In a post on Friday, Conor Foley made reference to the question of whether there is a right of humanitarian intervention.
It is not difficult [he said] to make a theoretical case for such an intervention - although most international legal scholars reject the view that it would be legal.This post discusses that issue. I do not engage with what Conor has to say about a post of mine from earlier this year on the UN Genocide Convention, since I have nothing I want to add to the view I there expressed.
Is there, then, a right of humanitarian intervention? The question is moot. Some say not, citing Article 2, Paragraph 4, of the UN Charter.
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.Others affirm such a right, and they even avail themselves in doing so of some of the words from this same paragraph. They argue that a genuine humanitarian intervention is not inconsistent with the purposes of the United Nations, as these purposes include the defence of human rights; they say that, properly conducted, a humanitarian intevention will not threaten 'the territorial integrity or political independence' of the state on whose territory it is made.
I propose for my own part a short way with this question. There is a right of humanitarian intervention. For the implication of holding the contrary is that crimes against humanity may be committed on a mass scale, violating the most fundamental human rights and all the peremptory norms of international law, and other means (diplomatic, economic etc) failing to stop this, no coercive action may be taken to do so nonetheless. That cannot be a norm of civilized law, nor therefore part of the emergent law of the world - just in the same way that it cannot be a legitimate norm of a domestic legal system that some people may freely murder others without any attempt being made by authoritative bodies to prevent and punish these acts of murder.
Crimes against humanity are themselves - already, non-controversially - crimes under international law. The doctrine of jus cogens as supreme law encompasses a number of peremptory norms binding on every state, and from which no state may derogate in any circumstances, including circumstances of war. The list of offences prohibited by these norms includes: genocide, slavery and the slave trade, murder, 'disappearance' of persons, torture or other cruel and inhumane treatment, prolonged arbitrary detention, involuntary human experimentation, extra-judicial execution, and racial discrimination.
Humanitarian intervention is considered where crimes of just this sort, crimes against humanity, are being widely committed in a given country. Some threshold of scale is generally taken for granted here. Humanitarian intervention involving military force should only be considered as an option in very grave and urgent cases, and 'grave' and 'urgent' are both judged in terms of scale. Rightly so, because the consequences of possible war, a possibility which the use of military force opens up, are often unpredictable and sometimes calamitous. There is an issue as to where precisely the relevant threshold should be regarded as lying – humanitarian crisis is the conventional formula, but how big must the thing be to count as that? – but I bypass this issue on the present occasion. (See here, here and here, section 2, for some discussion of it.) I should also make it clear that in asserting that there is a right of humanitarian intervention, I do not imply that any intervention for which that heading is claimed is justified. The usual requirements – right intention, proportionality, a reasonable prospect of practical success – apply.
But, with these qualifications in place and some persuasive specification of what the threshold of scale should be, humanitarian intervention, I contend, is not illegal. The case for this is strengthened by the doctrine of a responsibility to protect. In September 2005 the UN General Assembly adopted a document recording the 'unambiguous acceptance by all governments of the collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity; [and] willingness to take timely and decisive collective action for this purpose, through the Security Council, when peaceful means prove inadequate and national authorities are manifestly failing to do it.'
In line with the argument already made, I would say that the right to intervene on humanitarian grounds, though it should go through the Security Council as far as possible, needn't invariably do that – this for the simple reason that circumstances may arise in which, under the law of nations by which that body is bound, an intervention is both justified and urgent, but will not in fact be ratified, for political reasons. The constituent member nations of the body that have made the commitment to a responsibility to protect are severally and separately authors of this commitment and cannot be bound by the delinquency of which the collective body is, in that case, guilty.
This is somewhat comparable to Locke's thesis in chapter 2 of The Second Treatise of Civil Government, that in the state of nature...
...the execution of the law of nature is... put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation; for the law of nature would, as all other laws that concern men in this world, be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders.Only somewhat comparable, of course, because the international order is not altogether a state of nature and there is a body charged with seeing to the execution of its law. Where it fails to do this, however, and there is a state of ongoing lawlessness somewhere, very costly in human lives, and those charged with overseeing its prevention fail to do so, the agents of a humanitarian intervention cannot be acting illegally.
Here it may be counter-argued that this principle is open to abuse. But so is any principle - including, indeed, the restriction that such actions may only be authorized by the UN Security Council.
What, finally, of Conor's distinction between a 'theoretical' case for humanitarian intervention, and the view of legal scholars about its legality as things stand? Is mine a merely theoretical case? On that I would say two things.
First, as I have tried to show, if humanitarian intervention by a state or group of states without Security Council authorization is in all circumstances illegal, then this means that international law presently accommodates what is, by its own norms, massive state criminality. The law being upheld by (some) legal scholars, in other words, has a glaring logical contradiction at its heart.
Second, where laws are just and beneficent, one supports them for more than one reason: for their justice and beneficence, and out of respect for the rule of law. But where laws actually place themselves on the side of the violation of fundamental human rights, grave injustice, evil-doing on an extensive scale, they should not retain our respect. They should be criticized, condemned, and their reform argued for; at the limit, they should be ignored and counteracted. No one is obliged to speak in favour of legal norms that let human violation and mass murder run on unchecked.