JACQUELINE LEONCIA M.

ALINO
LLM, San Beda College

RIGHT TO HUMANITARIAN INTERVENTION

INTRODUCTION

The concept of the Humanitarian Intervention highlights two

fundamental principles in public international law- state sovereignty and

human rights.

Humanitarian Intervention has been defined as the threat or use of

force by a state, group of states, or international organization for the

purpose of protecting the nations of the target state from widespread

deprivations of internationally recognized human rights.1

Adam Roberts defined humanitarian intervention as “military

intervention in a state without the approval of its authorities, and with the

purpose of preventing widespread suffering or death among the

inhabitants.”2 Although the concept of humanitarian intervention is vaguely

defined and elusively broad, Robert’s definition refers to three of its

essential characteristics, which are, at least in principle, subject to a general

consensus. First, humanitarian intervention is armed, because the

employment of military force is its central feature. Second, it is an

intervention, because it entails sending military forces across the state

1
M. FINNEY, Is There a Right to Unilateral Humanitarian Intervention in Public International Law?, 2017,
citing SD Murphy, Humanitarian Intervention: The UN in an Evolving World Order (University of
Pennsylvania
Press, Philadelphia, 1996) 11-12, accessed at
https://www.academia.edu/32090812/Is_There_a_Right_to_Unilateral_Humanitarian_Intervention_in_Pu
blic_International_Law

2
V. KOLIN, The Legitimacy of Humanitarian Intervention: A Moral Perspective, citing A. Roberts,
Humanitarian Action in War: Aid, Protection and Impartiality in a Policy Vacuum (New York: Oxford
University Press for the International Institute for Strategic Studies, 1996), p. 19, accessed at
http://www.obranaastrategie.cz/redakce/tisk.php?lanG=en&clanek=20103&slozka=23581&xsekce=19470
&
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

borders without giving the state concerned an opportunity to object to this

action. Third, the intervention is humanitarian, because it is directed to

prevent massive violations of human rights and humanitarian law in the

concerned state.3

In other words, Humanitarian Intervention refers to the military or

forceful intervention by one state against another state for the purpose of

protecting austere violations of human rights within the latter state.

The Right to Humanitarian Intervention gives rise to a dilemma as it

challenges the boundaries between upholding the established right to state

autonomy as opposed to protection of human rights violations.

STATE SOVEREIGNTY VERSUS HUMAN RIGHTS

Traditionally, state sovereignty is deemed almost absolute.

International law and opinion tilts toward its favor.

The Peace of Westphalia of 1648 espoused the principle of the

inviolability of the sovereignty of the nation-state. This has evolved to

become the bedrock principle of international relations. Under the so-

called Westphalian system, the nation-state emerged as the basic unit of

international relations, sovereign unto itself and expected to respect the

sovereignty of other states, be they ruled by people or princes.4

Article 2(4) of the United Nations Charter, specifically prohibits use

of force by one state against another, thus:

3
Ibid.
4
W. BELLO, The Crisis of Humanitarian Intervention, Aug. 09, 2011 accessed at
http://fpif.org/the_crisis_of_humanitarian_intervention/
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

“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.”

Likewise, Article 2(7) of the UN Charter recognizes a norm of non-

interference, it provides:

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.”

Furthermore, in Nicaragua v United States of America,5 the

International Court of Justice (ICJ) held as follows:

“…acts which breach the principle of non-intervention will also,

if they involve the use of force, constitute a breach of the principle of

non-use of force in international relations.”

However, in recent decades, the balance appears to be shifting

towards the recognition and protection of individual human rights. This

shift is apparent from the UN Declaration of Human Rights of 1948 which

recognizes the “inherent dignity and of the equal and inalienable rights of

all members of the human family” and reaffirms the “faith in fundamental

human rights, in the dignity and worth of the human person.” In the same

5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Rep 14, 109-10.
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

vein, UN World Conference on Human Rights in Vienna 1993 declared the

‘universal nature’ of all human rights embodied in international law as one

which is ‘beyond question’.6

This is not to say that the principle of state autonomy and non-

intervention is unqualified. The UN Charter provides for two (2)

exceptions: when an act is authorized by the UN Security Council and when

a State acts in self-defence. Nonetheless, the political dynamics and

stalemates within the Security Council has prevented the latter from acting

and responding to state atrocities in the past.

Article 42 of the UN Charter allows the UN Security Council to use

force to maintain or restore international peace and security. Since the UN

does not have any direct control of military forces, it does so through

Security Council Resolutions that authorize states to use force on its behalf.

Crucially, this power can only be exercised if the Security Council has

determined, under Article 39, ‘the existence of any threat to the peace,

breach of the peace, or act of aggression’.7

LIBERALISM VERSUS REALISM

A liberal is one that has ‘traditionally valued self-determination,

community, and shared history’, yet a liberal also has a ‘more universalist

conception of human rights in which sovereignty is a subsidiary and a

conditional value’. Under such a framework, humanitarian intervention

would clearly reflect moral and legal principles. States who commit
6
UN World Conference on Human Rights, Vienna Declaration and Programme of Action, UN
DOC/CONF.157/24 (Part 1) (25/06/1993) 1(1).

7
Supra Note 1.
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

genocide or other egregious human rights abuses break nearly all known

moral codes and forfeit, according to liberals, their legitimacy and the right

to govern their own states free from intervention. Furthermore, Nardin

(2006) suggests that the non-intervention principle inherently accounts for

exceptions made to it: since ‘a state exists to protect the rights of its

citizens, if it violates those rights it loses its moral rationale and therefore

its immunity from foreign interference’. 8

Realist, on the other hand, refers to those traditionally hostile to any

intervention said to be motivated by ethical reasons. Their major criticism

is that interventions, humanitarian or not, are always guided by ‘real’ (such

as political) interests and thus can never be purely moral in nature. As

Smith (1998) puts it, they are ‘unable to act in other than self-interested

ways’ (p70).9

DISCUSSION

There is no express right of interstate intervention for the protection

of human rights violations under the norms of public international law. On

the contrary, what is clear is the United Nations Charter provision which

specifically allows intervention only through the Security Council. As earlier

stated, however, this mode fails to achieve its ends due to political

challenges within the Council thereby rendering this option almost inutile.

8
M. SEAY, Realism, Liberalism And Humanitarian Intervention: Is There A Middle Ground?, Written for the
MSc Human Rights at the London School of Economics and Political Science, April 2007, accessed at
http://iars.org.uk/sites/default/files/2007_Research%20Essay_%20Humanitarian%20Intervention.pdf

9
Ibid.
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

Nevertheless, recent history has taught us that both intervention and

non-intervention had disturbing consequences. Rwanda is a horrifying

example to the evils posed by the uncertainty of the international

community.

In September 1999, UN Secretary-General Kofi Annan, in his report

to the annual opening meeting of the UN General Assembly, described the

UN’s actions regarding the Rwandan crisis as “humanitarian palliatives”,

and went on to state that “the genocide in Rwanda will define for our

generation the consequences of inaction in the face of mass murder.”10

At present, we have the crisis in Syria. The Syrian crisis is not only a

tragedy for the Syrian people, but also “demonstrably a crisis of

international intervention”. Given the prevailing approach to international

intervention since the end of the Cold War, this failure is, sadly,

unsurprising. Specifically, the conflation over time of political and

humanitarian objectives has damaged the concept of impartial

humanitarian action, without which—as Syria shows—innocent civilians are

without protection.”11

On the other hand, intervention has also resulted to serious concerns.

The Human Rights Watch (HRW), a reputable US human rights

organization, through its director Kenneth Roth in a document entitled

10
Supra Note 1, citing Report of the Secretary General to the UN General Assembly, ‘The Fall of Srebrenica’
A/54/549 (15/11/1999).

11
M. AARONSON, Syria and the Crisis of Humanitarian Intervention, Feb. 11, 2014, accessed at
http://www.e-ir.info/2014/02/11/syria-and-the-crisis-of-humanitarian-intervention/
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

War in Iraq: Not a humanitarian Intervention,12 made the following

conclusion:

“We conclude that, despite the horrors of Saddam Hussein’s

rule, the invasion of Iraq cannot be justified as a humanitarian

intervention”.

Roth attempted to lay down ground rules by which to judge when

military intervention is justified for humanitarian reasons, and applied

those ground rules to the intervention in Iraq in March 2003. The

document starts from the obvious premise that military action inevitably

results in death and destruction, and may make matters a great deal worse,

and that therefore military intervention for humanitarian purposes should

only be contemplated in extreme circumstances to prevent actual, or

imminent, killing on a grand scale.13

Further, the HRW ground rules excluded military intervention as a

punishment for past atrocities:

“Better late than never is not a justification for humanitarian

intervention, which should be countenanced only to stop mass

murder, not to punish its perpetrators, desirable as punishment is in

such circumstances.”

Another case worth noting is the North Atlantic Treaty Organization

(NATO) bombing of Serbia in 1999 undertaken to protect ethnic Albanians

in Kosovo. The United States, knowing it would not get approval for
12
Accessed at http://pantheon.hrw.org/legacy/wr2k4/3.htm#_Toc58744952
13
Accessed at http://www.david-morrison.org.uk/iraq/humanitarian-intervention.htm
 JACQUELINE LEONCIA M. ALINO
LLM, San Beda College

intervention from the Security Council, used the NATO as the legal cover

for the war. NATO, in turn, was a fig-leaf for a war 95 percent of which was

carried out by U.S. forces. Although the humanitarian rationale was

undoubtedly the purpose of some of its advocates, the operation mainly

advanced Washington’s geopolitical designs.14

CONCLUSION

In light of the foregoing, it is submitted that non-intervention must

continue to be the norm of international law. No state can arrogate upon

itself the authority to intervene in the internal or domestic affairs of

another state under the guise of “responsibility to protect” human rights.

Recent interventions by super power states have demonstrated tendencies

to abuse the concept of humanitarian intervention to advocate for their

vested interests. Thus, humanitarian intervention may be sanctioned, but

only by the Security Council. Perhaps, a revisit of the process for

authorizing military intervention by the Security Council is timely. And

while the Security Council may not adequately respond to the challenges of

domestic crisis, it remains to be the better option at the moment.

___

“Because you can't intervene everywhere,

you don't conclude you can't intervene anywhere.”

― Zbigniew Brzeziński

14
Supra Note 4.