By Ibrahim Taha (BA/LLB III)
More than 200 years after Immanuel Kant called for the protection of human rights under international law, the United Nations adopted a Charter unprecedented in human history, determined to save successive generations from the scourge of war. However, since its founding in 1945, the world has been plagued by war. The twentieth century saw two World Wars, a Cold War, and the mass extermination of six million Jews. If there was a chronicle on world history, the twentieth century would be its darkest chapter. From Syria, the worst humanitarian crisis since World War II, to Yemen, home to more than 12 million children on the brink of starvation, recent world events have reignited the hotly contested debate on humanitarian intervention.
Development of humanitarian intervention
Humanitarian intervention is defined as military force in a state, without the approval of its authorities, to alleviate human suffering and prevent gross violations of human rights. Throughout history, intervention on humanitarian grounds was supported by a moral, ethical and philosophical framework, rooted in natural law. Christian theologian Thomas Aquinas expanded Saint Augustine’s idea of universal moral norms to develop natural law; a system of moral duties discoverable through reason and binding on all subjects simply by their being human. Drawing upon the biblical injunction, ‘Thou shalt not stand idly by the blood of thy neighbour’, Aquinas formulated the just war theory, an ethical framework that justified armed force to punish violations of natural law. The modern practice of humanitarian intervention stems from the just war tradition which was widely accepted until the profound shift toward legal positivism.
While legal positivism proliferated during the ‘Age of Reason’ in the eighteenth century, its origins in international law date back to 1648 when a new political order was formed based on territorial sovereignty. The Treaty of Westphalia laid the intellectual foundations of international law through the recognition of politically independent, sovereign states subject to no higher authority. This enabled the development of a separate regime of rules and principles to govern relations between states, distinct from natural law. As the nation-state emerged, the naturalist tradition was succeeded by a positivist approach that derived international law from science, not morality; consent, not reason. Therefore, state sovereignty runs contrary to any form of intervention that would undermine the political independence of states.
The contemporary debate on humanitarian intervention - whether the inviolability of states overrides protection of individual rights - reflects the longstanding tension between positive and natural law. This inherent ambiguity was built into the UN Charter, which on one hand obligates states to refrain from any use of force in Article 2(4), while also proclaiming the inalienable rights of people in the Universal Declaration of Human Rights. International law post-World War II has given primacy to the rule of non-intervention above the cosmopolitan ideal of universal moral principles that deserve protection.
Is humanitarian intervention legal?
Opponents of humanitarian intervention rest their case on positive law, the plain language of the UN Charter which fundamentally prohibits any use of force and threat of its use by states, regardless of the motive behind the action. This was affirmed in the Israeli Entebbe Incident in 1976, whereby Israel’s operation in Uganda to save hostages violated Ugandan sovereignty. Opponents argue that personal morality is not attributable to states whose right to independence includes the concomitant right to freely govern themselves, even where governments violate the rights of their subjects. Legal positivism maintains the primacy of state sovereignty with no exception, as supported by a plain reading of the UN Charter.
Proponents of humanitarian intervention reject the positivist presumption in favour of sovereignty over inalienable rights, as ethically and legally untenable. They recognise the right of states to use force to uphold the common good of humanity as pursuant to the purpose of the UN Charter which drew heavily from natural law. Drawing on the dynamic relationship between international law and state practice, proponents suggest the emergence of a customary right to intervention. Examples such as Kosovo 1999, Libya 2011, Iraq 2014, and the UN’s adoption of Responsibility to Protect in 2005 evince a pattern of conduct by the international community that signals progressive development toward humanitarianism.
Both approaches to humanitarian intervention reflect deep differences in international law that are difficult to reconcile. While a plain reading of the Charter renders humanitarian intervention unlawful, emerging state practice suggests growing support for the doctrine. Since international law can be read to support either position, its legality rests upon the strategic manipulation of states and their contingent theory of how international law operates in the world. While the inherent ambiguity of the law presents an impasse for states, perhaps the path of reconcilability lies in the recognition that even though intervention on humanitarian grounds is unlawful in black-letter law, it can be legitimate.
Legitimacy of humanitarian intervention
Although international law relies upon state consent, separating morality from law or framing humanitarian intervention in only explicitly legal terms, denies the moral conscience of humankind. The UN Genocide Convention in 1948 was a milestone development in international law, that coalesced the ethical considerations of natural law with the logic of positive law, to create reciprocal responsibilities of all humanity to protect the sanctity of life. This presents an opportunity for reconciling the legal ambiguity surrounding humanitarian intervention. While there are concerns for risks of its abuse by powerful states in pursuit of ulterior objectives, unalloyed rejection of the doctrine is ethically untenable. Although NATO’s bombings in Kosovo in 1999 to rescue 12,000 Albanians was legally dubious, the multilateral coordination of 13 NATO states bolstered its legitimacy. It is important not to deny that in accepting the imperative to intervene, undesirable results are a tragic reality. The Iraq War is estimated to have caused over 100,000 civilian casualties, and is widely considered the worst foreign policy blunder in US history. The wider conflagration of the Iraq War highlights the need for the international community to uphold and enforce multilateral mechanisms of decision-making. The architects of the Iraq War sidelined key processes of collective deliberation and multilateralism that confers necessary legitimacy on the decision to intervene.
The debate on humanitarian intervention is not a choice between the greater good and lesser evil; it is a necessarily tragic undertaking in pursuit of the common good, with full knowledge that the international community will always fall short. As American theologian Reinhold Niebuhr opined, ‘tragedy is linked to a recognition of our own finitude’. In the process of rectifying the most dire human circumstances, perfectibility is quixotic and dangerous. Acknowledgement of human imperfections does not exonerate abuse by powerful states, nor does it condone the imperialistic motives of a single state. Rather, it serves as a reminder that human ineptitude and limited resources should not bar states from upholding the noble responsibility shared by the international community - the compelling necessity to prevent the mass slaughter of innocent human beings.
Humanitarian intervention will continue to be debated and the contention surrounding its legality are almost as irreconcilable as the inherent tensions in international law. So long as the international community maintains a moral conscience, intervention will have a place at international law. The artificial construct of state sovereignty is no longer a shield to the mass slaughter of human beings.