BPU3624 Group Assignment

Public & Private International Law II

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MULTIMEDIA UNIVERSITY

FACULTY OF BUSINESS AND LAW

(LAW SCHOOL)

BPU 3624 – Public & Private International Law II

MR C J GLETUS MATTHEWS A/L C N JACOBS

ASSIGNMENT

Article 2(3) of the United Nations Charter requires all member States to “settle their international

dispute by peace means....” Under what circumstance is Humanitarian Intervention justified? Discuss.

Number of words: 2,471

Anis Adilla Normuhayat 1061103688

2 Wan Ahmad Dzar Bin Wan Shahibi 1061103626

3 Ahmad Firdaus Kamaruddin 1061104892

4 Nurshafiqa Balqish Binti Jaffri 1081104403

5 Najwa Syazwani Aqilah bt Abd Hamid 1081103497

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Table of Content

Justifying the Humanitarian Intervention 4 – 5

Authorised Humanitarian Intervention 6 – 7

Un-authorised Humanitarian Intervention 8 – 10

Responsibility to Protect ( R2P) 11 -12

Bibliography 13

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Justifying the Humanitarian Intervention

United Nations (UN) purposes is to bring all nations of the world together to work for peace and

development, based on the principles of justice, human dignity and the well-being of all people.

It affords the opportunity for countries to balance global interdependence and national interests

when addressing international problems. Based from this purpose itself the international armed

conflicts or the use of force in international relation is generally prohibited, under 2 (4) of UN

Charter which stated 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, or in any other

manner inconsistent with the Purposes of the United Nations.

Subject to this provision; it is strongly recommended by the UN for all members to settle their

dispute by peaceful means; this can be seen underarticle 2(3):

All Members shall settle their international disputes by peaceful means in such a manner

that international peace and security, and justice, are not endangered.

The term “dispute” here refers to a specific disagreement concerning a matter of fact, law or

policy in which a claim or assertion of one party met with refusal, counter-claim or denial by

another and such dispute may led to armed conflict. However there is a strong debate as to

whether States do have a right to use force to intervene in the national affairs of other States to

prevent and suppress large scale violations of human rights. This is where the concept of

“Humanitarian Intervention” arrives.

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Human intervention1 is a military intervention in a state, without the approval of its

authorities and with the objective of preventing the widespread suffering or death among the

inhabitants. In other words, humanitarian intervention is a military intervention with the goal of

protecting the lives and welfare of foreign civilians. In a proper legal sense,2 it is understood as

coercive action taken by states at their initiative and involving the use of armed force for the

purpose of preventing a serious and wide scale violations of fundamental human rights

Humanitarian without the consent of the intervened state can also be contrary to the principle of

State Sovereignty. The Oxford English Dictionary 3defines sovereignty as “one who has

supremacy or rank above, or authority over, others, a superior, a ruler, a governor, a lord, or

master,”, “the recognized supreme ruler of a people of a country , of power, authority, etc.

With the development of the concept of humanitarian intervention‟ in the 19th

century the

notion of sovereignty as an absolute value may have been somewhat reduced for it proposes that

„when a State treats its own citizens in a way that shocks the conscience of mankind intervention

in the name of humanity is permissible‟.4

Treaty of Westphalia established the notion of sovereignty in the international context as

the doctrine of non interference in the affairs of other nations. With the human rights movement

gained momentum, the Declarations on Human Rights and the Conventions preceded it there is

an implicit recognition that „sovereignty‟ is not as absolute as it used to be.

With the recognition of sovereignty are not absolute rights; this is where the justification

of Humanitarian Interventions took place. Although most writers agree that humanitarian

interventions should be undertaken multilaterally, ambiguity remains over which particular

agents - the UN, regional organizations, or a group of states - should act in response to mass

violations of human rights. The choice of actor has implications for overcoming collective action

1 Definition by Adam Roberts, Humanitarian War : Military Intervention and Human Rights, International Affaors, Vol 69, No 3 2 Definition by Wil D, Humanitarian Intervention in the 1990s and Beyond, An International Law Perspective,

London, Macmillan Press Ltd 1998 3 Oxford Advanced Learner Dictionary 4 James Pattison. Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? Oxford: Oxford University Press, 2010

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challenges through mobilization of political will and material resources.5Questions of

effectiveness, conduct and motives of the intervener, extent of internal and external support, and

legal authorization have also been raised as possible criteria for evaluating the legitimacy of a

potential intervener.6

There were several approaches to Humanitarian Intervention which is:

1. United Nation authorized intervention;

2. Unauthorized intervention; and

3. Responsibility to protect (R2P).

5 Sumon Dantiki. “ Organizing for Peace : Collective Action Problems and Humanitarian Intervention.” Journal of Military and Strategic Studies 2005. 6James Pattison. Humanitarian Intervention and the Responsibility to Protect: Who should Intervene? Oxford: Oxford University Press, 2010.

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United Nation authorized intervention

For the first approach, most attention focuses here on Article 2(4), regarding the

prohibition of the threat or use of force in international relations. Some interpret Article 2(4),

in the context of the Charter as broad, as prohibiting all use of force in international relations,

with only two exceptions:

(1) As authorized by the Security Council under Chapter VII; and

(2) In exercise of the right of self-defence recognized in Article 51 of the Charter.7

Subject to this article 2(4); the power given for UN for authorizing such intervention falls under

article 2(7) of UN Charter itself which stated:

Nothing contained in the present Charter shall authorize the United Nations to intervene

in matters which are essentially within the domestic jurisdiction of any state or shall

require the Members to submit such matters to settlement under the present Charter; but

this principle shall not prejudice the application of enforcement measures under Chapter

Vll.

This is where we can see that such Humanitarian Intervention can be justified by the

authorization of UN. It is generally though not universally agreed that the Security Council has

the authority, under Chapter VII of the UN Charter, to conduct or authorize humanitarian

intervention. The keystone of the Security Council‟s authority is Article 39 of the Charter, which

states:

“The Security Council shall determine the existence of any threat to the 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.”

7 Bruno Simma, “NATO, the UN, and the Use of Force: Legal Aspects,” European Journal of International Law 10,

no. 1 (1999); available on-line at http://www.ejil.org/journal/Vol10/No1/ab1.html; and Oscar Schachter, International Law in Theory and Practice (Dordrecht, The Netherlands: Kluwer, 1991), 128–29

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When authorizing humanitarian intervention, the Security Council typically determines that a

humanitarian crisis poses a threat to the peace. Since the end of the ColdWar, the Security

Council has interpreted the term „threat to the peace‟ broadly. Humanitarian crises do have

international consequences.in particular, the flow of refugees across borders but, in general such

crises do not pose the threat of armed conflict across borders.

Such recent; example of Humanitarian Intervention based on the UN authorization occured on

2011 is UNSC Resolution 1973 in Libya; where the resolutions are Condemning the gross and

systematic violation of human rights, including arbitrary detentions, enforced disappearances,

torture and summary executions; and expressing its determination to ensure the protection of

civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian

assistance and the safety of humanitarian personnel. It is also considering that the establishment

of a ban on all flights in the airspace of the Libyan Arab Jamahiriya.8

United Nations Operation in Somalia I (UNOSOM I) is also good example. It was the first part

of a UN sponsored effort to provide, facilitate, and secure humanitarian relief in Somalia, as well

as to monitor the first UN-brokered ceasefire of the Somali Civil War conflict in the early 1990s.

Following the eruption and escalation of the civil war in Somalia in 1991, the UN and

the Organization of African Unity (OAU) strived to abate the suffering that was caused as a

result of the high-intensity conflict.9

8 http://www.voltairenet.org/UN-security-council-resolution 9United Nations, 2003, United Nations Operations in Somalia (UNSOM 1) Background (Full Text)

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Unauthorized Humanitarian Intervention

Second approach is regarding the unauthorized Humanitarian Intervention. Based on this

approach; others were disagree with this broad interpretation mention in the first approach above.

They point out that the language of Article 2(4) imposes not a general prohibition, but three

specific prohibitions. They argue that unauthorized humanitarian intervention is permitted under

the Charter if it is;

(1) does not constitute the use of force against territorial integrity;

(2) does not constitute the use of force against political independence; and

(3) is not otherwise inconsistent with the purposes of the United Nations.

Four distinct attitudes or approaches to the legitimacy of humanitarian intervention in the

absence of Security Council authorizations can be identified.10

1. Status quo: Categorically affirms that military intervention in response to atrocities is

lawful only if authorized by the UN Security Council or if it qualifies as an exercise in

the right of self-defense.11

Under this view, NATO‟s intervention in Kosovo constituted a

clear violation of Article 2(4). Defenders of this position include a number of states, most

notably Russia and People's Republic of China. Proponents of this approach point to the

literal text of the UN Charter, and stress that the high threshold for authorization of the

use of force aims to minimize its use, and promote consensus as well as stability by

ensuring a basic acceptance of military action by key states.

2. Excusable breach: Humanitarian intervention without a UN mandate is technically

illegal under the rules of the UN Charter, but may be morally and politically justified in

certain exceptional cases. Benefits of this approach include that it contemplates no new

legal rules governing the use of force, but rather opens an “emergency exit” when there is

a tension between the rules governing the use of force and the protection of fundamental

10 Jane Stromseth. "Rethinking Humanitarian Intervention: The Case for Incremental Change." Humanitarian

Intervention: Ethical, Legal, and Political Dilemnas. Cambridge: Cambridge University Press, 2003. 11 Mary Ellen O'Connell. "The UN, NATO, and International Law after Kosovo." Human Rights Quarterly 2000

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human rights.Intervening states are unlikely to be condemned as law-breakers, although

they take a risk of violating rules for a purportedly higher purpose.12

3. Customary law: This approach involves reviewing the evolution of customary law for a

legal justification of non-authorized humanitarian intervention in rare cases. This

approach asks whether an emerging norm of customary law can be identified under

which humanitarian intervention can be understood not only as ethically and politically

justified but also as legal under the normative framework governing the use of force.

4. Codification: The fourth approach calls for the codification of a clear legal doctrine or

“right” of intervention, arguing that such a doctrine could be established through some

formal or codified means such as a UN Charter Amendment or UN General Assembly

declaration. Although states have been reluctant to advocate this approach, a number of

scholars, as well as the Independent International Commission on Kosovo, have made the

case for establishing such a right or doctrine with specified criteria to guide assessments

of legality. A major argument advanced for codifying this right is that it would enhance

the legitimacy of international law, and resolve the tension between human rights and

sovereignty principles contained in the UN charter.13

Fairly recent examples include the intervention after the Gulf War to protect the Kurds in

northern Iraq; where Operation Provide Comfort and Provide Comfort II were military

operations by the United States and some of its Gulf War allies, starting in April 1991, to defend

Kurds fleeing their homes in northern Iraq in the aftermath of the Persian Gulf War and deliver

humanitarian aid to them.14

As well as NATO‟s intervention in Kosovo which the NATO

bombing of Yugoslavia (code-name Operation Allied Force or, by the United States, Operation

12 Fernando Teson. "The liberal case for humanitarian intervention." Humanitarian Intervention: Ethical, Legal, and

Political Dilemnas. Cambridge: Cambridge University Press, 2003.

13 Michael Byers and Simon Chesterman. "Changing the Rules about Rules? Unilateral Humanitarian Intervention

and the Future of International Law." Humanitarian Intervention: Ethical, Legal, and Political Dilemnas. Cambridge:

Cambridge University Press, 2003.

14 http://www.fighterpilotuniversity.com/index.cfm/2008/1/17/Cleared-to-Lead-and-Kill-MiGs

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Noble Anvil) was NATO's military operation against the Federal Republic of Yugoslavia during

the Kosovo War.15

15 Bonnén, Preben (2003). Towards a common European security and defence policy: the ways and means of

making it a reality. LIT Verlag Berlin-Hamburg-Münster. p. 188. ISBN 978-3-8258-6711-9.

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Responsibility to Protect (RtoP Or R2P)

For the last approach in justifying the Humanitarian Intervention would be the

responsibility to protect (RtoP or R2P) which it is a norm or set of principles based on the idea

that sovereignty is not a privilege, but a responsibility. RtoP focuses on preventing and halting

four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing, which it

places under the generic umbrella term of, Mass Atrocity Crimes.16

The RtoP principle was the result of failure by states in the 1990s to protect civilian

populations in conflict areas particularly in the former Yugoslavia and Rwanda, which led to

widespread atrocities. RtoP authorises the use of force to intervene in four specific mass atrocity

situations –: genocide, war crimes, crimes against humanity and ethnic cleansing.17

However,

Libya represents the first engagement of RtoP since it was formally adopted by the UN. It is

therefore imperative that the states enforcing it get it right, because it sets precedents for future

intervention.

Responsibility to protect seeks to establish a clearer code of conduct for humanitarian

interventions and also advocates a greater reliance on non-military measures.18

Under

Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other

states, states are said to have a responsibility to intervene and protect the citizens of another state

where that other state has failed in its obligation to protect its own citizens. This responsibility is

said to involve three stages: to prevent, to react and to rebuild.19

16

Dorota Gierycz. "From Humanitarian Intervention to Responsibility to Protect." Criminal Justice Ethics 2010:

pgs.110-128

17 Richard Falk. "Humanitarian Intervention: Elite and Critical Perspectives." Global Dialogue 2005 18 Mark R. Crovelli, "Humanitarian Intervention and the State"

19 Lyal S. Sunga, "The Role of Humanitarian Intervention in International Peace and Security: Guarantee or

Threat?." The Use of Force in International Relations: Challenges to Collective Security, Int’l Progress Organization

& Google Books (2006) 41-79

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The current situation of humanitarian intervention represents a search for equilibrium in terms of

the question about the juxtaposition of realism and cosmopolitanism in conceptualising and

practising international relations. The tendency of some international organisations to authorise

humanitarian intervention under clearly defined purposes and the multilateral conduct of the

intervention have eased the main concern of the non-intervention norm concerning the prospect

of order in international affairs, and thus weakened the main source of the traditional objection to

humanitarian intervention. Therefore, we may conclude that the more the globalist characteristics

of international relations grow to reduce the distance between domestic and international realms,

the more room there will be for humanitarian intervention in international relations.

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Bibliography

Articles:

1. Saban Karda ; Humanitarian Intervention : the Evolution of the Idea and Practice; Journal

of International Affairs; Volume VI - No. 2

2. Judy A. Gallant; Humanitarian Intervention and Security Council Resolution 688: A

reappraisal in Light of a Changing World Order.

3. Francesca Musiani; War, Security, and humanitarian Interventio in the United Nations

Reform Agenda; Peace & Conflict Review; Volume 3, Issue 1; ISSN : !659-3995

4. Clara Portela; Humanitarian Intervention, NATO and International Law: Can the

INstitution of Humanitarian Intervention Justify Unauthorised Action?; Research Report

00.4; December 2000

5. Christopher Greenwood; Humanitarian intervention : the case of Kosovo; LSE Research

Online.

6. Mark R. Crovelli; Humanitarian Intervention and the state; Universityt of Colorado,

Boulder.

Internet Sources:

1. http://en.wikipedia.org/wiki/Humanitarian_intervention#cite_note-20

2. http://en.wikipedia.org/wiki/Operation_Provide_Comfort

3. http://en.wikipedia.org/wiki/Responsibility_to_protect

4. http://crookedtimber.org/2011/03/20/resolution-1973-intervention-and-international-law/

5. http://www.voltairenet.org/UN-security-council-resolution

6. http://en.wikipedia.org/wiki/United_Nations_Operation_in_Somalia_I

7. http://sites.tufts.edu/jha/archives/103

8. http://www.un.org/News/Press/docs/2011/sc10200.doc.htm

9. http://www.religion-online.org/showarticle.asp?title=2903

10. http://www.telospress.com/main/index.php?main_page=news_article&article_id=381