Humanitarian intervention has been described by J. L. Holzgrefe in his book ‘Humanitarian Intervention: Ethical, Legal and Political Dilemmas’ as the use of force by states to protect the fundamental human rights of individuals other than its own citizens, the action is undertaken without the permission of the state within which the intervention takes place.
Thus, it is an action taken by a state, a coalition of states, or an international organisation, when it is deemed that a state is incapable of providing even basic security and necessities to its citizens and consequently, results in violation of the rights of its population. The purpose of this intervention is to protect the citizens from suffering and preserve their basic human rights.
B. Humanitarian intervention and state sovereignty
Jean Cohen in his book ‘Globalisation and Sovereignty’ described sovereignty as legal order which holds autonomy with regard to the outside and internal supremacy. It provides that states have the power of political self-determination i.e. no outside power can impose the political rule.
During the past four centuries, this concept has served as a tool to maintain international order. It laid down standard norms to maintain international justice and protect the developing nations from powerful and developed states. From a realist perspective, sovereignty protects human rights by reducing the frequency of wars, securing people’s right to self-determination. It has by the way of legal barriers forced states to engage in diplomacy and employ non-violent methods before opting for war.
Article 2(4) of the UN Charter lays down that no state can use force or threaten to use force against the territorial integrity and political independence of another state. The accepted exceptions to this principle are Chapter VII and Article 51 of the UN Charter, which lays down Collective Security measures and allows states to use force in case of self defence respectively.
During the cold war era, intervention by other countries was frowned upon and was deemed to be illegal as it challenged the principles of sovereignty and was seen as a violation of the prohibitions laid down in Article 2(4).
Article 2(7) of the chapter was invoked by the states which were against the humanitarian intervention by the UN in their internal affairs, the article provides that the present provisions of the charter do not give the authority to the UN to intervene in matters which are essentially within the domestic jurisdiction of any state. However, by the 1970s, it was advocated that grave human rights violation by a state was not something which was 'essentially within the domestic jurisdiction’ as it went against the obligations of the states under international law. Christopher Greenwood in ‘Is There a Right of Humanitarian Intervention?’ stated that it is unreasonable to assert that international law should turn a blind eye and prohibit military intervention when a government slaughters its own citizens or when a nation falls into a state of anarchy.
C. Legal analysis of Humanitarian intervention
The customary law of humanitarian intervention is not governed by set rules and regulations and therefore, lacks guidance as to how it should be conducted, which has consequently led to a situation of legal black holes. Scholars like Ian Brownlie and Dino Kritsiotis in support of humanitarian intervention argue that if it was to be legalised, then the potential abuse of pretextual interventions would increase and a state would only intervene in the internal matters of other states if the former was to gain something from the same. However, it is to be kept in mind that the term legal is not only talking about the act becoming legitimate but it is also talking about it being legally regulated, which will lay down a minimum standard of acceptable behaviour and procedure.
Carla Portella argued that there is a need for a legal framework that accommodates and regulates humanitarian interventions. It is not difficult in International Law, as in International Law violations of law may lead to the formation of a new law in its place so that intentionally an international custom could be created.
In order for any humanitarian intervention to be considered legitimate, it must be sanctioned by the United Nation and the state by which it is undertaken provides a coherent justification for the same. Some interventions like that of NATO in Kosovo in 1991 through unauthorised by the UN has been declared legitimate.
Noam Chomsky asserted that there’s a history of humanitarian intervention and virtually every use of military force is described as humanitarian intervention. He pointed out that military intervention is usually coupled with some ulterior motive and states seldom tries looking for non-violent alternatives, and on several occasions, the intervention itself is unilateral and unauthorised such as in the 1990s, the US and its allies undertook three different humanitarian interventions which were not authorised by the Security Council.