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Humanitarian intervention in international law : a study on the specific issue of the legality of unauthorized interventions

English Abstract

INTRODUCTION 1 — OPENING REMARKS After World War II there was hope that the horrors of the Holocaust, with the Nazi Germany's crusade against Jews and the killing of millions of other people, would bring such violence to an end forever. Instead, in the second part of the 20th century collective or group violence has become commonplace. Pakistan, Cambodia, Uganda, East Timor, Somalia, Iraq, Liberia, Rwanda, Sierra Leona and Kosovo are only some examples where such violence has been perpetrated. Genocide, mass killing, abduction or disappearance of large numbers of individuals and widespread torture are only some of the forms in which such violence has turned out. Past decade, however, witnessed a dramatic increase in the engagement of the international community involving itself in the domestic affairs of foreign states whenever there are what is consider to be egregious violations of human rights. Most states do now agree that there is a common obligation to protect human rights which implies at least the duty of being alert. Defined as a forcible action by a state, a group of states or international organizations to prevent or end gross violations of human rights on behalf of the nationals of the target state, through the use or the threat of use of armed force without the consent of the target government, humanitarian intervention, both under the auspices of the United Nations (UN) or as unilateral action by one or more states, has been one of the most controversial topics in international law, political science and moral philosophy. Although the idea of using force for stopping human rights violations seems attractive from a moral point of view (and has been present for centuries in states practice) its application is considered irregular, depending on international norms regulating the use of force. Consequently, the place given to humanitarian intervention in international law has changed over the times in accordance with the changing of international legal order and the consequent shifts in the norms regarding the legality of the use of force within the international community. As such humanitarian intervention poses many dilemmas in our times since it collides with the traditional and well-established international legal principles of sovereignty, non-intervention and prohibition on the use of force, the building blocks of the modern international system, duly embedded in the UN Charter. However, in spite of the apparent paradox, the establishment of the UN also gave rise to some new principles of humanitarianism, as a result of the development regarding the promotion of human rights on international level, which have begun to affect those founding principles, allowing a growing community of scholars to assert that the principles of sovereignty and non-intervention are no longer absolute. That means that an improvement in the debate over humanitarian intervention must take a more practical and balanced approach to the somewhat incompatible ideas of state sovereignty and human rights. In a preliminary approach, it looks reasonable to assert that when crucial standards of humanity are at stake, there should be some kind of principle or norm offering a solution. After all, there are occasions where the protection of human rights can only be achieved through the use of force by the outsiders. And something must be wrong with a legal system that allows the killing of thousands or even millions of people, as long as the killing happens in the boundaries of a state. De legeferenda it is not difficult to find moral or ethical arguments to justify, in some cases, the use of force to protect human rights. Common sense tells us that there must be a way to prevent or to put an end to situations where gross violations of human rights happen. The problem, however, is that de lege lata rules regarding the issue are hard to ascertain. As it has been said, in today's unstable world, we face a painful dilemma of being damned if we do something and damned if we don't do anything! 1 In fact, while the respect of sovereignty all the time means sometimes to be complicit with human rights violations, the unilaterally use of force violates international law and undermine world order . So, the bottom-line question to be addressed is: faced with gross violations Of human rights or genocide on the one hand and the Security Council inaction on the other, what should be the solution? As we shall see, the topic is rather controversial as the use of force in these situations is considered to be in collision with one of the most important principles of international law, namely the principle of sovereignty, meaning that humanitarian intervention requires a very strongly justification and a clear legal basis. The dilemma regarding the humanitarian interventions without Security Council authorization is therefore inevitable since there is no precise solution to reconcile the tension between the rule of international law that the use of force in international relations is prohibited and the political and moral desire and aspiration of many states to act in face of atrocities regarding the fundamental human rights within another state. The vital question is how to balance the wish to uphold and strengthen the existing international legal order against the refusal to accept gross and massive human rights violations without international reaction. And for this question there is not a single answer. Though the debate continues and there are still no established international legal guidelines that apply specifically to such interventions, unauthorized humanitarian intervention occurs on an ad hoc basis and without clear legal boundaries. As so, the legal status of unauthorized humanitarian intervention remains unclear. On the one side, there are some strong moral and general arguments related to the creation of a humane international legal order which speak in favor of the legitimacy of humanitarian intervention even without Security Council authorization in cases where the most serious crimes against individuals happen and the Security Council is blocked. On the other side, it is accepted that such interventions might blur the hard-earned and now generally recognized prohibition on the use of force between states, and put the delicate collective security system at risk and, as a result, undermine the basic statement of the international legal order in its present stage of development. The challenge is, therefore, to find a solution that while leaving an option for humanitarian intervention in extreme cases of human suffering, where the reasons for action seem morally imperative and politically sound and the Security Council is unable to act avoid putting in danger the existing international legal order, including the central role of the Security Council.

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Lourenco, Filipa Delgado


Faculty of Law




Human rights

International police

War relief

Humanitarian intervention

Intervention (International law)

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