Sovereignty never amounted to an unquestionable right of Governments to do anything they pleased within their recognized space. Where a tyrant should inflict upon his subjects such treatment as no one is warranted in inflicting, other States may exercise a right of Humanitarian Intervention. This right is based on the natural law of societas humana – the universal community of humankind. States owe a duty of humanitarian rescue to the citizens of States whose Governments fail to protect basic Human Rights including security of ethnic groups from mass murder and genocide.
Humanitarian Intervention is reconciled with the United Nation‘s regime of jus ad bellum. The phrase ― ‘or in any other manner inconsistent with the purposes of the United Nations’ permits unauthorized humanitarian intervention where the Security Council fails to realize one of its chief purposes – the protection of human rights.
The security system of the United Nations was premised on a consensus between the permanent members of the Security Council. Lamentably, that consensus dissolved early in the history of the organization. Thereafter, part of the systemic justification for the theory of Article 2(4) disappeared. Therefore, if the Security Council fails to end massive human rights violations, states may do so without authorization.
Arguendo, Article 2(4) does not forbid the threat or use of force simpliciter, it forbids it only when directed against the territorial integrity or political independence of any State. Thus, if a genuine Humanitarian intervention does not result in territorial conquest or political subjugation, it is distortion to argue that it is prohibited by Article 2(4).
The principle of non-intervention has never been a tenet of customary International law. On the contrary, there has been a continued existence of a customary right of unauthorized humanitarian intervention. State practice in the nineteenth and early twentieth centuries established such a right; a right that was neither terminated nor weakened by the creation of the United Nations. This right remains so secure that only its limits and not its existence is subject to condition. Moreover, the sparing and selective use of the doctrine is no barrier to its being customary international law. In addition to the number of pre-charter humanitarian interventions, focusing on the numerous post-charter interventions on humanitarian grounds – the United States in the Dominican Republic (1965); India in East Pakistan (1971);Vietnam in Kampuchea (1978-93);Tanzania in Uganda (1979); ECOWAS in Liberia (1990-95) (which was not authorized by the Security Council but was subsequently approved by the United Nations); Britain, France and the United States in Iraq (since 1991); ECOWAS in Sierra Leone (since 1998); and NATO in Kosovo (since 1999) – is evidence to its continued existence and general observance- two recognized attributes of binding international norms.
If provision of humanitarian assistance is to escape condemnation as an intervention in the internal affairs of a state, it must be limited to the purposes hallowed in practice, namely to prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being without discrimination to all in need.
References:
- Barry M. Benjamin, ―Unilateral Humanitrian Intervention :Legalizing the Use of Force to prevent Human Rights Atrocities,‖ 16 Fordham International Law Journal (1992-93),126.
- Daniel Wolf, “Humanitarian Intervention,” 9 Michigan Year Book of International Legal Studies (1988),368.
- David M. Kresock, Ethnic Cleansing in the Balkans : The Legal foundation of Foreign Intervention; 27 Cornell International law Journal(1994), 234-37.
- Dino Kritsiotis, ―Reappraising Policy Objections to Humanitarian Intervention,‖ 19 Michigan Journal of International Law (1998),1027. 25 Nicaragua, p. 267-68.
- Hugo Grotius, De Jure Belli ac Pacis (Oxford University Press, Oxford, 1925), Book II, ch. 25, sec. 8, vol. II, p.584.
- International law Association,‖The International Protection of Human Rights by General International Law (Interim Report of the Sub-Committee, International Committee on Human Rigths, The Hague, 1970),p.11 quoted in Fonteyne, ―Customary International Law Doctrine‖,pp.235-36
- Jean Pierre L. Fonteyne, ―The Customary International Law Doctrine of Humanitarian Intervention :Its Current validity under the UN Charter‖, 4 California Western International Law Journal (1974), 203-70; Lillich, ―Reply to Ian Brownlie,‖ pp.229-51
- Judy A. Gallant, ―Humanitarian Intervention and Security Council Resolution 688: A Reappraisal in Light of Changing World Order,‖ 7 American University Journal of International Law and Policy (1992), 898-99.
- Julius Stone , Aggression and World Order : A Critique of United Nations’ Theories of Aggression (Steves,London, 1958), p. 95.
- M.Ganji, International Protection of Human Rights(Librarie E. Droz, Geneva, 1962) Nanda, ―Tragedies in Northern Iraq, Liberia, Yugoslavia and Haiti,‖p.310
- M.Trachtenberg, ―Intervention in Historical perspective,‖ in Laura W. Reed and Carl Kaysen eds., Emerging Norms of Justified Intervention(Committee on International Security Studies, American Academy of Arts and Sciences, Cambridge, Mass., 1993),pp.15-36
- Michael J. Bazyler, ―Re-examining theDoctrine of Humanitarian Intervention in Light of Atrocities in Kampuchea and Ethiopia,‖ 23 Stanford Journal of International Law (1987), 547-619.
- Richard B. Lillich, ― Forcible Self-help by States to protect Human Rights,‖ 53 Iowa Law Review (1967),334
- Richard B.Lillich, ―Humanitarian Intervention : A reply to Ian Brownlie and a Plea for Constructive Alternatives‖ in Moore, Law and Civil War,p.230
- W. Friedman, The Changing Structure of International Law (Columbia University Press, New York, 1964),p.259
- W. Michael Reisman – Myres S. McDougal ―Humanitarian Intervention to Protect the Ibos‖ in Lillich, Humanitarian Intervention and the UN,p.177.
- W. Michael Reisman ―Coercion and Self determination : Construing Charter Article 2(4),‖ 78 American Journal of International Law(1984),642-45
- W. Michael Reisman, ―Criteria for lawful use of force in International Law‖, 10 Yale Journal of International Law(1985), 279 -80. Stone, Aggression and World Order,pp.43,95-96
