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: 121

Comment

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

Join Global Ethics Network

Carnegie Council

Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency, with Larry Diamond

Larry Diamond's core argument is stark: the defense and advancement of democratic ideals relies on U.S. global leadership. If the U.S. does not reclaim its traditional place as the keystone of democracy, today's authoritarian trend could become a tsunami that could provide an opening for Vladimir Putin, Xi Jinping, and their admirers to turn the 21st century into a dark time of surging authoritarianism.

Global Ethics Weekly: Foreign Policy & the 2020 Democratic Candidates, with Nikolas Gvosdev

Will Joe Biden's "restorationist" foreign policy resonate with voters? What would a "progressive" approach to international relations look like for Elizabeth Warren or Bernie Sanders? What role will foreign policy play in the 2020 Election? Senior Fellow Nikolas Gvosdev looks at these questions and more as he and host Alex Woodson discuss a crowded 2020 Democratic primary field.

The Crack-Up: A Hundred Years of Student Protests in China, with Jeffrey Wasserstrom

In the latest "Crack-Up" podcast, China expert Jeffrey Wasserstrom discusses the rich history of Chinese student protests. From the May Fourth movement in 1919 to Tiananmen Square in 1989 to today's mass demonstrations in Hong Kong, what are the threads that tie these moments together? Don't miss this fascinating talk, which also touches on Woodrow Wilson, the Russian Revolution, and a young Mao Zedong.

SUBSCRIBE TODAY

VIDEOS

SUPPORT US

GEO-GOVERNANCE MATTERS

© 2019   Created by Carnegie Council.   Powered by

Badges  |  Report an Issue  |  Terms of Service


The views and opinions expressed in the media, comments, or publications on this website are those of the speakers or authors and do not necessarily reflect or represent the views and opinions held by Carnegie Council.