Name: Danmar Clarke

Course: Issues in International Law

ID No: 620133205

Question: There is no right of humanitarian intervention under International Law. Even if there
is, such a right should not exist.

Critically examine this statement with reference to relevant rules and principles of Public
International Law, decided cases, writings of qualified writers, current/past events.
 Essay

Article 2(4) of the United Nations Charter provides that “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”. Despite this general rule, there are a number of exceptions under international law in
which force can be used , such as Collective and Individual State Self Defense, as provided
under Article 51 of the UN Charter and actions involving force which the UN Security Council
authorizes as provided under Article 42 of the said charter. There also seems to be another
exception however it is quite controversial and sparks much debate as to whether or not it is
recognized as valid under international law and that is the right of Humanitarian Intervention.
The latter will be the focus of this paper as the writer examines and analyzes the writings of
various international scholars, decided cases, current and recent international episodes so as
determine whether or not the principle of Humanitarian Intervention does indeed exist as an
exception of Article 2(4) under Customary International Law, and if it does exist whether or not
it should truly be allowed to under international law.

Firstly, according to Sir Hersch Lauterpach, former Judge of the International Court of Justice,
Humanitarian Intervention is defined as the means by which one State enters another State and
uses force so as to prevent a gross violation of human rights there which shock the conscience of
mankind because the latter State is either incapable or unwilling to protect its own people or is
the one persecuting them1. The historical origin of the doctrine of Humanitarian Intervention can
be traced to the early writings of Gentili, and Grotius who supported intervention primarily
motivated by religious considerations. For example, in 1860-1 Britain, France, Austria, Prussia,
and Russia intervened in Syria following the murder of thousands of Christian Maronites by the
Druse Muslims. Considering this historical origin it would appear as though states accept that
there exists a principle of Humanitarian Intervention.
Secondly, there are there the writings of Professor of Law, Daniel Bethlehem who strongly
support the existence of the humanitarian intervention under customary international law. It is
important to note that Statute of the International Court of Justice2 provides for the writings of

1Vasciannie, ‘International Law and the Use of Force,’ The Sunday Observer, (Kingston, Jamaica, August 28, 2016
)<http://www.jamaicaobserver.com/news/International-law-and-the-use-of-force_72134 > accessed November 27, 2019
2
International Court of Justice Article 38(1) (d)
the most qualified publicists to be a subsidiary source of International Law, thus are quite
persuasive and can point to later binding principles of law. Considering that fact, Professor
Bethlehem posits that international law, under Articles 24 and 25 of the International Law
Commission Articles on State Responsibility, does indeed acknowledges a tightly constrained
right of states to use force in another State in situations of distress (to save lives) and
circumstances of necessity (to safeguard an essential interest against a grave imminent peril)
under a principle known as of Responsibility to Protect (R2P). The kind of action that was
however in contemplation is limited and in last resort situations that must be approved by the UN
Security Council. Therefore, while Responsibility to Protect is similar to Humanitarian
Intervention, the difference is that Humanitarian Intervention involves unilateral action by the
States without the authorization of the UN Security Council. While the rationale of the UN
Security Council in its Responsibility to Protect Principle is to closedown the space for action by
States outside of the framework of the UN Charter, the question arises, what if the Security
Council fails to act when a human rights atrocity accurs. According to the International
Commission on the Intervention and State Sovereignty (ICISS) 2001 report on State
Responsibility, a “conscience-shocking situation with no UN action” would suggest that States
are likely to act without UN authorization and this in it self would amount to Humanitarian
Intervention. The report goes on to note that where the UN fails to act and states unilaterally
intervene it would be an unreasonable stretch of legal reasoning by the UN to say that the
responsibility to protect admits only a narrowly tailored right of authorized intervention thus the
Humanitarian Intervention was unlawful. Therefore in light of the latter, it does appear that there
is an accepted belief that there is a right of Humanitarian Intervention under international law,
especially in an instance where the UN Security Council fails or refuses to act.
Thirdly, notwithstanding that R2P is codified under International Law unlike Humanitarian
Intervention, there is strong state practice and opinio juris3 in favour of the right of
Humanitarian Intervention under Customary International Law. Evidence of opinio juris
supporting Humanitarian Intervention can be seen in the Kosovo intervention by NATO and
where thereafter the United Kingdom circulated a note to NATO allies in which it explicitly
advanced a legal basis for intervention without of Security Council authorization. According to

3
DJ Harris, Cases and Materials on International Law(7th ed, Sweet and Maxwell, United Kingdom, 2009 )
British Prime Minister Tony Blair, in April 1999, “ there now exists a new doctrine of
international community...where acts of genocide can never be purely an internal matter”.
Although only few of the other NATO states that participated in the Kosovo military action in
1999 came out publicly to explain the legal basis for their action, there can be little doubt that
most if not all considered the action lawful. At the very least this statement of position by the UK
is a clear and unambiguous indicator that there exists a belief that the principle of Humanitarian
Intervention is legally binding on States.

Furthermore, there are several episodes that give support to state practice of Humanitarian
Intervention. Firstly, there is the Tanzanian intervention in Uganda to prevent the dictator Idi
Amin from killing hundreds of his citizens in addition to invading Tanzania to annex the Kagera
Salient. In response President Nyerere of Tanzania decided to invade Uganda to save the people
there, overthrow Idi Amin and to set up a new government.To ensure this was done he left a
small training contingent of soldiers in Uganda4. According to Professor Slomanson of the
Thomas Jefferson School of Law, while on one hand many applauded the use of force by
Tanzania to end the gross loss of life in Uganda, on the other hand, the reaction to this
intervention was met with criticism from various African Nations who noted that never before
has an African country so boldly and successfully invaded a neighbour thus breaching the
principle of ‘non-intervention in the affairs of a neighboring country’ as enshrined in Article
3(2) of the Charter of the Organization of African Unity. Moreover, according to the
International Court of Justice in the Nicaragua Case,5 the principle of non-intervention is a rule
under customary international law and provides that states should not get involved or ‘intervene’
directly or indirectly in the domestic or external affairs of others states. Intervention is wrongful
when it uses methods of coercion in regards to preventing a state from freely making a choice as
it relates to cultural, economic, social systems, choices involving foreign policy or any action
which seeks to affect the State’s sovereignty. The essence of intervention recognizes the use of
force either in a direct form of military action or the indirect support for terrorist activities in
another State. The ICJ, however, presents another argument that supports intervention by noting

4J Darnton. ‘Tanzania's Nyercre Seems to Have Emerged as a ‘Giant Killer’. The New York Post(New York ,USA, April 8, 1979)
<https://www.nytimes.com/1979/04/08/archives/toppling-amin-tipped-african-myths-too.html> Accessed October 13, 2019

5 DJ Harris, Cases and Materials on International Law(7th ed, Sweet and Maxwell, United Kingdom, 2009 )
that there have been, in recent years, a number of instances of foreign intervention by states to
aid forces opposed to a government of a particular State. This seems to give rise to a kind of
general right of states to intervene directly or indirectly with or without armed force in support of
an internal opposition in another State, whose cause appears worthy of support based on political
and moral values. The court goes on to note that if this right of intervention were to come into
existence this would require a fundamental modification of the customary international rule of
non-intervention. For this modification to be created and a new customary rule created
supporting intervention, there would need to be, in accordance with principle from the North
Sea Continental Shelf Cases: acts amounting to a ‘settled practice’ with evidence of a belief
that the practice is obligatory6. Therefore the general rule is that there should be no intervention
into the internal affairs of another State, this essentially would mean that the Humanitarian
Intervention prima facie violates the customary international principles of non-intervention,
however, giving weight to the point of the ICJ that in recent years there has been intervention by
states to support internal groups and their moral and political causes in fighting against their
authoritarian governments and preventing them from carrying out gross violations of human
rights against citizens of the country, there seems now to be a modification which supports the
existence of state practice supporting intervention, and the type of intervention in contemplation
here is Humanitarian Intervention. In fact, another episode of state practice which supports
Humanitarian Intervention was when Vietnam launched an invasion of Cambodia in late
December 1978 to remove the Khmer Regime. Two million Cambodians had died at the hands of
the Khmer Rouge regime and its troops conducted bloody cross-border raids into Vietnam
massacring civilians and torching villages. The Vietnamese government however invaded
Cambodia, defeated the regime and set up a new government there. Notwithstanding the fact
that the Vietnam episode provides evidence of state practice, while those that survived the
Khmer Rouge regime in Cambodia initially greeted the Vietnamese as liberators, according to
Carlyle Thayer, professor at the University of New South Wales at the Australian Defence
Force Academy, years later Vietnamese troops were still in Cambodia and by then, many
Cambodians considered them occupiers which later resulted in a bloody war between the two
states. Professor Carlyle notes that this intervention by Vietnam has not gained support in certain

6 DJ Harris, Cases and Materials on International Law(7th ed, Sweet and Maxwell, United Kingdom, 2009 )
spheres of the international community7. With this in view, the question still arises as to whether
or not the principle of Humanitarian Intervention is a ‘settled practice’ as required by the North
Sea Continental Shelf Cases, since in most instances at the initial stages of Humanitarian
Intervention it is welcomed then later it criticized by the citizens of the Intervened State
(Cambodia in this case) or by the International Community. On the point of whether or not
Humanitarian Intervention is a ‘settled practice,’ by all states the answer at times is not clear cut
and the USA intervention in Haiti and China’s response is instructive on the view that there may
bes no settled practice. In this episode, the Security Council adopted Resolution 940 which
authorized member states such as the USA ‘to use all necessary means to facilitate the departure
from Haiti, the military leadership of the Junta’ who had taken over the government from
President Aristide in a coup. China abstained from voting in support of this resolution and
criticized this so-called Collective Humanitarian Intervention, arguing that the Security Council
authorizing the use of force under Chapter VII to implement a democratic election result was in
violation of Article 2(7)8 of the UN Charter, since the political issues in Haiti posed no threat
to international peace and security9.China classified this UN intervention to be a US military
action that set a dangerous precedent. To counter this point, according to Professor Malanczuk
of the University Rotterdam, the case of Haiti has been described as the most important
precedent supporting collective humanitarian intervention and the legitimacy of an international
principle of democratic rule within the Western Hemisphere.In my view, this position by China
does not seem to blur the lines of state practice to say that it is unsettled, in fact, the practice of
Humanitarian Intervention still goes on to be exercised by states, for example in 1971 when India
intervened in Pakistan. The facts of this episode were that Rahman from East Pakistan won most
of the seats in an election to form the government of Pakistan however the then President Khan

7BBC News. ‘Vietnam’s forgotten Cambodian war’. <https://www.bbc.com/news/world-asia-29106034> Accessed October 13,
2019

8 Nothing contained in the present Charter

shall authorize 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
prejudice the application of enforcement measures
under Chapter VII.

9 Peter Malanczuk.Akehurst’s modern

introduction to international law.(7th edn,Routledge, London, 1997)
refused to hand over power to him. This caused great dissent in East Pakistan and in response,
Khan sent soldiers from West Pakistan to end the dissent by committing mass genocide. India
started to receive over 10 million refugees from East Pakistan which then became a refugee
crisis; as such India intervened in the civil war providing military support for East Pakistan to
fight against the West. The result of this military support was that it lead to the creation and
independence of East Pakistan which was later named Bangladesh10.
Professor Malanczuk puts forward a counter argument against Humanitarian Intervention by
stating that there is more state practice in support of Responsibility to Protect (R2P) rather than
that of Humanitarian Intervention. In fact, he noted that most of the intervention to prevent
human rights atrocities in 1990s i.e the UN intervention in Somalia, Iraq, Haiti, Yugoslavia and
Rwanda, were all authorized by the security council under the Responsibility to Protect Principle
and the only few episodes of unilateral Humanitarian Intervention are the US Intervention in
Grenada and the Dominican Republic. Therefore, it is not clear if these two episodes by the US
are sufficient to make a case for the existence of state practice for Humanitarian Intervention.
Professor Malanczuk extends his argument to state that even if such a right of Humanitarian
Intervention exists, before a state can intervene in another it must receive some consent or
authorization to do so from an agent of the state which essentially is the’ lawful government’.
Therefore, the Soviet military intervention in Hungary (1956), Czechoslovakia (1968) and
Afghanistan (1979) was found to be unlawful when it was learned that the USSR assertion that it
had been invited by the lawful government was fabricated. A more recent episode on the matter
of receiving consent before intervention is the Grenadian Invasion by the USA. The facts of this
episode are that, following the overthrowing of Maurice Bishop as Prime Minister in a coup, the
present leader Bernard Coard and his forces clashed with members of the public which resulted
in a state of emergency that saw anyone who left their homes shot. Citing the danger Governor-
General Scoon sought assistance from the U.S. to cease the human rights atrocities. President
Ronald Regan agreed and sent over 8000 soldiers to defeat Coard’s forces and set up a non-
communist government there. The legitimacy of this intervention has been scrutinized since
there is the view that the Governor-General has only ceremonial functions under the constitution
thus does not have the authority to extend consent to intervention by external forces.Moreover,

10 Bethlehem, “Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention” available at
http://www.ejiltalk.org/stepping-back-a-moment-the-legal-basis-in-favour-of-a-principle-of-humanitarian-intervention/
there still remain questions whether the invitation was actually made before or after the invasion.
Professor Malanczuk puts forward another question as whether or not a failing state( i.e country
with no formal government) can make a request for Humanitarian Intervention. The episode he
puts forward was the intervention in Somalia where while there had been requests for help from
the UN by Somalian tribal leaders, there was no government and nothing akin to a structure of
formal government, thus should the legality of the intervention be questioned? The answer to this
question is that the intervention was authorized by the security council under the principle of
Responsibility to Protect, thus there was no need to seek consent from a formal government to
enter Somalia however if this was a classic case of Humanitarian Intervention it would be
interesting to see who could provide consent.
In support of the argument that Humanitarian Intervention is valid under customary international
law, Professor Bethlehem provides evidence of opinio juris by positing that the compelling
objective of the United Nations as expressed in the preamble of the UN Charter is “to save
succeeding generations from the scourge of war” and “reaffirm faith in fundamental human
rights, in the dignity and worth of the human person”. Therefore, any force caused by
Humanitarian Intervention which seeks to prevent war or the breach of human rights as
mentioned in the preamble is seen as legal under international law by states. Professor
Malanczuk, however, relying on the November vote in the UN , 118 to 9 against the Grenada
Invasion, makes the argument that this in itself is evidence of opinio juris that Humanitarian
Intervention is unlawful. In fact, Margret Thatcher, Prime Minister of Britain at the time send a
message on October 25, 1983, to Reagan stating that "I am deeply disturbed….this action will
be seen as intervention by a Western country in the internal affairs of a small independent
nation, however unattractive its regime”. This response by Thatcher and the United Nations
seems to support the point that Humanitarian Intervention is unlawful.

Other positions that seek to support the validity of the right to Humanitarian Intervention is the
wording and interpretation of Article 2(4) of the UN Charter. The latter provides that all states
must refrain from the 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’. With this
in view, since one the purposes of the United Nations specifically the security council is to
maintain international peace and security which would entail the protection of human rights, the
use of force for humanitarian reasons would be a purpose consistent with the United Nations thus
could be constituted as an exception to Article 2(4) and therefore supporting the validity of the
Humanitarian Intervention under customary international law.

According to Professor Brian Lepard of the University of Nebraska School of Law,

arguments have been made that Article 56 of the UN Charter serves as a legal basis for
justifying humanitarian intervention. It states: “All Members pledge themselves to take joint and
separate action in cooperation with the Organization for the achievement of the purposes set
forth in Article 55.” Subsection (c) of the latter article encourages “universal respect for human
rights … without distinction as to race, sex [gender], language, or religion.” Therefore states
have a legal obligation to take action in other states to protect human rights. Lepard noted
however that scholars have debated whether the word pledge in Article 56 should be considered
a legal obligation or merely a moral one. The most prominent reason offered in favour of pledge
as a legal obligation is because the term itself connotes a legal undertaking.
According to legal scholar Fernando Teson, in his support of the existence of Humanitarian
Intervention as valid under International Law, he posits that there is believed to be a moral duty
to intervene in another state to prevent gross human rights abuses. Teson, however, cautions that
to say specific moral duty validates using intervening militarily action in another state has not
generally been endorsed since any intervention must originate from some legitimate authority,
the intervention must be necessary and must havea likelihood of success in preventing the human
rights atrocities.

According to Brownlie any discussion as to the validity of Humanitarian Intervention under

customary international law must take into account the Ministerial Declaration produced by the
meeting of Foreign Ministers of the Group of 77 held in New York on 24 September 1999, three
months after the North Atlantic Treaty Organization (NATO) action against Yugoslavia.
Paragraph 69 of the Declaration reads: The Ministers stressed the need to maintain clear
distinctions between humanitarian assistance and other activities of the United Nations. Thus the
ministers rejected the so-called right of humanitarian intervention, which has no basis in the UN
Charter or in international law. Brownlie notes that this rejection of the right of humanitarian
intervention represented the opinion of 132 states that accepted this paragraph as the current
status of the law. The total of states which accepted paragraph 69 includes 23 Asian states, 51
African states, 22 Latin American states and 13 Arab states.Therefore, this rejection of
Humanitarian Intervention by states provides evidence that there is wide opinio juris suggesting
that Humanitarian Intervention is unlawful and thus does not exist under customary international
law.

Kritsiotis in his argument against Humanitarian Intervention notes that should humanitarian
intervention be liberally tolerated in law, there would be a flood of interventions, considering
that violations of human rights are indeed all too common. In essence, it would almost be a
potential situation of every state intervening in every other to prevent human rights violations.
Kritsiotis goes on to state argue that if humanitarian intervention is recognized as valid under
customary international law this ‘would introduce endless opportunities for the use of force in
every international incident that is considered of’ humanitarian need’ and this would essentially
render Article 2(4) of the UN Charter which prohibits force. Kritsiotis also posits that states
are unlikely, if ever, to engage and control their forces to only use authentic humane action
during incidents of military Humanitarian Interventions. Therefore, citizens are likely to suffer
during the military action of this Humanitarian Intervention and maybe suffer even more than
what they experienced by the human rights atrocities caused by their home state11.

Legal scholar Lepard argue that it appears that there is a right to Humanitarian Intervention
and it should continue to exist under international law so long as more peaceful methods of
bringing about the protection of human rights, should be used rather than the use of force, and
only serious human rights violations such as genocide should ever include military intervention
and since Article 39 authorizes the security council to “decide what measures shall be taken …
to maintain or restore international peace and security,” the council should ensure only peaceful
methods are used. Lepard goes on to state that some scholars do not believe the principle of
Humanitarian Intervention should exist at all because they are of the view that unilateral
humanitarian intervention may conflict with the norms associated with territorial sovereignty and
the prohibition on the use of force. The Vietnamese intervention in Cambodia is a primary
example where the initial intention by Vietnam was to prevent human rights atrocities in
Cambodia yet the end result was that Vietnam refused to leave which violated Cambodia’s state
sovereignty, which later caused a clash between both states, seeing Vietnam using force against

11
Dino Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’, Michigan Journal of International Law 19 (1998): 1005,
1020,
the same Cambodians that they had intended to protect. Scholar Fernando Teson however
counters this argument of state sovereignty by arguing that the domestic and international
legitimacy of governments and their claim to right of sovereignty depends on their willingness to
protect the human rights of their citizens. Therefore, where a state engages in actions that violate
its citizen’s human rights it is no longer legitimate and it loses his right of sovereignty thus
other states have the right to intervene and alleviate human suffering12.

Professor Slomanson of the Thomas Jefferson School of Law argues that he believes that
there is a right of Humanitarian Intervention however it should not exist because while such
intervention should be line with the duty of the UN to protect the human rights of citizens, it is
often intertwined with the political goals of the intervening state and not for the best interest of
the citizens suffering the human rights atrocities. This can be linked to the episode of the USA
intervening in Haiti where scholars were of the view that the USA’s goal was to ensure that
democracy was reinstated in its back yard rather than the prevention of human rights atrocities,
and to ensure that its political goals succeeded military bases were set up in Haiti by the USA.

According to Brownlie the right to humanitarian intervention does not exist under international
law and even if it did it should not exist because its incorporation into the system of international
law of nations would enhance the opportunities for the abusive use of force.13 An episode that
supports this point by Brownlie is U.S, UK and France intervention in Iraq. In 1991 the Security
Council Resolution 688 (1991) expressed the council's grave concern at the treatment of the
Iraqi people and the magnitude of human suffering there caused by their government.The latter
resolution was not a Chapter VII resolution like that of the previous Resolution 687 (1991)
which had earlier authorized the use of force. Therefore the setting up of no-fly zones done while
Resolution 688 (1991) was in effect therefore was a clear abuse of power by the USA, UK and
France.

12
Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia: University of Pennsylvania
Press, 1996), 11–12
13
Ian Brownlie, ‘Thoughts on Kind-Hearted Gunmen’, in Humanitarian Intervention and the United Nations, ed. Richard B. Lillich
(Charlottesville: University Press of Virginia, 1973), 139, 147–8;
In conclusion Humanitarian Intervention is a very controversial principle and even at the end of
this paper there is no clear cut decision as to whether or not it is truly accepted under customary
international law since most state practice of intervention to prevent human rights atrocities in
the 1990’s were done with UN Security Council approval and not unilateral action as required
under the definition of Humanitarian Intervention. Three examples of true incidents of
Humanitarian Intervention are the Koscovo Intervention, Grenadan Invasion and the intervention
in the Domonican Republic and all there were met with heavy criticisms from the international
community thus rendering opinio juris little to none in support of Humanitarian Intervention. In
my view the general rule should be that intervention to prevent human rights atrocities should be
left to the approval of the UN Security Council under the the Responsibility to Protect
Principle.The exception should only be in an instance where the UN Security Council neglects or
refuses to act and the situation requires urgence and is necessary, should a state unilaterally act
under the principle of Humanitarian Intervention.
 Bibliography

1. DJ Harris, Cases and Materials on International Law(7th ed, Sweet and Maxwell, United
Kingdom, 2009 )
2. Dino Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’, Michigan
Journal of International Law 19 (1998): 1005, 1020,

3. Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World

Order (Philadelphia: University of Pennsylvania Press, 1996), 11–12
4. Ian Brownlie, ‘Thoughts on Kind-Hearted Gunmen’, in Humanitarian Intervention and
the United Nations, ed. Richard B. Lillich (Charlottesville: University Press of Virginia,
1973), 139, 147–8;
5. BBC News. ‘Vietnam’s forgotten Cambodian war’. <https://www.bbc.com/news/world-
asia-29106034> Accessed October 13, 2019
6. J Darnton. ‘Tanzania's Nyercre Seems to Have Emerged as a ‘Giant Killer’. The New
York Post(New York ,USA, April 8, 1979)
<https://www.nytimes.com/1979/04/08/archives/toppling-amin-tipped-african-myths-
too.html> Accessed October 13, 2019
7. Vasciannie, ‘International Law and the Use of Force,’ The Sunday Observer, (Kingston,
Jamaica, August 28, 2016 )<http://www.jamaicaobserver.com/news/International-law-
and-the-use-of-force_72134 > accessed November 27, 2019
8. Peter Malanczuk.Akehurst’s modern introduction to international law.(7th edn,Routledge,
London, 1997)