Humanitarian Intervention

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 SCOPE AND STATUS:

1) The pillars of the UN Charter: (click here for full text Charter in PDF)

Article 2(4): prohibition of use of force

  • against the territorial integrity or;
  • political independence of any state or;
  • in any other manner inconsistent with the Purposes of the UN

Forcible intervention in another state is prohibited in international law under Article 2(4) of the United Nations Charter which states: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations".

This general prohibition on the use of force has been confirmed by the International Court of Justice in the Corfu Channel Case (click here) and the Case Concerning Military and Paramilitary Activities In and Against Nicaragua (click here) and is considered to be a rule of jus cogens – that is, a peremptory norm of international law from which no subject of international law may derogate ((Nicaragua v United States, [1986] ICJ Reports 14, at para 190).

A threat of force is, for instance the previous announcement of an act of violence, such as an ultimatum that announces recourse to military measures if certain demands are not accepted (For example the ultimatum issued by France and the United Kingdom to Egypt and Israel in 1956). Force is armed force but not other forms of politic or economic pressure, unless they constitute, in the circumstances of a particular case, a threat of force. Article 2(4) prohibits the use of armed force, whether amounting to war or not but it does not prohibit political pressure (e.g. the refusal to ratify a treaty or the severance of diplomatic relations) or economic pressure (e.g. a trade boycott or the blocking of a bank account).

The context of the Charter demonstrates however that in the field of security, and with regard to the use of force, all other purpose of the United Nations are to be subordinated to the dominant one stated in article 1, paragraph 1, which is :

”To maintain international peace and security and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for suppression of act of aggression or other breaches of the peace , and to bring about by peaceful means , and in conformity with the principles of justice and international law , adjustment or settlement of international disputes or situations which might lead to a breach of the peace;...”

The use of force also appears in the 1970 Declaration on Principles of International Law but there is a disagreement between mainly Western states, who argued that only armed force was prohibited and Eastern Europeans and most (but not all) developing states, who claimed that ”all forms of pressure, including those of a political and economic  character, which have the effect of threatening the territorial integrity or political independence of any state ” were prohibited.

The Charter goes on to set another fundamental principle in Article 2(3), it states:

“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”.

Thus, force is only justified where there are no peaceful means available for resolving the dispute and states are obliged under international law to resolve their disputes by peaceful means (UN Charter, Article 2[3]). Article 37 of the Charter further requires states, once they have exhausted the peaceful avenues to settle a dispute, to refer the dispute to the Security Council.

Article 2(7) establishes the principle of non-intervention in domestic matters, it provides that: “Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudiced the application of enforcement measures under Chapter VII.”

The effect of Articles 2(3) and 2(4) is that the use of force can only be justified as expressly provided under the Charter, and only in situations where it is consistent with the UN’s purposes.

The two main exceptions to this general prohibition are: the right of a state to use force in self-defence or collective self-defence under Article 51 of the Charter, and the right of the Security Council under Article 42 to authorise the use of force "to maintain or restore international peace and security."

The Charter authorises the use of force in the situations set out in Chapter VII. In accordance with Article 39, the Security Council shall determine threat to peace or acts of aggression and make recommendations and decide what measures shall be taken in accordance with Article 41 and 42. Article 42 states that, if peaceful means have not succeeded in obtaining adherence to Security Council decisions, it ‘may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.’  Thus, the Security Council can authorise the use of force. In doing so it must comply with the constitutional principles of the United Nations, and with the objects and purposes of the Charter.

Article 1.3 states: “The purposes of the U.N. are (…) to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all”.

Article 55 states that the U.N. shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”.

According to Article 56, “all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in article 55”

The U.N. charter thus, laid down the basis for a radical change to the traditional view on human rights. U.N. members were now pledged “to take joint and separate action in cooperation with the organization” (Article 56) for the achievement of “universal respect for, and observance of, human rights and fundamental freedoms for all” (Article 55): the issue of human rights is a matter of international concern. However the nature of the human rights obligations in the Charter remained vague.

Thus, the drafters of the Charter, through the drafting of Chapter VII, aimed to create a centralised system of collective security. The main responsibility for maintaining international peace and security was bestowed upon the Security Council. This body, hence, determines the existence of any threat to the peace, breach of the peace, or act of aggression, and makes recommendations, or decides what enforcement measures shall be taken in accordance with Article 41 (which do not involve the use of armed force), and Article 42 that provides for the undertaking of military action (See Art. 39 of the Charter). States therefore, require a UN Security Council resolution in order to use force against another State. Only if the current resolutions themselves authorise the use of force could there be a legal basis for military action. Those occasions were: SC Res 678, authorising the use of ‘all necessary means’ to liberate Kuwait (click here); SC Res 794, authorising ‘all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’ (click here), SC Res 940, authorising ‘all necessary means to facilitate the departure from Haiti of the military leadership’ (click here), SC Res 929, authorising France to use ‘all necessary means’ to protect civilians in Rwanda (click here), SC Res 770, authorising states to take ‘all measures necessary’ to facilitate humanitarian assistance and enforce the no-fly zone in Bosnia (click here).

Note ,however, that the Charter provides in its Chapter VIII  that the Security Council can utilize regional organizations for enforcement action under its authority.

Article 52(1) provides:

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

Article 53(1) adds: "The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority."

Article 52 readily lends itself to using NATO and similar regional bodies, for pacific settlement of disputes within their region. Article 53 also contemplates that the Security Council might use regional arrangements for "enforcement action under its authority."

The UN Charter established an international organization in which states, pursuant to Article 43, would make armed forces available to the Security Council to counteract threats to the peace. This has not occurred. In its stead, the Security Council has authorized member states to use force, in essence franchising UN members to act in the Organization’s behalf. The Security Council has authorized member states to use force in Korea in 1950, against Iraq in 1990, and in Somalia, Haiti, Rwanda and Bosnia in the early 1990s. While it seems important that Article 43 be revitalized, the United States, among others, appears unwilling to submit command and control over its forces to anything more than perfunctory UN supervision. In this context, the United Nations becomes only an authorizing body, ceding control of the actual military operations to individual states.

2) The right to individual or collective self-defence:

Article 51 of the Charter reserves States’ rights to self-defence. This right is additional to the provisions of Article 42 as an exception to the prohibition of the use of force. A State does not require a Security Council resolution in order to defend itself by force but even the right of self-defence is subject to action by the Security Council, as is clear from the terms of Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Actual Armed Attack

The express terms of Article 51 refer to the right of self-defense if an armed attack occurs. The text has been interpreted by the International Court of Justice on several occasions (See, e.g., Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9); Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27) [hereinafter Nicaragua]. In the Nicaragua case, the Court held that the right of individual or collective self-defense is triggered only by acts grave enough to amount to an armed attack (Nicaragua, at paras. 194-95, 211).  The Court relied in part on the UN General Assembly’s Definition of Aggression (See Definition of Aggression, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631 (1974) (click here))  to conclude that an “armed attack” triggering unilateral self-defense may include “‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ …an actual armed attack conducted by regular forces….” (Nicaragua, at paras. 194-95).

The Court was assessing the U.S. claim that its use of force against Nicaragua was a lawful act of collective self-defense of El Salvador. The U.S. argued that Nicaragua had used unlawful force in the first instance by providing weapons and supplies to El  Salvador rebels. But the Court held that Nicaragua was not shown to be responsible for providing weapons and supplies to Salvadorean rebels, and further that even if it had done so, the supply of weapons was not the same as an armed attack. Moreover, El Salvador had not reported to the Security Council, nor had it invited the US to assist in its self-defense.

Thus, it seems that where a state is threatened by force not amounting to an armed attack, it must resort to measures less than armed self-defense, or it must seek Security Council authorization to do more. Further, states are limited by the principles of state responsibility, and the prohibition on armed reprisals. An armed reprisal is the use of force for revenge, punishment or general deterrence. The UN General Assembly has resolved that armed reprisals are unlawful and that states have a duty to refrain from using them.

The right of self-defense is limited to the right to use force to repel an attack in progress, to prevent future enemy attacks following an initial attack, or to reverse the consequences of an enemy attack, such as ending an occupation. The state acting in self-defense may seek the destruction of an attacking enemy force if that is necessary and proportional to its own defense. The right also includes taking the defense to the territory of the enemy attacker, if that is necessary and proportional.

Force can be used in self-defense only against a state legally responsible for the armed attack. It is generally not enough that the enemy attack originated from the territory of a state. Rather, legal responsibility follows if a state used its own agents to carry out the attack; if it controlled or supported the attackers;32 possibly where it failed to control the attacks;33 or where it subsequently adopted the acts of the attackers as its own.

Further, any use of force in self-defense must respect the principles of necessity and proportionality. Necessity restricts the use of military force to the attainment of the legitimate aim “. Art. 51 clearly licenses at least one kind of resort to force by an individual member State: military objectives (Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, para. 41(click here)). The Court stated that both necessity and proportionality must be respected in any decision to use armed force.) Proportionality requires that possible civilian casualties must be weighed in the balance. If the loss of innocent life or destruction of civilian property is out of-proportion to the importance of the objective, the attack must be abandoned.

Collective self-defence

As well as the individual use of force, Article 51 preserves the right of collective self-defence. In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence does not remove the need for this . There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack.  

This arises only in certain very narrow conditions. In the Nicaragua case, the ICJ stated that it is the State which has been the subject of an armed attack which must form and declare the view that it has been attacked. There is no rule of customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack. Thus according to the ICJ, in the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need for this “… [T]he Court does not believe that the concept of ‘armed attack’ includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support.” (para 195)

Anticipatory self-defence

Article 51 of the Charter is silent about whether “self-defence” includes the pre-emptive use of force, in addition to the use of force in response to an attack. There are still questions concerning when an armed attack “begins” for purposes of the right of self-defense. However, generally it could be said that an attack must be underway or must have already occurred in order to trigger the right of unilateral self-defense. Any earlier response requires the approval of the Security Council. The formula contained in the widely cited Caroline doctrine of 1842 fits the letter and spirit of the Charter when used to determine when an armed attack has begun. The Caroline case represents the agreement of British and American officials at the time that the use of defensive force is permitted when the “[n]ecessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” An attack must be in evidence. “[I]t is the attack that provides the decisive test.” It is worth noting that at the time of the Caroline case, the use of force was generally lawful as an instrument of national policy. The UN Charter was adopted for the very purpose of creating a far wider prohibition on force than existed under treaty or custom in 1945, let alone 1842. The drafters specifically designed the Security Council to meet threats to the peace, preserving the right of a state to act unilaterally only in cases of armed attack. In cases lacking objective evidence of an armed attack, the Charter requires multilateral decision-making. According to Sir Robert Jennings, “The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident suggests that action, even if it involves the use of armed force and the violation of another state’s territory, can be justified as self defence under international law where: (a) an armed attack is launched, or is immediately threatened, against a state’s territory or forces (and probably its nationals); (b) there is an urgent necessity for defensive action against that attack; (c) there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect; (d) the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, ie to the needs of defence…” ((R Jennings QC and A Watts QC (eds), Oppenheim’s International Law: Ninth Edition 1991 p 422)

These principles would apply to the anticipatory use of force just as to any other use of force in self-defence. Oppenheim states that: ‘while anticipatory action in self-defence is normally unlawful, it is not necessarily unlawful in all circumstances, the matter depending on the facts of the situation including in particular the seriousness of the threat and the degree to which pre-emptive action is really necessary and is the only way of avoiding that serious threat; the requirements of necessity and proportionality are probably even more pressing in relation to anticipatory self-defence than they are in other circumstances.’ (R Jennings QC and A Watts QC (eds), Oppenheim’s International Law: Ninth Edition 1991 pp421-422)

The burden of proof is on the Government to demonstrate the existence of a pressing and direct threat. It would also need to show that there is no effective alternative to the use of force. In the absence of convincing evidence of future attacks, however, responsive force could amount to unlawful reprisals or punishment.

Thus, international law continues to prohibit preemptive self-defense or even anticipatory self-defense, if that is understood to be different from responding to incipient attacks or ongoing campaigns. In other words, a state may not take military action against another state when an attack is only a hypothetical possibility, and not yet in progress.  

State practice is ambiguous, but tends to suggest that the anticipatory use of force is not generally considered lawful, or only in very pressing circumstances. When Israeli jets bombed the nuclear reactor under construction at Osirik, Iraq in 1981, the Security Council unanimously condemned the bombing, despite the threat that nuclear weapons in the hands of Saddam Hussein could pose for Israel. The Council found “the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct.” (SC Res. 487 (June 19, 1981) (click here)). 

The International Court of Justice held in an advisory opinion that for ordinary states, the mere possession of nuclear weapons is not illegal in customary international law. As the Court held, “in view of the current state of international law, and the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme  circumstance of self-defence, in which the very survival of a state would be at stake.” (Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 266 (July 8)). The mere possession without even a threat of use does not amount to an unlawful armed attack.

3) Summary:

Thus to summarize, Article 2(4) of the UN Charter. Article 2(4) states that the Members States should refrain from the threat or use of force. There are two specific circumstances as exceptions to this rule: Article 51 relating to self-defence if an armed attack occurs, and the provisions of Chapter VII (Articles 39-50 of the UN Charter) empowering the Security Council with authorising use of force to restore international peace and security (Article 42).

Humanitarian intervention to protect human rights

Is unilateral or collective intervention for humanitarian purposes per se violating Article 2(4) of the UN Charter? In other words, can the UN Charter in its entirety be interpreted such that humanitarian intervention in contexts other than those two prescribed in Articles 51 and 42 may be seen as legal? Is humanitarian intervention another exception to refraining from the use of force?

1) Humanitarian Intervention and Humanitarian Law:

From the viewpoint of humanitarian law, it is a contradiction in terms to speak of humanitarian “intervention” or “interference”, as the term “humanitarian” should be reserved to describe action intended to alleviate the suffering of the victims. Yet “humanitarian intervention” refers to armed intervention. International humanitarian law recognizes the right to provide humanitarian assistance, and impartial humanitarian aid cannot be condemned as interference or infringement of a State’s national sovereignty.

In its 1986 ruling on a case involving military and paramilitary activities in Nicaragua, the International Court of Justice stated that if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of another State, it must be limited to the purposes hallowed in the practice of the Red Cross (Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 243.). However, the court also added that “the use of force could not be the appropriate method to monitor or ensure such respect [for human rights]” (Ibid., para 268). The most one can speak of, therefore, is “armed intervention in response to serious breaches of human rights and of international humanitarian law”. This wording also serves to emphasize the fact that the forces engaged in the intervention are bound by humanitarian law in their military operations. Humanitarian law stipulates that when grave breaches of its provisions are committed, those responsible are to be prosecuted and punished as criminals. They can be tried either by national courts or, failing that, by international courts created for this purpose, or else by the International Criminal Court once it has been set up. Under Article 1 common to the Geneva Conventions, there is an individual and collective obligation to “respect and ensure respect for” international humanitarian law. If grave violations of that law are committed, the States are obliged to take action jointly or separately, in  cooperation with the United Nations and in accordance with the UN Charter (Protocol I additional to the Geneva Conventions, Article 89). The question of what measures are to be taken by the States and the United Nations in order to put an end to those breaches is not dealt with by humanitarian law, but rather by the UN Charter (Chapters VII or VIII).

If armed force is used, international humanitarian law applies regardless of the grounds for the intervention.

It is clear that the laws of war also set limits to any force which may ultimately be used. If used in self-defence, force is limited to that which is strictly necessary and proportionate to repelling any attack. If used pursuant to a UN Security Council Resolution, the force could only be used in a manner, and for purposes, consistent with the United Nations Charter.

2) Humanitarian intervention as another exception to the use of force:

A substantial body of opinion and of practice supports the view that when a state commits cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible.

When can coercive action directed at a state and aimed solely at the protection of the civil population of that state, not be considered as a threat or use of force against the territorial integrity of the political independence of the target state?

The essential question is whether human rights matters fall essentially within domestic jurisdiction of States? The provisions set forth in A 2(4), 2(7) and 51 are considered to be part of Customary International Law.

Except for the issue of slavery (nineteenth century), trade unions rights (post world war one), international law did not concern itself with human rights until the advent of the U.N. charter. Human Rights were not a matter of inter-state relations, they fell within the domaine reserve of states. With the U.N. Charter, the issue of human rights became a matter of international concern.

As seen above, the Security Council can authorise the use of force, however, in doing so it must comply with the constitutional principles of the United Nations, and with the objects and purposes of the Charter. The U.N. charter laid down the basis for a radical change to the traditional view on human rights. U.N. members were now pledged “to take joint and separate action in cooperation with the organization” (Article 56) for the achievement of “universal respect for, and observance of, human rights and fundamental freedoms for all” (Article 55). 

Article 1.3 states: “The purposes of the U.N. are (…) to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all”.

Article 55 states that the U.N. shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”.

According to Article 56, “all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in article 55”

The promotion and protection of human rights internationally became thus a “purpose” of the United Nations after World War II had demonstrated the connection between domestic repression and external aggression. The articles on human rights contained in the UN Charter (see U. N. charter articles 1.3, 55 and 56 especially) paved the way for an  innovative development of international law that places its focus on the individual rather than on the nation-state. Human rights are considered to be an issue that falls outside the exclusive jurisdiction of the States. This is no longer a debatable issue, thus overcoming what is provided for in Article 2(7) of the UN Charter stipulating that 'nothing contained in the present Charter shall authorise the United Nations to intervene in matters, which are essentially within the domestic jurisdiction of any state...'

This development has been ongoing on account of the moral, political and legal significance of human rights, and the support given by the UN Universal Declaration on Human Rights in 1948, and other international and regional treaties based on them. The universal declaration of human rights was not per se legally binding. It nevertheless was widely considered as spelling out the rights that the U.N. Charter referred to. Over the years (most of) the principles of the declaration have come to be considered binding and were developed in other instruments. Various organs of the U.N. have called on states to respect the declaration. Many national constitutions also incorporate language from the declaration. New developments in international human rights law, particularly with regard to international crimes, authorize, if not require, all states to take action in the face of widespread grave violations of human rights amounting to such crimes. Furthermore, the UN International Law Commission has specified in Article 19 (Part One) of the Draft Articles on the State Responsibility (click here) that an international crime is a large-scale grave violation of an international obligation of crucial importance for the protection of human beings, such as the prohibition of slavery, genocide and Apartheid. Certain fundamental human rights such as the right to be free from torture are considered so vital that under no circumstances may States choose to derogate from their obligation to enforce that protection or individual right. Also various judgments and opinions of the international court of justice have referred to the binding nature of human rights principles (see e.g. interpretation of the genocide convention, Barcelona Traction, Namibia and Tehran Hostages). In fact, in the Barcelona Traction Case, the ICJ noted that the obligation to respect fundamental human rights should be seen as an obligation of general international law.

The Reservation Case (1951) (click here)

The relevant part of the judgement stated that “the principles underlying the (Genocide) Convention are principles which are recognised by civilised nations as binding on States, even without conventional obligation. It is therefore protected by general international law. Another question was whether reservation by one or more States, objected to by others could prevent the reserving State from becoming parties to the Convention. The court stated that: “The complete exclusion from the Convention of one or more States would not only restrict the scope of its application but would detract from the authority of the moral and humanitarian principles which are its basis. It is inconceivable that the contracting parties readily contemplated that an objection to a minor reservation produce such result.”

However the Charter and the Nuremberg Judgement recognised genocide as a crime against humanity, which was a crime under international law when committed in connection with crimes against peace or war crimes; the Convention required no such limitation and such crime could be committed outside the context of international armed conflict. Important step as it constituted the first breach of the doctrine of domestic jurisdiction.

Note that the 1948 Genocide Convention, Article VIII states that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide..." Under terms of both the Convention and customary international law, the Security Council would presumably need only to satisfy itself that an accusation of genocide was authentic, after which the invocation of Article 39 would be a legal formality.

Barcelona Traction (1970) (click here)

The case concerned a Canadian corporation with subsidiaries operating in Spain and which was sued for bankruptcy in Spanish courts. The company was owned mainly by Belgian shareholders and the questing was whether Belgium could exercise diplomatic protection of its nationals, who claimed that their interests had been harmed by action of the Spanish courts. The court made a distinction between bilateral obligations and obligations towards the international community as a whole. The latter were obligations that by nature were the concern of all States, and they can be held to be obligations erga omnes. For ex. outlawing of acts of aggression, genocide and protection from slavery and racial discrimination.

The principles and rules of international law concerning the basic rights of the human person engender obligations erga omnes. It is still uncertain unsure whether the economic rights are of the same legal status as the civil and political rights.

The Namibia Case (1971) (click here)

Advisory opinion by the court which was requested because of the unsatisfactory decision in the South West Africa Case. The court held that the enforcement, distinction, exclusion and limitation on ground of race, colour, descent or national or ethnic origin, which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. However it must be kept in mind that this judgement only concerned the provisions set out in the Charter, and its anti-discrimination clause.

·         The human rights clauses of the Charter contain binding legal obligations.

 The Tehran Hostage Case (1980) (click here)

The court found that Iran had incurred responsibility towards the US as a result of the continued detention of US diplomatic and consular staff. It was concluded that it was wrongful to deprive human beings their freedom and to subject them to physical constraint and that it was against the fundamental principles of the UN Charter and the UDHR. There is a problem in this case concerning the court’s reference to the UDHR and whether it singled out certain rights as fundamental principles, such as the prohibition on torture and the right to liberty, however a more normal interpretation is that the court was simple stating that the UDHR as a whole propounds fundamental principles recognised by general international law.

  • Obligations erga omnes may be found in the UDHR.
  • Wrongful deprivation of freedom involving physical constraint in conditions of hardship is an example of a breach of such obligation.
  • At least torture, inhuman or degrading treatment and the right to liberty seem to be covered by the formulation. Although a better interpretation would be that the UDHR states fundamental principles protected by general international law.

The Nicaragua Case

Facts: Nicaragua held that the US was responsible of unlawful armed intervention by mining the harbour and giving support to the Contras. It was held that the right to self-defence collective or individual does not apply in this case as a legal defence to the accusation of human rights violations by Contras. It could rather be held responsible under humanitarian law than human rights law, and that these violations could not be said to have been committed by the US. The court held that the US intervention was unlawful. Nicaragua’s social and political system was rather a matter of domestic concern. Concerning the accusation of human rights violations by Nicaragua the court held that even though there was no commitment between the Organisation of American states to respect these rights, Nicaragua could not violate human rights with impunity. It was concluded that human rights obligations flow from a source other than specific commitments, i.e. custom or treaties, however no specific reference was made to custom.

The court only reaffirmed the obligation to avoid any misunderstandings, the real issue concerned the implementation of the obligation rather than the obligation in itself. The court could only pronounce on the allegation of violations of human rights obligations is the question was properly before the court; they were not. So the limited question was whether the allegations of violation justified the intervention by the US. The implementation machinery established by regional mechanisms, international treaties etc are means of certifying that the international community will not stand without tools to seek to induce compliance with international legal obligations. It must be kept in mind that this was before the coming into force of the ICCPR. The court further held that the mining of ports, training and equipping of the Contras could not constitute a lead in the protection of human rights.

It is unclear whether the court said that:

  • There are no human rights obligations apart from treaty or other formal commitments or;

  • Regardless of the source of human rights obligations where there is a convention, the protection of those rights takes the form of those arrangements provided for in the convention.

Conclusion that individual States cannot use force to intervene against other States on grounds of that State’s human rights record or socio-political system.

Further, it is arguable that UN-authorised military humanitarian interventions over the past decade reflect an emerging consensus in the international community that respect for fundamental human rights is now a matter of international concern. Indeed, the international community is increasingly intervening, through international bodies, in internal conflicts where human rights are in serious jeopardy. Movement in this direction is surely discernible, beginning with hesitant efforts in 1946 to impose sanctions on the Spanish Fascist regime of Francisco Franco (UN SCOR, 1st Sess., 1st series, 25th-26th mtgs., 34th -40th mtgs. (1946)) and gaining momentum through the use of Chapter VII to end racist policies in Rhodesia (SC Res. 217, UN SCOR, 20th Sess., Res. & Dec., at 8, UN Doc. S/INF/20/Rev.1 (1965)) and South Africa (SC Res. 418, UN SCOR, 32d Sess., Res. & Dec., at 5, UN Doc. S/INF/33 (1977)). In the case of Haiti, in 1993, Chapter VII was used to end the junta's gross violations of the democratic entitlement (The Security Council authorized use of force against the Haitian junta, having found a "humanitarian crisis" and a "climate of fear of persecution." SC Res. 841, UN SCOR, 48th Sess., Res. & Dec., at 119, 119, UN Doc. S/INF/49 (1993)).

Finally, the Security Council resolutions on the conflict in the former Yugoslavia demonstrate a "significant shift in the attitude of the Council in favour of recognizing universal human rights and granting them greater weight in promoting and protecting international peace and security. However, the Security Council has not yet developed a general doctrine of humanitarian intervention but proceeds as is required on a case-by-case basis.

Some scholars suggest that in order for military intervention to be considered, one of two conditions must exist: a) the government must be committing, supporting, or aiding and abetting widespread violations of internationally recognised human rights; or b) there must have occurred a total breakdown of law and order resulting in such widespread deprivations of human rights which the government of the target state is incapable of preventing.


3) Gross violations of human rights as a potential threat to peace and security

Can a situation characterized by human rights violations amount to a threat to international peace and security sufficient to justify enforcement action by the security council?

The suggestion that respect for sovereignty is conditional on respect for human rights has been reflected in the practice of the Security Council which has increasingly considered internal conflicts and the large-scale human rights violations as legal grounds for international action. Since the end of the Cold War, the Security Council has "availed itself of a right of humanitarian intervention" by adopting a series of resolutions which have progressively expanded the definition of a "threat to international peace and security" under Article 39 of the Charter to allow for Security Council-mandated military intervention to respond to grave humanitarian crises, even where such crises have been purely domestic in nature. This is what the Security Council did in the case of Bosnia (see Resolution 770 of 13 August 1992 (click here)), Somalia (see Resolution 794 of 3 December 1992 (click here)), Haiti (see Resolution 940 of 31 July 1994 (click here)), and Rwanda (see Resolution 929 of 22 June 1994 (click here)). In a similar way, pursuant to Chapter VII, it consented to the peaceful missions in Kosovo, East Timor, and Sierra Leone. It is noteworthy that even where these internal conflicts have had international repercussions, the Security Council has not always made reference to these repercussions in defining a "threat to international peace and security". This constitutes a substantial restriction of the scope of Art. 2(7) of the Charter.

This trend suggests that the rationale of non-intervention in internal affairs enshrined here is being replaced by the principle that massive or widespread violations of human rights or humanitarian law arising from governmental acts or internal conflicts and the magnitude of human suffering that they engender can constitute a threat to international peace and security. In those circumstances, the Security Council can take appropriate measures, including the use of force for the protection of humanitarian relief operations. This was especially evident in the case of Somalia, where the threat to neighbouring states was relatively small and arguably receding by the time Resolution 794 was adopted.

It is also worth reminding that the State practice seems to indicate that intervention on those grounds is justified, hence, in the course of the years, governments have argued that the use of force is legal when it is intended for the protection and rescuing of their nationals abroad; the liberation of peoples from colonial regimes; the fight against terrorism, or the protection of individuals against grave and large-scale human rights violations. Indeed, in the sixties and seventies interventions to liberate peoples from the colonial rule were largely supported by the UN General Assembly. (See UN GA Resolution 2625, dated 25 October 1970 (click here)). Precedents of humanitarian interventions might also justify the claim that most states accept them as legal. The allied intervention in northern Iraq in 1991 on behalf of the Kurds and the imposition of a no-fly zone in southern Iraq on behalf of the Shiites some months later is a good example of it. A number of interventions could also be best justified by the doctrine, e.g. the cases of India’s invasion of Bangladesh (1971), Tanzania’s invasion of Uganda (1979) and ECOWAS’ intervention in Liberia (1990).

Does the Security Council have a legal right to intervene (or to authorise intervention by a group of states or a regional organisation) in a target state to protect the latter’s citizens from widespread deprivations of internationally recognized human rights?

As mentioned above, the promotion of human rights is one of the UN primary goals, which contribute to maintaining international peace and security in the system, created by the UN Charter. Thus some authors argue that the Charter permits the use of force under circumstances other than those provided for in Articles 51 and 42 of the Charter.

Article 56 of the Charter enjoins "All Members [to] pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of...purposes..." which include "universal respect for, and observance of, human rights and fundamental freedoms for all..." [Article 55(c)]. The enforcement powers of Chapter VII of the Charter - which are contingent on a determination by the Security Council of a "threat to the peace, breach of the peace or act of aggression." Can the language of Article 39 be interpreted to bring gross violations of human rights within the remit of the Chapter VII provisions, thereby giving substance to Articles 55 and 56?

This approach followed by the Security Council, to consider large-scale violations of human rights as a threat or breach of international peace and security in the post-Cold War era has resulted in considering internal conflicts and humanitarian catastrophes (with or without cross-border repercussions) as constituting threats to international peace and security. It is worth reminding that the Security Council may take enforcement measures without taking into account the general principle of non-interference in the internal affairs of a State when determining whether a particular situation or issue is a threat to international peace and security.

However, the problem is whether a crisis requires trans-boundary elements to justify intervention. For example the intervention in Iraq which resulted in refugee flows to Turkey and Iran. Any intervention must be necessary and proportionate and leaving no choice of means (Custom derived from the Caroline Case). It can be argued that crises whose external implications are severe enough to make an exception to the non-intervention principle have warranted and may, in the future, warrant humanitarian intervention. Yet, some states object to this broad interpretation of humanitarian intervention authorised by the UN Security Council on the basis that the Security Council may act arbitrarily in some future cases. Furthermore, the argument that the Security Council, under the Charter and its practices, is not entitled to authorise humanitarian intervention based purely on massive violations of human rights with no cross-border repercussions raises questions about the legal and structural limits of the Security Council on matters of humanitarian intervention. In any case, as long as humanitarian crises do not transcend borders and lead to armed attacks against other states, recourse to Article 51 [self-defense] is not available.

This said, cited developments evidence a notable shift underway in terms of the principle and practice of humanitarian intervention over the past ten years, suggesting that the protection of human rights in situations of extreme deprivation and suffering is sometimes given pre-eminence over the sovereignty principle.

4) Conclusions

Until the advent of the UN human rights were matters of domestic jurisdiction and not of international concern. Even after the creation of the UN no early agreement was made. After the adoption of the UN Charter intervention is seen as use of force violating the independence and territorial integrity of a State. UN practice has developed to permit considerations of and adoption of resolutions on such practices, at least where these are grave or systematic. They are no longer seen as essentially within domestic jurisdiction.

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