Appraisal of the Right to Humanitarian Intervention in International Law

THE RIGHT TO HUMANITARIAN INTERVENTION IN INTERNATIONAL LAW: LIST OF ABBREVIATIONS

  • AU – African Union
  • CFRN – Constitution of the Federal Republic of Nigeria
  • ICC – International Criminal Court
  • ICJ – International Court Of Justice
  • ICRC – International Committee of the Red Cross or Red Crescent
  • ICTR  – International Criminal Tribunal for Rwanda
  • ICTY – International Criminal Tribunal for Former Yugoslavia
  • OAS – Organization of American States
  • UN –  United Nations
  • UNSC – United Nations Security Council
  • UDHR – Universal Declaration of Human Rights
  • IHL – International Humanitarian Law
  • HR –  Human Rights
  • USA – United States of America
  • USSR – Union of Soviet Socialist Republic
  • UNDU – United Nations Detention Unit
  • ECOMOG –  Economic Community of West African States Monitoring Group
  • ECOWAS – Economic Community of West African States
  • R2P –  Right to Protect
  • ICISS – International Commission on Intervention and States Sovereignty
  • NATO – North Athletic Treaty Organization
  • UNOCI – UN Operation in Cote d’Ivorie
  • UNMISS – United Nations Peacekeeping Mission in South Sudan
  • UNGA – United Nations General Assembly

TABLE OF CASES

Advisory Opinion the Legality of the Threat or Use of Nuclear Weapons, ICJ
Reports, 1996 13,16
Athens Maritime Enterprise Corporation v. Hellenic Mutual War Risk Association
(1983) 1 All ER 590; 78 ILR 35
Austro-German Customs Union Case PCIJ, A/B, No 41, 1931 52
Corfu Channel, International Court of Justice, 1949 73
Island of Palmas Case’ (The Netherlands v. United States of America), Arbitral
Award, 4 April 1928, AJIL, 22(1928) 51
Naulilaa Case 29, 30, 31
Nicaragua Merits, ICJ Reports, June 27(1986) 27
Prosecutor v. Kupreskic et al. (IT-95-16-T), Judgment, 14 January, 2000 34
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 24
The Caroline affair 32 AJIL, 1938 26,74
The North Sea Continental Shelf Cases, ICJ Reports, 1960 50

TABLE OF STATUTES/ COVENANTS
African Union Constitutive Act
Article 4(h) 63
American Restatement of International Law 1965
Brian – Kellog Pect 1928 7,8
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Section
1(3) 62
34 14

Charter of the Nuremberg Tribunal 1945
Article
6 18,20
Covenant of the League of Nations 7

Declaration on Principles of International Law Concerning Friendly and Co-operation
among States 1970 52,54
Draft Declaration on the Rights and Duties of States 51
General Assembly Resolutions
1236 (XII) 55
1301 (XIII) 55
377(V) 61
Geneva Convention of 1864 10,15
Geneva Convention for the Amelioration of the Wounded and Sick in Armed
Forces in the Field (Geneva Convention I)
Articles
2 16
7 17
8 17

Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea (Geneva Convention II)
Articles
2 16
7 17
8 17
Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III)
Articles
2 16
7 17
8 17
127 17
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV)
Articles
2 16
8 17
9 17
144 17

Geneva Convention on the High Seas 1958
Articles
15 35
19 35
13 36
3 36
23 36
Genocide Convention 1948
Article
1 73
2

Hague Convention IV and Regulations on the Laws and Customs of War on Land, 1907

Kellogg-Briand Pact 1928 7,8
Limburg Principles on the Implementation of the International Covenant on Economic,
Social and Cultural Rights, 1987
Article
3 11

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1997
Article
4 1
Montevideo Convention on the Rights and Duties of States 1933
Article
1
North Atlantic Treaty
Article
5 28,64
Organization of American States Charter
Articles
3(g)) 63
19 63
Protocol additional to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) (Protocol I) (relating to the Protection of Victims of International Armed Conflicts)
Articles
1(2) 16
20 17
51(6) 17
83 17
90 18
Protocol additional to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) (Protocol II) (relating to the Protection of Victims of Non-International Armed Conflicts)
Article
19 17
Regional Co-operation Agreement on Combating Piracy and Armed Robbery against Ship in Asia, 2005 35
Saavedra-Lamas Treaty of 1933 18

Statute of International Court of Justice
Article
38(1) 11,19
Statute of International Criminal Court
Articles
6 24
7 24
8 24
25 16
28 16

Statute of International Criminal Tribunal for Rwanda Articles
Articles
2 24
3 24
4 24
Statute of International Criminal Tribunal for Former Yugoslavia
Articles
4 24
5 24
6 24
United Nations Charter
Articles
2(3) 71
2(4) 2,3,13,27,71,72,73,74,75,77,78,79,80
2(7) 1,58
10 61
14 61
20 62
23 28
24 57,72
25 58,60
34 62
35 62
39 58,59,72,75
41 59,60
42 2,59,60,71,72
43 60
51 2,3,12,27,712,74,75
52 62
53 3,62
55(c)) 72
103 58,62,64
Universal Declaration of Human Rights of 1948 9,15
United Nations Convention on Law of the Sea1982
Articles
99 36
101 35
105 35
106 36
110 36
111 36

United Nations Security Council Resolutions
54 58
217 58
221 58
487 26,74
660 60
678 60
713 59
733 59
748 59
788 59
808 13
815 59
823 13
827 21,23
955 22,23,59
1070 59
1270 59
1674 43
1706 43
1970 43
1973 43
1975 44
1996 44
2014 4
Versailles Treaty of Peace 1919 52
Vienna Convention on the Law of Treaties (1969)
Vienna Declarations and Programme of Action on Human Rights
Article
5 11
Westphalia Treaty of 1648 3,5,6,11,12,19,50

ABSTRACT

Intervention in the internal affairs of sovereign states by other sovereign state(s) is one of the “trending” issues in international law today. The issue is so because of the rising concept of the universality of human rights with the world shrinking into a single global community. International law and relations has from the time of the Westphalia Treaty of 1648 held the concept of sovereignty and its twin feature of equality of states and the principle of non-interference in high regard. Until recently, the concept of sovereignty has long been regarded as the bedrock of international relations. However, the doctrine of humanitarian intervention allows state(s) to intervene in the domestic affairs of sovereign states in the event of massive human rights violations, usually in the form of genocide, crime against humanity and war crimes. Humanitarian intervention is a controversial concept in international law. It is not provided for by the United Nations Charter as it neither constitutes a legitimate use of force authorized by the United Nations Security Council (UNSC) nor the use of force in self-defense. Article2(4) of the United Nations Charter clearly prohibits the threat or use of force against the territorial integrity or political independence of any state. However, since the creation of the United Nations Organization in 1945, there have been many instances of intervention on humanitarian grounds and the practice has vigorously resurged after the cold war. This study considers the meaning of humanitarian intervention as well as the legal basis of the doctrine. The study will review some cases of humanitarian intervention so as to ascertain whether or not there is presently a right to humanitarian intervention in international law and finally make suggestions for the future of the doctrine. This study posits that the right to humanitarian intervention is legal both at the Pre-UN days and survives even the UN as a form of customary international law, not based on treaty law.

CHAPTER ONE

INTRODUCTION TO THE SUBJECT MATTER

1.1 BACKGROUND TO THESIS STATEMENT

Humanitarian intervention is prominent in the maintenance and restoration of international peace and security where violence occur, which, in the words of Hersch Lauterpacht ‘shock the conscience of mankind`. Walzer further qualifies the acts by stressing that it must be acts that ‘shock the moral conscience of mankind’. The legality or otherwise of humanitarian intervention has put various scholars in divergent school of thoughts.

The definition of Humanitarian intervention is paramount at this juncture in order to understand its meaning and structure.

Humanitarian intervention in its classical sense may be defined as ‘coercive action by one or more states involving the use of armed force in another state without the consent of its authorities, and with the purpose of preventing widespread suffering or death among the inhabitants’.3 Also, humanitarian intervention was defined more elaborately in a report by the Advisory Committee on Issues of International Public Law on The Use of Force for Humanitarian Purposes, the term was defined as such, ‘The threat or the use of force by one or more states within the territory of another state, with the sole aim of halting or preventing large-scale , serious violations of fundamental human rights, which are taking place or which appear imminent, such rights being in particular the right to life of individual, regardless of nationality, in cases where the threat or use of force is carried out without either the prior authorization of component UN bodies or the permission of the legitimate government of the country in the territory of which the intervention takes place’.

Gleaning from the afore stated definitions, it is trite to state that humanitarian intervention differs from other means of enforcing human rights; for instance, intervention designed to protect or take to safety nationals of the intervening state will not be defined as humanitarian intervention as this is described as exercising the inherent right of individual or collective self defense. In the same vein, enforcement actions for humanitarian purposes vary from humanitarian intervention.

The cardinal legal requirement for the United Nations Security Council to take or authorize enforcement action is the existence of a situation which poses threats to the peace, breaches of peace and acts of aggression.

Also, the United Nations Charter in its preamble and Article 1 embrace respect and protection of human rights.8

Consequently, humanitarian intervention, though prohibited by Article 2(4) of the Charter, is like euthanasia which in some countries is unlawful but tolerated by law in genuine cases.

Moreover, there is a policy objection to humanitarian intervention as humanitarian intervention is prone to abuse as it provides cover for self-interested action. The danger of abuse of such a right outweighs its benefit to humanity. This position is taken against the backdrop that its effectiveness is within the control of the intervener, there are inadequate resources in terms of funds and personnel and gaps in leadership weaken its effectiveness, thereby causing more harm than good. The fact that the United Nations does not have its own armed forces also contributes to the shortcoming because when enforcement action is authorized by the United Nations Security Council, there is the temptation that the mandate can be abused since the armed forces are drawn from member states.

In addition, the notion that humanitarian intervention has no defined criteria stricto sensu was one of the instigations to carry out this research.

The six proposed criteria by the International Commission on Intervention and State Sovereignty are considered in the course of the study.

Moreover, the study shall buttress the fact that the legal framework for humanitarian intervention is largely determined by the United Nations Charter. It also examines the notion that international law, however, develops not just through treaties such as the United Nation Charter but also through incidents and through how international actors respond to them.

1.2 THESIS STATEMENT

The research attempts to evaluate the effectiveness of humanitarian intervention as a tool for enforcing human rights in instances where egregious, gross and systemic violations of fundamental human rights take place, and to align it with the provisions of the United Nations Charter. Works already done in relation to the topic will be considered and recommendations are made for future interventions.

1.3 SIGNIFICANCE OF STUDY

Humanitarian intervention in a sovereign state without the consent of its government or authorization by the United Nation Security Council undermines the prohibition on use of force, principle of non-interference and sovereignty as enunciated in Article 2(4) and 2(7) of the United Nations Charter. There have been a lot of writings on the concepts – humanitarian intervention and human rights which forms the bedrock of this study. Suffice it to say that much has not been said about the effectiveness of humanitarian intervention as a tool for enforcing human rights. In the light of this, the study seeks to contribute to the scholarly debate on humanitarian intervention and in particular, by evaluating previous interventions and their outcomes, to ascertain whether or not humanitarian intervention is an effective tool for enforcing human rights.