By Rajiv R. HatéRajiv Haté, a third year student at Albany Law School, is a senior editor for International Legal Studies. He is from Toronto, Canada and is a graduate of the University of Toronto.
He prepared this paper for the International Law of War and Crime Seminar, Fall 2011.
Prior to 1945 there was no customary international law prohibiting a state’s unilateral resort to force. This changed in 1945 when international politics was introduced to the Charter of the United Nations (UN), in which Article 2(4) prohibited states from the unilateral resort to force. When the Charter was adopted, States agreed to refrain from the use of force or the threat of force in their international relations and instead consented to an obligation to settle all disputes by peaceful means.
The use of force for humanitarian intervention is one circumstance in which the stringent UN restrictions on the use of force comes into question. Humanitarian intervention is the use of force by a foreign nation in the internal conflict of another state for the purpose of preventing and/or stopping large-scale atrocities or acute deprivations, such as genocide and crimes against humanity. Humanitarian intervention only arises when effective peaceful measures have been exhausted, meaning that before the use of force for humanitarian purposes can be invoked, it must be demonstrated that such use of force is absolutely necessary to prevent whatever human rights violations are occurring.
However, since the UN strictly restricts the use of force unless it meets one of the two exceptions of self-defense or the authorized use of force by the Security Council, technically the use of force for humanitarian purposes is illegal unless it is authorized by the Security Council. The problem with this is that, to reach an agreement to take forceful action on a state for humanitarian purposes is extremely difficult considering that some evidence may be ambiguous, some will argue it is an internal conflict that foreign countries should not get involved in, and in any given case there may be major powers resisting such an attempt at intervention.
On the other hand, to wait until there is enough evidence or until a consensus is reached or until the Security Council authorizes the use of force for humanitarian purposes, is likely to result in the loss of thousands of lives which could have been saved had the use of force been authorized earlier.*
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* Citations to references in this introduction are available in the paper.
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