Number 166, July 1999
**Humanitarian Intervention:*The Case for Legitimacy
by Charles B. Shotwell and Kimberley Thachuk
Conclusions - There are strategic and moral advantages to    expressly articulating a right of humanitarian intervention (jus ad interventionem) under    international law to stop or prevent genocide or violent mass ethnic expulsions. Aside    from acting as a deterrent to future threats to international peace and security, such a    right to intervene may secure greater global support by seizing the moral high-ground.  
- This right to intervene must be limited in    purpose, scope, and means in order to prevent its abuse by hegemons and aggressors and to    quell concerns that this is a carte blanche for the use of force. International law should    strive for comprehensible standards in the area of humanitarian intervention and provide    for predictability in rules of behavior and, thus, enhance stability. An unlimited right    of intervention or war is inimical to international peace and security. 
- Where feasible, the use of force should be applied    in concert with pacific means of dispute settlement (Art, 33, UN Charter) and economic    sanctions (Chapter VII) to halt or deter genocide (as defined by the 1948 Genocide    Convention).  
- The use of force may be applied when the UN    Security Council is unable or unwilling to act to prevent or halt genocide and there is    broad collective support for action to intervene in the otherwise sovereign affairs of the    state affected. This collective support may be evidenced by a decision of the UN General    Assembly or other major international representative bodies. 
- The use of force must observe the customary    principles of proportionality, discrimination/ humanity, and necessity by avoiding    unnecessary harm to noncombatants and directing force against the actual wrongdoers. 
- The intervention should end as soon as practical    and sovereignty be restored to the target state, but only after reasonable assurances that    the acts of genocide will not be resumed and after reserving the right to reintervene if    need be.  
**Traditional Notions of Sovereignty: Non-intervention**
British Prime Minister Tony Blair, in his April 22speech in Chicago, laid out the justification for the Kosovo mission, emphasizing the needfor "new rules for international cooperation," the importance of a "worldruled by law," and the necessity for reform of the UN as "the centralpillar" of international cooperation and stability. By contrast, the U.S.administration has based its action primarily on the principle of collective self-defense,as embodied in Article V of the North Atlantic Charter and Article 51 of the UnitedNations Charter. Nevertheless, it is becoming apparent that the reliance upon collectiveself-defense for future actions to stop or prevent genocide will likely be problematic,either because genocide could conceivably be carried out within a nation without crediblythreatening other nations, or because other nations would be reluctant to intervenewithout an express international legal warrant. 

From the perspective of many observers, the wantonexpulsions and killings by Yugoslav forces in the Kosovo province have given rise to a"humanitarian imperative" to intervene militarily, to the detriment oftraditional notions of state sovereignty. From another viewpoint, intervention may bejustified not by moralistic impulses, but rather by significant U.S. and allianceinterests in securing peace and stability in Europe. From either perspective, it is clearthat the Kosovo mission differs qualitatively from previous humanitarian missions. Whilethe principle of the sovereign equality of states has been the underlying legal basis forthe international system since the Treaties of Westphalia in 1648, recent events have ledto what amounts to a serious rethinking of the strict adherence to non-intervention in thedomestic affairs of states under certain circumstances. A new norm is emerging that viewslegitimacy of the sovereign as derived from the people; sovereignty, therefore, isforfeited by the most egregious violations of the fundamental rights of people, such asgenocide. The Westphalian order is challenged by the decline of states as principalplayers in international life, by the rise of non-state actors, by the expansion ofinternational business relationships, and by the increase of transnational crime,refugees, etc. The imperative that a sovereign’s rights took precedence over humanrights is now past its zenith. International law has been slow to catch up to thisreality, but it is doing so through evolving customary practices embodied in theprincipled interventions in Somalia, Northern Iraq, and Kosovo. This trend againsttraditional notions of sovereignty is disturbing to states such as Russia, China, andIndia, which fear that a change to the rules could eventually lead to interventions intheir internal affairs. 

Despite ample treaties and conventions purporting toguarantee human rights and prevent genocide, there exists no explicit authority forhumanitarian intervention. Notions of emerging international morality have provided thestrongest justification for military intervention. The United Nations Charter (Article 42,Chapter VII) provides that the Security Council may authorize intervention of armed forcesto "maintain or restore international peace and security." Though it addresses"threats to the peace" and "acts of aggression" rather thanhumanitarian disasters per se, Chapter VII powers were used by the UN Security Council toauthorize interventions in Somalia, Haiti, Rwanda, and Bosnia. Operation Provide Comfortin northern Iraq had no express UN Security Council authorization, though the UN HighCommissioner for Refugees participated in arrangements for a security zone for the Kurds. 
**The Use of Force: A Limited Right**
By one view, every sovereign state retains a rightto conduct war, whenever and however it pleases and for whatever reason, limited only bythe effectual use of countervailing power by adversaries. This view raises many problemsin the quest for international peace and security under existing norms and internationallaw, where there is little evidence of an unlimited "right to war" per se.Rather, international law has long supported the right of "self-defense." Thiscan be seen in St. Augustine’s Just War (Jus ad Bellum) doctrine. The Kellogg-BriandPact of 1928 explicitly renounced the use of war as a sovereign right of nations. Not amere quixotic exercise, this law was used as the basis for the charges of waging a war ofaggression (crimes against peace) during the N�rnberg International Military Tribunalsessions, resulting in death sentences for certain members of the German High Commandfollowing World War II. 

The UN Charter further reiterates the renunciationof war as a sovereign right in Article 2 (4): "All Members shall refrain in theirinternational relations from the threat or use of force against the territorial integrityor political independence of any state, or in any other manner inconsistent with thePurposes of the United Nations." Essentially, the UN Charter has replaced the termwar with three options: aggression (Art. 2(4)), self-defense (Art. 51), and enforcementaction (Chapter VII). Some would add peacekeeping (so-called "Chapter 6 1/2"operations) to the list, though this terminology appears nowhere in the Charter.

The Historical Abuse of Intervention

Although scholars as far back as Grotius have arguedfor a right to use force for humanitarian intervention, there is a lack of consistentconsensus (opinio juris communis) under international law. In the checkered history ofhumanitarian interventions, the use of force has frequently been colored by a clash ofvalues and cultures, as seen in several examples of western and Russian interventionsagainst the Turks: in Greece in 1827, in Syria in 1860; in Bosnia, Herzegovina, andBulgaria in 1877, and in Bulgaria, Greece, and Serbia in 1913. Hegemons and aggressorshave found "humanitarian" intervention to be a useful tool. An example of anintervention which led to growing disrepute for the doctrine was Hitler’s use offorce to "defend" ethnic Germans in the Sudetenland as a pretext for hisinvasion of Czechoslovakia. Humanitarian justifications were also used during the 1971Indian intervention in East Pakistan, the 1978 Vietnamese intervention against the KhmerRouge in Cambodia, the 1979 Tanzanian intervention against Idi Amin in Uganda, and the1979 French intervention against the Bokassa regime in the Central African Republic. Untilrecently, Western states focused on diplomatic and economic instruments to deal withhumanitarian intervention. In the 1980s, humanitarian arguments were used to justify theimposition of economic sanctions on South Africa’s apartheid regime. In the 1990s,military intervention returned to vogue, beginning with the creation of a protective zonefor Kurds in northern Iraq, followed by operations in Somalia and Haiti. Yet, today thereare no sources that explicitly and authoritatively grant a right to humanitarianintervention. The 1948 Convention on the Prevention and Punishment of the Crime ofGenocide, which entered into force in 1951, provides for prosecution of violators but doesnot authorize armed intervention to prevent or stop genocide. Nor do the UniversalDeclaration of Human Rights, or the International Covenant on Civil and Political Rights,authorize humanitarian interventions.

Under customary international law, sovereign statesare protected by the rule of noninterference or nonintervention: states must refrain frominterfering in the domestic affairs of other states. Treaty obligations, such as theUnited Nations Charter (ratified by the U.S. Senate as a treaty and implemented via the UNParticipation Act of 1945) also provide some guidance. Specifically, Article 2(4) of theCharter restrains members "from the threat or use of force against the territorialintegrity or political independence of any state…" But sovereignty is not anabsolute right, as Article 2(7) makes clear: "Nothing contained in the presentCharter shall authorize the United Nations to intervene in matters which are essentiallywithin the domestic jurisdiction of any state or shall require the Members to submit suchmatters to settlement under the present Charter; *but the principle shall not prejudicethe application of enforcement measures under Chapter VII."* [Author emphasis] Yetit is one thing to recognize that, in case of human rights violations, sovereignty is notan absolute right (for example, it may be breached by non-military intervention, such asdiplomatic and medical personnel) and quite another to breach sovereignty by thenonconsensual intervention of military forces. Chapter VII states that action of the"air, sea, or land forces as may be necessary to maintain or restore internationalpeace and security" can be authorized by the UN Security Council under Art. 42.Articles 55 and 56 imply an affirmative obligation of member states to take joint andseparate action to promote "universal respect for, and observance of, human rightsand fundamental freedoms for all." 
**The Case of Kosovo**
The United Nations cannot be relied upon in everycase to authorize humanitarian intervention. The UN Security Council found the existenceof a threat to peace and enjoined Serbia to reduce troops in Kosovo but did notspecifically authorize the use of force. UNSC Resolutions 1199 and 1203 affirmed that thedeterioration of the situation in Kosovo constituted a threat to the peace and security ofthe region. But unlike resolutions regarding Kuwait, Somalia, Haiti, and Bosnia, theseresolutions did not authorize the use of armed forces. UNSC 1199 did call for a ceasefirein accordance with Chapter VII. UNSC 1203 demanded cooperation with the Organization onSecurity and Cooperation in Europe verification mission. 

A UN mandate promotes international legitimacy,strengthens the evolving customary practice of humanitarian intervention, and provides aneasy way around the sovereignty issue. The UN mandate largely eliminated sovereignty as anissue for military interventions in Somalia and Haiti. Historically, NATO has not needed aUN mandate when acting in self-defense under Article V of the North Atlantic Charter.Article 51 of the UN Charter recognizes that: "Nothing in the present Charter shallimpair the inherent right of individual and collective self-defense …"

NATO’s Charter (Article V) incorporated theprinciple of self-defense ("armed attack against one or more" members in Europeor North America) via Article 51 of the UN Charter. NATO is thus legitimized as acollective self-defense organization, but it is not a collective security organization,such as the UN, nor an authorized regional arrangement to enforce international peace andsecurity under Chapter VIII (Art. 53) of the UN Charter. Some legal scholars do notcategorize the Kosovo action as a self-defense action, because there has been no armedattack within the meaning of Article V. Certain disaster relief and humanitarian actions(non-Article V missions) have been taken on by NATO armed forces in the past decade, butthe use of force is a different question altogether, because, for obvious reasons, it issubject to more stringent rules. This underscores the need for a new understanding andlegitimation for NATO missions and roles. Although the U.S. constitutional treatment ofwar powers is beyond the scope of this article, it is worth noting that internationallegitimation, particularly through the UN, has been a significant part of domestic U.S.legitimation. For example, the congressional resolution authorizing use of force duringthe Gulf War (H.J. RES. 77) began with the words: "To authorize the use of U.S. armedforces pursuant to UN Security Council Resolution 678…"

Hence, to argue that the Kosovo action is legitimateor not under international law is to miss the crucial problem altogether. The law evolvesfrom international notions of moral conscience that rise to the level of obligatorybehavior. Such law is clearly derived from the notion of international community in whichenforcement sometimes is necessary to ensure minimal standards of human dignity anddecency, as recognized by civilized nations. As Jack Donnelly argues, humanitarianintervention rests on the notion that the principle of self-determination is being negatedwhen a genocidal regime does not have the consent of the people, so the legal principle ofnonintervention does not apply. One concern is that legislating intervention onhumanitarian principles will only send statesmen into a flurry of activity to measure howmany atrocities amount to the requisite legal standard. While such laws will serve theirpurpose for the odd pariah, one may argue that they will do little to oblige states tofollow what is truly needed: an international standard of morality. Rather, it will be theconsistent, logical, and earnest pursuit of moral principles from which customaryinternational law will flow. It is this latter contingency that is demonstrated by thecurrent mission in Kosovo. International law, as does domestic law, must flow from theconcept of the common good. Enforcing principles of right and wrong will not instill asense of morality; rather, such morality must derive from a sense of obligation to higherstandards.
**Where Do We Go from Here?**
The absence of an existing right to humanitarianintervention does not deprive us of action or a remedy; but it compels us to make the casefor such a right. Because customary international law evolves, new law can be created. Ascertain principles become accepted by sufficient nations as international law *(opiniojuris communis)*, and there is general practice *(usus)* recognizing the principleas international law, the principles gradually become customary international law. Aproposed strategy for promoting this evolution would entail proffering the principle foradoption by the international community as international law (much as the Anti-PersonnelLandmines Ban NGOs attempted). This may be in the form of an international convention or aUN General Assembly resolution or both. Either forum is not dispositive on the matter butcan act as evidence of, and lay the groundwork for, international recognition of a rightto humanitarian intervention when the UN Security Council is unable or unwilling to act.This would be akin to the UNGA’s Uniting for Peace Resolution of 1950, under which ittook upon itself the authorization of the use of force "if the Security Council,because of lack of unanimity of the permanent members, fails to exercise its primaryresponsibility for the maintenance of international peace and security…" Throughthis resolution, many peacekeeping missions were authorized during subsequent years by theGeneral Assembly rather than the Security Council. When the Soviet Union and Francechallenged the legality of the Congo intervention in 1960, the International Court ofJustice (advisory opinion in the *Certain Expenses Case, 1962*) upheld the UNGAaction. 

The right of intervention must be restricted to themost egregious violations of human rights, such as genocide and violent mass ethnicexpulsions. The mode and means of intervention should be likewise restricted so as toavoid even a resemblance to aggression. Both the right to resort to force *(ad bellum)*and the application of force *(in belli)* are crucial, not only to classical Just Wardoctrine, but to winning the "hearts and minds" campaign in the community ofnations. Law is the policy tool of choice for standards to distinguish humanitarianintervention from aggression.

In the end, legal and moral legitimation carrysignificant political weight in the conduct of world affairs. On its most practical level,international legitimation, through articulated principles of international law, can serveto distinguish between aggression and humanitarian intervention, and provide standards ofbehavior for states such as Russia, India, and China, thereby enhancing stability. 

Prime Minister Blair’s assertion of a need fornew rules of international cooperation should be given serious thought.

Lt Col Charles B. Shotwell, USAF, is a Senior Military Fellow atINSS and an attorney (LL.M. in International Law from American University). He can becontacted at (202) 685-2220 or via e-mail at [email protected]. Dr. Kimberley Thachuk is aVisiting Fellow at INSS. Opinions and conclusions expressed or implied in this paper aresolely those of the authors and do not necessarily represent the views of the NationalDefense University, Department of Defense, or any other government agency.

The Strategic Forum provides summaries of work by members and guestsof the Institute for National Strategic Studies and the National Defense Universityfaculty. These include reports of original research, synopses of seminars andconferences,the results of unclassified war games, and digests of remarks by distinguishedspeakers.

Editor in Chief - Hans Binnendijk

Editor - Jonathan W. PierceNOTE

**| Return   to Top | Return to Strategic Forum Index | Return to Research and Publications |
*Return to NDU Homepage**INSS Homepage******