“Humanitarian Intervention as
a Pre-emptive Military Action: Issues to
be Addressed”
Dr. Joanne K. Lekea
Department of History and
Philosophy of Science
ilekea@phs.uoa.gr ,
With regards to the definition of humanitarian
intervention, we should bear in mind that this definition, as well as the
principles underpinning it, has significantly changed following the changes occurring
in inter-state relationships˙ military intervention is a political term,
which reflects the public debates on relevant issues[1]. The existing definitions - as it will become
clear from their quoting below - some times brief and other times more extended
demonstrate the emphasis placed on protecting human rights. However, before defining humanitarian
intervention, it is worth looking at how intervention itself is defined˙ intervention, thus, is defined as “the insertion of external forces, often into zones of ongoing or
potential conflict, to prevent the outbreak or spread of hostilities; or to
resolve the situation to the advantage of a favored party; or more broadly to
take advantage of the situation in order to acquire territory or influence”[2].
Military intervention is usually characterized by sending troops to a sovereign
country, contrary to the consent of its government: “military intervention is the use of armed troops to effect a change in
the political system of a sovereign state without prior permission and without
declaring war”[3]
.
Humanitarian intervention, on the
other hand, emphasizes on the fundamental rights of the citizens been violated,
as it comprises: “the
proportionate transboundary help, including forcible help, provided by
governments to individuals in another state who are being denied basic human
rights and who themselves would be rationally willing to revolt against their
oppressive government”[4].
It is worth noting that the repulsive acts of the government that violates its citizens' rights form the
basis, which gives the right to foreign states to intervene in order to put the
situation under international control[5]. Humanitarian intervention is often coined as
a state using force against another with the aim of terminating gross violations
of human rights against its citizens[6]˙ specifically, it is referred to as “the threat
or use
of force
across state
borders by
a state (or group
of states) aimed at
preventing or
ending widespread
and grave
violations of
the fundamental
human rights
of individuals
other than
its own
citizens, without
the permission
of the
state within
whose territory
force is
applied”[7]. Furthermore, it is defined as “coercive interference in the
internal affairs of a state, involving the use of armed force, with the
purposes of addressing massive human rights violations or preventing widespread
human suffering”[8].
The definitions above put
humanitarian interventions in the right dimensions and provide a complete
framework for debating about them. However, we need to look at whether we can
claim that humanitarian interventions, as a whole, form a kind of pre-emptive
war for the benefit of humanity, under the condition that their aims are not
limited to relieving a state's population from suffering due to a number of
different causes (as demonstrated from the definitions cited above)˙ can
be extended to cover for preventing the extension of the conflict - and its
resulting problems - beyond the borders of the specific state that could
possibly be the reason for an extended armed conflict. The concept is
demonstrating itself in the state's own practice: it is not random that in the
vast majority of humanitarian interventions, the justification and the legal
grounds of the intervention relates to the fear of destabilizing peace and
international security[9].
The issue of pre-emptive war is
part of the generic discussion about the right of states to revolt to legal
defense - a debate with a number of open issues, as many claim that legal
defense should take the form of military force only when there is a direct
threat and any response by other non-forcible means is impossible[10]. On the other hand, it is claimed that a state
can use military force in a pre-emptive way, in order to defend itself against
an attack before it takes place[11]. As it is clear from the above, the right of a
state A to go into war with a state B, with the justification that there is
intelligence information suggesting that state B will launch an attack against
it in the near future is a grey area.
The doctrine of pre-emptive war is
not without its problems (as it is not a panacea). The attempt of thinking of,
considering and treating humanitarian interventions as a form of pre-emptive
war has not taken place yet, so there is ample space for the current research.
In addition, it is worth looking at the approaches to this doctrine in order to
solve other contemporary issues. One of these approaches is trying to attack
the problem of international terrorism - with all necessary adjustments and
clarifications[12] - is at the moment debated on international
level.
This is the case, as there are
issues about violating the state's territorial integrity[13]˙ another important aspect is whether
information originating from a state's secret services intelligence, which in
most of the cases form the grounds on which the coming attack is justified
achieve high credibility, to the level of justifying declaring war[14]˙ furthermore, other aspects we need to
consider relate to the extent to which the current situation could have been
resolved by other non-military means; military means can seriously threat non-combatants,
especially if hostilities take place within the limits of populated areas[15]˙ finally, an issue of vital importance is
the extent to which the principles of proportionality
and necessity are been applied[16].
The issue pictured above is worth
considering within the framework of humanitarian interventions, restructured in
the following form:
•Firstly, is it possible to claim that a humanitarian
intervention that is launched from a state A or from an alliance of states AB is
allowed, when a predictable chain of attacks exists against violations of human
rights in the territory of a state C in the near future? What are the treaties
on the basis of which such an attack can be justified with the use of military
weapons? How is the principle of not interfering with the internal affairs of a
sovereign state been applied in this case? Who is empowered to make such a
decision? These questions fall under the principles of existence of just cause
and right intention, principles forming the moral grounds for justifying the
launch of the attack, as well as the decision making process by the legitimate
authority˙ these principles are closely related to international law
legislation, as it will become clear from the following sections.
•Secondly, can a humanitarian intervention, launched in
order to stop or prevent gross and widespread violations of human rights from occurring,
as well as its possible "side-effects"[17] be considered as a form of pre-emptive war,
whose target is to prevent the extension of mass violations of human rights in
the case that these violations may constitute a threat for the international peace
and security[18]?
The focus of this research is fully
defined by these questions; it will try and answer them in order to demonstrate that humanitarian intervention is a form of pre-emptive war (conducted for the benefit of humanity as a
whole), aiming at preventing or stopping grave and widespread violations of
human rights with military means and which occurs within the territory of a
sovereign state, against which there are no territorial disputes - or disputes
of any other kind - and the final aim is the protection of human rights and the
establishment of international peace and security.
In relation to the arguments above,
we will try to adopt an approach to the principles of just war about the just
cause, the competent authority and the right intention, that exclusively refers
to humanitarian interventions and their relationship to the doctrine of
pre-emptive war. The aim of this approach will be to demonstrate the different
nature and practice of these interventions as opposed to war actions. Also, to
show that the view, under which these principles are considered, is different,
because the state (or the group of states) is not involved any more in an inevitable
war, as a result of an attack from another hostile state, but uses its military
power to help a sovereign state, which for a number of reasons is in a
difficult situation[19].
The use of military means in peace
and humanitarian missions is a challenge for the Just War Theory[20]. According to the United Nations Charter, in
order for the criterion of just cause to be satisfied - for making use of
military means to settle an international dispute - the state using force
should have been under attack or in dispute about critical issues (for example,
violation of its borders)[21]. In the case of humanitarian interventions,
this is no longer the case, but another state that is not under attack or in
any dispute is taking part in a dispute in order to help a state, which is in a
difficult situation (due to internal turbulence or because there are disputes
with nearby states that result in armed conflicts)[22].
In the past, especially during the
19th century, as well as nowadays, it is not rare to witness a state - or a
group of states - intervening in the internal or foreign affairs of another
state. The rationale used in most of the cases is that the turbulent situation
in one state can pose a threat to international peace and security.
These interventions, however, do
not happen without skepticism, concerning at least the levels of political
correctness and legitimacy of the action. There are four things we need to
consider when making a decision in favor or against a humanitarian intervention:
Ø the
influence, that the state has
on international legislation with its decision to intervene or not;
Ø the
reasons for which it intervenes;
Ø the
extent to which its intervention contributes to both the national and
international interests; and
finally
Ø whether the legal
frameworks, established by the international legislation and the
international organizations, are adhered to in order for the operation to be
legal.
The legal justification of an operation is not
enough, as we might witness more operations - typically justified - because
they were called to help the state in danger - but essentially they are based
on national interests. The moral justification of the operation has to complement
its legal justification to secure fulfillment of the criterion of right
intention so that only the right purposes are served.
The principle of non-operation[23], first appearing at the beginning of the 19th
century is stated in the French Constitutional Map of 1793 for the first time,
where
From the viewpoint of the Just War
Theory, deciding to intervene in the internal affairs of another country can be
justified if certain conditions hold[26]. Historically, we can refer to two relevant
pieces of information: Ambrosius states that whoever does not help his friend
dealing with a difficult situation has the same degree of responsibility as the
person who caused it[27], while Hugo Grotius advocates that humanitarian intervention is a
just reason for a state to go into war, as the king of a country or its leaders
have to seek and punish those who violate the rights of people in other states,
even if they are not affected by the abuses. In the case of citizens being
abused by the states' leaders, intervention is justifiable. Among the reasons
that give a state the right to intervene are: cannibalism, piracy and abuse of
old people[28].
The issues of moral and legal
justification of a humanitarian intervention, as well as the relationship of
human rights to territorial integrity and political independence, formed the
framework for a number of debates both on moral and legal grounds[29]. The relationship between the moral and legal
parts of humanitarian interventions is the focus of the current paper. In that,
we are trying to combine International Law with the principles of a moral
theory about war, the Just War theory; we are looking at whether the principles
of Just War theory can be applied in the case of humanitarian interventions and
whether any adjustments are required. The opponents of humanitarian
interventions fall, in general, under three categories: those who, under no
circumstances, justify it and in parallel argue that the use of military force can only be
justified as a response to an armed attack[30]˙ those who justify the intervention only
as a response to gross violations of human rights (genocide, mass murders,
slavery)[31]˙ finally, to those who justify the right
to humanitarian intervention even if violations have not reached genocide
levels[32].
First of all, from a political
philosophy and theory viewpoint, we believe that the people in power at a
specific point in time form the medium through which citizen rights are been
represented; citizens live in a country and, essentially, they are the state.
The idea that the state is a group of people with the final aim of protecting
them better is not a new one[33]. The moral background, the values and the
rights of each person are these factors, which, in essence, give states their
rights, which relate to their territorial integrity and political independence.
Thus, the rights of the states are derived from the rights of citizens and that
is the reason why the state has the right to protect them[34].
How are these all related to
humanitarian interventions? The citizens, when consenting to the formation of a
society and are, thus, taken to the creation of a state through some political
procedures, in essence they agree to the people in power protecting their
rights[35]. When states and governments preserve and seek
their primary target – preserving citizens’ rights – then going into war with
this country or even launching an attack against it, is considered to be a
crime and is declared illegal by the U.N. Charter[36]. What happens though with the governments that
not only do they not protect the rights of their citizens, but are those who
violate them?
Indeed, there are governments that on top of
not protecting the rights of their citizens, they violate them. In this case,
we can claim that the humanitarian intervention is launched in order to protect
the rights of the citizens of a state, whose government violates them to a
great extent intentionally. Then, the right of political independence is gone
as the state is not capable of carrying out its primary mission, which is the
protection of its citizens[37]. The use of military force by the intervention
powers within these frameworks is been carried out in order to protect human
rights and this is an additional reason for adhering to the principles of discrimination
and proportionality that relate to the conduct of war operations in a more
rigid manner.
From a legal viewpoint, paying respect to
human rights is in the interest of all states and does not fall anymore under
the internal legislation of the individual states[38]; serious violations form the legal grounds on
which the launch of humanitarian interventions can be justified, whilst the
latest decisions of the Security Council allow the intervention even in cases
when there is a threat to international peace and security. This means that
these military interventions, apart from their humanitarian aspect, have an
aspect of pre-emptive usage of military
force in order for a problem of a local or state level to not further influence
international peace and security[39].
The concern for cases of serious
violations of human rights has been acutely expressed, as a number of the General
Assembly Resolutions indicate ˙ there are extensive references to human
rights in the cases of
The political regime of a state is
closely related to the degree of respect it pays to human rights. It is widely
acceptable that if the violations of human rights in a state have not reached
certain limits and they are not extended, then the international community
should not intervene and judge the legitimacy of the government where the
violations are taking place[46]. On the other hand, many people disagree with
this argument as the democratic system of government is directly linked to the
respect of human rights[47] and the effective running of the state[48]. These are the reasons justifying the humanitarian
intervention to another state, not only for relieving the population, but also
for changing the government system to democratic, so that the government model can
terminate violations and bring peace and security[49] to the state.
With respect to the above, for a
number of scholars, the moral use of military force is the responsibility of
each individual state except if states are replaced by some kind of super-power
in the future: this means that avoiding to intervene where intervention is
needed is equivalent to avoiding to take responsibility, as even those states
that have limited capabilities will need to be active even when their actions
will result in less benefits˙ the right to intervene is not an issue of
power, but an issue of responsibility to the international community[50].
It has already been stated that the
intervention on humanitarian grounds gave rise to a number of debates in the
field of International Law[51] for some time now. In many cases the
humanitarian aspect of the intervention was a pretext to justify the
intervention of dominating states to smaller ones within their sphere of power[52]. The principle of non-intervention in this
case guarantees the independence of these states and their citizens, as apart
from the territorial integrity of a state, it is also important to be
independent at a financial and political level (independence which is either
limited or controlled by the wills of the powerful states)[53].
In this subsection, in contrast
with the argument stated above, we are going to advocate the view that the
following two principles[54] can be considered as just and sufficient to
justify the launch of a humanitarian intervention:
v when there are behaviors in a state that result
in serious violations of human rights and, in parallel with the consequences of
these behaviors, there is a danger for international peace and security (e.g.,
the peace and security of other states is influenced by these actions);
v when
there are behaviors in a state that result in serious violations of human
rights, even if those violations are exclusively limited to the borders of this
state, without any threat for international peace and security .
These principles, of course, place the respect
of human rights and the maintenance of peace and security on top of a ‘strictly
by the book’ reading of territorial integrity[55]. These principles will have to be compatible
with international law legislation and be applied in such a way that will
provide guidance every time that the moral and legal justification of a
humanitarian intervention will be in question.
The issue of which power can decide whether an intervention is just or
not went through a number of development stages. In the
In the current era, unilateral interventions continued mainly until the
end of the Cold War; the leader of the state still was the competent
authority to decide about interventions, which will set the state’s army in
motion (either for war or for military intervention) until the time that the U.N.
Charter was adopted[58] and
any decisions relevant to military action were taken in a collective manner,
whilst the decisions taken only by the leaders of the individual states have
problems both of legitimacy and moral justification.
According to the U.N. Charter, humanitarian interventions that are
carried out by the use of military force[59] raises
certain issues as the use of force – in order to be legal – will have to fall
under one of the following cases:
a) there is authorization from the Security Council allowing the use of
military force within the framework of Chapter VII of the
U.N. Charter[60];
b) there is authorization for taking military action to a regional
agency [61] and
c) the military action should be justified as exercising the legal right
of citizens to self-defense, either at individual or collective level[62].
As far as the first case is concerned, in Article 39 it is stated that
if the Security Council shall determine “the
existence of any threat to peace, breach of the peace or act of aggression, and
shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42 to maintain or restore international peace
and security”. Article 41 defines peaceful means of applying pressure in
order for the resolutions of the Security Council to be effective (partial or
complete interruption of economic relations and means of communication, even
with severance of diplomatic relations), while Article 42 states that in the
case that the measures defined in Article 41 prove to be insufficient and
ineffective, then the Security Council can decide to proceed with military
operations with the participation of air, sea or land forces. In any case, the
members of the United Nations will have to apply any measures deemed necessary[63].
With respect to the second case, it is not possible to find any article in
the U.N. Charter, which gives the right to regional agencies to decide about
launching military actions with their own initiative, whilst regional agencies will
have to be run according to the principles of the United Nations and promote
their aims[64]˙
in Article 53(1) it is stated that “The
Security Council shall, where appropriate, utilize such regional arrangements
or agencies for enforcement action under its authority. But no enforcement
action shall be taken under regional arrangements or by regional agencies
without the authorization of the Security Council, with the exception of
measures against any enemy state, as defined in paragraph 2 of this Article,
provided for pursuant to Article 107 or in regional arrangements directed
against renewal of aggressive policy on the part of any state, until such time
as the Organization may, on the request of the governments concerned, be
charged with the responsibility for preventing further aggression by such a
state”[65].
Finally, with regards to the third case it refers to the inherent right
of self-defense, as this is described in Article 51 of the U.N. Charter. When a
member state is attacked, then it has the right of individual or collective
self-defense. There are, of course, important differences between humanitarian
intervention and collective self-defense, though many times there are overlaps,
e.g. when a state faces extensive and serious issues of violation of human
rights as a
result of the attack from another state. In this case, any help received from a
third state and the intervention that might be launched will have to be judged
with reference to the framework of collective self-defense and not with the right
of humanitarian intervention[66].
In the recent past, the Security Council has decided and gave its
consent for interventions for the following cases: Iraq’s invasion into Kuwait
in 1991[67], in
Yugoslavia in 1991[68], in
Haiti[69] during
1991-1994, in Liberia[70] during
1990-1992, in Angola[71] from 1993
onwards, in Somalia[72] during
1992-1993, in Rwanda[73] in
1994, in East Zaire[74] in 1996,
in Central African Republic[75] during
1996-1998, in Albania[76] in
1997, in Sierra Leone[77] during
1997-1998 and in East Timor[78] in
1999.
Within the framework of the U.N. Charter, with a rigid interpretation of
Articles 2(4)[79] and 51[80], the
ability of legal justification of unilateral humanitarian interventions is very
limited. Even regional agencies in order to fulfill the legitimacy
requirements, will need to have the consent and the authorization of the
Security Council[81] for
their actions. Quid juris, though, in
the case in which a state Α[82] takes
military action in the territory of another state Β, with
the aim of limiting or stopping the violations of human rights [with an
aim, thus, that is compatible with the principles of the United Nations
according to Article 1(3)] and without acting against the political
independence or territorial integrity of state B? It is located at this point a
conflict between the aims of the United Nations for protecting human rights and
the prohibition from using military force[83].
The question above helps us to identify a ‘grey area’ regarding issues
concerning the framework for launching humanitarian interventions, especially
when they are decided by a single state. With regards to the prohibition posed
by Article 2(4), we consider that this can be extended in the case of
humanitarian interventions as well, when there is no prior consent for them by
the Security Council. This allows for the reduction of unilateral
interventions from states or regional agencies, which will serve interests well
hidden behind the so-called humanitarian motives[84]. The
attitude of the Security Council is very important in this direction, which
will need to show real humanitarian interest when looking at the cases for
which intervention is suggested, as well as adhering to the same criteria in
the decisions regarding the practice of humanitarian interventions[85].
From a moral viewpoint, it is many times the case that an issue can be
urgent and the procedures of the Security Council might be too slow for the
pace of events; in some exceptional cases, where immediate action is required,
a unilateral humanitarian intervention (or an intervention carried out by a regional
agency) without prior consent of the Security Council might be morally
justified, but not legitimate. As many times there are humanitarian motives in unilateral
interventions, their legitimacy could be later established with a resolution by
the Security Council[86]. The judgment
of the Security Council is very valuable not only from a legal viewpoint but
also from a moral one, as it constitutes another assurance that indeed all
measures have been either tested or judged to be insufficient and the military
intervention is, thus, necessary.
The unilateral humanitarian intervention should, therefore, be a really
exceptional, rare case and should be avoided to the greatest possible extent
and the states should definitely not take advantage of that practice to serve
their own national interests. The current International Law, anyway, as
expressed through the U.N. Charter disallows it, creating a strong barrier,
which protects the right to independence for small states, when there is no
strong reason for carrying out the intervention. The intervention, which is
carried out without the consent of the Security Council does not stop being a
military action, which was decided and put in action without any previous
negotiations and which, in the end, might be hiding reasons of national
interest, not at all humanitarians.
It should be noted here that in order for a unilateral humanitarian intervention
without the previous consent of the Security Council to be carried out and
claim not only legitimacy but also accordance to the moral rules[87], the
principles ruling the conduct of war should be followed – these are defined
from International Treaties and Conventions as well as from all international
regulations in their strictest readings, given that the purpose for which the
intervention is carried out is relief of a states’ civilians without asking for
any returns for the help provided.
The ‘side-targets’, as well as the
ultimate aim of a humanitarian intervention, should always be closely related
to the symptoms that caused the launch of the intervention. One of the most
important tests, which judge whether the intervention was a success or not, is if
the final aim was achieved or not; in other words, to what extent human rights
were established and whether that contributed to the stabilization of
international peace and security. In any case, the state or group of states
launching the intervention should not seek to gain benefits related to its
national interests or increase its influence, which the state or group of
states hopes to achieve in the area where the intervention is launched.
As it was mentioned in the
sub-section about the just cause[88], it is indeed very difficult for a state to
act on the basis of selfless motives˙ on the other hand, it is from any
aspect unacceptable to realize that the humanitarian motives were only used for
the promotion of national interests during or even after the end of a
humanitarian intervention. When such practices are observed, then the theory
and practice of humanitarian interventions is been damaged in its essence:
their humanitarian nature proves to be false and problematic and as a result
the states’ practice is under serious doubt. This doubt leads to a reduction of
the number of humanitarian interventions been carried out and people who really
need help may not receive it.
There are some cases of
interventions that the states presented as humanitarians but in which, it
turned out after their conduct, that there were other motives than simply altruistic.
The intervention of
Concluding, we can say that as the
final aim of an intervention, closely related to the causes that invoked it,
should be the maintenance and stabilization of peace and the respect to human
rights. This, often, demands the reformation of democratic institutions in the
cases where the legally established power was arbitrary ousted or even the
offer of help for assisting a state to restructure its services when it – for
any reason (natural disaster, civil war or any other reason) - faces serious
problems in producing, managing and distributing resources[94]. In that case, even if there are other motives
beyond humanitarian reasons (which should always be at the centre of humanitarian
interventions), these expediencies should not in any case be promoted at the
expense of the offer for help and the essential contribution to the state in
the soil of which the intervention is launched ˙ this would have been in
conflict even to the real existence of a just cause, which initiated the
procedures for launching the intervention.
In any case when the aim of the
humanitarian intervention is achieved and the running of the state is smooth
again, any military forces as well as any military personnel that took part in
the operation, will have to leave the state as soon as possible and without
trying to create any dependence. The withdrawal of military troops and
personnel from the state where the intervention happened immediately after
achieving its aim, even if it does not provide strong evidence that the state or group of states that
launched the intervention is not trying to promote their national interests, it
is though an indication for that at least one of the principal aims of the
intervention had a selfless basis: the offering of help to a state, which had
difficulties so that it can now effectively face them based on its own powers, institutions
and administration, which the foreign state helped to reorganize and put them
in action again. If the aims stated above are achieved, in the absence of any
others, the military troops and personnel have to leave the state without any
further non-necessary ‘interventions’[95].
As we can gather from the analysis
above, humanitarian interventions can indeed be seen as a kind of pre-emptive
war with the aim of preventing or stopping any extensive violations of human
rights, and, in that way, to prevent any local conflicts from spreading that
would put international peace and security in danger. These two parameters are
absolutely desirable and legitimate within the frameworks set by the
international law readings referring to armed conflicts. This is also true for
the framework set by the U.N. Charter, which puts emphasis on the respect of
human rights, but also to its importance for the maintenance and stabilization
of international peace.
Concluding the current research, we
should note and take seriously into consideration the fact that humanitarian
interventions, even when viewed as a kind of pre-emptive war to the benefit of
humanity as a whole, should be motivated by altruistic motives and should honor
their moral dimension. They should not, in any way, be carried out aiming at
promoting the interests of the state or the group of states launching the
intervention, but they should be carried out in the interests of the citizens
of another state who are facing difficult situations to the greatest extent
from their own government, so that the protection of civilians – for the
benefits of whom the intervention is launched – should be supported with even
stricter measures from those that are applicable for the case of war[96].
NOTES
[1] Connaughton, R. M., 1992. Peacekeeping
and Military Intervention,
[2] Luttwak, Edward/Koehl Stuart L., 1998. The
Dictionary of Modern War. A Guide to the Ideas, Institutions and Weapons of the
Modern Military Power Vocabulary.
[3] Lang Jr., Anthony F., 2002. Agency
and Ethics. The Politics of Military Intervention. New York, Albany: State
University of New York Press, p.3.
[4] Tesón, Fernardo R., 1997. Humanitarian Intervention: An Inquiry into Law and Morality.
[5] Liakopoulos, Dimitris J.., 2001. The law in humanitarian intervention. From
[6] Farer, Tom J., 1991. “An Inquiry into the legitimacy of Humanitarian
Intervention” εις Damrosch, Lori Fishler/Schefer, David J.
(eds), 1991. Law and Force in the new
international order.
[7] Holzgrefe, J.L., 2003.
“The humanitarian intervention debate”, εις Holzgrefe, J.L./Keohane, Robert O. (eds),
2003. Humanitarian Intervention. Ethical,
Legal and Political Dilemmas.
[8] Welsh, Jennifer M. (ed), 2004. Humanitarian Intervention and International
Relations.
[9] Indicative is the fact that there is only one reference to the violation of
international peace in the Resolutions adopted by the Security Council from
1990 onwards; this is in SC Resolution 660 (1990) with regards to Iraq's
invasion into Kuweit.
[10] Tepliz, R.F., 1995. “Taking Assassination Attempts Seriously: Did the
[11] This is called preemptive war.
See Dinstein, Y., 1983. The Laws of War.
Tel Avid: Shocken and Tel Avid University Press, p.p.68-70. Based on Article 51
of the U.N. Charter, referring to the inherent right of individual or
collective self-defense, preemptive action can only be justified on the grounds
that hostile action is expected in the near future. See, Gross, Emanuel, 2000.
“Self-defense against Terrorism-What Does It Mean? The Israeli Perspective”. Journal of Military Ethics (2002)
1(2):96-97.
[12] The references cited here regarding the war
against terrorism aim at demonstrating that the approach to the doctrine of
pre-emptive war and the resulting limitations from the viewpoint of the Just
War Theory is possible. Specifically, the question of whether the war against
terrorism can be applied in a preventive manner having legal grounds at the
same time poses questions and relates to attempts of applying it to other
cases, one of which is the case of humanitarian interventions, with all
necessary adjustments of course.
[13] This issue has been debated to a great extent
in accordance with the possibility of a pre-emptive war against terrorism. The
issue of whether an attack from a state A against a terrorist organization B
acting in a foreign state C, is a violation of territorial integrity of the
country C is something that has been analyzed from a great number of scholars.
Indicatively, see
[14] In the case of pre-emptive war against
terrorism for example, receiving reliable information is of vital importance;
otherwise, the war can be considered as an act of aggression, non-justifiable under
Article 51 of the U.N. Charter. For more information, see Schmitt, Michael,
1992. “State-sponsored Assassination in International and Domestic Law”. Yale Journal of International Law 17:
609-685. Also, Scheideman, S.N., 2000. “Note: Standards of Proof in the
Forcible Responses to Terrorism”.
[15] For the case of pre-emptive war against
terrorism see Rowles, J.S., 1987. “Military Responses to Terrorism: Substantive
and Procedural Constrains in International Law”. American Society of International Law Proceedings 81: 307-317. Also,
Baker, M.B., 1987. “Terrorism and the Inherent Right of Self-Defense (A Call to
Amend Article 51 of the U.N. Charter)”. Houston
Journal of International Law, p.p.25-49.
[16] Kasher, A., 1996. Military Ethics. Tel Avid: Ministry of Defense Press.
[17] As,
for example, mass population movements to neighboring states resulting in
problems in managing resources in those countries that can lead to further
financial problems, even to conflicts with the leaders of the country or
countries, where abuse of population takes place and which are the source
countries for the refugees.
[18] The questions posed above will be further
analyzed in the sub-sections of the current chapter, especially in those
related to the conditions of taking the decision for the operation from the legitimate
authority and the existence of a just cause, deeming the operation necessary.
[19] This is closely related to the issue of
existence of a just cause, which will justify the decision to launch the
operation. For further information on this, see the current paper and, more
specifically, sub-section 3.2. where the existence of a just reason to make the
operation necessary is analyzed.
[20] Connaughton, R.M., 1996. Military Support and Protection for Humanitarian Assistance, Rwanda,
April-December 1994. United Kindgom: Strategic & Combat Studies Institute, p.p.4-6 and Baines, Thomas,
1997. “The Applicability of the Laws of War to Peacekeeping”, presented
at Joint
Services Conference on Professional Ethics (JSCOPE), held in Washington, 1997.
[21] See also Articles 2(4) and 51.
[22] On this issue, see Weiss, Thomas G./Collins, Cindy,
2000. Humanitarian
Challenges and Intervention: World Politics and the Dilemmas of Help. Boulder, Co: Westview Press. Also, Humanitarian Studies Unit, 2001. Reflections On Humanitarian
Action: Principles, Ethics and Contradictions (Transnational Institute). London:
Pluto Press.
[23] For an overview on the subject, see Lyons, Gene M./Mastanduno, Michael, 1995. Beyond
[24]
Fatouros, Argyris A., 1994. Chaos after Terror; International
Legislation at the threshold of the 21st century. Athens-Commotini:
[25] Peacekeeping operations, for example, decided
by the Security Council after 1999, drawing power from Chapter VII of the U.N. Charter,
have been extended, with respect to both their number and targets which they
support and advocate. For more information, check the official website of
United Nations at: http://www.un.org/Depts/dpko.
[26] Wakin, Malham M.,
2000. Integrity First, Reflections of a
Military Philosopher. Maryland: Lexington Books, p.p.157-159. Also, Pfaff, Charles A.,
2000. “Peacekeeping and the Just War Tradition”, presented `in JSCOPE, held in Washington, 2000.
[27] Johnson, James
Turner, 1999. Morality and Contemporary Warfare.
New York: Yale University Press, p.p.75-76.
[28] Mays, Antje, 1997.
“Of Law, Lawlessness and Sovereignty”, presented in JSCOPE, held in
Washington, in 1997.
[29] For an overview, see Reisman, Michael W.,
1990. “Sovereignty and Human Rights in Contemporary International Law”. American Journal of International Law 84:
866-876. Also, World Conference on Human Rights, 1993. The
[30] Tesón, ibid, p.23.
[31] For an overview see Moseley, Alexander/Norman, Richard, 2002. Human
Rights and Military Intervention. Hampshire, Abingdon, Oxon: Ashgate
Publishing. Also, Matlary, Janne Haaland, 2002. Intervention for Human Rights in Europe.
[32] Especially for the case
of
[33] See Aristotle and other ancient and
contemporary political philosophers.
[34] See the current analytical discussion in Randelzhofer,
Albrecht/Tomuschat,
Christian,
1999.
State
Responsibility and the Individual: Reparation in Instances of Grave Violations
of Human Rights.
[35] For a full account see Lehning, Percy B.
/Weale,
Albert,
1997. Citizenship,
Democracy, and Justice in the New Europe (European Political Science Series).
[36] Article 2(4) of the U.N. Charter.
[37] According to Tesón, justifying humanitarian
interventions resembles to a great extent to justifying war, when the latter
can be justified and is carried out as self-defense. The citizens of the state
that is going into war for reasons of self-defense are in essence, trying to defend their rights –
in other words they are motivated by the same desire that is the essential
motive of humanitarian intervention. See Tesón, ibid, p.p.119-121.
This view, though, neglects an important factor: the case of the citizens of a
state deciding to defend their rights is a completely different case from the
intervention of another state˙ the legitimate authority taking this
decision differentiates between the two cases, which should be further analyzed
in different frameworks.
[38] Weston, B., 1992. “Human Rights” in Claude
Richard Pierre/Weston, Burns H., 1992. Human
Rights in the World Community.
[39] See the Security Council Resolutions from 1990 onwards.
[40] GA Resolution 46/242.
[41] GA Resolution 46/133.
[42] GA Resolution 46/134.
[43] GA Resolution 46/136.
[44] GA Resolution 46/7.
[45] GA Resolution 45/173.
[46] Fox, G.H., 1992. “The
Right to Political Participation in International Law”. 17 Yale Journal of International Law: 549-569.
[47] See the following texts: International Covenant on
Civil and Political Rights, American Convention on Human Rights, First Protocol
to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, African Charter on Human and Peoples’ Rights.
[48] Restatement of Foreign Relations (Third), §201(d).
[49] The remark that states with democratic
governments are less likely to declare war leads to linking this type of
government to expectations of reaching a stable state with international peace
was first stated by Kant. For more information, see: Tesón, F.R., 1992. “The
Kantian Theory of International Law”. 92
[50] Johnson, ibid, p.p.76-81. This
argument is closely linked to the principle of legitimate authority, which will
be analysed in the following sub-section.
[51]
Hadjikonstantinou, Kostas, 1999. Approaches
to International Humanitarian Law.
[52] For example, the
[53] Fatouros, ibid, p.p.11-17 and Regan, Richard J.,
1996. Just War, Principles and Cases. Washington
D.C.: The Catholic University of America Press, p.p.68-83.
[54] These two principles do not exhaust the limits
of humanitarian intervention. We can easily add more to the list, such as launching the intervention
in order to avoid an ecological disaster or an intervention carried out in
order to help a state overcome a natural disaster. This resembles more a case
of humanitarian assistance, rather than a case of humanitarian intervention.
[55] That should read in cases of gross and widespread violations of human
rights.
[56] Nussbaum, Arthur, 1962. A Concise History of the Law of Nations.
[57] Chesterman, Simon, 2001. Just War or Just Peace? Humanitarian
intervention and international law.
[58] Sarooshi, Danesh, 1993. Humanitarian Intervention
and International Humanitarian Assistance: Law and Practice (
[59] There is, of course, the case of peaceful
intervention for solving a problem, as described in Articles 40 and 41 of the U.N.
Charter.
[60] See Articles 39 και 42 of the U.N. Charter.
[61]See Articles 52, 53 και 54 of the U.N. Charter.
[62] See Article 51 of the U.N. Charter.
[63] The U.N. Charter in Article 25 states that “The members of the United Nations agree to
accept and carry out the decisions of the Security Council in accordance with
the present Charter”. Furthermore, Article 43(1) states that “All
members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security
Council, on its call and in accordance with a special agreement or agreements,
armed forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining international peace and security”.
Article 48(1) states that “The action required
to carry out the decisions of the Security Council for the maintenance of
international peace and security shall be taken by all members of the United
Nations or by some of them, as the Security Council may determine”.
[64] Article 52(1) of the U.N. Charter.
[65] Despite these, regional agencies sometimes do carry
out operations within their area limits without authorization from the Security
Council. An example is the peacekeeping force which
was sent by ECOWAS (Economic Community of West African States) to
[66] Sarooshi, ibid, p.4.
[67] For more information, see Resolution 688
(1991) as a result of Resolution 687 (1991), which predicted on one hand the
terms under which hostilities would stop but, on the other hand, did not refer
to the difficult position of the Iraqi citizens.
[68] SC Resolution 713 (1991) and 724 (1991).
[69] SC Resolution 841 (1993),
873 (1993), 875 (1993), 917 (1994), 933 (1994) and 940 (1994).
[70] SC Resolution 788 (1992).
[71] SC Resolution 864 (1994).
[72] SC Resolution 733 (1992),
746 (1992), 751 (1992) and 794 (1992). Also, SC Resolution 814 (1993) and 837
(1993).
[73] SC Resolution 912 (1994),
918 (1994) and 929 (1994).
[74] SC Resolution 1078 (1996)
and 1080 (1996).
[75] SC Resolution 1125 (1997).
[76] SC Resolution 1101 (1997)
and 1114 (1997).
[77] SC Resolution 1132
(1997), 1156 (1998), 1162 (1998) and 1181 (1998).
[78] SC Resolution 1246 (1999), 1264 (1999) and
1272 (1999).
[79] It 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 other state, or in any
other manner inconsistent with the purpose of the United Nations”.
[80] It states that the use of military force is
only allowed in the case of individual or collective self-defense, in which
case the issue should be directly reported to the Security Council.
[81] U.N. Charter, Article 53.
[82] The
same principle applies to regional agencies, who should not act without prior
authorization of the Security Council.
[83] Goodrich, Leland
M./Hambro, Edvard/Simons, Anne Patricia, 1969. Charter of the United Nations: Commentary and Documents. New York:
Columbia University Press, p.45. It is worth noting that
neither in the Declaration on Friendly Relations, nor in the Resolution on the Definition
of Aggression of the General Assembly (1974), or in the Declaration on the Threat
or Use of Force is any reference to any practice for the case of humanitarian
intervention without the prior consent of the Security Council. In parallel,
there is the argument of those who claim that the Genocide Convention imposes
on states to perform unilateral interventions when they judge that there is a
need for it and they have the necessary power to prevent and punish the crime
of genocide (Genocide Convention, Article I), as well as to stop gross and
extended violations of fundamental human rights, in which case the U.N. Charter
should be interpreted in line with other International Law Treaties and
Conventions. See, Reisman, M./McDougal, Myres S., 1973. “Humanitarian
Intervention to Protect the Ibos”, in Lillich, Richard B., 1973. Humanitarian
Intervention and the United Nations.
[84] Stein, Mark S., 2004. “Unauthorized
Humanitarian Intervention”. Social
Philosophy & Policy Foundation 21:1, Winter 2004.
[85] Lepard, Brian
D., 2002. Rethiking Humanitarian
Intervention. A Fresh Legal Approach Based on Fundamental Ethical Principles in
International Law and World Religions.
[86] This is something that occured in the
interventions of ECOWAS (Economic Community of West African States) in
[87] Fonteyne, Jean-Pierre L., 1974. “The Customary
International Law Doctrine of Humanitarian Intervention: Its Current Validity
Under the U.N. Charter”.
[88] See sub-section 2.1. of the current paper.
[89] S/PV.873 (1960).
[90] Arend,
[91] Walzer, Michael, 1984 (4th Edition). Just and Unsjust Wars. A Moral Argument with
Historical Illustration. Harmondsworth,
Middlesex: Peguin Books, p.105.
[92] Palit, D.K., 1998. The Lightning Campaign: The
Indo-Pakistan War, 1971.
[93] Chesterman, ibid, p.77.
[94] For a further analysis of these causes, see
the section on the existence of just cause that deems the intervention
necessary.
[95] On this subject, see Seybolt, Taylor B., 2004.
Humanitarian
Military Intervention: Causes of Success and Failure (Sipri Research Reports). Oxford: Oxford University Press.
[96] The relevant issues were neither referred to nor
analyzed in this paper as they are not relevant to the central issues analyzed
in it. They are at the center, though, of another paper, in preparation, which
tries to restructure the jus in
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