The use of force in international law
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# 3.2 The dilemma of intervention

The key tension in the debate on humanitarian intervention relates to the intersection between the moral and legal aspects of intervention.

From the legal perspective, humanitarian intervention can be seen as violating one of the main principles enshrined in international law: the political and territorial independence of the state. It can therefore be argued that, apart from different phraseology, it simply constitutes an act of illegal use of force. On the other hand, it is difficult to object to the moral righteousness of intervening in order to protect individuals in another country from gross violations of their human rights. However, does the fact that something might be morally right make it a lawful act?

It is important to distinguish between the legitimacy and the legality of humanitarian intervention. The clash between the commitment of the international community to the legality of actions in the international arena and the ethical commitment to save lives creates one of the major dilemmas in contemporary international affairs. Questions have also been raised about the effectiveness of humanitarian intervention, especially its timescale.

## Example: Genocide in Rwanda

The Rwandan genocide in 1994 is a good example of a failure of a humanitarian intervention, which was catastrophic for the victims. At the time when arguably it was most needed, the international community, with the knowledge of the unveiling tragedy in Rwanda, did not take any action to prevent mass killings of civilians and attempted genocide.

## Activity 5

In this activity you will consider whether humanitarian intervention is a legal dilemma.

Read the views expressed by various academic commentators, below, and compile a list of your legal arguments in favour of, and against, humanitarian intervention.

> ‘Humanitarian war’ is a contradiction in terms. War and its consequences, bombing and maiming people can never be part of human rights and morality.

> (Douzinas, 2000, p. 141)

> I indicated that critics of humanitarian intervention are not pacifists. They object to this kind of war, a war to protect human rights. They do not object to wars, say, in defense of territory. This position is somewhat anomalous because it requires separate justifications for different kinds of wars. [...] Take the use of force in self-defense. What can possibly be its moral justification? Very plausibly, this: that the aggressor is assaulting the rights of persons in the State that is attacked. The government of the attacked State, then, has a right to muster the resources of the State to defend its citizens’ lives and property against the aggressor. The defense of States is justified qua defense of persons. There is no defense of the State as such that is not parasitic on the rights and interests of individuals. If this is correct, any moral distinction between self-defense and humanitarian intervention, that is, any judgment that self-defense is justified while humanitarian intervention is not has to rely on something above and beyond the general rationale of defense of persons.

> (Tesón, 2003, p. 99)

> […] the arguments in support of unilateral humanitarian intervention do not stand up to close scrutiny. [...] By virtue of the Charter of the United Nations, only the Security Council is empowered to take forcible action against a State which is in breach of its international undertakings to respect human rights.

> (Dinstein, 2011, p. 74)

> Intervention will be where and how US power chooses, the guiding consideration being: ‘What is in it for us?’ [...]. To be sure, the ‘vision’ is cloaked in appropriate rhetoric about ‘democracy’ and all good things, the standard accompaniment whatever is being implemented, and by whom, hence meaningless – carrying no information, in the technical sense.

> The declared intent, the record of planning, and the actual policies implemented, with their persistent leading themes, will not be overlooked by someone seriously considering ‘humanitarian intervention’, which, in this world, means intervention authorized or directed by the United States.

> (Chomsky, 1994)

> The substantial denial of women’s rights – whether civil, political, economic, social, or cultural – has never served as the sole or primary basis for military intervention.

> [...]

> These calls intensified when the Taliban began imposing a form of gender apartheid in Afghanistan. It took the attack of September 11th, however, for the United States to mobilise Operation Enduring Freedom in Afghanistan. Although the plight of women under the Taliban was not a prime motivator for the intervention, the rhetoric surrounding the intervention appropriated feminist concerns about the quality of women’s lives under Taliban rule to garner the support of domestic and international constituencies for the Operation. Indeed, the propaganda value of violence against women has long been recognised. To date, preventing harm to women has served only as a convenient makeweight argument in the service of interventions initiated for other rationales.

> (Van Schaack, 2011, p. 477–8, 488–9)

## Comment

You could start your arguments from an analysis of the differences between the legal justification for the use of force in self-defence and humanitarian intervention. Look again at the rules of jus ad bellum – can they be applied to humanitarian intervention? Are there any irreconcilable differences between the two acts (self-defence and humanitarian intervention), which would determine their different legal regulation?

◄Contents►Next: 3.3 Beyond humanitarian intervention: some of the critical points

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