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An Almost Impossible Task: Humanitarian
Intervention in the 21st Century
Bojun Li *Abstract
Humanitarian intervention has a long history in international
relations, however, it does not have a reputation as what people usually
expect. The reason for that is that it has not been recognized by theexisting international law. In practice, generally speaking, it is very
difficult to obtain success for humanitarian intervention. A very
important point is that if we only rely on the military means to defend
human rights, we will not get the expected effect. On the contrary, morehumanitarian disasters will be emerged. Moreover, there are also a lotof questions that we can not settle well, such as who will intervene?
when to intervene? how to intervene? In this sense, humanitarian
intervention has never been successful. Therefore, humanitarian
intervention in international relations in the 21st century must be morestrictly regulated and controlled.
Keywords: Humanitarian Intervention; International Law; Use of Force;
Human Rights

Introduction
Since the end of the Cold War, we witnessed the characteristics of the warof this era, that is, war mainly breaks out within one country, and in this case,the external forces have more opportunities to seek humanitarian intervention.
However, humanitarian intervention has been a controversial topic for along time in international relations. Studies show that there is a great
distinction in the doctrine of humanitarian intervention in the 19th century.
Overall, those who supported the principle of humanitarian intervention weremainly Anglo-American scholars, such as William Edward Hall, Oppenheim,
Henry Wheaton, the JD Woolsey, Lawrence, Moore, Stowell, and so on; while192

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the most continental Europe scholars were against the principle of1humanitarian intervention, such as Heffter, Liszt and so on. Unpleasantly,
until today, this debate is still going on. In fact, this controversy is largely due tothe vagueness over the definition of humanitarian intervention. And then, what
is humanitarian intervention on earth? Different scholars have their different
views about it.“[T]here may be few concepts in international law today which
are as conceptually obscure and legally controversial as ‘humanitarian
intervention’. This results from a lack of agreement on the legal meaning of both2

the term ‘intervention’ and the term ‘humanitarian’.” Since the issue ofhumanitarian intervention is related to international law, political science,
morality and international relations, one may come across different definitions
3and categorizations. Some people think that it may be defined as the use offorce in order to stop or oppose massive violations of the most fundamental
human rights (especially mass murder and genocide) in a third state, provided
that the victims are not nationals of the intervening state and there is no legal
4

authorization given by a competent international organization . Others argue
that “humanitarian intervention” refers to the threat or use of force by a state orstates against another state for the purposes of preventing or stopping the latterstate from committing extensive and grave violations of humanitarian law and5human rights law. Another writer affirms that “humanitarian intervention isdefined as coercive action by states involving the use of armed force in anotherstate without the consent of its government, with or without authorization fromthe United Nations Security Council, for the purpose of preventing or putting toa halt gross and massive violations of human rights or international6

humanitarian law”. Another similar view was that the so-called humanitarian
intervention on existing international law is generally defined as: when acountry shows cruelty and persecution to its nationals and denies the basic
human rights, and shocks the conscience of mankind, the overall interests ofhumanity will surpass the value of non-intervention norm, thus the community
7

has a right of the armed intervention.

Of course, there are a few people who think that a state has the right to use
force for protecting its citizens abroad. Furthermore, this action should belong to8

the scope of humanitarian intervention. Under the influence of the above
theory, during the Cold War, many countries regarded the action of use of force
to protect its nationals abroad as the act of humanitarian intervention, such as

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the intervention by France and Britain in Egypt in 1956, the Belgianintervention in the Congo in 1960, the US intervention in Dominican Republic
in 1965, the intervention by US in Grenada in 1983, the intervention by Franceand US in Rwanda in 1994, and so on. However, the dominant viewpoint does
not recognize the above opinion, because in that event, it will lead to expand thescope of humanitarian intervention. Moreover, it may seem inconsistent withthe provisions of restrictions on the use of force in UN Charter. The Japanesescholar Onuma Paul Zhao also holds the same view that we should distinguishbetween humanitarian intervention to protect the other country’s nation and
9armed intervention to protect its citizens abroad. So, just as what J. Wheeler
Nicholas insisted humanitarian intervention’s aim was just to protect
10

strangers.

In summary, according to the definitions of humanitarian intervention,
many scholars have different ideas, while most scholars have reached a generalconsensus on some of its essential characteristics as follows:(1) humanitarian intervention refers to armed intervention; (2)humanitarian intervention does not necessarily require the consent of the target
country; (3) humanitarian intervention is undertaken by a state or a group ofstates without advance authorization from the UN Security Council; (4) The sole
purpose of humanitarian intervention is to protect civilian populations of thetarget country.

I. The Illegality and Illegitimacy of Humanitarian Intervention
Legitimacy is a key concept in political science and usually refers to such afact, that is, as a whole, the government as a kind of authority, which is widely
recognized by the people. While legality is usually a basic concept in the scienceof law, in this context, it not only means that some kind of behavior has thelegitimacy, namely, it will be morally recognised by the most people, but alsomeans that it is consistent with the provisions of the law.
A. The Illegality of Humanitarian Intervention
As we all know, the 1648 treaty of Westphalia upheld the right of sovereignstates to act freely within their own borders. Since then, sovereignty has becomea core concept in international relations and state sovereignty became a very

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important legal principle. That principle means that “no state may use or
encourage the use of economic, political or any other type of measures to coerce
another state in order to obtain from it the subordination of the exercise of its
sovereign rights or to secure from it advantages of any kind. Also, no state shallorganize, assist, foment, finance, incite or tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another state,
11

or interfere in civil strife in another state.” However, since the end of the Cold
War, the emergence of humanitarian intervention poses a severe challenge tothe principle of state sovereignty.
But strictly speaking, humanitarian intervention has not been supported byinternational law.
It’s been emphasized that humanitarian intervention is essentially aunilateral action. As we all know, the previous practices of humanitarian
intervention, such as the India intervention in Pakistan in 1971, Tanzania
intervention in Uganda in 1979, French intervention in Central African
Republic in 1979, Vietnam intervention in Cambodia in 1978, and NATOintervention in Kosovo in 1999, were all illegal interventions.
As a matter of fact, on one hand, there are not any treaties to support thehumanitarian intervention including the UN Charter. The UN Charter has
made very clear in Article 2 (4) and in Article 2 (7) that all UN member states“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” and “Nothing
contained in the present Charter shall authorize the United Nations to intervenein matters which are essentially within the domestic jurisdiction of any state orshall 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 VII.” It allowed only two exceptions to the prohibitionon the use of force in international law: first, in accordance with section 51 of
the Charter to take individual or collective self-defense; second, wheninternational peace and security are threatened or destroyed, the United
Nations Security Council in accordance with Chapter 7 of the UN Charter, shalltake enforcement measures or authorize the countries concerned to use of force.
Moreover, we must admit a fact, that is, “the humanitarian intervention
doctrine has never been a principle of international law, even as an exception toAn Almost Impossible Task: Humanitarian Intervention in the 21st Century

non-interference principle has not been generally recognized.”

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12

On the other hand, a new rule of customary international law could not becreated in the field of humanitarian intervention, either. It is very clear that thearticle 38 (1) (b) of the statute of the international court of justice (“ICJ Statute”)
defines international custom as “a general practice that has been accepted aslaw”, accordingly, customary international law envisages two elements: the firstis the objective element, which is also often referred to as state practice, and thesecond is the subjective element known as “opinion juris sive necessitates”. With
regard to humanitarian intervention, not only are there many different
viewpoints in theory, but also there are few state practices that contribute to thecreation of a new customary international law. On this occasion, we cannot saythat a new customary rule has emerged. As a matter of customary internationallaw, the international court of justice in Nicaragua v. United States concluded
13

that custom does not permit unilateral humanitarian intervention. In 1986,
the UK Foreign Office, in its appraisal of the legal status of humanitarian
intervention, stated that “the overwhelming majority of contemporary legal
opinion comes down against the existence of a right of humanitarian
intervention for three main reasons: first, the UN Charter and the corpus ofmodern international law does not seem to specifically incorporate such a right;
secondly, state practice in the past two centuries, and especially since 1945, atbest provides only a handful of genuine cases of humanitarian intervention, andon most assessments, none at all; and finally on prudential grounds, that thescope of abusing such a right argues strongly against its creation.”

14

B. The Illegitimacy of Humanitarian Intervention
However, we also should recognize that saving human lives might in someextreme circumstances override sovereignty. The former UN Secretary-General
Kofi Annan said: “I recognize both the force and the importance of thesearguments. I also accept that the principles of sovereignty and non-interference
offer vital protection to small and weak states. But to the critics I would pose
this question: if humanitarian intervention is, indeed, an unacceptable assault
on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to grossand systematic violations of human rights that offend every precept of ourcommon humanity?”

15

Meanwhile, Canadian government set up an International Commission on196

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Intervention and State Sovereignty. And then, the Commission submitted areport “responsibility to protect” in 2001. In 2004, “A More Secure World: Our
Shared Responsibility”: the report of Secretary-General’s High-Level Panel on
Threats, Challenges and Change endorsed ‘the emerging norm that there is aninternational responsibility to protect [civilians] . . . in the event of genocide andother large scale killing, ethnic cleansing or serious violations of international
humanitarian law which sovereign governments have proved powerless or16

unwilling to prevent’. In other words, the “international community” would
take, if necessary, coercive action to protect people at risk of grave harm, suchas genocide, war crimes, ethnic cleansing or crimes against humanity inaccordance with clear criteria. In 2005, “in Large Freedom: towards
17

Development, Security and Human Rights for all” : the report of the SecretaryGeneral and the final “Outcome Document”

18

reached by the 2005 World

Summit have all accepted the above conception of “responsibility to protect”. Allof the above-mentioned documents reflect that the international community has
a qualitative leap in awareness of traditional national security, that is, national
security also includes personal safety, and if personal safety could not be
guaranteed, national security will not be achieved, either, and vice versa.
Therefore, “each individual state has the responsibility to protect its populations
from genocide, war crimes, ethnic cleansing and crimes against humanity.……
The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peacefulmeans, in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely
and decisive manner, through the Security Council, in accordance with theCharter, including Chapter VII.”

19

Nevertheless, the above files are notinternational law in the strict sense, because all of them can only be regarded as
the political documents or the moral declarations at least.
From the above analysis, we can see that the so-called legitimacy ofhumanitarian intervention is a false question. This is mainly based on threereasons: first, legally speaking, the legitimacy is usually based on the legality,that is to say, if humanitarian intervention does not have a generally recognizedlegal basis, the legitimacy of humanitarian intervention will not morally andpublicly be obtained. In fact, different from the multilateral intervention underAn Almost Impossible Task: Humanitarian Intervention in the 21st Century

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the UN framework, as an unilateralism behavior, humanitarian intervention
itself means that it has not morally acquired the recognition of the majority ofthe members of the international society from the beginning to the end. The
second, in practice, the intervenors often have the selfish motives regardless of
the interests of the other country and the overall interests of internationalsociety, but even more important, humanitarian intervention in practice is often
abused by many western countries. In addition, humanitarian intervention is
also often beyond the fixed target of intervention, that is, it not only stops
killing, but also seek to overthrow the target country’s regime, even rebuild thecountry’s regime. The third, as mentioned above, humanitarian intervention isunilateral, just because of this, there is no certain standards and rules,
humanitarian intervention in practice is not feasible, thus, the intervenors will
not get effects in practice. I will analyze this further as follows.

II. The Criteria of Implementation of Humanitarian Intervention
In practice, whether humanitarian intervention or the responsibility toprotect, unfortunately, it is easier said than done. Generally speaking, relative
to the multilateral intervention, it is very difficult to get some kind of criteria for
the unilateral intervention. So, we should ask some questions before theimplementation of humanitarian intervention, such as when it came to it, who
would be willing to intervene? Everyone knows a fact that the international
community did nothing to stop Rwandan genocide in 1990s. For this purpose,
someone has posed a lot of questions: “But what, if anything, should theinternational community have done to stop the carnage? Did it have a moral
duty to intervene? Did it have a legal right to do so? What should it have done if
the United Nations Security Council had refused to authorize a militaryintervention? If it had a duty to intervene, how could it have overcome thepolitical barriers to intervention? And, most importantly, what measures should
be taken to prevent similar catastrophes in the future? ”

20That refers to thecriteria of the implementation of humanitarian intervention. “While there is nouniversally accepted single list, in the Commission’s judgment all the relevant
decision making criteria can be succinctly summarized under the following six
headings: right authority, just cause, right intention, last resort, proportional
21

means and reasonable prospects.” Those six headings seem very attractive, but

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very difficult to achieve in practice. From the behavior of legitimacy, in all ofthese criteria, the right authorization from the UN Security Council is one of the22most important. In addition, the following criteria would need to be applied :(1) that there is convincing evidence, generally accepted by the international
community as a whole, of extreme humanitarian distress on a large scale,requiring immediate and urgent relief; (2) that it is objectively clear that there is
no practicable alternative to the use of force if lives are to be saved; (3) that the
proposed use of force is necessary and proportionate to the aim (the relief ofhumanitarian need) and is strictly limited in time and scope to this aim – ie it is
the minimum necessary to achieve that end. It would also be necessary at theappropriate stage to assess the targets against this criterion.
However, unfortunately, practices (Such as the Kosovo War in 1999 and the
Libya War in 2011) have proved that the number of humanitarian intervention
actions did not meet the above criteria.
About the first criteria, “there was general acceptance that there must be
limited exceptions to the non-intervention rule for certain kinds of emergencies.
Generally expressed, the view was that these exceptional circumstances must be
cases of violence which so genuinely ‘shock the conscience of mankind’, or which
present such a clear and present danger to international security, that theyrequire coercive military intervention.”23

For this reason, finding the truth ofmassacre is very important. Within a state, when civil conflicts are so violent
that the civilians encountered massacre, genocide or ethnic cleansing on a large
scale, the international community will have the responsibility to protect. But
what is the “on a large scale”? How do we verify “on a large”? From this point,
did the Kosovo civilians encounter massacre, genocide or ethnic cleansing “on alarge scale”?
French “L’Humanité” April 15-16 in 2000 article exposed the lip of theWestern countries, some political figures on the number of victims in Kosovo: In
April 1999, the U.S. State Department announced that 500,000 Kosovo
Albanians were missing, “People are worried that they are already dead”; Amonth later, U.S. Defense Secretary William Cohen to confirm the 100,000
Hermes Scarves military age were missing, “may be killed”; June, the British
Foreign Office said the people killed, Clinton also claimed that 10,000 Kosovo
stuffed family killed. From 500000-10000, which is free to amend the U.S. andBritish official figures of the “ethnic cleansing”. The facts provided by theAn Almost Impossible Task: Humanitarian Intervention in the 21st Century

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newspaper: September 1999, a group of Western countries, forensic Kosovo field
trips, and found 187 dead; November, a survey conducted by the International
Tribunal for the Former Yugoslavia Hermes Bags to find a 2108 body. However,as the “Washington Post (March 26, 2000), the article pointed out, there can not
be sure these people have died from the Federal Republic of Yugoslavia..”

24

Thus it can be seen that the truth of slaughter is often buried in the
propaganda machine of great power. Sadly, the lies of killing civilian population
on a large scale of the influence have occurred, and ultimately they affected theinternational public opinion, of course, and then, the so-called “humanitarian
military intervention” will occur.
With regard to the second criteria, a corollary of the prohibition of the useof force, the principle that states must settle their international disputes bypeaceful means according to the Arts 2 (3) and 33 of the UN Charter, theprinciple has been also reaffirmed in a number of General Assembly resolutions.
In 2011, before using the force to strike against Libya, the peaceful means were
not exhausted at that time under this circumstance. From 26 February 2011 to
17 March 2011, the two resolutions above passed, and on 19 March 2011,
Odyssey dawn air strikes, the whole intervention operation was very hasty. In
fact, the United Nations Security Council has passed resolution No. 1970 and
resolution No.1973. By the two Resolutions, the UNSC had taken a series ofmeasures, such as ICC referral, arms embargo, travel ban, asset freeze,
designation criteria, humanitarian assistance, no fly zone, etc. Li Baodong, theChinese permanent representative to the United Nations, made the statement
at the Security Council after he abstained from voting on the resolution, “In the
Security Council’s consultations on Resolution 1973, we and some other council
members asked some specific questions. However, regrettably, many of thosequestions failed to be clarified or answered. China has serious difficulty withpart of the resolution.” Hence, if we want to respect the United Nations Charter,
the humanitarian crisis must be ended through peaceful means. Of course, wemust be firmly against the use of force when those means are not exhausted.
As for the third criteria, here, we are still taking the Libya War as an
example. Resolution 1973 (2011) adopted by the UN Security Council at its
6498th meeting, on 17 March 2011, “Determining that the situation in the
Libyan Arab Jamahiriya continues to constitute a threat to international peaceand security, acting under Chapter VII of the Charter of the United Nations”, in200

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order to protect civilians, “Authorizes Member States that have notified theSecretary-General, acting nationally or through regional organizations or
arrangements, and acting in cooperation with the Secretary-General, to take allnecessary measures …… to protect civilians and civilian populated areas under
threat of attack in the Libyan Arab Jamahiriya” (Paragraph 4). “Decides toestablish a ban on all flights in the airspace of the Libyan Arab Jamahiriya inorder to help protect civilians” (Paragraph 6); “Authorizes Member States thathave notified the Secretary-General and the Secretary-General of the League ofArab States, acting nationally or through regional organizations or
arrangements, to take all necessary measures to enforce compliance with theban on flights imposed by paragraph 6 above” (Paragraph 8). Obviously, thepurpose of Phrase “to take all necessary measures” is to set up a no-fly zone toprotect civilians, the western coalition’s subsequent military action against
Libya army had been clearly beyond the scope of this mandate to use force.

III. The Ineffectiveness of Humanitarian Intervention
There is no doubt that the illegality of humanitarian intervention has
increased its political and moral pressure and costs. “There are a number ofpossible reasons why global discussion has continued to focus on militaryintervention. However, the use of force as the central means by the international
community to prevent human rights disasters has proved to be both aninsufficient and ineffective strategy, not least because of the inadequacies of25international legal mechanisms to facilitate such action.” The effectiveness andmoral justification of humanitarian intervention are based on the premise thatmilitary intervention for human protection purposes can only be justified inhumanitarian terms if the intervention does more good than harm.
A. The Limitation of the Military Means
From the recent practices of humanitarian intervention, the war is not
symmetrical. Relative to the past war, while the duration of the modern war isalways short: the Gulf War for 42 days in 1990, the Kosovo War lasted 78 daysin 1999, the Iraq War lasted 35 days in 2003, the Libya War lasted for morethan 190 days in 2011. However, the modern war has raised its high costs andhuge risks. Furthermore, humanitarian interveners can’t always reach theAn Almost Impossible Task: Humanitarian Intervention in the 21st Century

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military victory. Have we succeeded in the interventions in Somalia, Bosnia andHerzegovina, Rwanda, Kosovo and elsewhere? In the case of Somalia, the UN
Security Council passed the Resolution 794, which authorized U.S. intervention
in Somalia in December 1992. At last, the military operation failed, the secureenvironment was not yet established and there was still no effective functioning
government in Somali. However, ironically, later in May 2000, the civil war in
Somalia ended under the mediation by Djibouti, a small country in Africa,
finally the transitional government was founded at Jerusalem. Why could we
not get success? This is mainly based on two reason: first, there arecontradictions and differences between the external intervention forces; second,
there is also fierce contest between many domestic political parties in target
country. In this case, the involvement of the external power will not only
intensify the unrest of the domestic situation in target country, but also
complicate the situation. Although humanitarian military intervention in mostcases temporarily stopped the violence, the intervenors usually could notunderestimate the complexity of the political and social problems of the target
country. In the long run, the external intervention may cause more confusion
26

and humanitarian tragedy. “When internal forces seeking to oppose a state
believe that they can generate outside support by mounting campaigns ofviolence, the internal order of all states is potentially compromised.”

27

Othersfelt that it might encourage secessionist movements deliberately to provoke
governments into committing gross violations of human rights in order to28

trigger external interventions that would aid their cause. For example, Libya
crisis is such in 2011. Still others noted that there is little consistency in thepractice of intervention, owing to its inherent difficulties and costs as well as
perceived national interests—except that weak states are far more likely to be
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subjected to it than strong ones. Thus, we should admit the fact that the
military means is indispensible in international relations, but not a unique andsuitable one. For example, since the end of the Libya war in 2011, Libya has still
not gained peace and security, on the contrary, she is still struggling against thedisorder and the new separatism.
B. The Inhumanity of Humanitarian Intervention
Humanitarian protection is always the pretext of war. Consequently, just as
what Mao Zedong pointed out: “politics is war without bloodshed, while war is202

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politics with bloodshed.”

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From the viewpoint of humanitarian law, it is acontradiction in the terms of humanitarian “intervention” or “interference”, as
the term “humanitarian” should be reserved to describe action intended toalleviate the suffering of the victims. Yet, “humanitarian intervention” refers toarmed intervention, often carried out with a political agenda. International
humanitarian law recognizes the right to provide humanitarian assistance, andimpartial humanitarian aid cannot be condemned as interference or31

infringement of a state’s national sovereignty. Someone proposed five questions
to determine if a past intervention was, in fact, humanitarian: (i) was there ahumanitarian cause? (ii) was there a declared humanitarian end in view? (iii)
was there an appropriate humanitarian approach—in other words, was theaction carried out impartially, and were the interests of the interveners at any
rate not incompatible with the humanitarian purpose? (iv) were humanitarianmeans employed? (v) was there a humanitarian outcome?

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In practice,humanitarian intervention is always hard to meet the above humanitarian
standards. “But ‘military humanitarian intervention’ is a self-contradictoryterm. War consists of killing and destroying. Any war creates killers and33

victims, cripples and mourners.” The humanitarian intervention not only had
brought many civilian casualties, but there had been a lot of refugees, and also
caused the havoc to the environment. “According to information supplied by the
Yugoslav authorities, during the 78 days of the military operation over 1,300
civilians including some 400 children died, and thousands were seriously
injured. The civilian population of Yugoslavia is still at risk from cluster bombs
which failed to explode during NATO rocket attacks. There are currently
thought to be between 30,000 and 50,000 unexploded cluster bombs in Kosovo(in addition to the mines laid by the rebels fighting against the Yugoslavarmy).”

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The few cross-case comparisons that delve deeply into the issue ofeffectiveness have looked at the question of legitimacy or the balance of costs
and benefits but have not attempted to provide a set of criteria for judging theprospective effectiveness of future interventions. To establish that requires
comparing the full costs of intervention with its benefits and asking whether
35

those benefits could be achieved at a lower cost. Therefore, “it is particularly
important here that enthusiasm for rescue not swamp a prudent assessment ofwhat armed intervention can and cannot achieve..…Should we think of successAn Almost Impossible Task: Humanitarian Intervention in the 21st Century

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in a short-term way as saving these lives now, or restoring these people to theirhomes, or should the criterion of success embrace longer-term objectives such as
ensuring political stability and enduring safety for any in the area threatenedwith the same kind of persecution?”36

The conclusion that emerges from this brief overview is that forcibleintervention in humanitarian crises is most likely to be a short-term palliativethat does little to address the underlying political causes of the violence andsuffering. It is for this reason that the International Commission on Intervention
and State Sovereignty insisted that intervention was only one of threeinternational responsibilities, the other two involving long-term commitments tobuilding the political, social, economic, military and legal conditions necessary
for the promotion and protection of human rights.

37

Among the three

responsibilities (the responsibility to prevent, the responsibility to react and the
responsibility to rebuild), “the prevention is the single most important dimensionof the responsibility to protect: prevention options should always be exhausted
before intervention is contemplated, and more commitment and resources must
be devoted to it.”

38

In its 1986 ruling on a case involving military andparamilitary activities in Nicaragua, the International Court of Justice statedthat “the use of force could not be the appropriate method to monitor or ensure
39

such respect [for human rights]”. Louis Henkins also said: “Peace was theparamount value. The Charter and the organization were dedicated to realizing
other values as well self-determination, respect for human rights, economic andsocial development, justice, and a just international order. But those purposes
could not justify the use of force between states to achieve them; they would
have to be pursued by other means.”

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IV. The State Responsibility Based on Humanitarian Intervention
According the report of ICISS, “the responsibility to protect” embraces three
specific responsibilities: the responsibility to prevent, the responsibility to react,
the responsibility to rebuild. However, when interveners have violated
humanitarian law and human rights law, which responsibilities or crimes
should they undertake in international criminal law? All the time, there is a big
problem that the enforcement of international criminal law is absence ofinternational criminal code or norms contained in positive international law. In

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1947, the General Assembly of the United Nations adopted a resolution
requesting that the International Law Commission (ILC) codify international
crimes and prepare a Draft Code of Offences Against the Peace and Security of
Mankind. The 1996 Draft Code of Offences Against the Peace and Security of
Mankind has listed the five kinds of international crimes: crime of aggression,
crime of genocide, crimes against humanity, crimes against United Nations andassociated personnel and war crimes. Thus, in certain conditions, we can regard
humanitarian intervention as the crime of aggression or the war crimes or thecrimes against humanity. According to the article 3 (b) of the 1974 Resolution
Concerning the Definition of Aggression, “Bombardment by the armed forces ofa state against the territory of another state or the use of any weapons by aState against the territory or another State”, which is qualified as an act ofaggression; Yet, this legislation couldn’t keep up with the development of theinternational situation.
In 1999, the armed forces of NATO had committed war crimes during the
Kosovo War. In May 1999, Yugoslavia sued ten member states of NATO before
the International Court of Justice (ICJ) in respect of the bombing campaign andits consequences, including civilian deaths, injuries and privations, the effect on
41

navigation on the Danube, and damage to the environment. “The modalities
selected disqualify the mission as a humanitarian one. Bombing the populatedareas of Yugoslavia and using high performance ordnance and anti-personnel
weapons involve policies completely inimical to humanitarian intervention.
Moreover, bombing from a height of 15,000 feet inevitably endangers civilians,
and this operational mode is intended exclusively to prevent risks to combat
42

personnel.” The NATO’s action was clearly in conflict with humanitarian law
when it destroyed a number of civilian objects of no military value, such as nonmilitary related factories, oil refineries, power stations, water supplies or the
Serbian Television building. This clearly constitutes a breach of the Geneva
43

Conventions, which forbids the targeting of civilian objects. Therefore, despite
the use of highly accurate weapons designed, according to a statement by the
Alliance’s leadership, to ensure that the operation was a bloodless one, NATO’s
military operations were accompanied by violations of fundamental rules andprinciples of the law of armed conflicts (international humanitarian law). In
particular, during the course of its operations NATO forces violated provisionsof Part IV, Section I of Additional Protocol I, on the general protection of

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civilians against effects of hostilities. It is a pity that Yugoslavia’s application
for provisional measures and the other requests were refused in all ten cases.
It is encouraging that the International Criminal Court came into being on
1 July 2002, where Article 5 of the Rome Statute grants the Court jurisdiction
over four groups of crimes, which it refers to as the “most serious crimes ofconcern to the international community as a whole”: the crime of genocide,crimes against humanity, war crimes, and the crime of aggression. However, by
the influence of the political powers, the interveners are always the great
powers, thus, the leaders or the commanders in these countries are very difficult
to be an accused before ICC.

Conclusion
Since the Peace of Westphalia signed in 1648, the principle of theinviolability of the sovereignty of the nation-state and the principle of nonintervention in internal affairs have gradually become the two basic principles
of international relations. The principle of respect for the territorial integrity ofstates is well founded as one of the linchpins of the international system, as is
the norm prohibiting interference in the internal affairs of other states.

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However, in recent years, especially, since the end of the Cold War, the principleof national sovereignty has been challenged from the expansion of the doctrineof human rights. Many scholars identified the 1990s as a ‘decade ofhumanitarian intervention’, during this time, not only there have been theunilateral humanitarian interventions, but also the UN Security Council
authorized several military interventions on humanitarian grounds under
Chapter VII of the UN Charter. For the latter, it is noteworthy that there havebeen some new situations. In 2011, the humanitarian military intervention in
Libya, it can be said to be lawful since it was authorized by the Security Council
in Resolution 1973, but this action had been beyond the scope of theauthorization of the Security Council. More importantly, we should pay
attention to the latest development of humanitarian intervention: first, acountry’s anti-government forces supported by the western foundations, orhuman rights organizations often provoke their Governments into committing
gross violations of human rights in an internal unrest, and then take thisopportunity to increase the Government’s political and moral costs to quell the206

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unrest, on this basis, the western countries seek the chances for intervening in
the civil war in this country, regarding the support of the United Nations as amoral excuse to “protect civilians”, so that they can justifiably support thecountry’s anti-government armed and, ultimately, to achieve the overthrow of
the country through the way of aerial bombardment Government’s objectives.
It is indubitable that the UN Charter abhors the world body fromintervening in the domestic affairs of any state but since the end of the Cold
War, the UN has adopted quite a number of resolutions that apparently
broadens the definition of the threat to international peace and security
purposely to have the benefit of the right of intervention for humanitarian goal46

in responding to crises even of domestic nature. However, affected by the great
power politics and veto of UN, in a situation of humanitarian crisis, the UNSC
is always unable to take action, under this case, the unilateral intervention by astate or a group of states against another state to prevent gross and widespreadviolations of fundamental rights will often appear. Therefore, in order to containthe humanitarian intervention in the 21st century, it is necessary for us not only
to raise the threshold of the unilateral use of force, but also to reform andstrengthen the United Nations. At the same time, we are also facing somechallenges. “At the beginning of the 21st century, a global order has taken shapein which one country enjoys the unrivaled role of global hegemony……The
concept of humanitarian intervention serves exactly that purpose when it comesto the resort to the use of force by the hegemonial power.”

47

What is more,humanitarian intervention is based not on territorial boundaries, but on values.
Therefore, humanitarian intervention still remains a controversial and hotly
debated issue in the field of international relations in the future. At present, thesituation is getting more and more nervous in Syria, and will Syria be the next
“Libya”? We can expect that with the increase of the risk of globalization andthe expansion of the idea of human rights on a global scale, many developing
counties will bear the great pressure about the humanitarian intervention fromthe external forces during the process of the construction and the managementof these countries in the 21st century.

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Notes
* Associate Professor of Public International Law, School of Law, Xiangtan University, Director ofCenter for Law of War and Armed Conflict at Xiangtan University, Hunan Province, P. R China.
Email: libojunbon@126.com.
1 See Peter Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force, Het
Spinhuis, 1993, pp.10-11.
2 V.D. Verwey, “Humanitarian Intervention under International Law”, (1985) 32 Netherlands ILR,
pp.357-358.
3 Saban Kardaş, “Humanitarian Intervention: the Evolution of the Idea and Practice”, Journal ofInternational Affairs”, June - July 2001, Volume VI - Number 2, available at http://sam.gov.tr/
wp-content/uploads/2012/02/SabanKardas2.pdf, accessed 12 May, 2012.
4 Robert Kolb, “Note on Humanitarian Intervention”, International Review of the Red Cross, No.
849, 2003, p.119.
5 See Sarah Joseph, “Humanitarian Intervention in Libya”, available at http://castancentre.
wordpress.com/2011/03/18/humanitarian-intervention-in-libya/, accessed 26 March, 2011.
6 Dansk Udenrigspolitisk Institut, “Humanitarian Intervention, Legal and Political Aspects”,
Danish Institute of International Affairs, 1999, p.11.
7 See George N Barri, “Forcible Intervention and International Law: Legal Theory and Realities”,
in The South African Law Journal, 1999, p.794.
8 D. Scheffer, “Toward a Modern Doctrine of Humanitarian Intervention”, University of Toledo
Law Review, XXIII, 1991.
9 大沼保昭，人権，国家，文明―普遍主義的人権観から文際的人権観，筑摩書房，1998 年 .
10 J. Wheeler Nicholas, Saving Strangers: Humanitarian Intervention in International Society,Oxford University Press, 2003.
11 See G.A. Res. 2131, U.N. Doc. A/RES/2131 (XX) (Dec. 21, 1965): Declaration on the Inadmissibilityof Intervention in the Domestic Affairs of States and the Protection of Their Independence andSovereignty.
12 Jianming Shen, “The Non-Intervention Principle and Humanitarian Interventions underInternational Law”, in International Legal Theory, Summer, 2001, p.3.
13 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
U.S.), 1986 ICJ REP. 14, Para. 268.
14 L. F. Damrosch, D. J. Scheffer ed., Law and Force in the New International Order, Boulder,West-view Press, 1991, p.213.
15 Millennium Report of the Secretary-General, United Nations, 2000.IV. Freedom from Fear,available at http://www.un.org/millennium/sg/report/ch3.pdf, accessed 15 March, 2012. Also see
Kofi A. Annan, “The Legitimacy to Intervene”, Financial Times, Jan. 10, 2000. Kofi A. Annan,“Two Concepts of Sovereignty”, Economist, Sept, 18, 1999. Kofi A. Annan, The Question ofIntervention: Statements by the Secretary-General, Published by the Department of PublicInformation of the United Nations, 1999. Kofi A. Annan, “Human Rights and Humanitarian
Intervention in the Twenty-First Century”, in Samantha Power and Graham Allison, ed.,Realizing Human Rights, New York, St. Martin’s Press, 2000. Kofi A. Annan, “Peacekeeping,
Military Intervention and National Sovereignty in Internal Armed Conflict”, in Jonathan Moore
ed., Hard Choices: Moral Dilemma in Humanitarian Intervention, Rowman & Littlefield
Publishers, 1998.
16 United Nations, ‘A more Secure World: Our Shared Responsibility’, Report of the High-level208

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Panel on Threats, Challenges and Change, UN documents A/59/565, 4 Dec. 2004, and A/59/565/
Corr., 6 Dec. 2004, available at http://www.un.org/secureworld, accessed 09 March, 2012.
17 A/59/2005 (21 March 2005): In Larger Freedom: towards Development, Security and Human
Rights for All: Report of the Secretary-General, available at http://www.un.org/Docs/journal/asp/
ws.asp?m=A/59/2005, accessed 15 March, 2012.
18 2005 World Summit Outcome Resolution (A/RES/60/1 - English), available at http://unpan1.
un.org/intradoc/groups/public/documents/un/unpan021752.pdf, accessed 08 May, 2012.
19 2005 World Summit Outcome Resolution (A/RES/60/1 - English), available at http://unpan1.
un.org/intradoc/groups/public/documents/un/unpan021752.pdf, accessed 08 May, 2012.
20 Holzgrefe, J. L., “The Humanitarian Intervention Debate”, in eds J. L. Holzgrefe and R. O.
Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge
University Press, 2003, p.17.
21 See The Responsibility to Protect: Report of the International Commission on Intervention andState Sovereignty, Paragraph 4.16, December, 2001, The International Development ResearchCentre in Canada, available at http://www.iciss.ca/pdf/Commission-Report.pdf, accessed 08 May,
2012.
22 See Christopher Greenwood, “Humanitarian Intervention: the Case of Kosovo”, Finnish Yearbook
of International Law, Vol.X, 1999, p.157.
23 See “Responsibility to Protect”, Paragraph 4.13.
24 Quote from Jisi WANG, Zhongping Feng, Shaojun LI, “The Reflection of the Kosovo War of theWestern”, The Beijing youth daily, 10 June, 2000. See also Michael Parenti, “Where Are All the
Bodies Buried? NATO Commits Acts of Aggression”, Z magazine, June 2000, available at http://
www.thirdworldtraveler.com/International_War_Crimes/WhereBodiesBuried_NATO.htm,
accessed 08 May, 2012.
25 Penelope Simons, “From Intervention to Prevention: the Emerging Duty to Protect”, available at
http://www.worlddialogue.org/print.php?id=328, accessed 08 May, 2012.
26 Li Bojun, Principle of Non-intervention: An Analysis of International Law and International
Relations, Publiser: Xiangtan University Press, 2010, p.221.
27 See “Responsibility to Protect”, Paragraph 4.12.
28 Millennium Report of the Secretary-General, United Nations, 2000.IV. Freedom from fear,
available at http://www.un.org/millennium/sg/report/ch3.pdf, accessed 12 May, 2012.
29 Millennium Report of the Secretary-General, United Nations, 2000.IV. Freedom from fear,
available at http://www.un.org/millennium/sg/report/ch3.pdf, accessed 12 May, 2012.
30 MAO Zedong Selections, Vol.2, Beijing, the People Press, 1991, p.480.
31 Anne Ryniker, “The ICRC’s Position on ‘Humanitarian Intervention’ ”, International Review of
the Red Cross, Vol.83, No.482, 2001, p.529.
32 Ramsbotham, O. and Woodhouse, T., Humanitarian Intervention in Contemporary Conflict,
Polity Press: Cambridge, 1996, p.73.
33 Gunnar Garbo, Can Military Intervention Be Humanitarian?, available at http://home.
hiroshima-u.ac.jp/heiwa/Pub/31/Garbo.pdf, accessed 15 May 2012.
34 Sergey Alexeyevich Egorov, The Kosovo Crisis and the Law of Armed Conflicts, International
Review of the Red Cross, No.837, 2000, available at http://www.icrc.org/Web/eng/siteeng0.nsf/
html/57JQCX, accessed October 17, 2008.
35 Benjamin A. Valentino, “The True Costs of Humanitarian Intervention: the Hard Truth About a
Noble Notion”, Foreign Affairs, Volume 90, Number 6, November/ December 2011, pp.60-61.
36 C. A. J. Coady, “The Ethics of Armed Humanitarian Intervention”, available at http://www.usip.

An Almost Impossible Task: Humanitarian Intervention in the 21st Century

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org/files/resources/pwks45.pdf, accessed 15 May 2012.
37 Alex J. Bellamy and Nicholas J. Wheeler: “Humanitarian Intervention in World Politics”,
available at http://cadair.aber.ac.uk/dspace/bitstream/handle/2160/1925/Wheeler?sequence=1,
accessed 08 May, 2012.
38 See “Responsibility to Protect”, Synopsis.
39 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, Para. 268.
40 See Louis Henkin, Right V. Might: International Law and the Use of Force, Council on Foreign
Relations, 1989, p.39.
41 Case Concerning Legality of Use of Force (Yugoslavia v Belgium); (Yugoslavia v Canada);(Yugoslavia v France); (Yugoslavia v Germany); (Yugoslavia v Italy); (Yugoslavia v Netherlands);(Yugoslavia v Portugal); (Yugoslavia v United Kingdom); (Yugoslavia v Spain); (Yugoslavia v
United States of America) <http://www.icj-cij.org/icjwww/idecisions.htm>.
42 See the Oral Pleadings for All Ten Cases, in the Request for the Indication of Provisional
Measures, the Cases Concerning Legality of Use of Force (Yugoslavia v. Belgium), (Yugoslavia v.
Canada), (Yugoslavia v. France), (Yugoslavia v. Germany), (Yugoslavia v. Italy), (Yugoslavia v.
Netherlands), (Yugoslavia v. Portugal), (Yugoslavia v. Spain), (Yugoslavia v. United Kingdom),(Yugoslavia v. United States of America), CR 1999/14 et seq., International Court of Justice, May
10, 1999, available at http://www.icj-cij.org/docket/files/114/4491.pdf, accessed 08 May, 2012.
43 See Clara Portela, “Humanitarian Intervention, NATO and International Law: Can theInstitution of Humanitarian Intervention Justify Unauthorized Action?”, available at http://www.
bits.de/public/pdf/rr00-4.pdf, accessed 08 May, 2012.
44 Sergey Alexeyevich Egorov, The Kosovo Crisis and the Law of Armed Conflicts, International
Review of the Red Cross, No.837, 2000, available at http://www.icrc.org/Web/eng/siteeng0.nsf/
html/57JQCX, accessed 08 May, 2012.
45 Malcolm N. Shaw, International Law, 6th ed., Publisher Cambridge University Press, 2008, p.488.
46 O’Connell, Marry Ellen, “The United Nations, NATO, and International Law”, Human Rights
Quarterly, Vol.22, 2000, pp.68-69.
47 Hans Köchler, “Humanitarian Intervention in the Context of Modern Power Politics: Is the
Revival of the Doctrine of ‘Just War’ Compatible with the International Rule of Law?” research
paper first presented at the China Institute of Contemporary International Relations in Beijing(22 December 2000), available at http://i-p-o.org/koechler-humanitarian-intervention.pdf,
accessed 08 May, 2012.