Written evidence from Professor Guglielmo Verdirame and Dr John Bethell (RTP0015)

THE DOCTRINE OF HUMANITARIAN INTERVENTION

Introduction

This submission is in response to the inquiry of the Foreign Affairs Committee on the legal grounds on which military intervention may take place in other countries for humanitarian purposes. We consider, first, the concept and practice of humanitarian intervention prior to the UN Charter; second, the position under the UN Charter; third, state practice on humanitarian intervention after the Charter; and fourth, the relevance of the doctrine on the Responsibility to Protect (“R2P”). We conclude with an assessment of the case for humanitarian intervention in international law today.

Humanitarian intervention before the UN Charter

The Charter of the United Nations was a watershed in the history of international relations, but this is not to say that all that preceded it became obsolete overnight. As a matter of international legal and diplomatic history, the adoption of a general prohibition on war, a central element of the Charter, was a “long, halting and uneven process” that started in XVII century and had begun to bear some fruit already before the First World War.[1] The Charter itself enshrines the right to use force in self-defence in terms that accept the continuing relevance of pre-Charter international law.

Prior to the Charter, humanitarian intervention by one name or another was an established, if contested, feature of international relations in both theory and practice. One of the earliest instances of UK (or rather English) practice is Oliver Cromwell’s threatened intervention in Piedmont to stop “violation of the honest maxims of humane policy” by the Duke of Savoy in 1655.[2] Writing in 1758, Emmerich de Vattel argued that, “[i]f tyranny becoming insupportable so obliges the Nation to rise in their own defence, every foreign power has a right to succour an oppressed people who implore their assistance.”[3]

In an important recent study of the history of pre-Charter humanitarian intervention, Gary Bass of Princeton University has shown that humanitarian reasons were at the heart of numerous military interventions in the XIX century,[4] most notably by France in Syria. British humanitarian interventions included naval operations to suppress the slave trade, and support for Greek self-determination. At the close of the century, in 1898, the United States committed forces to the independence struggle in Cuba, with Theodore Roosevelt invoking a duty to halt the “systemic and long-extended cruelty and oppression” of the Spanish government.[5]

The position under the UN Charter

The cornerstone of the modern regulation of the use force is Article 2(4) of the UN Charter which provides that “[a]ll 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.” On one reading – and it is a reading that enjoys very wide support – there are only two exceptions allowed under the Charter to the prohibition in Article 2(4): enforcement action by the Security Council under Chapter VII to maintain or restore international peace and security; and self-defence under Article 51.

Article 2(4) was initially drafted as an absolute prohibition, but the final wording adopted in San Francisco appears to contain qualifications. Specifically, it would seem to leave open the possibility of a use of force otherwise than “against the territorial integrity or political independence of another state” as long as consistent with the purposes of the United Nations. On this reading, the use (or threat) of limited, stand-off, military force to disrupt large-scale human rights violations in another state could fall outside the scope of Article 2(4).

There is however at best very limited support for a restrictive interpretation of the Charter prohibition although, as explained below, this does not mean that humanitarian intervention should be necessarily regarded as unlawful by virtue of it.[6] Some scholars contend that the International Court of Justice rejected the argument that references to “territorial integrity” and “political independence” should be read as qualifiers in its 1949 judgment in the Corfu Channel case. These contentions do not survive a careful reading of that judgment, but it is perhaps of greater import that the terms of subsequent declarations, such as the 1975 Final Act of the Helsinki Conference, support a more expansive reading of the prohibition. Furthermore, as noted by Marc Weller, in its practice the Security Council “will routinely condemn armed raids, or aerial attacks, even if these do not permanently infringe upon the territorial integrity or political independence of a state”.[7]

Those who argue that the prohibition should be interpreted as excluding humanitarian intervention outright often rely on a passage in the International Court of Justice’s judgment in the 1986 Nicaragua case which is worth citing in full:

“…while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training. arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence”.[8] [emphasis added]

As is clear from this passage, however, the Court found that the specific methods used by the United States in Nicaragua were incompatible with a humanitarian objective, but it did not address the question of the legality of forcible methods that are compatible with humanitarian objectives.

The doctrine of humanitarian intervention can – and indeed should – coexist with the view that the use of force is prohibited under international law on a general and comprehensive basis, and not only where it is directed against the territorial integrity or political independence of a State.

The compatibility of humanitarian intervention with the general outlawing of war would have been evident to the key players behind the adoption of the UN Charter who would have almost certainly been familiar with the history and tradition of humanitarian interventions outlined in the previous section. Some, like Churchill and Morgenthau, had decried the Armenian massacres by the Ottomans and the failure of Western powers to stop them; and, of course, the full horrors of the Holocaust were becoming widely known at the time when the Charter was being finalised.

It thus seems very far-fetched to suggest that the creators of the new world order centred on the UN Charter would have intended Article 2(4) to outlaw resort to force in the event of large-scale massacres of civilians or enslavement of populations. After all, the 1942 Declaration of United Nations, from which the Charter originates, speaks of the Allies’ commitment to “complete victory over their enemies … to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands”. The 1942 Declaration would not have been viewed by any of its signatories as inconsistent with the prohibition on “recourse to war for the solution of international controversies” which had been enshrined in the 1928 Kellogg-Briand Pact – a treaty to which most of the Allies were parties. It is therefore fair to assume that the general prohibition on the use of force envisioned at the time was understood to be capable of coexisting with a last-resort right to intervene to stop large-scale atrocities abroad. As far as the Anglo-Americans are concerned, the notion that they were making the use of force in these situations subject to Stalin’s approval is very hard to fathom.

True, treaty interpretation does not turn on the original intentions of drafters. It is a more complex exercise that requires an assessment of the context, object and purpose of a treaty. But, even when approached in this way, it is difficult to see how the Charter could be interpreted as containing an implicit and yet tout-court rejection of humanitarian intervention. The former Chairman of the Human Rights Committee, the late Sir Nigel Rodley, observed:

“…it must surely have been unthinkable that the drafters of the UN Charter could have expected that, after the Nazi-perpetrated genocides, the world would again have to stand by if widespread atrocities were being committed behind the veil of national sovereignty. The world could not have unlearned the lesson so soon.”[9]    

In a similar vein, Professor Greenwood made the following observation to this Committee in 1999:

“…an interpretation of international law which would forbid intervention to prevent something as terrible as the Holocaust, unless a permanent member could be persuaded to lift its veto, would be contrary to the principles on which modern international law is based as well as flying in the face of the developments of the last 50 years.”[10] 

Notwithstanding disagreement on its precise scope, it must be emphasised that the prohibition on the use of force in Article 2(4) is widely regarded as having become part not only of customary international law but also of that higher body of absolute and non-derogable rules of customary international law known as jus cogens.

Humanitarian interventions in the UN Charter era

As indicated above, our view is that the Charter prohibition on the use of force should not be read as categorically excluding humanitarian intervention. Even supporters of humanitarian intervention, however, usually make the case by reference to the emergence of customary international law after the adoption of the Charter. In the UK, this approach may at least in part be dictated by the fact that, until the 1990s, UK practice was sceptical of humanitarian intervention with the FCO noting in 1986 that “…the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal.”[11]

A summary of post-Charter State practice is in the evidence given to this Committee by Christopher Greenwood QC in November 1999.[12] Examples of post-Charter interventions where humanitarian considerations were prominent include: India’s intervention in East Pakistan/Bangladesh in 1971; Vietnam’s invasion of Cambodia to oust the Khmer Rouge in 1978-79; and Tanzania’s intervention in Uganda leading to the overthrow of Idi Amin’s regime in 1979. In the last three decades, the ECOWAS deployment in Liberia in the 1990s, the establishment of safe havens in Northern Iraq, and NATO’s use of force in Kosovo in 1999 have all been put forward as examples of humanitarian intervention.

Some commentators set an impossibly high bar for the characterisation of State practice as supportive of humanitarian intervention. Nothing short of detailed and precise statements on legal reasons for action combined with selflessness of motives is deemed sufficient. There has accordingly been a tendency to dismiss some of the above examples on account of the absence of official statements on legal reasons, or of the ambiguous or inconclusive nature of those statements.

States however seldom offer detailed legal justifications for military interventions, and more than one set of reasons is often involved. The case of India’s intervention in Bangladesh in 1971 is telling. Some dismiss it as a case of humanitarian intervention because of references to self-defence by India’s representative in Security Council meetings on the crisis. But the massacres, ethnic cleansing and refugee exodus had featured prominently in Prime Minister Indira Gandhi’s justification for India’s actions as is evident from the speeches and interviews she gave in India and abroad throughout that period. Doubtless self-defence was also engaged once the Pakistan Air Force launched its surprise strike on Indian airfields on 3 December 1971, but self-defence can account neither for India’s earlier actions nor for its invasion of east Bengal following Pakistan’s attack. It is also wrong to assume that India’s geo-political interest in the splitting up of Pakistan and the secession of Bangladesh should cancel out the humanitarian dimension of the intervention. The assessment of State practice in this field must be a careful and thorough exercise of analysis and characterisation of State conduct placed in the appropriate context, and in light of all relevant statements and circumstances. It will seldom come down to a phrase or a sentence in one statement or the other.

It is sometimes argued that the need for precise and detailed legal reasons derives from opinio juris, one of the two necessary elements for a rule of customary international law (the other being State practice). Some, for example, consider the intervention in Kosovo as evidencing at best State practice but not opinio juris in respect of members of NATO that offered no express legal justification. The International Law Commission describes opinio juris as the requirement that “the practice in question must be undertaken with a sense of legal right or obligation”.[13] Some NATO members chose not to articulate detailed reasons for action in Kosovo, while others provided justifications so succinct as to be tautological. But it is nevertheless difficult to see that NATO conduct in Kosovo, with the various public statements that accompanied it and put in its wider socio-political context, did not evidence “a sense of legal entitlement”, including on the part of those members of the alliance not as forthcoming with express legal justifications as the UK was.

The same applies to the recent strikes against Syrian chemical weapons targets by the UK, US and France. The UK Government put forward a more detailed statement on the legal justification than the US and France, which merely asserted that the strikes had been “necessary” and would “serve the law” or deter future breaches of international law.[14] Yet, French and US statements, while succinct, are sufficient to evidence a sense of legal entitlement in the circumstances. (It bears noting in passing that the 2013 and 2018 UK statements on the legal justification for intervention in Syria contain considerably more analysis and detail than is the practice in other countries).

Responsibility to Protect

In response to the Security Council’s perceived inaction in Kosovo, an International Commission on Intervention and State Sovereignty was convened to produce The Responsibility to Protect report in 2000.[15] The R2P report insisted that states must be held responsible for their exercise of sovereignty. It also attempted to address the question of the unreasonable veto one of the P5 by referring to a duty for the Security Council to act when faced with large-scale humanitarian catastrophes, genocide or ethnic cleansing. The Commission made such a duty subject to certain “precautionary principles”, such as last resort, proportionality and prospects of success being realistic.

However, by the time that R2P was adopted at the 2005 World Summit, there was no suggestion that States could act without Security Council approval; nor were any specific consequences identified in the event of the Security Council failing to discharge its duties. R2P has been invoked in debates on Libya in 2011 but, given its limits and qualifications, it would be wrong to view it as fundamentally changing the position on humanitarian intervention.

The case for a humanitarian exception

We conclude this brief analysis with a number of observations.

First, it is possible, and indeed necessary, to view the prohibition on the use of force in robust and comprehensive terms while, at the same time, support the use of force on humanitarian grounds as a very last resort and where there are realistic prospects of success. This approach is, in our view, consistent with the Charter and would have been recognised as rightful by those who provided the political and moral leadership that led to the adoption of the Charter. It is also consistent with developments in State practice that followed the Charter.

Secondly, humanitarian intervention is permissible only as a last resort, and subject to a strict test of necessity and proportionality. Specifically, there has to be an evident nexus between methods and humanitarian objectives. The use of force that is proposed must be capable of producing positive humanitarian outcomes in a particular case. War is, by its nature, uncertain and unpredictable, and a margin of risk in the legal assessment is inevitable. It is crucial that those advising on legality are privy to all factual and evidential details, intelligence and military assessments, and free to form their own view on the question of the necessity and proportionality of the intervention envisaged in a particular situation. The assessment of legality cannot be reduced to the simple equation: “large-scale human rights violations = military force may be used”. In many, perhaps most, armed conflicts, there will be no methods involving the use of force (or none that are politically available) that can realistically promote humanitarian objectives. Where that is so, humanitarian intervention cannot be considered a lawful option.

The above approach is not inconsistent with the current UK position which seems to be grounded in three considerations: (i) extreme humanitarian distress; (ii) the absence of any alternative to the use of force; (iii) the use of the minimum force necessary to achieve the aim of relieving suffering and no other end. But it does call for a more open acknowledgement of the possibility, under iii), that in a particular situation there may be no type and measure of military force that can achieve a desired humanitarian objective.

Thirdly, the argument that humanitarian intervention should be viewed as illegal but legitimate is not one that, in our view, the UK should endorse or promote. To begin with, there is no agreed canon of international legitimacy that can offer a justification for action that is contrary to law. While in our view a humanitarian exception to the use of force already exists under the law, those – governments or academics – who believe that humanitarian intervention is unlawful but desirable ought to make the case for legal change. Both politically and legally, arguing for change is a more wholesome position than advocating resort to extra-legal standards. There would be a great systemic risk for the legal order created by the Charter if the view were to take hold, among governments and international lawyers, that the best course of action in response to one of the most difficult questions of our time is one of legitimate illegality.

Professor Guglielmo Verdirame, Professor of International Law, King’s College London and Barrister, 20 Essex Street

Dr John Bethell, Barrister, 20 Essex Street