Saturday, April 15, 2017

An Argument in Favor of Humanitarian Intervention

The strikes against Syria in response to the Sarin attack are causing a very useful dialogue among international law scholars about the legality of humanitarian intervention under international law.  One of the scholars I most respect, Jens David Ohlin, has an excellent post arguing that the U.N. charter should be read to allow for humanitarian intervention.

By way of background, the U.N. Charter includes several provisions that regulate the use of force by member states of the United Nations.  Article 2 of the Chater states that the U.N. is based on the principle of the sovereign equality of nations, which includes the requirement 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 state, or in any other manner inconsistent with the Purposes of the United Nations."  The only exceptions are the "inherent right" of self and collective defense, and the use of force  authorized by the Security Council.

The debate over Syria has largely focused on whether military action done for humanitarian purposes can be justified as either not "inconsistent with the Purposes of the United States," or as included in the right of self defense.

Jens takes a larger view that focuses on the reasons why we might want to read the U.N. Charter as consistent with humanitarian intervention:
The Charter regime on the use of force (article 2 combined with Chapter VII and article 51) is designed to reduce or eliminate the number of sovereignty violations caused by international war.
This articulated goal has deep roots in World War II. Indeed, one could point to Nuremberg and the tribunal’s conclusion that crimes against peace (aggression) were the supreme international crime because they contained within them the seeds of the other international crimes. The lesson, apparently, is that stopping international conflicts is the most important goal of the international legal system.
Unfortunately, I think this principle, which is just one principle among many, has been taken to an extreme level, and fetishized to the point where other noteworthy principles are devalued.
We should never forget that preserving international peace has mostly instrumental value. Protecting the integrity of states and their domestic arrangements has little value in and of itself.  If the states and their domestic arrangements are fundamentally unjust, then preserving international peace is merely protecting those unjust arrangements.To make my point, consider a “perfect” world without a single article 2(4) violation. Every state respects the borders of all other states and never launches a military assault against them.  Each state is inwardly directed.  But internally, each state is viciously repressing and killing its own civilians and subjecting them to unimaginable horror.  Would this be a “perfect” world from the perspective of the UN Charter or from the perspective of international law generally? From the sole perspective of article 2(4), this world is indeed perfect.  But it is far from perfect — it is a disaster.  Protecting the sovereignty of each state has instrumental value because it allows states to flourish.  But if sovereignty is simply preserving injustice, we need to consider that there are other values at stake, other values that are promoted by international law.
Read it all here. While this point is valid, I think that Jens ignores the deeply skeptical view of the use of force contained in the U.N. Charter, and the predominant role given to the Security Council in authorizing the use of force in contexts outside of self defense.  I think a better reading of the Charter is that humanitarian intervention is permitted only with the authorization of the Security Council.  In an age of Chinese and Russian vetos of such interventions, this is deeply unsatisfying, but I think it better reflects what was intended by the framers of the Charter.


  1. Thanks for the post , that issue of humanitarian intervention , is far greater more complicated of course , just sufficient will be to mention , that the UN charter , provides clearly so ( article 1 (3 )) :

    " To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and "

    End of quotation :

    So we read clearly , that one of the constitutional purposes of the charter , is to solve problems having humanitarian character , respecting human rights and fundamental freedoms for all . Moreover :

    We deal , within the frame of humanitarian character , with " jus cogen" ( chemical attack on civilians ) while , there is a total , undisputed , prohibition on such violation of crimes , having in no way , no justification ( like : crimes against humanity , and genocide ) .

    It must be emphasized : sovereignty in such cases , is subordinated to prohibition of jus cogens violation and duty to intervene . That is how , we have that doctrine of " Universal jurisdiction " where clearly , a state intervenes in the sovereignty of other state , and strip of even , official or heads of states immunity , and judge perpetrators , although , no territorial connection established with the crime committed . Endless cases of such , took place in the world :

    Pinochet in the house of lords , here :

    And , in the court of appeal for Ontario , Bouzari V. Islamic republic of Iran , action against Iran for damages for assault and torture , by an employee / consultant in the oil and gas industry in Iran , the commission of torture took place in Iran , while the plaintiffs was an Italian resident as such ( No connection at all to Canada ) . here

    Besides it , scholars , tend to confuse ordinary state , with superpowers , it is not the same , neither the same rights , nor the same obligations , but I am falling short ….. maybe later .


  2. Just clarifying my comment :

    In the first case, we deal with criminal process (Pinochet) in the second, we deal with civil compensation for criminal acts (denied due to lack of proof of customary international law apparently ) yet, concerning the criminal aspect , it is proven as customary in fact of course. I shall put more links to criminal cases , later …..

    Here just to quote from the second case :

    This appeal engages two important principles: the prohibition of torture, which is widely acknowledged as vital to international human rights, and the requirement that sovereign states not be subjected to each other's jurisdiction, which is widely acknowledged as vital to the relations between nations. The balance struck today between these two principles by both Canada's domestic legislation and public international law prohibits a civil claim (though not a criminal prosecution) from being brought in Canada for the torture suffered in Iran by Mr. Bouzari. Hence, Mr. Bouzari's civil action was properly dismissed.

    End of quotation :

    So , we read clearly : " prohibits a civil claim (though not a criminal prosecution) from being brought in Canada for the torture suffered in Iran " . Yet, criminal prosecution, is yet, clear intervention in the sovereignty of other states, all , due to " jus cogens " like torture ( crime against humanity ) .


  3. Just to bring here , a classic case ( " Universal jurisdiction " ) just recently decided in the UK :

    Kumar Lama, a colonel in the Royal Nepalese Army (RNA) has been accused in the UK ( arrested there also ) for torturing in 2005 during Nepal’s decade-long internal armed conflict between the government and Maoist forces , for participating in the torture of two detainees at an army barracks under his command. The trial took place at the Old Bailey from June to July 2016 . Ultimately, on 6 September 2016, Colonel Lama was cleared of all charges. The jury found Colonel Lama not guilty on one count and failed to reach a verdict on the other .

    So, we can clearly observe the idea of " Universal jurisdiction " for " jus cogens " which , subordinates sovereignty of one state, to forced intervention of another , due to the severity of the crimes. Sometimes , for torturing one person , in one end of the world , huge hunt begins , and finally , he may be tried , in the other end of the world , in a state , totally unconnected to the crime . This is the right model !! Surly for huge amount of civilians, dying in chemical attacks for example or alike .

    Here , in EJIL talk , one may read on that trial ( I shall put later the verdict itself ) :