In my Last Post, I spoke about Humanitarian Intervention and explained that though law does not permit it, practice shows that it does exist.

Having established the fact that Humanitarian Intervention does indeed exist, the issue now is not whether a state should intervene or not, rather, what the state that intervenes should conform to. Over the last 40 years, a number of governments have justified unilateral military action with reference to the “customary law” of military humanitarian intervention in one form or another, and without exception, the international community has refused to recognize these actions as legitimate. But this “customary law” is not “written” or “codified” and offers no guidance to the manner in which the intervention itself should be conducted.

The conspicuous lack of legally “binding” material governing humanitarian intervention has led to a situation of marked chaos. Article 2(4) does not suffuse any intervention on humanitarian grounds with legality. In the Nicaragua Case, the ICJ explicitly ruled that the use of force could not be the appropriate method to monitor or ensure respect for human rights. The ICJ added that that there is no general right of intervention in international law, and therefore, intervention violated international law. Scholarly writings and perspectives are divided on the legality of intervention on humanitarian grounds, and the law as it stands notes that any military intervention on humanitarian or related grounds, violates international law.

Even in practice, many states are both wary, and uncomfortable with the way Humanitarian Intervention can go, in practice. In theory, the ideals are lofty, the intentions are creditable and the proposed methods are fantastic. But when they translate into practice, the issues at stake are plenty – the collateral damage is heavy, the basic essence of a state’s existence is assaulted by the damage to its sovereign and territorial integrity, and there is always a sense of “how much is enough”, that stands out as a niggling feeling when it comes to morals.

So why not “outlaw” humanitarian intervention altogether, then? For the simple reason that one of the special characteristics of International Law lies in that violations of law may lead to the formation of a new law, so that an international custom could be intentionally created. The ground reality outweighs the dictates of the legal regime, and therefore, it is time that humanitarian law be legally regulated, instead of outlawed.

Self-defence, the only legally recognized exception to the prohibition on the use of force is governed by a five-pronged procedural mandate that functions as a precondition. A similar legal framework propping humanitarian intervention would be in order, to bridle the implementation under the rubric of the law.

A proper course of action within the framework of the law should essentially provide for a mandate that requires adherence to six principles.

The legal instrument must ideally mandate:

  1. Just cause.
  2. Prior and mandatory authorization from a multilateral body
  3. Bona fide intention.
  4. Probability of Success.
  5. It must not involve the use of force, except as a last resort.
  6. If force is used, it must be necessary and proportionate to the degree of graveness in the situation.

The six grounds that should in effect be the key drivers behind intervention on humanitarian grounds will be discussed in the next post.

 

Views: 78

Comment

You need to be a member of Global Ethics Network to add comments!

Join Global Ethics Network

Carnegie Council

Climate Change and the Power to Act: An Ethical Approach for Practical Progress

Robyn Eckersley, Ronny Jumeau, Darrel Moellendorf, and Suma Peesapati each discuss how we can advance climate justice globally and locally in the years ahead. These clips summarize the participants' comments made as part of a roundtable hosted by the Carnegie Council's journal, Ethics & International Affairs, at the International Studies Association's Annual Convention, which took place in April 2018.

Global Ethics Forum Preview: The Return of Marco Polo's World, with Robert D. Kaplan

On the Global Ethics Forum series finale, best-selling author Robert Kaplan discusses China's global ambitions in an increasingly connected world. In this excerpt Kaplan discusses some of the underreported aspects of China's Belt and Road Initiative. Thanks for watching!

The Zero Tolerance Migration Policy: Two Moral Objections

"The ends do not always justify the means, especially when children are involved." It's important to lay out all the ways Trump's policy of separating migrant children from their parents is morally wrong. Here are two of them.

SUBSCRIBE TODAY

E&IA Journal

GEO-GOVERNANCE MATTERS

© 2018   Created by Carnegie Council.   Powered by

Badges  |  Report an Issue  |  Terms of Service