Exceptional measures call for exceptional times: the permissibility under international law of humanitarian intervention to protect a people's right to self-determination.

• Author: de las Cuevas, Juan Carlos
• Position: Continuation of III. Analyzing the Permissibility of Humanitarian Intervention Under International Law B. Current Status of Humanitarian Intervention Under Customary International Law 2. Proponents: Humanitarian Intervention Is Customary International Law through V. Conclusion, with footnotes, p. 516-542

2. Opinio Juris

   A significant number of U.N. Resolutions and other international documents are deemed to be supporting of the legalization of humanitarian intervention. The Universal Declaration of Human Rights states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," and that "it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." (159)

   Article I of the Convention on the Prevention and Punishment of the Crime of Genocide states that the Contracting Parties must undertake to prevent and punish the international crime of genocide. (160) Genocide is defined as:

   any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of like calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. (161) Article IV further states that any person committing genocide shall be punished. (162) The prohibition of genocide is also another jus cogens norm, part of customary international law. (163)

   Moreover, although the Declaration on Principles of International Law seemingly proscribes interventions in the internal or external affairs of any state, (164) human rights violations are widely considered to be international affairs. (165) Furthermore, the Security Council has found some instances of human rights violations to be a threat to international peace. (166) The Declaration also asserts that every state has the duty to promote universal respect for human rights in accordance with the Charter. (167)

   The Resolution on the Definition of Aggression defined aggression as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the. ..." (168) As explained above, an intervention for humanitarian purposes does not impair the territorial integrity or the political independence of the target state, nor is the latter's sovereignty a shield to intervention, and it is in keeping with the Purposes of the Charter. (169)

   Although it has been stated that the G77 rejected the existence of the right of humanitarian intervention, (170) it must be noted that relevant patterns of legal expectation need not be universal. (171) It is very telling and somewhat ironic that states with a notorious record of human rights violations (e.g., the Democratic People's Republic of North Korea, the Democratic Republic of Congo, Ethiopia, Indonesia, Rwanda, Sudan, Syria, and Uganda) would reject the existence of such a right. (172)

   Statements made by world leaders can be evidence of opinio juris. (173) U.S. President Barack Obama announced in his Nobel Prize acceptance speech: "I believe that force can be justified on humanitarian grounds, as it was in the Balkans. .. " (174) Former Czech President Vaclav Havel called NATO's action in Kosovo "the first war that has not been waged in the name of 'national interests,' but rather the name of principle and values." (175) In April 1991, then-U.N. Secretary General Javier Perez de Cuellar declared: "We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defense of the oppressed in the name of morality should prevail over frontiers and legal documents." (176) Later in that year, he expressed: "The fact that ... the United Nations has not been able to prevent atrocities cannot be cited as an argument, legal or moral, against the necessary corrective action, especially where peace is also threatened." (177)

   Several scholars have also voiced their beliefs that humanitarian intervention is or should be legal. (178) The International Commission on Intervention and State Sovereignty ("ICISS") issued a report in 2001 entitled "The Responsibility to Protect." (179) In it, while noting the absence of a consensus accepting the validity of any intervention not authorized by the United Nations, (180) the ICISS observed that if the Security Council fails to discharge its responsibility to protect in conscience-shocking situations, concerned states may not rule out other means to meet the gravity of that situation. (181) While this comment does not endorse the legality of non-U.N. sanctioned humanitarian intervention, it recognizes the "fundamental challenge posed by Security Council inaction." (182) Furthermore, "it is not a stretch of legal reasoning to say that the responsibility to protect admits of a narrowly tailored right of ad hoc action for a proper purpose." (183)

   Also, developments in the field of international criminal law--e.g., the establishment of ad hoc international criminal tribunals to try cases of genocide, war crimes, and crimes against humanity, and the creation of the International Criminal Court--bolster the case of a limited right of humanitarian intervention. (184) As Daniel Bethlehem has explained,

   it would raise a real issue of the credibility of the law for the international community to compel the post-hoc prosecution of those who are alleged to have committed the most heinous of atrocities but to deny a tightly constrained right of States to take action as a matter of last resort to prevent the (further) commission of such crimes in the first place in the face of manifest evidence of such conduct. (185) Therefore, a strong case can be made that humanitarian interventions, even if deemed to have been proscribed in 1945, regained their legality as a custom over the decades. The interplay of state practice and legal expectations supports this conclusion.

   3. Criteria for the Analysis of the Legality of Humanitarian Intervention

   1. Under the Charter

      The Charter neither bans nor explicitly authorizes humanitarian interventions. Yet, it can be interpreted in a way that allows for the use of said doctrine. (186) Workable criteria for the legality of humanitarian interventions can be found within the textual provisions of the Charter.

      An analysis of the criteria must begin with the U.N.'s Purposes and Principles, as laid out in the Charter. Article 1(1) lists the following as the paramount purpose: "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." (187) The Charter goes on to mention developing "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace" as another purpose. (188)

      To achieve these purposes, the United Nations must act on the basis of respect to the sovereign equality of its Members. (189) Members are also required to settle their international disputes peacefully and to refrain from the use of force against the territorial integrity and the political independence of any state. (190) A common theme runs through the Charter: the maintenance of international peace and security.

      The Security Council has "primary responsibility for the maintenance of international peace and security." (191) It shall act "in accordance with the Purposes and Principles of the United Nations." (192) It also determines "the existence of any threat to the peace, breach of the peace, or act of aggression and ... decide[s] what measures shall be taken ... to maintain or restore international peace and security." (193) It may take "such action ... as may be necessary." (194) Therefore, the Security Council is the main enforcement entity within the United Nations and it may take any action to maintain international peace and security if there has been a threat or a breach of the peace, or an act of aggression.

      The Security Council is not the only entity with enforcement powers. Pursuant to the Uniting for Peace Resolution, if the Security Council fails to exercise its primary responsibility, the General Assembly can consider the matter and recommend the use of force if necessary to maintain or restore international peace and security. (195) Finally, regional agencies are allowed to deal "with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations." (196)

      Article 54 requires that the Security Council "be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security." (197) Although the Uniting for Peace Resolution does not specifically mention whether the General Assembly must report to the Security Council once the first acts, it does reaffirm the importance of the exercise by the Security Council of its primary responsibility. (198) Moreover, the Charter provides that the General Assembly must refer to the Security Council any question relating to the maintenance of international peace and security when action is necessary. (199) Therefore, the Uniting for Peace Resolution should be interpreted as requiring the General Assembly to inform the Security Council of any action taken by it to maintain international peace and security.

      Clearly, international peace and security are the common threads connecting the possible enforcement mechanisms under the Charter. If the Security Council is required to find that there...