The Use of Force and International Law

INTRODUCTION

The term ‘humanitarian intervention’ might be taken to mean simply one state criticising the human rights record of another with the aim of influencing the latter state's treatment of individuals within its territory. Such a practice is common today and when it occurs does not normally attract stinging rebukes, and neither is it described as a violation of international law. Of course, whether it is politically or economically wise for a state to engage in commenting on the affairs occurring within another state is a separate issue. The term ‘humanitarian intervention’ is instead employed in the common parlance of international lawyers as referring to the use of armed force in the absence of the authorisation of the United nations (UN) Security Council for humanitarian purposes – that is, the use of force to intervene in another state to prevent or end a humanitarian crisis.

Although there are examples of what might be described as humanitarian interventions in the pre-UN Charter era, in 1945 the UN Charter prohibited all uses of force except those undertaken with the authorisation of the UN Security Council or in self-defence. In assessing the current status of the doctrine the focus of this chapter will be on post-1945 practice. In this respect a focus is placed in section 1 upon assessing if the doctrine can be reconciled with the UN Charter. Section 2 proceeds to address the issue of whether humanitarian intervention might constitute a ‘circumstance precluding wrongfulness’, while section 3 looks at Cold War and post-Cold War practice respectively in assessing the position of the doctrine during the UN era. Given that the forcible entry by the North Atlantic Treaty Organization (NATO) in the Kosovo crisis in 1999 proved something of a landmark in terms of events that have shaped the path of the modern doctrine of humanitarian intervention, the status of the doctrine in the immediate aftermath of this intervention will be given particular attention. A conception of humanitarian intervention that has come to dominate contemporary debates on the issue is that of the ‘Responsibility to Protect’ (R2P).