The Legitimacy of International Intervention for Humanitarian Purposes

Abstract

This dissertation ( or "work") examines whether, and, when armed Humanitarian Intervention undertaken to prevent Human Rights violations is legitimate. The central discussion relates to the question of "legitimacy," and the right of the International Community to militarily intervene in the domestic affairs of a sovereign State in the event that State either violates fundamental Human Rights, as described under International Law, or if that State permits violations to occur in its territory.

Chapter One gives a synopsis of the primary and peripheral issues, as well as pertinent definitions, the objectives and the methodologies employed in the research and writing of this work. In as much as the history of any phenomenon provides an essential starting point for grasping the nature of that phenomenon, Chapter Two provides a summary of documents that may be considered seminal to the development of Human Rights. The oldest of these documents is known as the "Law of Hammurabi," dating from approximately 1750 B.C.E., and appears in this chapter among other such documents as the "Magna Carta," and writings containing the thoughts of notable philosophers. Chapter Two also introduces the "internationalization" of Human Rights, a phenomenon that began with the inception and propagation of a number of trans-boundary agreements in Europe; i.e., the Treaties of Versailles and Saint Germain-en-Laye, during the 18th Century.

Chapter Three continues the subject of "internationalizing Human Rights." Though the process of internationalizing Human Rights began in earnest after the First World War, with the League of Nations Treaty, the Second World War proved that more needed to be done; hence, at the close of the Second World, the Allies established, the United Nations ("UN"). Through the powers granted it, the UN was charged with eradicating conditions that would engender threats to international peace, while promulging international agreements that, in case peace-keeping efforts failed, would provide rules of engagement that would make war much less inhumane.

Chapter Four narrows the scope from a focus on international agreements to the regional agreements that govern the same. Chapter VIII of the UN Charter permits States that share certain geographical locations, to draw up regional arrangements, so long as said arrangements are mindful of the purposes and principles of the UN Charter. These arrangements include those of Europe, North and South America, Africa and the Middle East. Chapter Five explores the issues of State Sovereignty and Non-Intervention. The Sovereignty Principle constitutes the main obstacle with which advocators of the principle of Humanitarian Intervention must contend. Some commentators argue that State sanctity is the one principle that should enjoy boundless privilege over other international principles. The counterargument is that human dignity and life must enjoy primacy over any principle, whatever the case, and that the State retains its Sovereignty only as long as it protects the rights of its people, and compromises that Sovereignty once it violates those rights. Notably, the notion that Sovereignty is not an "absolute," but a responsibility, is discussed here.

Chapter Six discusses the Humanitarian Intervention Principle and its evolution. It proffers several definitions of "intervention," and provides a number of reasons intervention might be found justified under the International Law, and, or legitimate pursuant to norms acceptable by the International Community. Generally, a threat to international peace, which is among the reasons the UN was established, constitutes an often acceptable justification for the legality of an intervention. The use of force in International Community relations, generally speaking, is prohibited under the UN Charter.

Chapter Seven discusses the legality of Humanitarian Intervention under International Law. This discussion is taken in the scope of the pertinent sources of International Law as indicated by Article 38 of the Statute of the International Court of Justice (ICJ). This chapter further discusses the opinions of learned publicists, and among other matters, ICJ decisions are also examined. This chapter also expounds upon a number of "intervention dilemmas," as such are thought to be found in the Charter, and actual State practices.

Chapter Eight discusses Humanitarian Intervention under the Customary Law. Even when the agreed upon standards for intervention exist, deciding when to intervene is a difficult proposition. Where ever Human Rights are being blatantly abused, and, or such action is a potential threat to international peace, the Charter apparently recommends intervention on Humanitarian grounds; on the other hand, as noted, supporters of Sovereignty will point to the Charter provision that speaks to general non­intervention. Whether to intervene, or not, may appear to be a matter of construing the relevant provisions of the Charter to favor one's position, such deliberating may generally be done at the expense of sacrificing thousands upon thousands of lives; thus, a more expedient method of determining when to intervene is required. Fortunately, for those favoring intervention, the Customary Law provides cases where intervention was pursued based on international customs and State practices. Therefore, we shall examine examples of interventions (State practice), and ascertain the extent to which those practices fulfill the constituent elements of the international Customary Law of Humanitarian Intervention. In tandem with these practices, we shall also explore the elements of custom, which include duration, uniformity, generality, and consistency of any given practice.

To support the legal permissibility of a Humanitarian Intervention, there are criteria and conditions to be considered. These are discussed in Chapter Nine; a partial list is as follows: Just Cause, Last Resort, Good over Harm, and Right Intentions. Conditions that may warrant Humanitarian Intervention include Genocide, War Crimes, and Crimes against Humanity. Chapter Nine also discusses the International Criminal Court (ICC Statute), and the International Criminal Courts set up to adjudicate crimes that occurred in the Former Yugoslavia and Rwanda.

Chapter Ten offers conclusions and recommendations. To establish Humanitarian Intervention as a viable doctrine, we consider recommendations that respected International Law scholars have proposed; these include redefining Sovereignty, amending the UN Charter, especially the veto, and establishing institutions to advocate the exercise of the same. Though State Sovereignty, like individual Sovereignty, has enormous idealistic appeal, neither should imply unlimited rights. Each entails responsibility not only for the self, but for States and individuals. Regarding State Sovereignty, a State may enjoy it as long as the exercise thereof is not used to justify abusing Human Rights.

Subject Area

Law

Degree Date

2014

Document Type

Dissertation

Degree Name

S.J.D.

Department

Dedman School of Law

Advisor

Ndiva Kofele-Kale

Second Advisor

Joseph J. Norton

Third Advisor

Adel O. Sherif

Number of Pages

xiii, 430

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