Humanitarian Intervention: Legitimising the Illegal?

This year (2005) the United Nations (UN) will discuss the Secretary General’s High‐level Panel Report A More Secure World: Our Shared Responsibility, published in December 2004, which includes a suggested doctrine for humanitarian intervention. This article will address the following questions that this report raises: Where does this doctrine come from? Does it fit with current international law? Is there likely to be global consensus? Will non‐UN authorized interventions be acceptable? If they are, on what basis and by which rules?

First, this paper will appraise the model for humanitarian intervention proposed in the High‐level Panel Report. It will demonstrate that this model has been developed from traditional just war theory and consider if the application of a just war theory, which has its origins in Western Christian and then secular attitudes to sovereignty and war, could be universally acceptable. ¹ The study will review the current state of international law and consider how views towards sovereignty and the interpretation of the UN Charter have been used in the past as justification for humanitarian interventions. It will review alternative current perspectives from differing cultures and religions to determine that there has been a convergence of attitudes towards human rights and humanitarian intervention, albeit with differing rates of progress and with certain reservations. This analysis will suggest that the world is not yet ready for such an approach to sovereignty and intervention. However, despite the lack of an international consensus on the law relating to humanitarian intervention, it will go on to argue that nations, or coalitions, should be prepared to act to prevent massive abuses of human rights, if only in exceptional circumstances.

Finally, this article will review a possible paradigm that will assist with decision‐making and suggest that even should humanitarian intervention be determined to be illegal, it might often be morally legitimate. Indeed, providing a moral justification that is acceptable to a sceptical world may be the only way to offer true and lasting security for both individuals and states in an insecure world.

Humanitarian intervention is defined here as ‘the threat or use of force across State borders by a State (or group of States) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the State within whose territory force is applied’. ²

The UN Secretary General established a High‐level Panel on Threats, Challenges and Change to consider how collective security may meet the challenges of the twenty‐first century. This body considered a broad view of security but looked specifically at the circumstances for the employment of military force. In December 2004 the Panel published their report, which formed the basis of the Secretary General’s own report published in March 2005 and the agenda for a summit in September 2005. One intention of this summit is to develop ‘guidelines for authorizing the use of force [which] should be embodied in declaratory resolutions of the Security Council and General Assembly’. ³

The Panel ‘endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council, authorizing military intervention as a last resort, in the event of genocide and other large‐scale killing, ethnic cleansing or serious violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent’. ⁴ The Panel considered that, in deciding whether to authorize or endorse the use of military force, at least the following five basic criteria of legitimacy should be considered.

First, that the seriousness of threat to state or human security is such to justify prima facie the use of military force. In the case of an internal threat this would include genocide, other large‐scale killing, ethnic cleansing or serious violations of international humanitarian law.

Second, that it is clear that the primary purpose of the military action is to halt or avert the threat in question, whatever other motives or purposes may be involved.

Third, that military action should be a last resort, it having been explored and concluded that every non‐military action would not have succeeded.

Fourth, that the scale, duration and intensity of the proposed military action are the minimum necessary and proportionate means to meet the threat.

Finally, that there is a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction. ⁵

It is important to note the use of the word legitimacy, as legitimacy does not imply legality. Legitimacy is a moral rather than a legal constraint and, as this study will outline, a strict code with universal applicability would require both legality and legitimacy. However, in exceptional cases, this author will contend that it may be preferable to act illegally but legitimately. In determining the roots of this proposed doctrine it is interesting to note the five conditions and to compare these to Western Just War theory.

Modern ‘Just War’ theory comprises two essential elements jus ad bellum, just reasons to fight a war, and jus in bello, just ways to fight it. ⁶ First espoused by the Roman writer Cicero, the principles were developed through Christian just war theory and were secularized by, among others, Grotius. The accepted jus ad bellum conditions in ‘Just War’ theory are: just cause, right intention, last resort, proportionate response, chance of success and that it is declared by a legitimate authority. It can be seen that the first five conditions match exactly those proposed to form a new doctrine for humanitarian intervention. The last ‘legitimate authority’ is not explicitly listed as a condition but it could be assumed to be the Security Council since the statement ‘exercisable by the Security Council’ appears in the paragraph preceding the conditions. However, this may not have been the intention. The preamble to Part 3 of the Report, includes the following:

We identify a set of guidelines – five criteria of legitimacy – which we believe that the Security Council (and anyone else involved in these decisions) should always address in considering whether to authorize or apply military force. ⁷

It is important to consider the circumstances in which other actors, the ‘anyone else involved in these decisions’, may be involved in these decisions and the attitudes of the world to actors other than the Security Council deciding on a right to intervene in the affairs of another sovereign nation. These issues strike at the very heart of the notion of sovereignty and must be addressed. It is also unlikely that there would be a universal acceptance of a norm that had been developed from a purely Western perspective of how values such as Just War theory should be applied to humanitarian intervention.

In December 2001 the International Commission on Intervention and State Sovereignty (ICISS) published a report entitled The Responsibility to Protect. This report commented on the emerging concept of human security and considered that the Westphalian model of sovereignty did not include the unlimited power of a state to do as it wished to its own people. The Commission had not encountered such a claim at any stage during their worldwide consultations. It was generally acknowledged that sovereignty implied a dual responsibility. This dual responsibility is, externally, to respect the sovereignty of other states and, internally, to respect the dignity and basic human rights of all the people within the state. The Commission considered that in international human rights covenants, in UN practice, and in state practice itself, sovereignty is now understood to encompass this dual responsibility. Indeed the Commission went further and declared that ‘Sovereignty as responsibility has become the minimum content of good international citizenship.’ ⁸ This approach is not new; Emmerich von Vattel’s Law of Nations published in 1758 stated that:

If a prince, by violating the fundamental laws, gives his subjects a lawful case for resisting him; if, by his insupportable tyranny, he brings on a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for its aid. ⁹

This demonstrates that the principle of sovereign responsibility, that a bond exists between government and governed, and the possibility of external intervention to assist an oppressed people have a long‐standing provenance. The High‐level Panel Report adopts the Responsibility model of sovereignty claiming that ‘[i]n signing the Charter of the United Nations, States not only benefit from the privileges of sovereignty but also accept its responsibilities. Whatever perceptions may have prevailed when the Westphalian system first gave rise to the notion of State sovereignty, today it clearly carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community.’ ¹⁰

The concepts of sovereignty and intervention have a basis in international law and any new principle should first be considered from a legal perspective, particularly since it emerges that the Security Council may not be willing or able to use its Chapter VII authority to justify an intervention. Robert Keohane defines international law as that which ‘prescribes behavioural roles, constrains activity and shapes expectation’. ¹¹ The legal basis of the debate concerns the dichotomy caused by the international community enlarging the scope of Article 39 of the UN Charter, to give the Security Council the power to qualify, as a threat to peace, a humanitarian emergency. However, Articles 2(4) and 51 of the Charter, which prohibit the use of force and authorize it only in self‐defence, still remain unchanged. ¹² Article 2(4) of the UN Charter states that:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any other State, or in any other manner inconsistent with the Purposes of the United Nations. ¹³

Article 2(4) is an agreed cornerstone of customary international law regarding the use of force. To establish a new international law it is necessary to prove that it has the status of jus cogens, which is a norm that is binding on all states regardless of whether it is accepted or recognized from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. ¹⁴ That is not to say that it is always obeyed, as like civil law, rules are broken, it matters however, that states recognize that it has been broken and censure accordingly.

Some scholars have argued that a jus cogens right to intervene for humanitarian reasons had pre‐existed the UN Charter and Article 2(4) and that it remains extant. However this argument fails in law. Prior to the UN Charter, the sovereign right of states to engage in war to uphold political and economic rights had met with few constraints, the League of Nations had failed to maintain peace in the 1930s and this failure had led directly to the establishment of the UN and its Charter. The acceptance of the Charter established a norm that would supersede any pre‐existing norm of the same character. Consider, as a parallel, the legal basis for international law and treaties as laid down in the Vienna Conventions. Article 64 of the Vienna Convention on the Law of the Treaties (which uses the English translation of jus cogens, peremptory norm) states that ‘If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’ ¹⁵ Thus even had such a right pre‐existed Article 2(4), on acceptance of the Charter into the status of jus cogens, the pre‐existing norm had terminated.

A different, and novel, approach to overcome the prohibitions included in Article 2(4) was Belgium’s defence of the action by the North Atlantic Treaty Organization (NATO) in Kosovo when called before the International Court of Justice:

There was an obligation to intervene to prevent the humanitarian catastrophe which was occurring and which had been established by the Security Council resolutions, in order to protect those essential human rights, which had also achieved the status of jus cogens. NATO had never questioned the political independence or the territorial integrity of Yugoslavia; this was not an intervention directed against the territorial independence or political independence of Yugoslavia. It was intended to save a population in danger and so it was compatible with Article 2(4) of the Charter, which only prohibited those interventions directed against territorial integrity or political independence. ¹⁶

Thus, by reiterating the article’s expression of sovereignty as territorial integrity or political independence, Belgium claimed not to be in contravention of the article during NATO’s action. In order for this argument to prevail it would be necessary to demonstrate more widely that sovereignty had moved on from the Westphalian model and further that nations had agreed that human rights had achieved the status of jus cogens.

The movement of international society regarding the issue of sovereignty in law can be best demonstrated by looking at cases involving sovereign immunity of heads of state. Considering Lord Millet’s ruling on the Pinochet case in the House of Lords demonstrates that heads of state no longer enjoy universal immunity from higher law. ¹⁷ The ICISS considers in its report that an ‘important legal development occurred with the British House of Lords decision in 1998–99 in the General Pinochet extradition case, which went a long way to void the sovereign immunity of government leaders for crimes against humanity committed while they were in office’. ¹⁸ The UN Millennium Report went further, ‘national sovereignty must not be used as a shield for those who wantonly violate the rights and lives of their fellow human beings’. ¹⁹ But the Pinochet case was the application of national law to an international situation.

Considering now how current international legal practice views state immunity it is significant to consider Article 27 of the Rome Statute for the International Criminal Court, which covers the irrelevance of official capacity:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Looking more closely at this recent internationally‐agreed treaty also provides an insight into the position of international law vice human rights and intervention. ²⁰ The preamble sets out the following in support of human rights: ‘Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’ and recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. ²¹ However, it then goes on to reaffirm Article 2(4), including the use of the threat or use of force against the territorial integrity or political independence clause and ends with the following on intervention:

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State. ²²

It appears that there is little current international jurisprudence to support a legal basis for humanitarian intervention as the principle of sovereignty continues to have universal precedence over human rights. Any argument to support human rights supremacy over sovereignty relies initially on human rights norms having developed to such an extent as to achieve the status of jus cogens. However, it cannot be concluded that even if human rights had achieved the status of jus cogens that these rights override the other jus cogens condition that prohibits the use of force.

To override Article 2(4) in support of human rights it would be necessary to prove that not only had the international community accepted human rights into the status of jus cogens but further, that it had accepted the right to use force in their defence. ²³ This point is contested, the widespread acceptance by a majority of states required for such a jus cogens argument in favour of humanitarian intervention in the case of gross human rights abuses or genocide would be seen by many as weakening traditional prohibitions on intervention and external involvement in a state’s affairs, this in turn may be used as a pretext for a violation of sovereignty. ²⁴ It is the fear of abuse of any humanitarian intervention norms by the unscrupulous that prevents the universal acceptance of such a norm.

It has therefore not been established that the human rights element of humanitarian intervention is actually encapsulated in international law. Despite treaties such as the Genocide Convention and the Convention Against Torture there is little option available outside a UN Security Council Resolution to legally coerce an oppressor into compliance; it has already been demonstrated that such a resolution may not be agreed. Recent events in Darfur show the UN may be unwilling to acknowledge a human rights situation in which the Genocide Convention demands action. Despite the US claiming that events in Darfur amounted to genocide, the UN has been unwilling to agree. ²⁵ Instead it chose to say that Sudan ‘has not pursued a policy of genocide’ although ‘in some instances individuals, including Government officials, may commit acts with genocidal intent’. ²⁶

One noted example of a human rights case in international law was the Belgian prosecution in 2001 of Rwandan nuns charged with complicity in the Rwandan genocide and which led to the claim that this was ‘an indication that the universal jurisdiction [of the Geneva Conventions and Additional Protocols as well as the Convention Against Torture] …is starting to be taken very seriously’. ²⁷ Seriously yes, but only against individuals and not states.

It was accepted by the British government, in a review of the doctrine of humanitarian intervention and the practice of states until 1985, that a right of humanitarian intervention did not exist in customary international law as the two constitutive elements of the international custom (diuturnitas ²⁸ and opinio juris ²⁹ ) were lacking. ³⁰ This British position was repeated, during discussions regarding Kosovo, by Baroness Symons in the House of Lords on 16 November 1998, and reaffirmed on 6 May 1999, when she conceded that:

There is no general doctrine of humanitarian necessity in international law. Cases have nevertheless arisen (as in Northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the Security Council but without the Council’s express authorization when that was the only means to avert an immediate and overwhelming humanitarian catastrophe. Such cases would in the nature of things be exceptional and would depend on an objective assessment of the factual circumstances at the time of the relevant decisions of the Security Council bearing on the situation in question. ³¹

The German government also cited the exceptional nature of Kosovo. Bruno Simma, Professor of International and European Community Law in Munich, stated ‘only a thin red line separates NATO’s action in Kosovo from international legality’, but argued that it should remain exceptional. ³² Even Belgium’s International Court of Justice defence, which attempted to argue a legal basis for the Kosovo action, while recommending that it was necessary to set out the doctrine of humanitarian intervention, relied on arguments based on a particular reading of Article 2(4) and a statement that Belgium believed the action to be allowed because the rejection by the Security Council of the Russian draft resolution condemning the NATO action confirmed that the action was legal. ³³ Arguing that the rejection of one permanent security council member’s resolution condemning the actions of three others, all of whom had the veto, hardly constitutes a solid basis in law.

Thus the legal world remains divided as to the legality of humanitarian intervention. Although it may be morally accepted that the law should provide an answer to Kofi Annan’s point that ‘if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srbrenica – to gross and systematic violations of human rights that effect every precept of our community?’ ³⁴ In practice it is almost impossible to find international consensus on what such a law should allow. Even the view of sovereignty as responsibility appears to have no legal basis. Chesterman contends in Just War or Just Peace that while, at face value, the legality of humanitarian intervention should be simple to establish, in practice there is no opinio juris to support this claim.

In considering whether any customary international law argument to justify a doctrine of humanitarian intervention exists it is concluded that none of the arguments advanced demonstrate merit in either principle or in the practice of states. Further, the argument that a State loses its right to the protection provided by sovereignty should it fail to protect its subjects is unpersuasive and in practice illegitimate regimes have merely been replaced by ‘friendly’ or ‘compliant’ regimes. ³⁵

Despite the ICISS and recent UN reports being compiled by individuals representing a wide cross‐section of international communities, it does not necessarily follow that all nations accept the responsibility model of sovereignty, or even the proposed doctrine of humanitarian intervention. Mohammed Ayoob sees differences emerging among the international community on views of sovereignty and the international system. ‘While the North is primarily interested in justice within States and order among them, the South is basically committed to order within States and justice among them.’ ³⁶ To demonstrate the accuracy of this statement, it is necessary to consider the views of the wider international community. This study will now analyze the Muslim community and Russian, Asian and African values in order to determine if the doctrine of humanitarian intervention is capable of having universal application.

The issue of humanitarian intervention assumes quite a different dimension when considered from the perspective of Islamic theories of international behaviour, where the nation‐state enjoys an ambiguous status in contemporary Islamic legal thought, at best, and virtually no standing in Islamic ethical thought. ³⁷ That the nation‐state is less important may be explained when one considers the nomadic background of many Arab nations and the fact that most Muslim nations in Asia and Africa exist inside partitions that have been determined by external influences, principally following colonization by Western powers. For Muslim scholars there is a strong tradition of the umma or collective Muslim community referred to in the Qur’an. The concept of oneness among the Muslim people irrespective of statehood is demonstrated by the following verse about oppression:

And why should you not fight in the cause of Allah and of those who, being weak are ill‐treated (and oppressed)? Men, women and children whose cry is: ‘Our Lord! Rescue us from this land whose people are oppressors; and raise for us from You one who will protect; and raise for us from You one who will help.’(Qur’an 4:75) ³⁸

It is interesting that this traditional view of the umma remains applicable in modern Islamic thought, as can be seen from the statement of Ayatollah Mutahhari that ‘No one should have any doubts that the most sacred form of jihad and war is that which is fought in defence of humanity and of human rights.’ ³⁹ Its universal applicability is demonstrated by another statement by Ayatollah Mutahhari when he notes that:

a struggle cannot be limited to Muslims. During the period in which the Algerians were at war with the French colonialists, a group of Europeans helped them in their war… [T]he jihad of such people was in fact more sacred than that of the Algerians, because the Algerians were defending the cause of their own rights, whereas the cause of the others was more ethical and sacred. ⁴⁰

The acceptance that the principles of human rights and umma as being more important than the Western concept of sovereignty provides an a priori assumption in Islamic thought that humanitarian intervention is justified, and conversely that the right of defence of sovereignty would need to be argued.

Russia, sitting as a bridge between Asia and Europe, having a permanent seat (P5) on the Security Council, while recovering from a loss of its superpower status, provides a counterpoint to Western views on humanitarian intervention. Russia takes a traditional line on international relations in which Westphalian sovereignty is paramount. From this point of view, the concept of humanitarian intervention is strongly criticized for undermining the existing international order and violating international law. At the same time, Russia’s official statements and the wider public debate do not ignore the emergence of dramatic humanitarian situations that might require urgent and, eventually, forcible actions. The Russian Foreign Policy Concept rejects humanitarian intervention when it is carried out unilaterally and not approved by the UN Security Council. Since neither of these two conditions relate to sovereignty it can be inferred that the contradiction between sovereignty and humanitarian intervention could be resolved in favour of the latter, if this is done collectively and with due respect to UN Security Council status. ⁴¹

China, another P5 member and emerging global power, has demonstrated even more conservative views on sovereignty. Furthermore, as a socialist country, it is anxious about Western values being further imposed on China, particularly when backed by collective intervention. ⁴² In his speech at the United Nations’ Millennium Summit on 7 September 2000, Chinese President Jiang Zemin strongly criticized the notion that ‘human rights rank higher than sovereignty’. While acknowledging the obligation of governments to promote and protect the rights of their people, Jiang stressed that the principles of the sovereign equality of all countries, mutual respect for the sovereignty of every state, and non‐interference in each other’s internal affairs remain at the core of today’s international relations. Jiang states his belief in a central role for the UN Security Council when he asserts: ‘We should come together to safeguard the authority of the Security Council rather than to impair it.’ He also notes pointedly that ‘it is against the will of many member States for any country to bypass the Security Council and do what it wishes on major issues concerning world peace and security’. ⁴³ For China, NATO’s action against Yugoslavia raised many questions, including the legitimacy of waging war on a sovereign state, the core principles of international relations and the credibility of the United Nations. China believes on maintaining international rules and laws passed by the UN members, while respecting state sovereignty and equality, and sees a danger of a ‘new interventionism’ based on power that may lead to more violence and a new arms race. ⁴⁴

However, China does seem to want an expanded role for the UN in peacekeeping and intervention in internal conflicts. China has participated in UN peacekeeping operations in Africa and the Middle East and is not against all interventions. Nonetheless, China insists that any intervention must be based on the authority of the UN Security Council. Evidence of this approach could be seen during the intervention in East Timor; the Chinese Permanent Representative to the UN, Qin Huasun, stated that the issue must be solved through the UN and that the deployment of any peacekeeping force should be endorsed by the Security Council and asserted that ‘China is willing to be actively involved in efforts by the UN in this connection’. ⁴⁵ Thus, although China may be willing to accept humanitarian intervention, like Russia, Beijing insists that the UN is the only body capable of endorsing such an act.

China further insists that fair participation of all community members is required for any change in the rules. China is concerned that a minority of countries should not be allowed to force the adoption of a ‘new interventionism doctrine’ and that a small number of States cannot be permitted to condition evolving principles of international relations. ⁴⁶ Though appearing altruistic there is evidence of self‐interest in this assertion, as this position appears at odds with the value China places on its Security Council position and veto.

Other South Asian countries’ positions on intervention and sovereignty have generally been conservative, despite both India and Vietnam having conducted two of the major Cold War humanitarian interventions. ⁴⁷ Intervention against genocide is now an accepted principle, though what constitutes genocide continues to be debated, and it is anticipated that in the near future this principle will be selectively and rarely acted upon. ⁴⁸ However, it is significant that South Asian positions on sovereignty are beginning to change in important ways. To differing degrees, the majority of the South Asian countries are beginning to move away from the unitary and centralized state structures of the post‐colonial era. In India and Sri Lanka, governments are showing new readiness to consider formulae for self‐rule for Kashmiris and Tamils. ⁴⁹ Secession and humanitarian intervention share similar roots in the international law and sovereignty debate. Allen Buchan argues that any law allowing humanitarian intervention must address the rights of secession. ⁵⁰ The converse may also apply; changing South Asian views on secession would necessarily change South Asian views on the nature of sovereignty and the legitimacy of humanitarian intervention.

In recent history, Africa has witnessed most humanitarian interventions and may well continue to see a need for similar interventions in future. Notable interventions in Uganda and Somalia captured the world’s attention, as did the lack of a timely intervention to prevent the Rwandan genocide. Has the experience changed attitudes? From the time of the anti‐colonial movements, which led to the independence of the majority of African states, until the end of the Cold War, sovereignty and the inviolability of borders were sacred principles among the Organization of African Unity’s (OAU) members. Concerned for their own political survival the accepted doctrine of African states’ foreign policy was that states should not interfere in each other’s domestic affairs, even where there was evidence of human rights abuses; the dominant doctrine in Africa was essentially non‐intervention. ⁵¹

However, despite Vietnam being criticized for its involvement in Cambodia, the lack of external condemnation for Tanzania’s intervention into Uganda, and the quiet acceptance that the continent was securer without Idi Amin’s regime, has changed attitudes. As time passes and the immediately post‐colonial fears of a loss of independence fade, African nations face an increased responsibility for preventing further genocides. Kofi Annan’s words serve as a call to the world in general, and Africa in particular, ‘[t]o those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask … in the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt [Security] Council authorization, should such a coalition have stood aside and allowed the horror to unfold?’ ⁵² In partial recognition of this in October 1997, OAU army chiefs of staff called for a standby pan‐continental force of brigade‐sized units. This approach was reinforced when, five months later, the OAU’s Council of Ministers called for an African peacekeeping force under their command and control. ⁵³

Internationally respected African leaders like South Africa’s Nelson Mandela and Thabo Mbeki, as well as Nigeria’s Olusegun Obasanjo, have urged African states to be more willing to intervene in conflict situations. At the OAU Ouagadougou Summit in 1998, Mandela told his fellow leaders: ‘Africa has a right and a duty to intervene to root out tyranny…. we must all accept that we cannot abuse the concept of national sovereignty to deny the rest of the continent the right and duty to intervene when behind those sovereign boundaries, people are being slaughtered to protect tyranny.’ ⁵⁴ From these statements it is clear that Africa not only accepts the principle of humanitarian intervention but also is willing to act, if necessary under an African Union (the OAU successor) banner, and perhaps without UN authorization.

Considering the views of other nations and religions a consensus does emerge that humanitarian intervention is legitimate but with differing provisos. Russia and China, although accepting that sovereignty brings responsibility, do not agree that acting irresponsibly towards subjects necessarily overrules the principle of non‐intervention. Westphalian sovereignty remains the cornerstone of Russian and Chinese foreign policy and this view carries much weight in the one organ specifically authorized to consider such interventions, particularly as they hold P5 vetoes. All nations would agree that humanitarian intervention would be legitimate if approved by the UN Security Council.

However, given the potential use of a P5 veto, it is likely that the Security Council may fail to reach agreement, particularly since no single accepted view of sovereignty prevails in the Council, and it is therefore necessary to consider whether it is acceptable for the Security Council to be the only organ qualified to authorize a humanitarian intervention. On the subject of the veto, Vaclav Havel argued, when justifying NATO action in Kosovo, that it was time ‘to reconsider whether it is still appropriate, even hypothetically, that in the Security Council one country can out vote the rest of the world’. ⁵⁵ After Kosovo it could be argued that the Security Council’s credibility had been eroded and that the power of the veto had effectively ended, after three of the permanent members defied the Council’s authority. As a result we may have lost the ‘normative safety valve which, by denying legitimacy to an untold number of potential interventions, imposed a degree of constraint on political decision‐makers and military planners for the better part of half a century’. ⁵⁶ In its report the ICISS gave the primary role in humanitarian intervention to the Security Council, but accepted that it was not the only recourse. The Council should be the first port of call for such an action but as Gareth Evans, Co‐chair of the ICISS, remarked: ‘the difficult question is whether it should be the last’. ⁵⁷

This study has demonstrated that there exists the basis for a consensus on the legitimacy of humanitarian intervention but that its legality has not been satisfactorily established. However, it is necessary to consider what this might mean in practice for an oppressed people and whether states would feel constrained by law not to act. Is, as Ronzitti argues, abiding by international law a necessary element of democracy? Should any military action not only be wise and opportune or feasible, but also in conformity with international law? An illegal action (or action of dubious legality) may generate divisions between allies and could eventually not be endorsed by parliaments. ⁵⁸ However, Michael Walzer concluded that ‘any State capable of stopping the slaughter has a right, at least, to try to do so. The legalist paradigm indeed rules out such efforts, but that only suggests that the paradigm, unrevised, cannot account for the moral realities of military intervention.’ ⁵⁹ This paper will now consider how states may tread that fine line between legitimacy and legality and several approaches that are currently the subject of debate.

The first approach is to deny humanitarian intervention completely, and on moral grounds. Chesterman states that even the argument that ‘implies humanitarian intervention is morally valid because the ends sought justify the means employed’ is false because ‘in practice the ends are never so clear and the means are rarely so closely bound to them’ and goes on to comment that it ‘is misleading because it suggests that normative constraints currently prevent States from intervening on humanitarian grounds. Not only is there no evidence of such reluctance, precisely the contrary is true: States have demonstrated their willingness to intervene on any number of dubious bases.’ ⁶⁰ This approach makes for good and simple law between states but provides little security for the individual.

Edward Luttwak criticizes the moral basis of humanitarian intervention when he asks: ‘what does it mean for the morality of a supposedly moral rule, when it is applied arbitrarily against some but not others?’ ⁶¹ However, both views miss the point that while the motives may be unclear, and the means to provide resources to solve all human rights abuses are unlikely to ever be forthcoming, it is morally bankrupt to do nothing. Moreover, states cannot be expected to act with purely altruistic intention. Rather it is only required that, despite acting in self‐interest, the overall and primary result of the operation should be a humanitarian benefit. Evidence of this approach in action during the Kosovo campaign is contained in the Chicago speech of 1999 where Prime Minister Tony Blair outlined his vision for a Doctrine of the International Community. Among his ‘five tests’ to determine whether a humanitarian intervention should be considered was ‘do we have national interests involved?’ ⁶²

A second approach, and that used by most NATO nations in justifying their involvement in Kosovo, is that of ‘exceptional breach’. In this approach there is no attempt to modify international law to support a humanitarian intervention. The intention is to argue the case on its legitimacy merits and claim that the intervention has a moral ascendancy that overrides any issues of state sovereignty. The precedent in this approach is demonstrated by the lack of a Security Council Resolution criticizing the actions of NATO in its legally unsupported intervention in Kosovo ⁶³ and the Independent International Commission on Kosovo decision that the 1999 intervention was ‘illegal but legitimate’. ⁶⁴

It could be argued that rather than change international law; states should accept exceptional illegality as the process to justify an intervention, claiming that it is both more consistent with state practice and in keeping with the principles of international law. ⁶⁵ It appears that the International Court of Justice agreed with this when it ruled that:

the significance for the Court of cases of State conduct prima facie inconsistent with the principle of non‐intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. ⁶⁶

Thus, using exceptional breach, a nation, or coalition, may act in support of a moral standard not yet supported in law and justify their actions. Should there be widespread approval, or at least acceptance, an agreed precedent, even if claimed exceptional at the time, may be developed which may provide opinio juris to a new norm.

A similar approach is that suggested by scholars who argue for incremental change to the law governing humanitarian intervention by the development over time of a new norm. This argument starts by contending that the legal uncertainty governing humanitarian interventions without Security Council authorisation is a good thing. ‘The uncertain legality of humanitarian intervention puts a very high burden of justification on those who would intervene without UN authorization. Yet this very ambiguity is also fertile ground for the gradual emergence of normative consensus, over time, based on practice and case‐by‐case decision making.’ ⁶⁷

The position of the UN at the centre of this debate also features in other scholars’ views that a right to humanitarian intervention by states acting independently would have to meet very strict conditions. The first of these would be that the matter had been brought to the attention of the Security Council and that it had been unable to agree, so that the system foreseen by the Charter had proved non‐operational. During norm development it remains essential, for the credibility of the UN system, not to undermine the primacy of the Security Council in the maintenance of international peace and security. ⁶⁸ However, if the Security Council is unable to agree on intervention it is necessary to consider what other body, or bodies, could contribute the required opinio juris necessary for a change in customary international law. For example, resolutions in international bodies such as the UN General Assembly may prove to be legally binding. In 1986 the International Court of Justice reinforced this view, ruling that in the Nicaragua case a series of UN General Assembly resolutions has contributed to a norm governing intervention and aggression. ⁶⁹

Some scholars argue that this approach is too slow and prefer an attempt to capture the law governing humanitarian intervention all at once. Allen Buchan argues for reforms in the law of secession and intervention claiming they would be mutually enriching and argues that ‘a more permissive legal rule regarding humanitarian intervention – one which did not always require Security Council authorization – might prevent some of the massive human rights violations that spur secessionist movements’. ⁷⁰ However, there currently exist many difficulties associated with forming a formal doctrinal and legal framework that reconciles human rights principles and the UN Charter’s non‐intervention norms. ⁷¹ To agree such a constraining framework will be difficult based on limited casework and is unlikely to neatly fit new situations; to attempt such an encapsulation at this stage would prove futile.

Alternately the incremental approach, which looks to an evolution of customary international law that would provide legal justification for humanitarian intervention, has benefits. Like ‘excusable breach’ it recognises both the principles of the UN Charter and the authority of the Security Council while allowing the emergence of a legal norm permitting intervention for humanitarian purposes in truly urgent and compelling circumstances should the Security Council be unable reach consensus or mobilise forces. ⁷²

However, it is difficult to determine from the outset whether such a norm is developing and the law could be open to ambiguity during the development of any such norm. Given the conservative views of many nations there may be concerted resistance to any development of an interventionist norm. Some, such as Chesterman and Byers, contend that the legal debate is unlikely to produce fruitful results, as it is unlikely that more than a few states would agree to any practical criteria for a right of humanitarian intervention without Security Council authorisation. ‘Indeed, the greatest threat to an international rule of law lies not in the occasional breach of that law…but in attempts to mould that law to accommodate the shifting practices of the powerful.’ ⁷³

A very different approach is taken by Jacques de Lisle to provide a simple all encompassing law but one which requires, like the exceptional breach paradigm, a robust justification. In Legality, Morality and the Good Samaritan he uses the domestic analogy of the Good Samaritan Act in America, which is designed to protect those acting with good intention as an individual but which also places some requirements upon any action undertaken and includes a negligence clause to ensure that any action was proportionate and necessary. Further, it would include a requirement that once intervention was undertaken a state was required to see such action through. Such a paradigm would allow nations to decide whether, how much and how they would intervene, thus mirroring state practice and embodying Blair’s national interest clause.

Although this may initially alarm those nations concerned about consequentialism and Western imperialism, the paradigm would also include significant legal and moral constraints on the intervener and which would encompass the target states and victims’ rights to autonomy as well as including obligations for any intervener. These rules fit state practice and do not require, but merely permit state action. They offer a simple legal rule set but insist on a detailed moral justification to be provided while ensuring safeguards for both the target state and the Good Samaritan. ⁷⁴ Thought the provision of a simple law that would not hinder intervention while requiring moral justification has its attractions such a proposal, particularly based on a US domestic analogy, is unlikely to achieve an international consensus. Such a proposal, while imposing some constraints, would be seen to offer immunity to intervene in states unpopular to a ‘Good Samaritan’ and not just those committing atrocities, particularly if allied to the emerging US doctrine of pre‐emptive self‐defence.

This paper argues that the exceptional breach paradigm offers most utility. Such an approach is pragmatic and has precedent in international law. It removes the legal debate from the moral justification and in doing so avoids becoming entangled in the debates surrounding the issue of sovereignty. As Saint Augustine wrote in City of God: ‘in the absence of justice, what is sovereignty but organized brigandage? For what are bands of brigands but petty kingdoms?’ ⁷⁵ By striving for justice, a moral condition, the legality, a technical condition, can be put aside. To separate the legitimacy and legality does not make justifying an intervention easier. On the contrary, the strength of justification is reliant on a robust and universally acceptable argument and not on clever manipulation of statutes and semantics.

Some may argue that the law protects the weak and that its exclusion removes essential safeguards; practice does not bear out this position. Throughout history, states have acted in contravention of the law without censure and equally taken no action when it may have been legal. Weiss argues that ‘the greater danger for a more just world order comes from too little, rather than too much, humanitarian intervention; there should be more, rather than fewer, military–civilian interactions; we should be less preoccupied that military action will be taken for insufficient humanitarian reasons, and more that it will be taken too rarely for the right reasons’. ⁷⁶

There is support for this view from Frank and Rodley, who are restrictionists, believing that humanitarian intervention is illegal, and who state that humanitarian intervention ‘belongs in the realm not of law but of moral choice, which nations, like individuals must sometimes make’. ⁷⁷ What is required to support this approach is a framework to support the moral decision, not a rule set such as a legalist paradigm would impose. Any rule set would be open to manipulation, either to justify an intervention that is purely of self‐interest or to justify inaction where, despite overwhelming evidence, a state may lack the moral courage to act. Therefore what is required is a moral sensitivity rather than a particular set of conditions that must be satisfied. It is necessary that those who have the power to act develop a moral sensitivity that will innately enable them to recognize what is the right thing to do in the case of a humanitarian catastrophe and that they possess the fortitude to carry through their convictions. ⁷⁸

Critically, it is necessary to consider what the UN’s role should be in this moral decision. It has been shown that while Russia and China may support intervention they currently do so only with UN authorization and Kosovo and Rwanda highlighted the failures of the UN. Darfur shows that the stalemate in the Security Council has not altered. The United States had pushed for sanctions to be imposed on Sudan if the violence in Darfur did not end, but this was opposed by China and Russia, which have economic ties to the Sudanese government. Kofi Annan stated that ‘the [Security] Council had considered sanctions and had not been able to move forward because of some divisions in the Council’. ⁷⁹

The High‐level Report recognizes its shortcomings. ‘The Security Council is fully empowered under Chapter VII of the Charter of the United Nations to address the full range of security threats with which States are concerned. The task is not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has.’ ⁸⁰ It also recognizes the difficult moral position that the current Security Council structure, for which it was not designed, imposes. The Report proposes two alternative models for an enlarged Council:

Model A provides for six new permanent seats, with no veto being created, and three new two‐year term non‐permanent seats, divided among the major regional areas. Model B provides for no new permanent seats, but creates a new category of eight four‐year renewable‐term seats and one new two‐year nonpermanent (and non‐renewable) seat, divided among the major regional areas. ⁸¹

However, despite an enlargement that makes the Council more representative and accountable, the original P5‐veto would remain. Even should the enlarged Council not suffer veto issues, it cannot be inferred that membership of the Council implies superior moral decision‐making. Regarding the 1971 East Pakistan intervention Walzer stated, ‘the case was formally carried to the United Nations but no action followed. Nor is it clear to me that action undertaken by the UN, or by a coalition of powers, would necessarily have had a moral quality superior to that of the Indian attack.’ ⁸² Whereas, ideally, the Security Council should act as the authorizer of any intervention it remains clear that there will still be instances where what is right and what is agreed in the Council will differ. It is hoped that states will have the moral sensitivity and strength of character to do the right thing.

In addressing Luttwak’s criticism that the selective application of moral rules often undermines the legitimacy of intervention, it is necessary to consider how these moral actors should decide where to concentrate their limited resources. Chris Brown outlines a concept of ‘triage’ to assess where to intervene. In this he considers situations in three bands; those where intervention is not required because the difficulties are minor and intervention is likely to cause more harm than good. Those where the difficulties are of such magnitude that action would almost certainly be ineffective, either because of the scale of the problem (as, perhaps, with the civil wars in the Congo) or perhaps because they are caused by states who have the power to turn any military intervention into full‐scale war (as with Chinese involvement in Tibet, or Russia in Chechnya). And finally, those where outside forcible intervention is both a practical possibility and brings the prospect of actually improving the situation on the ground. ⁸³ This concept of triage offers a pragmatic solution to a complex moral dilemma. It may not save every life or prevent every atrocity but it concentrates resources on those instances where they will be most effective, both for the intervener and the target state.

This year the UN will discuss a Secretary General’s High‐level Panel Report A More Secure World: Our Shared Responsibility which includes a suggested doctrine for humanitarian intervention. It has been demonstrated that this doctrine follows the principles of Western Just War tradition. Despite coming from only one tradition it has been shown to have parallels in other religious and secular traditions and could be said to have a universal applicability. However, while the basis for protecting human rights is agreed the issue of sovereignty remains a moral as well as a legal impediment to this approach. The ICISS and High‐level Report adopt a ‘sovereignty as responsibility’ model. Though this model has many supporters, particularly among moral philosophers and has historical links back to the Enlightenment, it does not have universal acceptance. In particular, two of the P5 members, Russia and China, while accepting that sovereignty brings responsibility, do not agree that acting irresponsibly towards subjects necessarily overrules the principle of non‐intervention. Without acceptance of one sovereignty model, by at least all members of any current or future Security Council, particularly should they hold a veto, the UN will find it difficult to agree on any future humanitarian intervention. Politically the current Report is unlikely to rectify the obstacles that prevented unanimous and effective UN action in Rwanda and Kosovo.

This article also considered the international legal basis for humanitarian intervention. Not only does current international law not allow humanitarian intervention but it also fails to recognise the ‘sovereignty as responsibility’ in law. Even though norms may develop over time, the requirement for universal acceptance will face the same barriers as the political process.

It is argued that true security is offered to individuals by separating the legal and legitimacy elements of humanitarian intervention by the use of ‘exceptional breach’ and sensitivity to moral issues backed with the strength of character to carry out the necessary actions. However, there must be an acceptance that there are not the resources to fight all injustices and that there is a requirement to concentrate those limited resources where they may be most effective; such an aspiration offers a practical solution to a complex moral problem. Of course, simply removing the legal element does not make it easier to justify an intervention. Without a legal backdrop the moral justification would need to be even stronger and appeal to the world community.

In an age of globalization even rich and powerful nations can ill afford censure or sanction. By requiring moral justification each case would need to be viewed on its own merits and requiring states to seek international approval on a case‐by‐case basis would require them to be aware of all sensitivities, on which opinion may well be divided. It is suggested that this approach suits both current practice and the nature of international relations. When faced with genocide, states would still be able to act; it serves other purposes to be seen as ‘a decent world player’ and in these cases moral legitimacy would be sufficient.

Naturally in justifying such action the legality debate would resurface, but do states really need an answer? Once a state has the support, or acquiescence, of the international community censure is unlikely to follow. The examples of the International Court of Justice or the Independent International Commission on Kosovo demonstrate the current practice. Should this seem an anarchic solution it is because the nature of international society is anarchic. To move to one extreme or the other in order to provide an unnatural simplicity ignores the very complexity of the issue; that the pragmatic solution is complex mirrors the nature of the problem.

What is required for a more secure world is not more rules or more laws. ‘There is no universal moral rule that can tell Statespersons what is the right thing to do in response to particular circumstances. They must exercise their judgement as best they can; sometimes their best may not be good enough.’ ⁸⁴ What is needed is for states or coalitions to act within the moral principles enshrined in the UN Charter, International Humanitarian and Human Rights Laws and underlying the High‐level Report. The High‐level Report’s just intervention principles are not alone sufficient, or perhaps necessary, but assist moral decision‐making by shaping the debate.

To justify an intervention should not necessarily require a Security Council Resolution but an understanding and adherence to universal moral values, the willingness to stand up and justify an intervention when all the evidence shows genocide is occurring, or is likely to happen, and the courage to undertake an intervention and see it through to its natural conclusion. In time, these actions will shape the views of the international community and contribute to new norms although this is not the main aim; the aim must be to ensure that the world has the necessary tools to prevent another Rwanda, not in a generation’s time but now. Therefore, the world will have to act with the tools available at present; that these are imperfect provides the very security needed. The requirement to justify each intervention helps to prevent unnecessary action but does not prevent action if necessary.

This requirement further prevents the language and law of humanitarian intervention being used for interventions of other than a humanitarian nature. With no legal shroud to hide behind and no tick‐list to satisfy, the justification should ensure that the humanitarian motive is clear, it may not be the only motive, but it should be the overriding one. If states cannot make a clear moral justification it is likely that self‐interest is the major factor and states should expect criticism. Kenneth Roth demonstrates the efficacy of this approach in applying just war morals when considering the coalition intervention in Iraq. Despite both the UK and US claiming that the intervention was in part humanitarian he concluded that the intervention did not pass the moral test because even if the Iraqis may ‘be better off, it was not designed or carried out with the needs of Iraqis foremost in mind’. ⁸⁵

Additional information

Notes on contributors

J. E. Linter

RAF, Advanced Command and Staff Course No. 8, JSCSC, Shrivenham, Sept. 2004 – July 2005.

Notes

1 ‘Just war theory’ is a misnomer, since it is not, in the first place, a ‘theory’, but a proposal of practical reason; and it is not, in the second place, about ‘just wars’, but about how we may enact just judgement even in the theatre of war. See O. O’Donovan, The Just War Revisited (Cambridge: CUP 2003) p.6.

2 J.L. Holzgrefe and Robert O. Keohane, Humanitarian Intervention:Ethical, Legal and Political Dilemmas (Cambridge: CUP 2003) p.18.

3 A More Secure World: Our Shared Responsibility, Secretary General’s High‐level Panel’s Report on Threats, Challenges and Change published 1 Dec. 2004 accessed at ⟨www.un.org/secureworld/report3.pdf⟩ on 29 Jan 2005, para. 208.

4 Ibid. para. 203.

5 Ibid. para. 207.

6 B. Adeney, Just War, Political Realism, and Faith (Chicago, IL: American Theological Library Association 1988) p.24.

7 A More Secure World (note 3) preamble to Part 3.

8 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001) ⟨www.iciss.ca/pdf/Commission-Report.pdf⟩ accessed 11 March 2005, para. 1.35.

9 E.Vattel, Law of Nations or the Principles of Natural Law, Vol. III, English translation by Charles Fenwick (Washington DC: Carnegie Institution 1916) p.131.

10 A More Secure World (note 3) para. 29.

11 R. Keohane, International Institutions and State Power: Essays in International Relations Theory (San Francisco, CA: Westview Press 1989) p.3.

12 N. Ronzitti, ‘Lessons of International Law from NATO’s Armed Intervention Against the Federal Republic of Yugoslavia’, The International Spectator 34/3 (July–Sept. 1999) pp.45–54, p.53.

13 Article 2(4) of the United Nations Charter.

14 Article 53 of the Vienna Convention on the Law of Treaties, 1969.

15 Article 64 of the Vienna Convention on the Law of Treaties, 1969.

16 C. Gray, International Law and the Use of Force, 2nd edn. (Oxford: OUP 2004) p.43.

17 ‘Convention Overrides State Immunity’, The Times 25 March 1999.

18 The Responsibility to Protect (note 8) para. 3.31.

19 ‘We the Peoples’ ⟨www.un.org/millennium/sg/report/summ.htm⟩, section IV, bullet 3, accessed 29 Jan. 2005.

20 The failure of the US, among others, to ratify this treaty limits its universal application.

21 Preamble to Rome Statute of the International Criminal Court.

22 Ibid.

23 Gray, International Law (note 16) p.46.

24 R. Tomes, ‘Operation Allied Force and the Legal Basis for Humanitarian Interventions’, Parameters, US Army War College Quarterly, 30/1 (Spring 2000) p.50.

25 ‘UN rules out genocide in Darfur’, BBC News dated 31 Jan. 2005 ⟨http://news.bbc.co.uk/1/hi/world/africa/4222899.stm accessed⟩ 7 Feb. 2005.

26 ‘Statement by the Secretary‐General on the Report of the International Commission of Inquiry on Darfur’, 1 Feb. 2005. Press Release SG/SM/9700 AFR/1101 ⟨www.un.org/News/Press/docs/2005/sgsm9700.doc.htm⟩ accessed 11 March 2005.

27 The Responsibility to Protect (note 8) para. 3.31.

28 Diuturnitas is the principle that a concept should be established for a reasonable period of time before being adopted as a peremptory norm.

29 Opinio juris requires the consent of the international body of law as to the existence of a norm, usually from judgements made in support of precedents to a norm.

30 Ronzitti, ‘Lessons of International Law’(note 12) p.51.

31 S. Chesterman and Michael Byers, ‘Has US Power Destroyed the UN?’ RUSI Journal 144/4 (Aug. 1999) p.27.

32 B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, European Journal of International Law 10/1 (1999) p.22 ⟨www.ejil.org/journal/Vol10/No1/ab1.html⟩ accessed 13 Mar 2005.

33 Gray (note 16) p.44.

34 Kofi Annan, ‘We the peoples’, Millennium Report (2000) para. 217.

35 S. Chesterman, Civilians in War (Boulder, CO: Lynne Rienner 2001) p.235.

36 M. Ayoob, ‘Humanitarian Intervention and State Sovereignty’, The International Journal of Human Rights 6/1 (Spring 2002) p.99.

37 Hashmi in Anthony A. Lang, Just Intervention (Washington DC: Georgetown UP 2003) p.62.

38 ⟨www.shiachat.com/forum/lofiversion/index.php/t41551.html⟩ accessed 10 March 2005.

39 Hashmi in Lang, Just Intervention (note 37) p.78.

40 Ibid.

41 V. Baranovsky, ‘Humanitarian Intervention: Russian Perspectives’, Pugwash Occasional Papers 2/1 (Jan. 2001) ⟨www.pugwash.org/publication/op/opv2n1.htm⟩ accessed 20 Dec. 2004.

42 Y. Zhang, ‘China: Whither World Order After Kosovo?’ in Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenges of Humanitarian Intervention (Tokyo: UN UP 2000) p.122.

43 C. Shulong, ‘China, Asia and Issues of Sovereignty and Intervention’, Pugwash Occasional Papers 2/1 (Jan. 2001) ⟨www.pugwash.org/publication/op/opv2n1.htm⟩ accessed 20 Dec. 2004.

44 Zhang, ‘China’ (note 42) p.118.

45 Shulong, ‘China, Asia and Issues of Sovereignty‘(note 43).

46 Zhang (note 42) p.126.

47 Since there was no precedent in law, neither India’s 1971 intervention in East Pakistan or Vietnam’s into Cambodia (1979) were initially justified as humanitarian.

48 R. Kumar, ‘Sovereignty and Intervention: Opinions in South Asia’, Pugwash Occasional Papers 2/1 (Jan. 2001) ⟨www.pugwash.org/publication/op/opv2n1.htm⟩ accessed 20 Dec. 2004.

49 Ibid.

50 A. Buchanan, ‘Secession, state breakdown and humanitarian intervention’, in D.K. Chatterjee and D.E. Scheid (eds.), Ethics and Foreign Intervention (Cambridge: CUP 2003) pp.208–9.

51 Adekeye Adebajo and Chris Landsberg, ‘The Heirs of Nkrumah: Africa’s New Interventionists’, Pugwash Occasional Papers 2/1 (Jan. 2001) ⟨www.pugwash.org/publication/op/opv2n1.htm⟩ accessed 20 Dec. 2004.

52 Secretary General’s Annual Report to the General Assembly, Press Release SG/SM/7136, 20 Sept. 1999. ⟨www.un.org/News/Press/docs/1999/19990920.sgsm7136.html⟩ accessed 11 March 2005.

53 Adebajo and Landsberg, ‘The Heirs of Nkrumah’ (note 51).

54 Ibid.

55 Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: OUP 2000) p.297.

56 Chesterman and Byers, ‘Has the US destroyed UN Power?’ (note 31) p.29.

57 T. Weiss, Military‐Civilian Interactions: Humanitarian Crises and the Responsibility to Protect, 2nd edn. (Lanham, MD: Rowman and Littlefield 2005) p.214.

58 Ronzitti (note 12) p.53.

59 M. Walzer, Just and Unjust Wars: a Moral Argument with Historical Illustrations, 3rd edn. (New York: Basic Books 2000) p.108.

60 Chesterman and Byers (note 31) p.236.

61 ‘No Score War’, Times Literary Supplement, July 2000.

62 The Rt. Hon. Tony Blair MP, ‘Doctrine of the International Community’ speech to the Economic Club, Chicago 22 April 1999.

63 Given France, US and UK involvement in both the UNSC and NATO this is unsurprising.

64 J.D. Gray, ‘Just war doctrine after September 11?’, British Army Review No.131 (Spring 2003) p.131.

65 M. Byers and S. Chesterman, ‘Law and humanitarian intervention’, in Holzgrefe and Keohane, Humanitarian Intervention (note 2) p.179.

66 Cited in Holzgrefe and Keohane (note 2) p.198.

67 J. Stromseth, ‘Rethinking humanitarian intervention: the case for incremental change’, in Holzgrefe and Keohane (note 2) p.233.

68 C. Guicherd, ‘International Law and the War in Kosovo’, Survival 41/2 (Summer 1999) p.24.

69 Byers and Chesterman (note 65) p.189.

70 Buchanan (note 50) pp.208–9.

71 Stromseth (note 67) pp.233–4.

72 Ibid. pp.252–3.

73 Byers and Chesterman (note 65) in Holzgrefe and Keohane (note 2) pp.202–3.

74 Jacques de Lisle, Legality, Morality and the Good Samaritan (2001) p.556.

75 Cited in Holzgrefe and Keohane (note 2) p.93.

76 Weiss, Military‐Civil Interactions (note 57) p.214.

77 Thomas M. Franck and Nigel S. Rodley ,‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, American Journal of International Law 67/2 (1973) pp.275–305 cited in Walzer (note 59) p.106.

78 C. Brown, ‘Selective humanitarianism: in defense of inconsistency’, in Chatterjee and Scheid (note 50) p.48.

79 As note 25.

80 A More Secure World (note 3) para. 198.

81 Ibid. paras. 252, 253.

82 Walzer (note 59) p.107.

83 Brown (note 50) pp.35–6.

84 Ibid. p.47.

85 K. Roth, ‘Setting the Standard: Justifying Humanitarian Intervention’, Harvard International Review (Spring 2004) pp.58–62, p.62.