Examine The Legality Of Military Humanitarian Intervention International Law Essay

Examine The Legality Of Military homophileitarian Intervention International Law EssayThe general prohibition on the white plague of military unit contained in Article 2(4)1of the UN Charter forms a cornerst unity of popular foreign rectitude. That prohibition is subject to a very narrow category of exceptions, solely of which arise from the refine to self-defence codified in Article 51 of the UN Charter.2A more controversial exception to the routine of force that has been claimed to arise as a rule of customary foreign law is that of human-centered hinderance. This essay looks at the arguments in support of the proposition that humanistic discourse is now conventional in international law as a lawful exception to the general prohibition on the do of force and assertions against such a proposition.The hypothetic debateEver since the question of the legality of humanistic sermon prototypic arose, in that respect has been both vocal support and opposition to it. La uterpacht famously pitch send on the rationale behind humane treatment. He stated that one had to go back to the purpose of the general prohibition on the use of force, and that was to ensure ease. He considered that ultimately, peace is more endangered by tyrannical contempt for human rights than by attempts to assert, through encumbrance, the sanctity of human personality.3He thus considered that add-on intervention was justified if a state committed atrocities against its citizens in such a way and to such a degree that it interfered with those citizens fundamental human rights.However, it has endlessly been apprehended that there are problems with the very idea that a state would expend its own resources and risk its own security simply for the good of the citizens of some other state. much(prenominal) a view might be considered to be cynical, but there is no doubt that history has shown that whenever humanist intervention is claimed as the legal ass for forces for ce in a nonher country, it is mixed with other reasons why a state would military interject in a nonher state.4Furthermore, humanitarian intervention is oftentimes put forward as a bootr coat for legality of force without the citizens of the state who feel suffered the intervention asking for such intervention to possess place.5One can thusly question the theoretical netherpinnings of such intervention.This problem is merely exacerbated when one considers that humanitarian intervention is intervention that is undertaken by states on a unilateral basis outside of the precepts of the Security Council. The purpose of setting up the United Nations and the Security Council was to provide for peace throughout the world and engage in military intervention when required, as authorised by the Security Council. The Security Council is thus authorised with powers under Chapter VII of the UN Charter that solelyows it to authorise military use of force in a nonher country. In doing so, the Security Council is able to take into account the fact that a embark onicular country is facing human rights violations at the hands of its government and/or leaders.6 so for example, in 1991, when the oppressive government of Iraq creation led by Saddam Hussein took disproportionate military run to repress the Iraqi civilian population, the Security Council passed Resolution 668 under Chapter 7 of the UN Charter demanding of Iraq to immediately end the repression and insist that it allowed access to international humanitarian organisations to raise Iraq.7Any force authorised by the Security Council may be politically contentious, but there is no doubt that it would be lawful under the rules of force in international law. Given that there is such a power in the Security Council, one would question why there was a need for humanitarian intervention.8Indeed, providing that there is a right for humanitarian intervention available to states that can be caused strong-mindedly o f the UN and the Security Council would greatly undermine the government agency of the Security Council as the body entrusted with authorisation of military force.9Humanitarian intervention is thus a tenet which has dogged been debated in the courts. The real debate lies tho in the practical instances that have arisen in the past where humanitarian intervention has been alleged as a plea of force. The section below shall go on to analyse these practical instances and asses to what extent humanitarian intervention can be said to now be a norm of international law. working instances of humanitarian interventionOne major problem that arises when assessing the legality of the doctrine of humanitarian intervention is that one must distinguish amidst instances where the doctrine is invoked in grandiloquence and public comparisons unaccompanied and instanced where humanitarian intervention is actually relied on as a legal basis for justifying use of force in a nonher state. The l atter is a lot rarer than the former. The problem provided is that it is only the latter ensuants that is actually evidence of state practise of the right to humanitarian intervention.One of the soonest incidents to deal with the thought of humanitarian intervention commented on by commentators was that of Indian achievement in Bangladesh. In early 1971, following subjugation to Pakistani rule, Bangladeshi nationals were rebelling and seeking to establish Bangladesh as an independent country. India provided extensive military aid to Bangladesh to allow this to happen, aid without which arguably Bangladesh would not have won the conflict. In public theoretic, India stated thats is actions were based on humanitarian intervention since the Bangladeshis were suffering human rights violations under Pakistani rule.10This was highly criticised however for the fact was that India in having long-standing conflict with Pakistan itself did have vested interests in helping Bangladesh gain independence.11Indeed, India did not go on to utilise humanitarian intervention as a legal basis for its action and desire to rely on the doctrine of self-defence instead.12This pattern was repeated in many more incidents that occurred. Tanzania put ind militarily in Uganda in 1979 to enable rebels there to cut down the repressive leader Idi Amin.13In 1978 Vietnam invaded Cambodia stating that it wished to prevent Cambodia from suffering at the hands of its government. Both stated that they wished to help the citizens of the respective countries they intervened in. This was however continuously rejected by the international community, with France and the US specifically stating that human rights violations did not justify the use of force, thus clearly indicating that it was not accepted at that time that humanitarian intervention was considered to be a legal basis for intervention.14Chronologically, the next major incident of humanitarian intervention that took place was that of Australian intervention in East Timor. Rebels in East Timor seeking to establish it as in independent country were facing repression from the state of Indonesia resisting independence. Human rights violations in the situation ensued resulting in several UN Resolutions craft for peace and eventually in a UN referendum, the results of which indicated that the majority of people wished for independence. The Australian government thus took the lead in providing military assistance to East Timor to sicken Indonesian nominal head and establish an independent state.15In doing so, the Australian government expressly relied on the right to humanitarian intervention.What must be pointed out however is that the UN was involved in that situation, and most commentators regard that the intervention in East Timor is more akin to an incident where the UN beats force for purposes of humanitarian intervention rather than when the right is employed unilaterally by a state.16Thus, the intervention in East Timor was seen to be highly similar to the US intervention in Somalia in 1992 which had been acted upon only after the UN had specifically called for humanitarian intervention.17Perhaps the most famous incident of humanitarian intervention was that in Kosovo. Kosovo, now an independent country, utilise to be part of the Socialist Federal Republic of Yugoslavia and consisted of a mix of ethnicities, with 90% being ethnical Albanians and the minority being Serbians. In the 1990s the Federal Republic of Yugoslavia started to choke up with each different country announcing its independence. The state of Kosovo also suggested breaking off from the tike, to regain the independence Kosovo once had before Yugoslavia was established in the first place. This was met by much resistance from the Serbians both in Serbia and in Kosovo. A regime of ethnic cleansing of the Albanians in Kosovo started to prevent the calls and efforts by those peoples to make Kosovo an independent countr y and one of the worlds worst conflicts started, with human rights violations reaching epidemic proportions.18This matter was brought to the attention of the Security Council, and on 31 establish 1998 it adopted Resolution 1160,19which obligate an arms embargo on the FRY and called for it to work with the Kosovar Albanians to achieve a peaceful solution to the matter. Following this however the violence in Kosovo only increase and Resolution 1199 was adopted which determined that the situation in Kosovo amounted to a threat to peace and security in the region.20The problem was however the presence of the veto in the Security Council. Every permanent member of the Security Council has the right to veto any Security Council dissolvents made. Russia being a major part of the former Soviet Union that existed was highly reluctant to take any action further to the two resolutions already adopted against the FRY and indicated that it would use its veto if any resolution were attempted to be passed which authorised military measures to be taken against the FRY. There was little chance that the Security Council would therefore be able to take action in response to the situation that was ongoing in Kosovo.21As a result of this, NATO states came together to discuss military intervention in Kosovo. NATO declared that the FRY had not complied with Resolution 1199 and that NATO would therefore institute military action against Russia. Extensive military action was undertaken via an aerial campaign, attacking FRY forces both in Kosovo and in the FRY itself to attempt to stop the attacks that were taking place against Kosovo. The campaign commenced ion 23 March 1999 and did not end several months later, on 10 June 1999 when the FRY forces hold to a case-fire and signed the military-technical agreement with NATO on 9 June 1999.22There was no doubt that the military action undertaken by NATO had been successful in bringing peace to the region. Despite the fact that there w as no apparent basis at the time for military action, there was no international objection to the force used (other than by the states to whom the military action was targeted against). It was apparently accepted that the action undertaken by NATO was lawful.23From this, one can deduct that there must have been a reasonable theoretical underlying to the force taken.It was clear that the action was not authorised under the Security Council resolutions, for man the resolutions were relied on in justifying the military action undertaken, it was always accepted that the resolutions did not authorise military force and indeed did not attempt to do so because of the veto that would be exercised by Russia. There was no question that the Serb forces had carried out an armed attack against NATO countries or anyone in the region of NATO countries and so the doctrines of self-defence or collective self-defence could not be relied on. The only remaining doctrine that could have possibly justi fied the military force undertaken by NATO forces was therefore that of humanitarian intervention. Indeed, the situation in Kosovo appears to be the one that rare the doctrine of humanitarian intervention from what was seen to be a less than credible basis of justification of use of force to one that was apparently widely accepted.24Thus commentators who point out that the doctrine was accepted as applying to the case of Kosovo point to the wide apparent acceptance of the international community that the acts of NATO in Kosovo were legal. In March 1999 the states of Belarus and Russia introduced a draft resolution to the Security Council which stated that the NATO bombing of Yugoslavia was illegal. This was rejected by a majority of 12 votes. In 1999, the UN Commission on Human Rights passed a resolution finding that the intervention by NATO had been lawful, with only Russia and Cuba (both communist states) finding against such a resolution.25Kosovo is therefore at least one incide nt where the right to humanitarian intervention was both relied on and appears to have been accepted. The difficulty lies in the fact that while the military action undertaken against Kosovo was considered to be morally justified, concerns cut across to be expressed by academic commentators that the incident should not be seen to act as precedent, for doing so would effectively widen the category of exceptions that existed in relation to the use of force and undermine the well-established rules of Article 2(4).26Perhaps the next most famous incident where the right of humanitarian intervention was relied on, but one where the basis of such a right was considered to be much more contentious, was that of Iraq.27Coalition military intervention in Iraq in 2003 was one of the most contentious use of force that took place and the legality of the war continues to be debated to the current day. Different bases were offered by the coalition states that went to war at different times. Saddam Husseins brutal treatment of his people and the human rights violations that they had suffered were often pointed to when the rhetoric on whether a war should take place was entered into.28What is notable however was that although apparently doing so in the point in time preceding the war, neither the US nor the UK legally relied on the doctrine of humanitarian intervention to justify its war in Iraq. Rather, the UK relied on interpretation of Security Council resolutions while the US argued for the right of self-defence, both pointing to the fact that Iraq was in possession of weapons of self-destruction (an assertion which was later discovered to be invalid).29The fact that humanitarian intervention was not relied on despite the fact that Iraq was suffering a humanitarian catastrophe and had been for several years indicates that neither of the worlds leading states considered that the right to humanitarian intervention had established itself as a legal norm and would not, formal ly at least, be accepted by the international community as a bass for military intervention.Responsibility to protectThe humanitarian intervention doctrine has evolved in recent times and international law has come to develop the responsibility to protect doctrine, often referred to as the R2P doctrine. The very existence of this doctrine supports the idea that humanitarian intervention is not only regarded as a moral justification of the use of force in states where human rights violations are being committed, but is a positive duty on the international community to act and intervene in states where there is inadequate respect for human rights.UN Secretary General Kofi Anan brought the tensions that were apparent behind the prohibition on the use of force in Article 2(4) and the fact that intervention was required as a result of increasing human rights violations that were seen around the world to the fore in 1999. At that date, the atrocities in Rwanda were being discussed by the international community, and the committee that had been set up to investigate how the genocide in Rwanda had taken place came back with reports attributing much blame to the UN for failing to take action in Rwanda in what was seen as a preventable genocide.30Annan therefore requested the General Assembly to answer the question of if humanitarian intervention is, indeed an unacceptable labialize on sovereignty, how should we response to Rwanda, to a Srebrenica to gross and systematic violations of human rights?.31The Canadian government in response to this question set up the ICISS. In 2001 the ICISS produced a report where the doctrine of the responsibility to protect was advanced.32In 2004, the High-Level Panel on threats, challenges and changes that had been set up by the UN secretary-General stated that the R2P doctrine was an emerging norm of collective international responsibility to protect.33The Secretary-General went on to endorse this finding. In a 2005 world summit, th e R2P doctrine was expressly accepted and referred to.34Perhaps the most pertinent quotation of the R2P doctrine is that the Security Council specifically referred to the doctrine in Resolution 1674 (2006) when it was regarding the question of how civilians in armed conflicts should be protected.35The Resolution referred to the R2P doctrine as a doctrine of international law apparently conferring upon it a status of customary international law or otherwise.The problem with the fact that R2P now appears to be part of international law is the emergence of further questions, namely what the relationship of the doctrine of humanitarian intervention with the R2P doctrine is. Is the R2P doctrine simply any other way of describing humanitarian intervention? Or are the two ideals entirely different? If so, is humanitarian intervention subject to the doctrine of R2P? Debate on these questions commenced ever since the R2P doctrine was put forward and has ensued ever since.One might consider that the R2P doctrine is in fact simply another way of describing the doctrine of humanitarian intervention, and one that seeks to gift the doctrine a more elevated status. The language of responsibility no doubt confers more powers than the language of rights does for while the latter grants states discretion in whether to exercise the particular rights of concern, the former does not. If one were to accept such an argument, then the fact that R2P now appears to be a doctrine of international law means that humanitarian intervention is also a rule of international law and such intervention legalises use of force in other states.However, the ICISSs formulation of the R2P doctrine is on the basis that it is an entirely different concept to the doctrine of humanitarian intervention. The ICISS report thus stated that humanitarian intervention should not be seen to be the prime concern in the modern world where catastrophic human rights violations such as Rwanda were taking place. Th e Commission argued that there was a need for a vernal doctrine, which governed the need to intervene in the affairs of states who committed human rights violations. Such a doctrine should not be seen as a right to intervene that was granted to the intervening state, as humanitarian intervention might do, but rather as a responsibility on other states to intervene as a result of the right of the state that was suffering human rights violations to be protected.36R2P also introduced a new method of dealing with the concept of state sovereignty. As set out above, the doctrine of humanitarian intervention does not tie in well with the concept of state sovereignty, for it effectively allows a sate to intervene in another states affairs on the ground that the former state is of the opinion that the latter states treatment of its own citizen is in accurate. Such a concept can be seen to go against the very idea of equality of states in international law.37The R2P doctrine proposes to deal with this tension by proposing that the concept of state sovereignty to control its citizens with that of sovereignty as responsibility to protect its citizens. Once again, there was a shift from rights to responsibility. The R2P doctrine effectively re-characterises the conception of state sovereignty as one that is a right of governments to control their citizens, to one where there is a duty on governments to protect its citizens, and rights are granted to citizens to be protected. Where these rights were not being complied with and a government was not protecting its citizens and was in fact committing human rights violations against it, then the sovereignty to protect was not being effected and this sovereignty did not exist. As such, any exercise of the R2P doctrine through the use of military force would not contravene any idea of sovereignty.38Such a device can be commended for its view of the principle of state sovereignty. The fact is that the concept of state sovereignt y and the idea that a state is able to control its citizens as it wishes is one that while remaining in theory can be seen not to have continued on an international basis. International law has long adjudicated to govern the relationship of a state and its individuals. A prime example of this can be seen to be in international human rights protections which essentially raise standards on states with regards to a states treatment of its citizens which must be complied with.39The very concept of the international community and of the United Nations necessitates a limiting of the concept of state sovereignty. The reformulation of the concept of state sovereignty from one which sees sovereignty as control to that to protect might be considered to be ingenious in that it resolves the theoretical tensions that exist between the right to military intervention in states where human rights violations are committed and sovereignty of that state.However, the fact is that the concept of sovere ignty as sovereignty to protect calm poses the same problems that the traditional concept of state sovereignty controls Sovereignty to protect allows a third state to intervene in a states matters when protection of citizens is not being undertaken adequately. Which state is to decide however when citizens protection is being undertaken adequately and when it is not? To what extent does the protection of citizens in a state have to be undermined before military action can be allowed in that state?40Thus, whether or not R2P is the same or a different doctrine to that of humanitarian intervention, the same difficulties that are faced by humanitarian intervention proponents remain, and perhaps the most major of these problems is the wide floodgates the idea of a responsibility to protect opens. Practical incidents have shown how in the past humanitarian intervention has wrongfully been used by states, often on a post-facto basis, to justify use of force and intervention in other state s. The R2P doctrine in fact provides for a wider scope of humanitarian intervention for as pointed out above, a responsibility imposes a bigger duty and therefore a larger scope of power on states to take action than a right to intervene does, and the R2P doctrine therefore arguably exacerbates the problem that humanitarian intervention traditionally faced.In this vein however it must be noted that the proponents of the R2P doctrine point out that unlike humanitarian intervention, the R2P would impose a duty on states to employ a wide range of measures, along a continuum, to regulate states behaviour. Thus the R2P doctrine envisaged that preventative measures should be used to prevent human rights atrocities, and duties included rebuilding societies that had been affected by human rights violations. Such a doctrine is therefore very commendable in theory.41Furthermore, it must be pointed out that the R2P doctrine apparently appears to have been envisaged to be utilised within the pr ovisions of the Security Council rather than impose duties or rights on states to act on a unilateral basis to military intervene in other countries. If that is the case, then the R2P doctrine has not really helped towards resolving the questions environ humanitarian intervention at all.42ConclusionThe above discussion has shown that there are many questions regarding the legality of humanitarian intervention in international law as a justification for use of force in another state. There is little doubt that in the past the doctrine was not regarded as a valid justification for the use of force. Thus the international community tended to reject attempts by states to justify use of force with the concept of humanitarian intervention, not least because such justification was often posed on an ex facto basis and was usually tied in with some other form of justification that was put forward. The position appeared to change however in the NATO intervention in Kosovo when the internatio nal world apparently accepted the legality of the action. The war in Iraq in 2003 however appeared to reverse the position once again, when attempts to rely on humanitarian protection were rejected almost from the outset and indeed the coalition states eventually went on to rely on other basses to justify the use of force that was undertaken.The doctrine of humanitarian intervention does have its proponents and certainly is a very attractive concept in international law. In the writers view however the dangers posed by the doctrine outweigh the advantages that it offers. The doctrine effectively widens the scope of exceptions that exist to Article 2(4) and allows states to unilaterally take force. This undermines not only the concept of state sovereignty but also the purpose of the United Nations and the Security Council as being relevant bodies to regulate international peace and security.The R2P doctrine that has been put forward as a doctrine of international law is in many ways preferable to that of humanitarian intervention. The R2P doctrine provides for rights of citizens rather than rights of states and importantly it envisages that military action will be undertaken by the Security Council rather than on a unilateral basis. The writer is therefore of the opinion that the R2P doctrine should be distinguished from the idea of humanitarian intervention R2P should be recognised as a principle of international law and one that allows the Security Council to take military action in state when required. It should not however be seen to extend the doctrine of humanitarian protection.Indeed it is the writers view that humanitarian protection does not exist as a legal right in international law, both in theory and in practise. The doctrine goes against all ideas of state sovereignty and against the prohibition of the use of force in general. Furthermore, states do not appear to have accepted that the doctrine is a norm of law. In this vein, the case of Kosovo c an be considered to be an exception in international law.43In that case, the only reason the Security Council did not take action was because of the presence of the Russian veto, but otherwise there was international consensus that military action should