Humanitarian Intervention: The Case for Legitimacy
Shotwell, Charles B., Thachuk, Kimberley, Strategic Forum
* There are strategic and moral advantages to expressly articulating a right of humanitarian intervention (jus ad interventionem) under international law to stop or prevent genocide or violent mass ethnic expulsions. Aside from acting as a deterrent to future threats to international peace and security, such a right to intervene may secure greater global support by seizing the moral high-ground.
* This right to intervene must be limited in purpose, scope, and means in order to prevent its abuse by hegemons and aggressors and to quell concerns that this is a carte blanche for the use of force. International law should strive for comprehensible standards in the area of humanitarian intervention and provide for predictability in rules of behavior and, thus, enhance stability. An unlimited right of intervention or war is inimical to international peace and security.
* Where feasible, the use of force should be applied in concert with pacific means of dispute settlement (Art, 33, UN Charter) and economic sanctions (Chapter VII) to halt or deter genocide (as defined by the 1948 Genocide Convention).
* The use of force may be applied when the UN Security Council is unable or unwilling to act to prevent or halt genocide and there is broad collective support for action to intervene in the otherwise sovereign affairs of the state affected. This collective support may be evidenced by a decision of the UN General Assembly or other major international representative bodies.
* The use of force must observe the customary principles of proportionality, discrimination/ humanity, and necessity by avoiding unnecessary harm to noncombatants and directing force against the actual wrongdoers.
* The intervention should end as soon as practical and sovereignty be restored to the target state, but only after reasonable assurances that the acts of genocide will not be resumed and after reserving the right to reintervene if need be.
Traditional Notions of Sovereignty: Non-intervention
British Prime Minister Tony Blair, in his April 22 speech in Chicago, laid out the justification for the Kosovo mission, emphasizing the need for "new rules for international cooperation," the importance of a "world ruled by law," and the necessity for reform of the UN as "the central pillar" of international cooperation and stability. By contrast, the U.S. administration has based its action primarily on the principle of collective self-defense, as embodied in Article V of the North Atlantic Charter and Article 51 of the United Nations Charter. Nevertheless, it is becoming apparent that the reliance upon collective self-defense for future actions to stop or prevent genocide will likely be problematic, either because genocide could conceivably be carried out within a nation without credibly threatening other nations, or because other nations would be reluctant to intervene without an express international legal warrant.
From the perspective of many observers, the wanton expulsions and killings by Yugoslav forces in the Kosovo province have given rise to a "humanitarian imperative" to intervene militarily, to the detriment of traditional notions of state sovereignty. From another viewpoint, intervention may be justified not by moralistic impulses, but rather by significant U.S. and alliance interests in securing peace and stability in Europe. From either perspective, it is clear that the Kosovo mission differs qualitatively from previous humanitarian missions. While the principle of the sovereign equality of states has been the underlying legal basis for the international system since the Treaties of Westphalia in 1648, recent events have led to what amounts to a serious rethinking of the strict adherence to non-intervention in the domestic affairs of states under certain circumstances. A new norm is emerging that views legitimacy of the sovereign as derived from the people; sovereignty, therefore, is forfeited by the most egregious violations of the fundamental rights of people, such as genocide. …