Examine The Legality Of Military Humanitarian Intervention International Law Essay

Examine The respectablefulness Of Military Humanitarian Intervention International Law EssayThe commonplace prohibition on the mesh of suck up contained in Article 2(4)1of the UN direct forms a cornerst whizzness of public world(prenominal) truth. That prohibition is subject to a truly narrow category of exceptions, all of which arise from the pay to self- treasureion codified in Article 51 of the UN engross.2A more polemical exception to the uptake of force that has been claimed to arise as a pattern of customary outside(a) law is that of clemente interpellation. This essay looks at the arguments in support of the pro target that improver interference is direct established in global law as a licit exception to the world(a) prohibition on the intent of force and assertions against much(prenominal) a proposition.The hypothetic debateEver since the question of the justness of army man-centred intercession startle arose, there has been nigh(prenom inal) vocal support and opposition to it. Lauterpacht historiedly order forward the rationale behind humanist hindrance. He decl atomic number 18d that unity had to go screening to the subprogram of the general prohibition on the mathematical function of force, and that was to ensure peace. He considered that ultimately, peace is more endangered by dogmatic contempt for human right ons than by attempts to assert, through hitch, the sanctity of human personality.3He thus considered that add-on noise was justified if a assert perpetrate atrocities against its citizens in much(prenominal)(prenominal) a way and to such a compass point that it interfered with those citizens fundamental human rights.However, it has alship canal been appreciated that there are enigmas with the very idea that a recite would expend its throw resources and risk its avouch security simply for the good of the citizens of an separate(prenominal) put forward. such a assure world power be c onsidered to be cynical, unless there is no interrogation that history has shown that whenever humanitarian encumbrance is claimed as the legal terra firma for army force in other inelegant, it is swaggered with other reasons why a claim would armed forces deputise in a nonher state.4Furthermore, humanitarian incumbrance is oftentimes designate forward as a arse for legality of force with prohibited the citizens of the state who put up suffered the intercession asking for such hinderance to take place.5One raise accordingly question the theoretical underpinnings of such discourse.This problem is provided exacerbated when one considers that humanitarian noise is intervention that is undertaken by states on a unilateral basis come offside of the precepts of the warranter Council. The purpose of particulariseting up the United Nations and the warranter Council was to provide for peace end-to-end the world and engage in array intervention when required, a s appoint by the Security Council. The Security Council is thus excreted with powers under Chapter seven-spot of the UN Charter that allows it to authorise military use of force in a nonher country. In doing so, the Security Council is able to take into account the f portrayal that a busticular country is facing human rights violations at the transfer of its giving medication and/or poke outers.6 therefore for example, in 1991, when the oppressive government of Iraq creation take by ibn Talal Hussein Hussein took disproportionate military perform to choke the Iraqi civilian population, the Security Council passed proclamation 668 under Chapter 7 of the UN Charter demanding of Iraq to immediately end the repression and insist that it allowed access to global humanitarian organisations to cipher Iraq.7Any force authorised by the Security Council may be politically disputative, save there is no doubt that it would be lawful under the hulks of force in international law . Given that there is such a power in the Security Council, one would question why there was a motif for humanitarian intervention.8Indeed, providing that there is a right for humanitarian intervention available to states that can be exercised lineament-by-casely of the UN and the Security Council would greatly undermine the function of the Security Council as the body entrusted with sureness of military force.9Humanitarian intervention is thus a school of thought which has gigantic been debated in the courts. The real debate lies save in the hardheaded instances that have arisen in the past where humanitarian intervention has been alleged as a justification of force. The section below shall go on to analyse these practical instances and asses to what extent humanitarian intervention can be said to now be a norm of international law.Practical instances of humanitarian interventionOne major problem that arises when assessing the legality of the teaching of humanitarian inte rvention is that one mustiness distinguish betwixt instances where the tenet is invoked in elaborateness and public relations only and instanced where humanitarian intervention is actually relied on as a legal basis for give uping use of force in another state. The latter is a lot rarer than the former. The problem however is that it is only the latter incidents that is actually evidence of state practise of the right to humanitarian intervention.One of the earliest incidents to bring with the c at oncept of humanitarian intervention commented on by commentators was that of Indian feat in Bangladesh. In early 1971, side by side(p) subjugation to Pakistani rule, Bangladeshi nationals were rebelling and seeking to establish Bangladesh as an independent country. India provided extensive military aid to Bangladesh to allow this to happen, aid without which arguably Bangladesh would not have won the conflict. In public theoretic, India stated thats is works were based on humanit arian intervention since the Bangladeshis were suffering human rights violations under Pakistani rule.10This was extremely criticised however for the fact was that India in having long-standing conflict with Pakistan itself did have vested interests in destiny Bangladesh gain independence.11Indeed, India did not go on to utilise humanitarian intervention as a legal basis for its action and sought to swan on the belief of self-defense instead.12This pattern was repeated in m both an(prenominal) more incidents that occurred. Tanzania deputised militarily in Uganda in 1979 to enable rebels there to abrogate the repressive leader Idi Amin.13In 1978 Vietnam invaded Cambodia stating that it wished to prevent Cambodia from suffering at the hands of its government. Both stated that they wished to help the citizens of the respective countries they intervened in. This was however continuously rejected by the international company, with France and the US specifically stating that huma n rights violations did not justify the use of force, thus releasely indicating that it was not pass judgment at that era that humanitarian intervention was considered to be a legal basis for intervention.14Chronologically, the undermentioned major incident of humanitarian intervention that took place was that of Australian intervention in eastward Timor. Rebels in East Timor seeking to establish it as in independent country were facing repression from the state of Indonesia resisting independence. Human rights violations in the site ensued resulting in several UN final results calling for peace and eventually in a UN referendum, the results of which indicated that the majority of people wished for independence. The Australian government thus took the lead in providing military assistance to East Timor to repel Indonesian heraldic bearing and establish an independent state.15In doing so, the Australian government expressly relied on the right to humanitarian intervention.Wh at must be pointed out however is that the UN was conf utilise in that situation, and most commentators regard that the intervention in East Timor is more akin to an incident where the UN regulates force for purposes of humanitarian intervention rather than when the right is employed one-sidedly by a state.16Thus, the intervention in East Timor was seen to be highly similar to the US intervention in Somalia in 1992 which had been acted upon only after the UN had specifically called for humanitarian intervention.17 by chance the most known incident of humanitarian intervention was that in Kosovo. Kosovo, now an independent country, used to be part of the Socialist Federal Republic of Yugoslavia and consisted of a mix of ethnicities, with 90% being ethnical Albanians and the minority being Serbians. In the mid-nineties the Federal Republic of Yugoslavia started to break up with each dissimilar country announcing its independence. The state of Kosovo also suggested breaking off fro m the baby bird, to regain the independence Kosovo once had before Yugoslavia was established in the first place. This was met by much subway system from the Serbians both in Serbia and in Kosovo. A regime of ethnic groom of the Albanians in Kosovo started to prevent the calls and efforts by those peoples to make Kosovo an independent country and one of the worlds worst conflicts started, with human rights violations reaching epidemic proportions.18This matter was brought to the attention of the Security Council, and on 31 evidence 1998 it adopted Resolution 1160,19which im be an fortify embargo on the FRY and called for it to work with the Kosovar Albanians to achieve a sedate solution to the matter. Following this however the violence in Kosovo only escalate and Resolution 1199 was adopted which determined that the situation in Kosovo amounted to a bane to peace and security in the region.20The problem was however the presence of the controvert in the Security Council. Eve ry permanent member of the Security Council has the right to veto any Security Council resolutions made. Russia being a major part of the former Soviet Union that existed was highly reluctant to take any action further to the two resolutions already adopted against the FRY and indicated that it would use its veto if any resolution were attempted to be passed which authorised military measures to be taken against the FRY. There was little chance that the Security Council would hence be able to take action in response to the situation that was ongoing in Kosovo.21As a result of this, NATO states came together to cover military intervention in Kosovo. NATO declared that the FRY had not complied with Resolution 1199 and that NATO would therefore institute military action against Russia. Extensive military action was undertaken via an aerial campaign, attacking FRY forces both in Kosovo and in the FRY itself to attempt to stop the attacks that were pickings place against Kosovo. The c ampaign commenced ion 23 March 1999 and did not end several months later, on 10 June 1999 when the FRY forces concur to a case-fire and signed the military-technical agreement with NATO on 9 June 1999.22There was no doubt that the military action undertaken by NATO had been successful in bringing peace to the region. Despite the fact that there was no apparent basis at the time for military action, there was no international protest to the force used (other than by the states to whom the military action was targeted against). It was ostensibly authorized that the action undertaken by NATO was lawful.23From this, one can deduct that there must have been a valid theoretical underlying to the force taken.It was clear that the action was not authorised under the Security Council resolutions, for while the resolutions were relied on in justifying the military action undertaken, it was always trustworthy that the resolutions did not authorise military force and indeed did not attempt to do so because of the veto that would be exercised by Russia. There was no question that the Serb forces had carried out an armed attack against NATO countries or anyone in the region of NATO countries and so the philosophys of self-defence or collective self-defence could not be relied on. The only stay doctrine that could have possibly justified the military force undertaken by NATO forces was therefore that of humanitarian intervention. Indeed, the situation in Kosovo appears to be the one that marvelous the doctrine of humanitarian intervention from what was seen to be a less than credible basis of justification of use of force to one that was evidently astray accepted.24Thus commentators who point out that the doctrine was accepted as applying to the case of Kosovo point to the total apparent acceptance of the international community that the acts of NATO in Kosovo were legal. In March 1999 the states of Belarus and Russia introduced a draft resolution to the Security Council which stated that the NATO bombing of Yugoslavia was illegal. This was rejected by a majority of 12 votes. In 1999, the UN Commission on Human Rights passed a resolution finding that the intervention by NATO had been lawful, with only Russia and Cuba (both communist states) finding against such a resolution.25Kosovo is therefore at least one incident where the right to humanitarian intervention was both relied on and appears to have been accepted. The difficulty lies in the fact that while the military action undertaken against Kosovo was considered to be morally justified, concerns continue to be verbalised by academic commentators that the incident should not be seen to act as precedent, for doing so would in effect widen the category of exceptions that existed in relation to the use of force and undermine the well-established rules of Article 2(4).26Perhaps the next most famous incident where the right of humanitarian intervention was relied on, but one where the basis o f such a right was considered to be much more contentious, was that of Iraq.27 alignment military intervention in Iraq in 2003 was one of the most contentious use of force that took place and the legality of the war continues to be debated to the latest day. Different bases were offered by the coalition states that went to war at different times. Saddam Husseins brutal treatment of his people and the human rights violations that they had suffered were often pointed to when the rhetoric on whether a war should take place was entered into.28What is notable however was that although apparently doing so in the period preceding the war, neither the US nor the UK legitimately relied on the doctrine of humanitarian intervention to justify its war in Iraq. Rather, the UK relied on interpretation of Security Council resolutions while the US argued for the right of self-defence, both pointing to the fact that Iraq was in possession of weapons of self-destruction (an assertion which was late r discover to be invalid).29The fact that humanitarian intervention was not relied on notwithstanding the fact that Iraq was suffering a humanitarian catastrophe and had been for several age indicates that neither of the worlds leading states considered that the right to humanitarian intervention had established itself as a legal norm and would not, formally at least, be accepted by the international community as a bass for military intervention.Responsibility to entertainThe humanitarian intervention doctrine has evolved in new-made times and international law has come to develop the tariff to protect doctrine, often referred to as the R2P doctrine. The very existence of this doctrine supports the idea that humanitarian intervention is not only regarded as a moral justification of the use of force in states where human rights violations are being affiliated, but is a positive affair on the international community to act and intervene in states where there is inadequate resp ect for human rights.UN escritoire General Kofi Anan brought the tensions that were apparent behind the prohibition on the use of force in Article 2(4) and the fact that intervention was required as a result of increasing human rights violations that were seen around the world to the fore in 1999. At that date, the atrocities in Rwanda were being discussed by the international community, and the committee that had been set up to investigate how the genocide in Rwanda had taken place came back with reports attributing much blame to the UN for failing to take action in Rwanda in what was seen as a preventable genocide.30Annan therefore requested the General collection to answer the question of if humanitarian intervention is, indeed an unacceptable round out on reign, how should we response to Rwanda, to a Srebrenica to gross and systematic violations of human rights?.31The Canadian government in response to this question set up the ICISS. In 2001 the ICISS produced a report where the doctrine of the responsibility to protect was advanced.32In 2004, the high-ranking Panel on threats, challenges and changes that had been set up by the UN secretary-General stated that the R2P doctrine was an emerging norm of collective international responsibility to protect.33The Secretary-General went on to manifest this finding. In a 2005 world summit, the R2P doctrine was expressly accepted and referred to.34Perhaps the most pertinent recognition of the R2P doctrine is that the Security Council specifically referred to the doctrine in Resolution 1674 (2006) when it was regarding the question of how civilians in armed conflicts should be protected.35The Resolution referred to the R2P doctrine as a doctrine of international law apparently conferring upon it a status of customary international law or otherwise.The problem with the fact that R2P now appears to be part of international law is the number of further questions, namely what the relationship of the doctrine of hu manitarian intervention with the R2P doctrine is. Is the R2P doctrine simply any other way of describing humanitarian intervention? Or are the two purposes entirely different? If so, is humanitarian intervention subject to the doctrine of R2P? Debate on these questions commenced ever since the R2P doctrine was put forward and has ensued ever since.One might consider that the R2P doctrine is in fact simply another way of describing the doctrine of humanitarian intervention, and one that seeks to grant the doctrine a more elevated status. The language of responsibility no doubt confers more powers than the language of rights does for while the latter grants states daintiness in whether to exercise the particular rights of concern, the former does not. If one were to accept such an argument, then the fact that R2P now appears to be a doctrine of international law means that humanitarian intervention is also a rule of international law and such intervention legalises use of force in o ther states.However, the ICISSs formulation of the R2P doctrine is on the basis that it is an entirely different purpose to the doctrine of humanitarian intervention. The ICISS report thus stated that humanitarian intervention should not be seen to be the prime concern in the modern world where catastrophic human rights violations such as Rwanda were taking place. The Commission argued that there was a need for a new doctrine, which governed the need to intervene in the affairs of states who committed human rights violations. Such a doctrine should not be seen as a right to intervene that was granted to the intervening state, as humanitarian intervention might do, but rather as a responsibility on other states to intervene as a result of the right of the state that was suffering human rights violations to be protected.36R2P also introduced a new method of dealing with the concept of state sovereignty. As set out above, the doctrine of humanitarian intervention does not tie in well with the concept of state sovereignty, for it effectively allows a sate to intervene in another states affairs on the ground that the former state is of the opinion that the latter states treatment of its own citizen is in accurate. Such a concept can be seen to go against the very idea of equality of states in international law.37The R2P doctrine proposes to deal with this tension by proposing that the concept of state sovereignty to control its citizens with that of sovereignty as responsibility to protect its citizens. Once again, there was a monger from rights to responsibility. The R2P doctrine effectively re-characterises the conception of state sovereignty as one that is a right of governments to control their citizens, to one where there is a duty on governments to protect its citizens, and rights are granted to citizens to be protected. Where these rights were not being complied with and a government was not protecting its citizens and was in fact committing human rights violations against it, then the sovereignty to protect was not being effected and this sovereignty did not exist. As such, any exercise of the R2P doctrine through the use of military force would not contravene any idea of sovereignty.38Such a proposal can be commended for its view of the principle of state sovereignty. The fact is that the concept of state sovereignty and the idea that a state is able to control its citizens as it wishes is one that while remaining in theory can be seen not to have continued on an international basis. International law has long adjudicated to govern the relationship of a state and its individuals. A prime example of this can be seen to be in international human rights safeguards which essentially impose standards on states with regards to a states treatment of its citizens which must be complied with.39The very concept of the international community and of the United Nations necessitates a limiting of the concept of state sovereignty. The reformul ation of the concept of state sovereignty from one which sees sovereignty as control to that to protect might be considered to be ingenious in that it resolves the theoretical tensions that exist between the right to military intervention in states where human rights violations are committed and sovereignty of that state.However, the fact is that the concept of sovereignty as sovereignty to protect still poses the same problems that the traditional concept of state sovereignty controls reign to protect allows a third state to intervene in a states matters when protection of citizens is not being undertaken adequately. Which state is to decide however when citizens protection is being undertaken adequately and when it is not? To what extent does the protection of citizens in a state have to be undermined before military action can be allowed in that state?40Thus, whether or not R2P is the same or a different doctrine to that of humanitarian intervention, the same difficulties that ar e approach by humanitarian intervention proponents remain, and perhaps the most major of these problems is the wide floodgates the idea of a responsibility to protect opens. Practical incidents have shown how in the past humanitarian intervention has wrongfully been used by states, often on a post-facto basis, to justify use of force and intervention in other states. The R2P doctrine in fact provides for a wider scope of humanitarian intervention for as pointed out above, a responsibility imposes a large duty and therefore a larger scope of power on states to take action than a right to intervene does, and the R2P doctrine therefore arguably exacerbates the problem that humanitarian intervention traditionally faced.In this vein however it must be noted that the proponents of the R2P doctrine point out that unlike humanitarian intervention, the R2P would impose a duty on states to employ a wide range of measures, along a continuum, to regulate states behaviour. Thus the R2P doctri ne envisaged that preventative measures should be used to prevent human rights atrocities, and duties include rebuilding societies that had been affected by human rights violations. Such a doctrine is therefore very commendable in theory.41Furthermore, it must be pointed out that the R2P doctrine apparently appears to have been envisaged to be utilised within the eatable of the Security Council rather than impose duties or rights on states to act on a unilateral basis to military intervene in other countries. If that is the case, then the R2P doctrine has not really helped towards resolving the questions surrounding humanitarian intervention at all.42ConclusionThe above discussion has shown that there are many questions regarding the legality of humanitarian intervention in international law as a justification for use of force in another state. There is little doubt that in the past the doctrine was not regarded as a valid justification for the use of force. Thus the international community tended to reject attempts by states to justify use of force with the concept of humanitarian intervention, not least because such justification was often posed on an ex facto basis and was usually tied in with some other form of justification that was put forward. The position appeared to change however in the NATO intervention in Kosovo when the international world apparently accepted the legality of the action. The war in Iraq in 2003 however appeared to reverse the position once again, when attempts to rely on humanitarian protection were rejected well-nigh from the outset and indeed the coalition states eventually went on to rely on other basses to justify the use of force that was undertaken.The doctrine of humanitarian intervention does have its proponents and certainly is a very attractive concept in international law. In the writers view however the dangers posed by the doctrine outweigh the advantages that it offers. The doctrine effectively widens the scope of ex ceptions that exist to Article 2(4) and allows states to unilaterally take force. This undermines not only the concept of state sovereignty but also the purpose of the United Nations and the Security Council as being relevant bodies to regulate international peace and security.The R2P doctrine that has been put forward as a doctrine of international law is in many ways preferable to that of humanitarian intervention. The R2P doctrine provides for rights of citizens rather than rights of states and importantly it envisages that military action will be undertaken by the Security Council rather than on a unilateral basis. The writer is therefore of the opinion that the R2P doctrine should be dominating from the idea of humanitarian intervention R2P should be recognised as a principle of international law and one that allows the Security Council to take military action in state when required. It should not however be seen to consort the doctrine of humanitarian protection.Indeed it i s the writers view that humanitarian protection does not exist as a legal right in international law, both in theory and in practise. The doctrine goes against all ideas of state sovereignty and against the prohibition of the use of force in general. Furthermore, states do not appear to have accepted that the doctrine is a norm of law. In this vein, the case of Kosovo can be considered to be an exception in international law.43In that case, the only reason the Security Council did not take action was because of the presence of the Russian veto, but otherwise there was international consensus that military action should