such an amendment demonstrate why the formal recognition of humanitarian intervention as a lawful practice would prove to be undesirable for all member states.
Firstly, explicit permission for states to unilaterally carry out military operations, albeit for humanitarian purposes, goes against the foundational principle of the UN: the maintenance of international peace and security. Instead, it invites an interpretation of the use of force not as a tolerable last resort but as an accepted practice. It will allow any state to use force against any other state so long as the former can cite a humanitarian purpose for doing so. Moreover, such a provision would potentially weaken the sovereignty of the nation-state, which is a fundamental norm in interstate relations. Humanitarian intervention, regardless of its purposes and outcomes, ultimately violates state sovereignty through the involvement of third parties in a state’s domestic affairs. Some scholars have also argued that a state’s failure to protect its own citizens from atrocities, let alone acting as the perpetrator, elicits the erosion of its rights, including the right to sovereignty.60 Nonetheless, in the case that humanitarian intervention becomes a lawful, and thus more frequent, practice rather than an exception to the commitment to state sovereignty, it stands to erode the impermeability of the nation-state.
A related issue arises from the universality of humanitarian issues. As humanitarian causes do not depend on geographical boundaries, if it were unambiguously permitted, intervention would allow any state to intervene in any other state, regardless of whether the actions of the latter cause material or tangible consequences to the former. In the case of the use of force that is not carried out on humanitarian grounds, the political, economic, and social dynamics in international relations disincentivize states from carrying out military operations unless it is directly beneficial for their domestic or foreign policy objectives. By eroding reputational and legal costs associated with the use of force, however, the potential legality of humanitarian intervention stands to remove these disincentives, and jeopardize the UN’s commitment to upholding international peace and security.
Lastly, a significant implication of the potential legality of humanitarian intervention is borne out of a question of semantics, namely, what distinguishes a “humanitarian purpose” from any other political, economic, or military objective for the use of force.
How and by whom can the use of force be qualified as humanitarian? How is “humanitarian” defined, and how is an act’s extent of humanitarianism decided? Can an intervention be humanitarian if it also entails the pursuit of political or economic goals on the part of the intervening state(s)? As prevalent justifications have depended primarily on moral claims, humanitarianism in international relations remains inherently undefinable. As a malleable concept, it creates a slippery slope which expands definitions and contracts limitations, whereby, to some extent, any unauthorized use of force can be justified on humanitarian grounds.
For these reasons, the amendment of the Charter to include an unquestionable legal basis for humanitarian intervention remains improbable. Instead, international actors will have to continue making case-by-case judgments, as events unfold, at least until a sufficient amount of precedent is accumulated to be able to concretely define and qualify humanitarianism in any potential cross-border use of force going forward.
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