The doctrine of humanitarian intervention in international law typically refers to the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of a particular state from widespread deprivations of internationally recognized human rights, including genocide and crimes against humanity. Because the doctrine is not expressly recognized in the Charter of the United Nations (UN) as a permissible basis for using force, many states and scholars oppose its use, at least when exercised without authorization by the UN Security Council. Nevertheless, some states and scholars favor the use of the doctrine in extreme situations on the grounds that, in any just legal system, the value of preventing the loss of life and suffering must outweigh the value of normative constraints on the use of transnational force.
Humanitarian Intervention Prior to the UN Charter
Although he did not use the term humanitarian intervention, the great Dutch jurist Hugo Grotius (1583–1645) asserted in his treatise on the law of war and peace that resort to war was permissible to assist peoples who were resisting extreme tyranny. In developing this view, Grotius drew on earlier just war doctrines associated with Saint Augustine and Saint Thomas Aquinas. Grotius's position was adopted by many scholars throughout the nineteenth century. Moreover, state practice during the period reflected a belief in the doctrine of humanitarian intervention. Thus, during the 1800s European powers repeatedly intervened in areas under the control of the Ottoman Empire because, according to the interveners, such action was necessary to protect Christian minorities from Ottoman rule.
Throughout this period, however, there was no accepted prohibition on states' resort to the use of armed force in international law, so the concept of humanitarian intervention was not an exception to a general prohibition but, rather, a basis for explaining why an intervention was just. After the outbreak of World War I in 1914, states became increasingly interested in legally prohibiting the resort to war, out of a belief that international legal constraints could help prevent or at least contain warfare. This interest led first to an effort in 1919 to discourage warfare by creating the League of Nations (which promoted the use of arbitration to resolve disputes backed by the possibility of collective action against a recalcitrant state) and then to the outright renunciation of war as an instrument of national policy in the 1928 Kellogg–Briand Pact (a treaty that, as of 2004, remains in force with over sixty parties). These efforts, however, failed to prevent the outbreak of World War II, plunging the world once again into a lengthy and deadly conflict that only ended with the deployment of a terrible new type of weaponry, nuclear arms. Moreover, the conduct of the Axis powers during World War II demonstrated the potential for grave misuse of the doctrine of humanitarian intervention: Japan invaded Manchuria in 1931 claiming a right to protect the local population from anarchy; Italy invaded Ethiopia in 1935 claiming a need to abolish slavery; and Germany invaded Czechoslovakia in 1939 claiming, in part, a need to protect the Czech peoples.
States emerged from World War II even more committed to creating legal structures that would prevent the resort to war. The four powers that met at Dumbarton Oaks, Washington, D.C., in 1944 (China, the Soviet Union, the United States, and the United Kingdom) to begin drafting what would become the UN Charter were aware of the atrocities committed by Nazi Germany against its own nationals, but the four-power focus was broadly prohibiting the use of military force, and not allowing any exceptions to that prohibition for the protection of human rights. Although states meeting at San Francisco in 1945 to complete and adopt the UN Charter ultimately included in it some provisions on the recognition of and respect for human rights, the Charter remained heavily oriented toward preventing the resort to war, without any express language permitting humanitarian intervention.
The UN Charter Paradigm
Article 2(4) of the UN Charter asserts that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Although some scholars have argued that this language allows for humanitarian intervention if the purpose of the intervention is not to alter the boundaries of a state or to topple a government, the negotiating history of the text confirms that the drafters sought a broad prohibition.
The UN Charter, however, contains two exceptions to this broad prohibition. First, Article 51 of the Charter provides that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Second, the remaining articles in Chapter VII of the Charter envisage the Security Council making decisions to address a threat to peace, including authorizing states to use armed force. The Security Council consists of fifteen member states, five of which are permanent members (China, France, Russia, the United Kingdom, and the United States) and the remaining ten are elected periodically by the General Assembly. For the Security Council to adopt any nonprocedural decision, the affirmative vote of nine members is required, including the affirmative vote or abstention of all five permanent members.
Thus, the basic UN Charter paradigm is that states are prohibited from using force against other states, but may do so when they are acting in self-defense against an armed attack or when authorized by the UN Security Council. The Security Council, in turn, is only empowered to act when there is a "threat to the peace," which was originally conceived as transnational threats. The doctrine of humanitarian intervention does not fit easily within this paradigm, since a state that uses force to protect the human rights of another state's nationals is not acting in self-defense against an armed attack and, in many instances, the deprivation of human rights may not entail a threat to transnational peace. At the same time actual situations where the doctrine of humanitarian intervention is at issue often do not fall neatly into such categories. In situations of widespread deprivations of human rights, there may be foreign nationals threatened (thus allowing an intervening state to claim a right of self-defense to protect those nationals) and there may be collateral effects that arguably threaten transnational peace (thus allowing Security Council action), such as by flows of refugees across a border or by the agitation of related ethnic or religious groups in an adjacent state. In such situations it may be difficult to ascertain whether an intervention is purely humanitarian.
Even if an intervention is purely humanitarian, the practice of the Security Council reveals general acceptance that the Security Council may declare any situation a threat to the peace, even if its transnational effects appear minimal. As for purely humanitarian intervention without Security Council authorization, a minority of states and scholars have maintained either that the meaning of Article 2(4) must be interpreted to allow humanitarian intervention in extreme situations (since it cannot be that peoples in 1945 accepted the charter to the extent that it would protect a government engaged in murdering its people) or that such intervention should be regarded as legitimate even if not technically legal.
Humanitarian Intervention after the UN Charter
During the period of the cold war (1946–1989) the prospect of nuclear confrontation between East and West helped promote strong unity on the prohibition of the transnational use of force, thus tempering any enthusiasm for the doctrine of humanitarian intervention. At the same time, the East–West divide resulted in repeated deadlocks at the UN Security Council, with any one of the five permanent member nations having the power to veto a proposed action. As such, although many states might have supported efforts by the Security Council to authorize humanitarian intervention, the Security Council itself proved incapable of serving that function, thus fueling calls by a minority of scholars for greater latitude in allowing regional organizations or states acting alone to use force to protect human rights.
Despite those sentiments no authoritative state practice developed in support of a doctrine of humanitarian intervention. In several instances a state intervened in a manner that appeared to protect human rights, but the state typically would justify its intervention on the basis of self-defense, thus evincing doubt even on the intervener's part that humanitarian concerns alone were permissible legal base for acting (e.g., Tanzania's intervention in Uganda in 1979 against Idi Amin). Moreover, the international community, through the voice of the UN General Assembly, usually would condemn such interventions as unlawful (e.g., Vietnam's intervention in Cambodia in 1978 against the Khmer Rouge).
The end of the cold war in 1989 allowed for a transformation of the Security Council as a collective security mechanism. In several instances during the 1990s the Security Council authorized a transnational use of force to address a threat to the peace that, at its heart, involved a widespread deprivation of human rights. Thus, in December 1992 the Security Council authorized a U.S.–led intervention in Somalia to end a civil conflict that threatened the lives of hundreds of thousands of Somalis (from violence or starvation). In June 1994 the Security Council authorized France's intervention in Rwanda to end a brutal civil conflict and genocide between the Tutsis and Hutus. The slowness with which the Security Council acted—some 800,000 Tutsis were killed prior to the intervention—led to sharp criticism that powerful states were not living up to their moral responsibilities in addressing such crises. In July 1994 the Security Council authorized a U.S.–led intervention in Haiti to reverse a military coup that had ousted the democratically elected president, Jean-Bertrande Aristide.
Nonetheless, the Security Council remained incapable, in certain circumstances, of reaching agreement on such intervention. During 1998 and 1999 many states feared that President Slobodan Milosevic of the Federal Republic of Yugoslavia (FRY) was about to unleash a wave of ethnic cleansing (and perhaps genocide) against ethnic Albanians living in the FRY province of Kosovo. Milosevic was widely regarded as the architect of genocide and crimes against humanity in Bosnia-Herzegovina in the early 1990s; the International Criminal Tribunal for the former Yugoslavia, located in The Hague, indicted him for such crimes in 2001. Russia and China, however, were unwilling to support a Security Council resolution expressly authorizing the use of force against the FRY to protect the Kosovar Albanians. Consequently, in March 1999 states of the North Atlantic Treaty Organization (NATO) collectively decided that the intervention was justified as a matter of international law and policy, leading to a ten-week bombing campaign against the FRY. Ultimately, Milosevic backed down and agreed to withdraw all FRY military and paramilitary personnel from Kosovo.
The Kosovo incident may support an emerging acceptance by states in the post-Cold War era of a doctrine of humanitarian intervention even without Security Council approval, since the Kosovo intervention was supported by the nineteen NATO states and many non-NATO states as well, was not condemned by the General Assembly, and was legally justified by several governments with reference to the doctrine of humanitarian intervention. At the same time many states (including Russia and China) opposed and condemned as unlawful the use of force against the FRY, whereas other states that supported the intervention (such as the United States) asserted that its legality turned on a variety of factors, including prior Security Council resolutions identifying the FRY's actions as a threat to the peace.
Criteria for Conducting Humanitarian Intervention
Various scholars have sought to delineate criteria that should govern the resort to humanitarian intervention. In the wake of the Kosovo incident one highly-respected group of experts—convened as the International Commission on Intervention and State Sovereignty (ICISS)—advanced in a 2001 report several criteria falling into four general categories.
First, the commission stated that there must be a just cause for the intervention, which can arise when there is serious and irreparable harm occurring (or likely to occur) to human beings. Specifically, the commission identified such harm as the "large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation." Such harm might also consist of "large scale 'ethnic cleansing', actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape" (ICISS, 2001, p. 32).
Second, the commission advocated four precautionary principles as a means of ensuring that the intervention is undertaken properly. The primary purpose of the intervention must be to halt human suffering. All nonmilitary options for resolution of the crisis must first be explored. The scale, duration, and intensity of the intervention should be dictated by what is necessary to achieve the humanitarian objective. Finally, there must be a reasonable chance of success in halting the suffering, such that the consequences of action are not likely worse than those of inaction (ICISS, 2001, pp. 35–37).
Third, the commission urged that before embarking on such intervention, states must formally seek Security Council authorization. If Security Council authorization is not forthcoming, states should seek authorization from the General Assembly, regional, or subregional organizations. In the absence of such authority the commission did not declare humanitarian intervention to be unlawful, but noted that "in conscience-shocking situations crying out for action, . . . it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations" (ICISS, 2001, p. 55).
Finally, the commission proposed certain criteria to guide the military operation itself. The intervening military must have a clear and unambiguous mandate and the resources to support that mandate. When the intervention is conducted by several states, there must be a unified command, with clear channels of communication and chain of command. The intervening military must accept that there are limitations on the force to be used, since the objective is to protect the population of the state, not to completely defeat the state (at the same time the use of force cannot be limited to the protection of the intervening forces themselves). The intervening military must abide by precise rules of engagement that match its humanitarian objective, adhere to international humanitarian law, and coordinate their actions as much as possible with humanitarian organizations.
Criteria of this type provide useful guidance in the event that a state is considering a humanitarian intervention, but until such criteria are incorporated in a binding document and accepted by a wide variety of states, the legality of humanitarian intervention (at least in the absence of Security Council authorization) and the manner in which it is to be conducted will remain controversial.
Abiew, F. K. (1999). The Evolution of the Doctrine and Practice of Humanitarian Intervention. The Hague: Kluwer.
Garrett, S. A. (1999). Doing Good and Doing Well: An Examination of Humanitarian Intervention. Westport, Conn.: Praeger.
Holzgrefe, J. L., and R. O. Keohane, eds. (2003). Humanitarian Intervention: Ethical, Legal and Political Dilemmas. Cambridge, U.K.: Cambridge University Press.
International Commission on Intervention and State Sovereignty (ICISS) (2001). The Responsibility to Protect. Ottawa: International Development Research Centre.
Murphy, S. D. (1996). Humanitarian Intervention: The United Nations in an Evolving World Order. Philadelphia: University of Pennsylvania Press.
Tesón, F. R. (1997). Humanitarian Intervention: An Inquiry into Law and Morality, 2nd edition. Irvington-on-Hudson, N.Y.: Transnational.
Wheeler, N. J. (2000). Saving Strangers: Humanitarian Intervention in International Society. Oxford, U.K.: Oxford University Press.
Sean D. Murphy