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.