There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:
- The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
- The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
- The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
- The supposedly inevitable abuse of the doctrine.
The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see here, here, here, here and here).
That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion.
Balancing Sovereignty and Human Rights?
The first myth is that forcible humanitarian action is the invention of powerful, imperialist states, aiming to force their interest on others. There are in fact very few international legal precepts enjoying the unbroken and impressive legal pedigree that adheres to the principle of forcible humanitarian action since the very foundation of international law during the renaissance. While the relationship of loyalty between monarch and citizens made it difficult for a range of classical authorities to endorse a right of populations to resist their own, personal sovereign, there was near unanimity of view that other sovereigns, or states, did have a right or duty to act on behalf of manifestly mistreated populations.
Contrary to prejudice, this view was not overturned by the advent of the doctrine of sovereignty. Jean Bodin, taken by many as the originator of the doctrine of absolute sovereignty, himself very clearly admitted a right to forcible humanitarian action. His views were nearly unanimously adopted by the principal authorities in international law during the absolutist age, including Zouche, Gentili, Grotius and Vattel. When nationalism and enlightenment social contract theory fused in the nineteenth century to consolidate a view of mono-dimensional sovereignty, the doctrine of forcible humanitarian action remained dominant. This view prevailed up to the League of Nations period, as is evidenced in Stowell’s vast treatment of practice and doctrine of that time.
Subsequent hostility to the doctrine was in line with the demands of the Cold War era. During this period, much reference was made to self-determination and the rights or people freely to choose their economic, political and social system. However, in practice, governance was not questioned. Instead of legitimacy of the exercise of state authority, the doctrine of effectiveness prevailed. Self-determination in its internal sense was translated into a doctrine of non-intervention which protected and preserved whatever authority might have managed to capture power, rather than the rights and interests of the people. As the Cold War was a violent contest about social systems and the nature of governance, it is no wonder that the issue of the manifest abuse of governmental power had to be effectively excluded from international law.
However, with the end of the Cold War, the principle that the authority to govern is based on, and must be limited by, the interest of the people has gained in prominence again. The question of forcible humanitarian action represents the sharp end of that development.
Already in 1999, in the wake of NATO action in relation to Kosovo, then UN Secretary-General Kofi Annan, referring to the ‘developing international norm in favour of intervention to protect civilians from wholesale slaughter’ noted that ‘state sovereignty, in its most basis sense, is being redefined … . States are now widely understood to be instruments at the service of their peoples, and not vice versa’ [Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist, 16 September 1999].
It has of course long been recognized that the principle of state sovereignty is subject to human rights and elementary considerations of humanity. The principle of non-intervention expressed in Article 2(7) of the Charter and customary international law does not preclude international interest or even action in relation to manifest abuses against a population perpetrated by its own government.
This universal interest in violations of this kind is recognized through the doctrine of serious violations of peremptory norms in international law. Violations of these most fundamental and universal rules of humanity expressly affect the ‘international community as a whole’ and permit an international response. States are under obligations not to recognize the situation that obtains from such egregious violations, not to assist the state concerned in maintaining that situation in place, and to cooperate in seeking to overturn it.
The UN Security Council has recognized, as early as 1992 in relation to the grave humanitarian crisis in Somalia, that circumstances of extreme humanitarian emergency constitute not only an affront against universal moral and legal principles, but that they can amount to a ‘threat to international peace and security’ [SC Resolution 794]. This technical legal term from the UN Charter describes the most severe form of challenge to the international legal order—so severe that it can be addressed through forcible collective measures.
Some argue that sovereignty, or at least reliance on the doctrine of non-intervention, are suspended where a government manifestly mistreats its own population. Others note that human rights trump sovereignty where the two clash. However, it may be somewhat antiquated to assume that sovereignty and the rights and interests of citizens stand in opposition. Instead, the essence of sovereignty lies in the state function of securing the rights and interests of the true sovereign—the population. The powers of the state and government are dedicated towards, derived from, and conditioned by, this requirement.
The shift in the interpretation of sovereignty away from a right dedicated to the preservation of governments, however abusive, to a doctrine that seeks to empower and protect populations is of course evident in the inauguration of the doctrine of responsibility to protect (R2P) and its endorsement by the international community as a whole. That doctrine holds that governments are required, in the first instance, to ensure the survival and, to the extent possible, the wellbeing of the population. Where they are manifestly unwilling or unable to do this, other agents of the international system, in particular the Security Council, can step in and discharge this obligation.
A Theory of Representation
This proposition accords with long-standing trends in the development of international law. These are instances where the effective authority of a government does not translate itself into an exclusive right to represent the state or its population to the full:
- It is axiomatic that colonial rule, however effective, does not translate itself into full powers to represent the colonial population internationally, in view of the universal rejection of the practice of colonialism. The UN established the UN Council for Namibia to substitute for the effective but unlawful South African authorities;
- Armed occupation too does not result in power to represent, given the imposed nature of governance, as was demonstrated when the government of Kuwait continued to represent the state after it had been entirely submerged in unlawful Iraqi occupation;
- Persistent internal armed conflict involving long-term loss of control over significant parts of territory or population will result in partial loss of the power of the government to represent the state in relation to the use of force issue. This is evidenced by the routine practice of the UN Security Council of imposing arms embargos on both the government and the armed opposition (Syria being the exception, due to the application of a double veto) until fresh elections have been held;
- A government, however effective, brought into power by a counter-constitutional coup or maintained in power by failing to implement an election result, is not taken to represent the state, as has been demonstrated by a series of some 20 cases of action by the Security Council following the case of Haiti (1994) and by the African Union. Manifestly, a government that overturns the social contract it is meant to administer, or which has just been directly disowned by the population in elections, cannot claim to represent that population;
- Arguably, a government loses full authority to represent in the wake of very widespread public dissociation from it, answered by unconstitutional or internationally unlawful means, as occurred when the National Transitional Council of Libya obtained widespread recognition from States, the African Union, the EU and even the Libyan seat in the UN by 114 votes to 17, with 14 abstentions [GA/11137, 16 September 2011]; and
- International action can be taken directly on behalf of threatened populations in the wake of governmental collapse, as was the case in Somalia from 1991 onwards.
The same applies in cases where a government actively destroys or forcibly displaces a population or significant population segment, or denies to it what is necessary for its survival. The government destroying a population simply cannot at the same time rely on the legal expression of the collective rights of that population in the shape of the doctrine of sovereignty and non-intervention to exclude action necessary for the survival of that population. Instead, as R2P suggests, action can be taken directly on behalf of the true sovereign, the population. The use of force in such instances is thus justified by virtue of the actual or implied consent of the actual sovereign, the population. It is manifestly reasonable to imply that, at a minimum, a population would wish for action preserving it from destruction—forcible humanitarian action does not justify action going beyond that immediate aim. It would on the other hand be absurd to require the consent for international action to preserve the population from the very government intent on destroying it.
Interpreting Article 2 (4) of the UN Charter
According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.
Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.
Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.
Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. It is implausible that the drafters of the UN Charter might have contemplated such a result, the world having just emerged from the experience of the holocaust.
Even if this had been the case, important changes have occurred since the end of World War II. It is broadly accepted that the UN Charter is a living instrument and there are many instances of its evolving interpretation. Article 2(4) itself opens up this prospect by suggesting that only uses of force ‘inconsistent with the purposes of the Charter’ are precluded. The increased emphasis on human rights and the changing appreciation of the nature of sovereignty alluded to above make it impossible to argue that forcible humanitarian action could be considered inconsistent with the purposes of the Charter. This is confirmed in international practice.
Practice and the Development of Custom
The Security Council has enacted forcible humanitarian action in some 30 cases. Clearly, this practice has confirmed the authority of the Council in this regard. But this practice is also relevant in a broader sense. It represents the universal and collective will of the organized international community to act on behalf of threatened populations in cases of overwhelming humanitarian emergencies. The Council has been enacting the changed understanding of sovereignty and of representation noted above also in relation to humanitarian emergencies. There is no reason to question that this practice, although administered through the Council, confirms and strengthens the underlying doctrine of forcible humanitarian action on which is it based, much as the Council has done when acting in relation to colonialism, armed occupation and the other types of cases it has addressed.
Some states have insisted that the Council should declare that each resolution individually should not be taken as a precedent. Such an attitude rings hollow if repeated again and again. The consistency of the practice and of the universal determination to address overwhelming humanitarian emergencies, forcibly if necessary, can no longer be denied.
This fact is reinforced by positive international standards in favour of forcible humanitarian action. The Constitutive Charter of the African Union expressly mandates the organization to undertake forcible humanitarian operations. This is reflected in a whole series of implementing instruments.
Moreover, sub-regional organizations have undertaken forcible humanitarian operations, either beyond existing Security Council authority (Sierra Leone) or before such authority was obtained (Liberia). There has been no international condemnation of these actions.
Similarly, the humanitarian operations of states and coalitions of states have passed with international approval, or unremarked, as occurred in relation to the two instances of forcible humanitarian action concerning Iraq of 1991 and 1992 respectively.
It is true that the armed action by NATO in relation to Kosovo gave rise to international debate, and was rejected by a number of states, including larger groupings of states such as the Neutral and Non-aligned Movement or the Islamic Conference. However, the value of such group-pronouncements may be doubted. Several of the states voting for these documents actually opposed condemnation of the action in the Security Council, where a Russian initiative to that end was defeated by a spectacular vote of 3 in favour and 12 against, and others still have in fact supported forcible humanitarian actions, such as the ECOWAS operations initially conducted without a Security Council mandate.
Rather than as a mark of division, the Kosovo case may be seen as an initial point impelling states to express themselves formally in favour of forcible humanitarian action as a matter of law. Indeed, it is a myth that only the UK and Belgium have endorsed forcible humanitarian action as a matter of law. The list of positive endorsements also includes Denmark, Hungary, Latvia, Netherlands, Spain, Saudi Arabia and Sweden, with Australia having found the doctrine to be emerging in law and Canada having taken the initiative which led to the adoption of R2P. A very significant number of additional states professed understanding for, rather than uttering condemnation of, the action.
When seen against the actions of the Security Council, the range of support for forcible humanitarian action in overwhelming humanitarian circumstances appears broad. This is even exceeded by international support for R2P, which was universally endorsed at the UN World Summit of 2005. Although focused on Security Council action as a matter of process, the underlying sense that the authority of the government can be overridden in extreme cases is confirmed.
If, as is maintained here, the legal basis for this phenomenon is representation, rather than an exception to the prohibition of the use of force, no new rule of custom would need to be found to exist. Similarly, no such new rule or exception would need to be consecrated if forcible humanitarian action in customary law had remained unaffected by the adoption of the UN Charter. Even if neither of these two positions were accepted, at least it is difficult to deny that there is an emerging rule, based on this practice and opinio juris.
The Jus Cogens Question
Some doubt that support for forcible humanitarian action is sufficient to constitute a new rule of custom. Even if there were sufficient support, they add, it would lack the demanding characteristics of uniformity and special opinio juris required of a change to the prohibition of the use of force, which is undoubtedly a jus cogens rule.
This argument is indeed decisive, although it works the other way. It is indeed unquestioned that the prohibition of the use of force is a jus cogens rule. A jus cogens rule is one from which no derogation is permitted. A legal instrument containing a provision offending against jus cogens is null and void in its entirety.
No-one has argued that the Constitutive Charter of the African Union is a legal nullity, given its endorsement for the doctrine of forcible humanitarian action.
Moreover, states are required to resist serious violations of jus cogens by failing to recognize the result of the violation, abstaining from providing assistance in maintaining it, and acting together in overturning that result. The UN has not opposed, but formally endorsed, regional action in relation to Liberia and Sierra Leone. While not endorsing coalition action in relation to Iraq, it has nevertheless taken over the humanitarian operation commenced by the intervening states through the deployment of UN guards, rather than seeking to overturn the outcome of the operation. Similarly, the UN literally administered the result of NATO action concerning Kosovo over close to a decade, in accordance with Security Council Resolution 1244 (1999). The end-result, Kosovo independence, occurred with active UN involvement, in consequence of a UN-sponsored status process.
All of these facts conclusively demonstrate that forcible humanitarian action cannot be prohibited by the jus cogens rule of the prohibition of the use of force reflected in Article 2 (4) of the Charter.
This overall finding is now also increasingly reflected in scholarship. While this is of course not a scientific test, during the Cold War years, opposition to forcible humanitarian action stood at a ratio of about two to one, with a further group arguing that action would be at least legitimate, if not lawful. Now, the figures are reversed. Opposition stands at about one third, with about a third supporting the doctrine, and a further third arguing that it is emerging, or that forcible humanitarian action is at least legitimate.
Process Issues and the Risk of Abuse
There is of course a clear preference for action through the Security Council. Some opponents to unilateral forcible humanitarian action would at least admit the doctrine if the UN General Assembly endorsed action in the event of the Council veto. This admission too strengthens the case in support of forcible humanitarian action as a matter of law.
The General Assembly has no authority to authorize the use of force that is not already permitted in international law. In endorsing humanitarian action in individual cases, it rather serves to authenticate the facts which trigger the application of the authority to use force, confirming the underlying legal basis in general international law.
This process function is not confined to the UN General Assembly. It can be exercised by other, best placed, international agencies, including the Security Council making a determination of that kind without granting a mandate, potentially regional organizations, or possibly even particulary well-placed and well-respected UN expert bodies or Rapporteurs of independent standing.
This requirement to obtain external validation of claims of fact, coupled with clear legal criteria for action, adds a useful safeguard to the application of the doctrine. Of course, all legal justifications for the use of force can be abused. Virtually all unlawful uses of force have been defended as self-defence by the perpetrators. But this does not mean that self-defence cannot exist as a legal justification. Instead, the existing legal tests for forcible humanitarian action, which cannot be reviewed here for reasons of space, have proven robust. They have, for instance, helped identify the abusive invocation of that doctrine in relation to Georgia, while helping to defeat the wrongful condemnation of operations undertaken for genuine humanitarian purposes.
The problem with the doctrine of forcible humanitarian action is thus not its frequent abuse. Rather, the problem is the fact that governments, acting in the Security Council or outside of it, have been reluctant to devote lives and treasure towards its application where genuinely overwhelming humanitarian circumstances so demand.
Mr Jake Rylatt kindly offered corrections and comment.