NATIONAL DEFENCE UNIVERSITY

SUBMITTED TO: WASEEM QURESHI

SUBMITTED BY; RAFIA SHAFIQUE

BS-STRATEGIC STUDIES 6th SEMESTER

NDU-BS-17/F-529

MID TERM PAPER (ASSIGNMENT)

Critically assess the Legality of Humanitarian
Intervention in International Law.

Humanitarian intervention in international law is highly controversial issue in

international world. There were many intervention made on the name of humanitarian
issue in world which was favored by some and some highly criticized it. For example,
United States intervention of irq and demise of Saddam Hussein is justified to world
under the veil on humanitarian intervention but United States also faced huge criticism
on it because of the controversy on the legality of humanitarian issue in international
Law. Not only the Iraq invasion, there were many cases took place in history in which
country invaded and intervened and justified its act either on the basis of humanitarian
issue or self-defense like United states initiates the war on terror against Taliban in
Afghanistan after the 9/11 attack on pentagon and world trade center. According to their
president Bush at that time, they were intervened in Afghanistan against Taliban for
their country’s defense that is the sole right of country. There was many invasion took
place against other countries like the Somalia, Liberia, East Pakistan, Rwanda. For the
invasion of Iraq by United States, the issue was raised by many countries against this
act like Russia, china, France, Germany. They argue that it’s against the sovereignty of
any country. The act of United States is highly criticized at that time.

There are some questions mainly arises about the legality of humanitarian intervention
in international Law. Some scholars saw it the legal act by countries while other
completely negate the legal ideal and consider it totally illegal. However to understand
the legality of this issue in international law, first it is important to understand the correct
definition of humanitarian issue then the International law and later then proceed to its
position in international law, Finally its legality in international Law.

Humanitarian Intervention-Definition:
There are many different definitions of humanitarian intervention in international law.
Different scholars define it differently. However, according to the scholar Verwey who
argue that; “Using of force by state to prevent the violation of human rights, every
person have right of life and it is not under theauthorization of any institution like
united nations”

There are two major factor mainly highlighted in this definition; the first one is arm-factor
is use and the second one is “thread of use of force” to ensure the human rights.
While another scholar argued that; “ if one state is not able and unwell to protect
individual living rights then any intervention from abroad state for ensuring the
human rights is justified and legal act.”
This above definition revolve around two aspects that is the human live is in danger and
he/she have a thread of dead while the second aspect is that the state where this
individual lives, does not able to ensure his/her live or are not willing to do it.
Different definition and view were given by scholars for humanitarian intervention.
However, the similar dimension present in all definitions is ; they focus on human rights,
they emphasis the military sector for ensuring human rights, third factor is the
sovereignty of states and final was the united nation organization over the legality of
humanitarian intervention.

Unites Nation;
The main aim and goal of formation of united nation organization is taking actions for
peace and security of the international world. It mainly focused on sovereignty right of
state, the non-intervention and humanitarian rights. There are many charters made in
United Nations like if state A intervened in state B then there is article 2 of illegal
intervention of state A in State B domestic affairs. However, if State A violates the right
of human being who belongs to State B then State A violates the article fifty-five of
United Nation Charter. To understand the legality of humanitarian intervention in
international world, it is important to clearly conceptualize the concepts like;

1. Sovereignty of state
2. Non-intervention
3. Human rights.

Sovereignty of state;
Respecting the sovereignty of other states is one of the important laws of united nation
charter. According to the united nation charter, each country has a right of sovereignty
and no country should violate other sovereignty. According to some scholar, this
sovereignty right mainly gain influence after the treaty of Westphalia which argued that
the catholic and protestant people should have equal rights. French Supreme Court in
1849 also emphasis on sovereignty of states and stated that no one have right to
disrespect the sovereignty of another state.

United States declared that every country have a right to exercise the sovereignty within
its borders. However, according to the article two part seven, no country have a right to
intervene in domestic affairs of another states.
Non-intervention;
Non-intervention law made and governed by united nation. According to this law; There
is right of each country to enjoy is sovereignty and no country should intervene in the
sovereignty of other country in its domestic affairs.

There are two articles that emphasis on use of force; the first one is article two part
three which stated that country have right of self-defense if it have any threat from
other’s state. According to united nation article forty-two, if intervention is far important
for maintaining the peace and security of international world, then country can intervene
in other state territory.

Human Rights;
According to united nation article fifty-five, every individual have a right of life and
countries have to respect the human rights while article fifty-six argued that every state
have to help united nations to ensure individual rights. There is some controversies
emerged about whether every country is obliged to help united nations in protection of
human rights or it just have the importance on moral grounds. But United Nations
declared it the obligation of every state to take part in protection of human rights. The
other criticisms raised is that how united nation work for protection of human rights in
diversified cultural world. For this purpose, united nation focused on broad definition of
humanitarian rights. And united nation launch a campaigns from state to state for
ensuring human rights.

Legality of Humanitarian Intervention under Union Nation

Charter:
This issue is still not clear under UN charter. Some Scholar accepted it while some
clearly called it illegal act. However, there are three major arguments are described
here to discuss the legality of humanitarian rights under UN charter.

 Textual Arguments
 Intent Arguments
 Policy Arguments

Textual Arguments:
In textual arguments, there are two views discuss the first one is classicist view while
the second one is realist view. The classicist view argued that there is no as such clear
concept of humanitarian intervention exists under UN charter. They also believed that
UN only provides some exception to preventing the use of force. These few exceptions
included the use of force for self-defense; the UN organization can take some actions to
ensure peace. They also raised a question that if humanitarian intervention is third
exception than why it is not clearly described under UN charter. They argued that there
is some limitation imposed on use of force by UN charter. Like the unilateral use of force
is not allowed under UN charter. If country wanted to intervene in other’s territory, than it
must first inform UN about its actions. Then UN is responsible to take any action against
them, the right of self-defense for which country go for unilateral approach reach to an
end by its own.

While the realist believed that the reason behind intervention is to help those in need.
Some scholars argued that UN charter does not prohibit the use of force directly; if the
article 2 will read and conceptualize closely then it stated that the use of force is legal
for protection of human rights. If the concept of self –defense is focused that it shows
that protecting the rights of individual of national state is not illegal act. However the
violations that take place against that peace procedure take place then taking actions
against them is legal act.

Intent Arguments:
In intent arguments, the classicist argued that Un main goal is peace prevailing that why
they prevent the humanitarian intervention. They believed that use of force is against
the justice rather than favoring it. The main reason of united nation is to minimize war
rather than triggering it. According to realist arguments, UN is made to protect the rights
of human being. The article two of UN strictly prohibits the intervention on domestic
affairs of another country to prevent violation of human rights. However many scolars
argued that the events happened at the domestic level on state is not domestic issue
rather it’s an international issue.

Policy Arguments:
In policy arguments, the classicist argued that looking to humanitarian intervention in
theory dimension is far good but it is too dangerous in practice. Some countries might
attack and abuse weaker one under the cover of humanitarian intervention like United
States invasion of Iraq. While realist believed that prohibition of humanitarian
intervention is far the good option.

The legality of humanitarian intervention is still controversial. Some scholars see it the
legal act if it can take place according to good faith but some might use of for their own
interest then it create the situation worse rather than protecting the human rights.
Customary international Law and Human rights:
“Customary international law is defined as state support the legal acts of
intervening in other states”.

If looking to the history then there are many examples in which states intervened in
other states and this act is mainly supported by many states in uniform manner. Like the
intervention of India in East Pakistan. India justified its act as the self-defense purpose
and violation of human rights. Many countries also provide support to India like the
Russia at that time thus India justify its act as legal act. The second example came as
Uganda intervention; it is also justified as the intervention for prohibition of human rights
violation in Uganda. This shows that humanitarian intervention is also the law in
international customary law. There are two requirements associated with it; the first one
is it is widely accepted as the legal act and justified by other states and second is it is
follow by many countries.. Thus many states intervened in other states to prevent the
violation of human rights in other states.

Like United States faced huge criticism on invasion of Iraq but United States justified it
as self-defense due to the actions of Saddam Hussein in its war with Iran and Saddam
Hussein aggressive actions of using the chemical and biological weapons against Iran.
United States also accused Iraq of formation of nuclear weapons later.

Conclusion;
There are many laws made for humanitarian intervention in international law but the law
are not still clear. The major difficulty comes due to difficult in distinguishing the moral
aspects and legal aspects. However the major aims of all those laws are to provide
human rights to every individual, justice and freedom for everything.

It is far bad to see much different between the standards of livings of people of state A
from State B thus some laws are made to provide equity in rights and standards of living
of every individual in this world.

Despite the fact that those laws are made for humanitarian rights but they are far
dangerous in practice. Aligning the democracy for peace and humanitarian rights is
somewhat confusing. If the people or individual of any country have human rights that
democracy automatically prevailed in that society. Humanitarian law scholar has to
strictly provoke the legality of this law under UN charter. It far important to clarify the
confusions that merely creates due to failure of distinguishing between the moral
aspects and legal aspects. The laws are still not clear but many countries practiced it
and accept it thus it shows that country clearly accept this law under UN Charter.