Humanitarian intervention without borders: belligerent occupation or colonization?

• Author: Marcus, I. Maxine

1. INTRODUCTION 102 II. HUMANITARIAN INTERVENTION IS THE NONCONSENSUAL INTERVENTION INTO A SOVEREIGN NATION TO PREVENT A MASSIVE HUMANITARIAN CRISIS 102 A. There Is a Lack of Established Standards Governing Humanitarian Intervention 108 III. THE LAWS GOVERNING BELLIGERENT OCCUPATION ARE EXTENSIVE AND DETAILED 109 A. Occupation Exists When Control by a Foreign Power Is Effective 110 B. The Occupied Territories Retain Their Sovereignty 111 C. The Occupying Power Is Bound by International Humanitarian Law 112 D. The Occupying Power May Alter the Roles of the Civil and Judicial Authorities 112 E. The Occupying Power Has Some Authority to Modify or Add to Local Law 113 F. The Occupying Power May, in a Limited Fashion, Restrict the Rights of Citizens of the Occupied Territories 114 IV. HUMANITARIAN INTERVENTION "WITHOUT BORDERS" IS NOT UNLIKE BELLIGERENT OCCUPATION 115 A. Both Belligerent Occupation and Humanitarian Intervention Involve Obtaining and Maintaining Effective Control over the Target Territory 115 B. The Relationship Between an Occupying Power and the Civil Authorities of the Occupied Territory Is Regulated by International Law, but Comparable Powers of Humanitarian Intervenors Is Not 119 C. There Are No International Restrictions on the Power of Humanitarian Intervenors to Change the Local Laws, as There Are for Occupying Powers 119 D. There are no International Guidelines Regulating the Authority of Humanitarian Intervenors to Restrict the Rights of Citizens in the Target Territory, as There are for Belligerent Occupiers 120 V. COLONIZATION WAS A COMMONPLACE METHOD OF TERRITORIAL CONQUEST AND CONTROL, UNTIL THE UNITED NATIONS BEGAN TO REGULATE IT 120 A. Dependent Entities Had Some Powers, but Were Essentially Wholly Dominated by the Colonizing Powers 121 B. The League of Nations Established the Mandate System as a First Step Towards Regulating and Supervising Colonial Domination, but Did Not Outlaw It 122 C. The U.N.-Established Trusteeship System Replaced the Mandate System, While Taking One Step Closer to Protecting Dependent Peoples 125 D. The U.N.-Established Guidelines for Other Nonself-Governing Territories to Protect the Well-Being of the Populations 126 E. Colonization Had a Lasting Impact on the Colonized Populations 127 VI. THE UNITED NATIONS, DETERMINING THAT COLONIZATION WAS AN EVIL, SET OUT TO PROHIBIT IT, WHILE FORMER COLONIES SPONTANEOUSLY SOUGHT INDEPENDENCE 129 VII. HUMANITARIAN INTERVENTION "WITHOUT BORDERS" IS NOT UNLIKE COLONIZATION 132 VIII. HUMANITARIAN INTERVENTION MUST NOT BE "WITHOUT BORDERS" 135 IX. CONCLUSION 137 "It is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity." (1) "Territory is considered occupied when it is actually placed under the authority of the hostile army." (2) There is an "imperative need for all foreign forces engaged in military occupation, intervention or interference to be completely withdrawn to their own territories, so that people under colonial domination, foreign occupation or racist regimes may freely and fully exercise their right to self-determination...." (3) I. INTRODUCTION

   The past decade has seen a dramatic increase in the willingness of the international community to involve itself in the domestic affairs of states where those states are the sites of egregious violations of international law. Humanitarian intervention has taken place both under the auspices of the United Nations (U.N.) as well as unilaterally by one or more states, and these actions have spurred much debate regarding their legality in light of the well-established international legal prohibition on the use of force. Though the debate continues, there are still no established international legal guidelines specifically applicable to such interventions, and the intervenors do not abide by existing international legal norms regulating armed conflict. Thus, humanitarian intervention occurs on an ad hoc and inconsistent basis and almost without bounds.

   In trying to insert humanitarian intervention into existing international legal regimes, two possibilities for comparison emerge. One is that humanitarian intervention is much like belligerent occupation, an action that is illegal unless undertaken in self-defense, but is nonetheless specifically regulated by the provisions of international humanitarian law. The other is that humanitarian intervention is like recolonization, which would violate the U.N. well-developed prohibition against colonization. In either of these comparisons, the conclusion must be that humanitarian intervention "without borders," that is, uncontrolled by international standards, risks violating long-established international principles, and thus risks becoming something worse than what it was intended to combat.

2. HUMANITARIAN INTERVENTION IS THE NONCONSENSUAL INTERVENTION INTO A SOVEREIGN NATION TO PREVENT A MASSIVE HUMANITARIAN CRISIS

   Humanitarian intervention is the term used to describe armed intervention by the United Nations, a coalition of outside states, or a single outside state, into another state to prevent widespread human rights violations or a massive humanitarian crisis. (4) Debates surrounding the legality of humanitarian intervention under the auspices of the United Nations center around Article 2(4) of the U.N. Charter, which states 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 ..." (5) which is the legal basis for the U.N. prohibition against the use of force by states against other states. (6) An exception to this prohibition exists in situations where a state is using force as a means of self-defense under Article 51 of the U.N. Charter in response to an armed attack. (7) Another exception is the permissible use of force when authorized by the Security Council under its Chapter VII power to take measures to address "any threat to the peace, breach of the peace, or act of aggression." (8) When peaceful methods have failed, the Security Council is empowered to authorize the use of force "by air, sea or land forces as may be necessary to maintain or restore international peace and security." (9)In making this determination, the Council may "arrive at its conclusions on the basis of whatever factual and other considerations it regards proper to take into account." (10)

   Under Chapter VII, the Security Council may determine that the massive scale of violations of human rights or war crimes being committed within a particular nation constitutes a threat to international peace and security and may authorize intervention to prevent the continuation of such abuses. (11) Viewing an internal conflict or actions within a state to be a threat to international peace and security has been justified on the basis that turmoil within a nation is likely to cause refugee flows, or is likely to elicit military responses from neighboring states, which thus brings the situation to the level of international concern. (12) However, proponents of humanitarian intervention maintain that massive violations of human rights and international humanitarian law become events of international concern, obliging other nations to become involved to protect civilians from large-scale death and destruction. (13) As Professor Louis Henkin states:

   [K]illings, rape, other massive violence, or even massive hunger or the breakdown of social order, may well be found to be a threat to the peace, especially if they arouse world opinion and threaten reaction by other states. In some situations, surely, the Security Council would be obviously justified in determining that gross human rights violations have created a threat to the peace: atrocities may be so shocking or may otherwise incite reaction as to threaten international peace. (14) International legal scholars on the side of the illegality of humanitarian intervention argue that the territorial integrity of a sovereign state is inviolate, as a long established precept on which the U.N. system is based, and that permitting exceptions even for humanitarian purposes would lead the international community down a slippery slope of each state policing every other state. (15) As Professor Oscar Schachter has stated, "States strong enough to intervene and sufficiently interested in doing so tend to have political motives. They have a strong temptation to impose a political solution in their own national interest." (16)

   Long stymied by the Cold War era's weak Security Council and the persistent blocking of resolutions by the United States, the former Union of Soviet Socialist Republics (USSR), and China, the post-Cold War era has seen a dramatic increase in the willingness of the Security Council to use its powers to intervene. (17) With this increased tendency toward intervention and the simultaneous increased worldwide support for humanitarian intervention, the role of the powerful industrialized nations in making decisions regarding intervention is primary. When the United States agreed, the humanitarian intervention in Somalia went forward; when the United States objected, no intervention took place in Rwanda to prevent genocide. (18) The United States and France have publicly accepted responsibility for failing to prevent mass murder in Rwanda. (19)

   Presently, there is no system to ensure that intervention for the protection of human rights is consistently engaged, particularly in light of the inherent structure of the Security Council. The veto power of the Russian Federation--as one of the five permanent members--ensures, for example, that no humanitarian intervention under the United Nations could ever take place in Chechnya to end the widespread atrocities committed there by Russian forces. (20)...