Humanitarian interventions - Should it be legal under contemporary international law?

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Humanitarian interventions is a well debated subject within international law. When it comes to the legality of humanitarian interventions the international community is divided and a lot of material regarding such interventions can be found. Unfortunately, the discussion rarely turns to the more important question: Should humanitarian interventions be legal under contemporary international law? That is the question that this thesis intend to answer. This will be done by studying two cases: The genocide in Rwanda 1994 and the NATO intervention in Kosovo 1999. Humanitarian interventions can be defined in different ways depending on which factors one choose to apply. I have chosen to identify humanitarian interventions as interventions done with the use of force against another sovereign state. There are of course other ways to intervene but intervening with the use of force stands in direct conflict with a jus cogens norm, the prohibition on the use of force found in article 2(4) UNCh. To be classified as a humanitarian intervention, the intervention has to be taken for humanitarian reasons. To count as humanitarian reasons there has to be a potential violation or a violation of fundamental human rights within the target state. The prohibition of torture, slavery and genocide is such fundamental human rights. Those human rights that if they are lost keeps an individual from enjoying all other rights is also fundamental human rights. For example the right to life would be a fundamental human right, on the other hand political and social human rights would not count as fundamental human rights in this regard. My definition of humanitarian interventions is as follows: The use of force by a state (or group of states) against another state with the motive of preventing or ending widespread violations of fundamental human rights by the target state towards its nationals, without the consent of the target state or authorization by the UNSC. The defined humanitarian interventions are illegal under contemporary international law because they are in breach of the prohibition on the use of force in article 2(4) UNCh. Neither the exception found in article 42 UNCh (The authorization of the UNSC) nor article 51 UNCh (The use of force in self-defense) is applicable to the defined humanitarian interventions. Such interventions does not fall under the concept of R2P either, since interventions under the concept of R2P has to have the pre-existing authorization by the UNSC. In Rwanda 1994 the military and extremist civilians initiated a genocide of the minority population of Tutsis. In total around 800 000 individuals were killed in a brutal ethnic cleansing directed towards unarmed innocent civilians. At the same time the international community didn’t think that any intervention was needed and the UNSC was unable and unwilling to act with promptitude to prevent or stop the genocide. Kosovo in 1999, repression and massacres of Kosovar Albanians were being committed by Serbian nationals and the Serbian nationalistic leader Milosevic. NATO is determined that intervention is needed. Yet, such a decision can’t be taken in the UNSC due to the right to veto that the five permanent members of the council enjoys. Therefore, NATO decided to intervene with force, justifying the intervention on humanitarian grounds, without the pre-existing authorization by the UNSC or the target state, making the intervention illegal under contemporary international law. Through the study of this two cases several risks and benefits with humanitarian interventions can be identified. There is a risk of abuse of the concept of humanitarian interventions in the form of interventions publically justified with humanitarian purposes but privately done for other reasons. This is shown through NATOs speedy intervention in Kosovo, a region were the political interest was huge, as well as through the non-intervention by the international community in Rwanda, despite the fact that the genocide in Rwanda was of much greater extent than the crisis in Kosovo. With humanitarian interventions there is also a risk of making the situation worse than it already is. Both through the fact that there is a risk of greater aggression from both sides of the conflict and through the fact that armed conflicts creates extreme migration flows that has a negative impact on neighboring countries. Humanitarian interventions are, as well, criticized by many for being inhumane in nature. Humanitarian interventions can save lives, but it also take lives. Inevitably, intervention with force kills not only soldiers but also innocent civilians caught in the crossfire. Humanitarian interventions, as defined here, also causes an infringement on state sovereignty. It makes the sovereignty of states conditional because it depends on it being in line with what other states think is morally right. To give the legitimate authority to states to decide when humanitarian interventions (and the use of force) should be initiated leads to an unequal sovereignty. There is, however, benefits with humanitarian interventions as well. Among other things it can circumvent the problem with the right to veto in the UNSC and enable states to act on their own when the UNSC can’t or won’t act. Apart from this the most important benefit is, of course, that a humanitarian intervention can save innocent lives in a large scale. If we make humanitarian interventions legal the risk with such interventions exceeds the benefits. Within the international community the use of force always has to be the last resort and be used for the absolute right reasons. To preserve equal sovereignty between states and the general legitimate authority of the UNSC, the UNSC has to be the only legitimate authority. My conclusion is therefore that one should not change contemporary international law to make humanitarian interventions legal.

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