The Legality of Humanitarian Intervention

By: Sam Bull

Edited By: clark mahoney and william tong

On April 6, 1994, a plane carrying Juvénal Habyarimana, the president of Rwanda at the time, was shot down over the small central African country’s capital of Kigali. [1] Within hours, the Rwandan military and several militant groups belonging to the country’s Hutu ethnic majority initiated their  plan to systematically slaughter Rwanda’s Tutsi minority. In the next 100 days, these groups killed an estimated 800,000 people—wiping out 70% of Rwanda’s Tutsis and 10% of the country’s total population—in what is today known as the Rwandan Genocide. [2] Great controversy arose over a lack of a coordinated response from international institutions like the United Nations (UN), and in the years that followed, the event spurred discussions of tweaking international law with regard to interventions in global humanitarian crises. 

The Rwandan Genocide serves as an example of one of international law’s greatest flaws—there is no superior authority to enforce rules, principles, or recommendations created by international institutions. Thus, while many components of international law are recognized as “binding” between states, there exists great ambiguity (and thus intense debate) over the true authority of a wide array of international principles and the cases to which they may apply.

Rarely does this ambiguity prevail more glaringly than in the realm of humanitarian intervention—using armed forces to prevent human rights violations within another state’s borders. Such action successfully prevented the escalation of human suffering in Iraq in 1991, in Kosovo in 1999 and in Libya in 2011—so where was it in Rwanda when nearly one million people were killed? On a broader level, the legality of humanitarian intervention and the manner in which it should be used are topics of much importance as well as much obscurity. Intervention is legal and can be carried out under some circumstances outlined by the UN, but factors like the recommendatory nature of that institution, potentially contradictory statutes of international law, and calls for systemic international reform, among other things, cast doubt upon the principle and the practical applications of that standard. 

At the 2005 UN World Summit, the international community attempted to improve after the failure of Rwanda through the unanimous approval of a principle creating more concrete obligations toward preventing mass atrocities: the Responsibility to Protect (R2P) doctrine. The doctrine has three tiers: the first states that every state has the responsibility to protect its own population from genocide, war crimes, ethnic cleansing and crimes against humanity. The second states that the broader international community has a responsibility to assist nations in holding up the first tier within their own borders. The third tier states (most controversially) that if a state is “manifestly failing” to protect its people, the international community must work to take collective action quickly, decisively and in accordance with the UN Charter. [3] In establishing R2P as an international norm, “diplomats sought to close the gap between the existing legal responsibilities of states, already articulated in international humanitarian and human rights law, and the reality of populations threatened with large scale and systematic violence.” [4] R2P has become a solidified norm (at least in theory) in the decades since its conception, yet the all-important third pillar concerning the use of military force remains a source of great controversy.

The UN makes clear in its official Charter under Article 2(4) that its 193 member states must refrain “from the threat or use of force against the territorial integrity or political independence of any state,” but outlines two exceptions to this rule in later articles: self-defense (in Article 51) and UN Security Council (UNSC) authorization (Articles 24, 39-42, etc.). The UNSC is composed of 15 members, with five permanent members (China, England, France, Russia and the United States) and 10 nonpermanent members that are elected in two-year terms by the General Assembly.[5] When a state brings a dispute to the Council, it explores three options, moving on to the next if the former proves inadequate: peaceful resolutions, diplomatic or economic sanctions, and, finally, if deemed a “breach of peace” under Article 39, the use of force. [6] The Council can only act if nine of the 15 members (including all five permanent members) vote in the affirmative. 

In Northwestern prof. Ian Hurd’s analysis, the Charter articles outlining the UNSC’s powers “establish that the Council has the ‘primary responsibility for the maintenance of international peace and security’ (Article 24) and that it can take what measures it deems necessary in that pursuit, including military action against states or other threats (Article 42).” [7] However, the most significant contributor to the UNSC’s power is Article 25 of the Charter, which directly states that the UN and all its member states must comply with UNSC decisions—giving it significant authority in choosing if, when and how to proceed with a humanitarian intervention for a given crisis. Thus, if intervention through use of force is authorized via the UNSC and complies with the Council’s authority over “threats to international peace and security,” it is “unambiguously legal.” [8] Further, though flanked by powerful allies like the international status quo and the voluntary participation of most of the world’s countries, the UN generally functions as a recommendatory body; however, the UNSC’s option of the use of force (and thus actual enforcement of international law) gives it much more power than the rest of the UN assembly or any other international institution. 

Though humanitarian intervention is sometimes legal by standards created by the UN and the UNSC, the composition and existence of the UNSC itself is a matter of debate in the scholarly community—with some arguing that the immense influence and power that the five permanent members have reflects a colonialist past that existed at the end of World War II when the Council was created. Many scholars and advocates call upon the Council to either expand its permanent members to include the “G-4” countries (Japan, Brazil, India and Germany) or countries from underrepresented regions like the Middle East and Africa, while others say that the only way forward is to disband the Council’s permanent membership altogether due to its enhanced focus on Western priorities and its poor track record in handling humanitarian crises in South Africa, Rwanda, Iraq, and Yemen, among others. [9] 

Despite calls for reform, the UNSC remains an institution of significant authority. While intervention is essentially legal under UNSC authorization, the questionable acceptability of use of force by individual states under the cover of “humanitarian intervention”—such as the US’s invasion of Iraq partially under the justification of freeing the Iraqi people from humanitarian crises under Saddam Hussein—outlines the sinister nature of its use in practice. De facto justifications for intervention (such as the 1948 Genocide Convention’s diction in Article I potentially implying that the states involved have an obligation to “prevent and punish” genocide in another state) are consistently used to justify individual use of humanitarian intervention, but the principle argument against intervention’s legality is the UN Charter—which makes abundantly clear under Article 2(4) its intentions to outlaw individual state use of force and centralize these intervention decisions strictly to the UNSC. [10] Pro-intervention scholars often use, either explicitly or implicitly, the “illegal, but…” justification for individual state intervention, implying that intervention is illegal but justified or legitimate because of the atrocities it can prevent. However, these justifications rely on a “defense of necessity” argument—or the idea that commiting a crime is justified in order to prevent a worse crime—an insufficiently concrete ideal in comparison to the much stronger one of state sovereignty and the prohibition of its violation under the UN Charter and many other international institutions. [11] 

The debate surrounding humanitarian intervention and its legality paints an important picture for international law as a whole; lack of strict enforcement on the international stage means that essentially every statute, even those enshrined in the UN Charter or other “binding” pieces of international legislation, is up for debate and can be easily violated with little pushback. For example, scholar Thomas Franck said of Article 2(4) that states have “violated it, ignored it, run roughshod over it, and explained it away,” depreciating its value as a respected and enforced law. [12] Thus, international law essentially rests on the intentions of the most powerful countries in the world in a given era of history, which right now centers around permanent UNSC members like China, Russia and the US. Ambiguity will persist in a domain lacking enforcement, but creation of new, widely supported norms can set a precedent for what the international community is willing to accept as well as what actions can prevent atrocities like the Rwandan Genocide from happening again.

NOTES:

1. History, History.com Editors. “Rwandan Genocide.” History.com, 14 Oct. 2009, https://www.history.com/topics/africa/rwandan-genocide

2. Bhalla, Nita. “Factbox: Rwanda remembers the 800,000 killed on 25th anniversary of genocide.” Reuters, 6 April 2019, https://www.reuters.com/article/us-rwanda-genocide-anniversary-factbox/factbox-rwanda-remembers-the-800000-killed-on-25th-anniversary-of-genocide-idUSKCN1RI0FV

3. “What is R2P?” Global Centre for the Responsibility to Protect, https://www.globalr2p.org/what-is-r2p/

4. Welsh, Jennifer. “Norm Robustness and the Responsibility to Protect.” Journal of Global Security Studies, Volume 4, Issue 1, January 2019, Pages 53–72, https://academic.oup.com/jogss/article/4/1/53/5347912?login=true

5. United Nations, Charter of the United Nations, 1945, 1 UNTS XVI, https://www.un.org/en/about-us/un-charter/full-text

6. Britannica, The Editors of Encyclopaedia. "United Nations Security Council". Encyclopedia Britannica, 20 Sep. 2022, https://www.britannica.com/topic/United-Nations-Security-Council. 

7. Hurd, Ian. “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World.” Ethics & International Affairs, no. 3 (2011), pp. 293-313. https://faculty.wcas.northwestern.edu/ihu355/Home_files/is%20hi%20legal.pdf

8. Hurd, Ian. “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World.” Ethics & International Affairs, no. 3 (2011), pp. 293-313. https://faculty.wcas.northwestern.edu/ihu355/Home_files/is%20hi%20legal.pdf

9. Ryder, Hannah et al. “Decolonizing the United Nations Means Abolishing the Permanent Five.” Foreign Policy, 17 Sep. 2020, https://foreignpolicy.com/2020/09/17/decolonizing-united-nations-means-abolish-permanent-five-security-council/

10. UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, https://www.refworld.org/docid/3ae6b3ac0.html

11. Paddeu, Federica. “Humanitarian Intervention and the Law of State Responsibility.” European Journal of International Law, Volume 32, Issue 2, May 2021, Pages 649–678, https://academic.oup.com/ejil/article/32/2/649/6324071

12. Franck, Thomas. “Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States.” The American Journal of International Law, Vol. 64, No. 5 (Oct., 1970), pp. 809-837. https://www.jstor.org/stable/2198919?seq=1#metadata_info_tab_contents

BIBLIOGRAPHY:

Bhalla, Nita. “Factbox: Rwanda remembers the 800,000 killed on 25th anniversary of genocide.” Reuters, 6 April 2019, https://www.reuters.com/article/us-rwanda-genocide-anniversary-factbox/factbox-rwanda-remembers-the-800000-killed-on-25th-anniversary-of-genocide-idUSKCN1RI0FV

Britannica, The Editors of Encyclopaedia. "United Nations Security Council". Encyclopedia Britannica, 20 Sep. 2022, https://www.britannica.com/topic/United-Nations-Security-Council. 

Franck, Thomas. “Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States.” The American Journal of International Law, Vol. 64, No. 5 (Oct., 1970), pp. 809-837. https://www.jstor.org/stable/2198919?seq=1#metadata_info_tab_contents

History, History.com Editors. “Rwandan Genocide.” History.com, 14 Oct. 2009, https://www.history.com/topics/africa/rwandan-genocide

Hurd, Ian. “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World.” Ethics & International Affairs, no. 3 (2011), pp. 293-313. https://faculty.wcas.northwestern.edu/ihu355/Home_files/is%20hi%20legal.pdf

Paddeu, Federica. “Humanitarian Intervention and the Law of State Responsibility.” European Journal of International Law, Volume 32, Issue 2, May 2021, Pages 649–678, https://academic.oup.com/ejil/article/32/2/649/6324071

Ryder, Hannah et al. “Decolonizing the United Nations Means Abolishing the Permanent Five.” Foreign Policy, 17 Sep. 2020, https://foreignpolicy.com/2020/09/17/decolonizing-united-nations-means-abolish-permanent-five-security-council/

UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, https://www.refworld.org/docid/3ae6b3ac0.html

United Nations, Charter of the United Nations, 1945, 1 UNTS XVI, https://www.un.org/en/about-us/un-charter/full-text

Welsh, Jennifer. “Norm Robustness and the Responsibility to Protect.” Journal of Global Security Studies, Volume 4, Issue 1, January 2019, Pages 53–72, https://academic.oup.com/jogss/article/4/1/53/5347912?login=true

“What is R2P?” Global Centre for the Responsibility to Protect, https://www.globalr2p.org/what-is-r2p/