#Ge·no·zid·blogger
27 Mar 2019

Text & Translation: Corinna

#Military Intervention: is it legal? Is it moral?

In the face of today’s crises around the world, military intervention often appears to be the only solution when people are killed, tortured and terrorized. However, more often one gets the feeling that ‘the Security Council […] is no longer a guarantor for legitimacy under international law, but only for failure to render assistance’.1 But if one briefly puts aside the anger, the lack of understanding and the feeling of powerlessness, then one must ask oneself whether it is actually legally and morally justified for states to intervene in the affairs of other states. Is it okay to intervene? And are we obliged to do so?

2981939101_0925066816_bPhoto: David Ohmer/www.flickr.com/Creative Commons 

#Military Interventions

Most people have a slight idea what military intervention means. But not only does the dropping of bombs or the use of ground troops constitute a military intervention, but the following four characteristics must be fulfilled:

# the threat or use of force by a state (or states) must extend beyond its own borders;

# force is used in order to prevent or end widespread and serious violations of the most fundamental human rights;

# the victims of human rights violations are not its own citizens;

# the state in whose territory the force is used has not allowed or requested it.2

#Charta of the United Nations

In principle, all UN member states are equal and sovereign; the principle of non-intervention applies (Art. 2 (1) UN Charta). Only if a threat or breach of international peace is imminent or a UN member state is attacked should the UN consider diplomatic and economic sanctions and only intervene militarily as a last resort, since the prohibition of violence applies (Art. 2 No. 4 UN Charta).3 If sanctions are to be imposed by the UN Security Council, they must not be based on domestic affairs. Human rights are not considered to be part of the domestic affairs of a state. Therefore, military intervention under Chapter VII of the UN Charta for the Protection of Human Rights could be legal.

Nonetheless, this chapter was included in the UN Charta to protect and secure international peace and security and not to punish human rights violations.

However, in its preamble and the Articles 1 (3), 13 (1)b and 55c, the UN Charta links human rights with world peace. So do human rights violations threaten world peace? If one wants to answer this question with ‘yes’, one can only add here actually wide, massive and systematically organized human rights violations. The UN Security Council argued in some resolutions that even large flows of refugees threaten international peace because they can destabilize entire regions. The problem with this argumentation is, that any civil war could be seen as a threat to world peace, and that would be contrary to the basic concept of Chapter VII of the UN Charta.4

15346968921_b9f2f31ec3_bPhoto: Number 10/www.flickr.com/Creative Commons

However, what about genocide? What when millions of people are slaughtered? Should we watch? The Genocide Convention has been ratified by almost all countries; legally speaking, genocide is a crime under international law and punishable by the international community. Genocide is therefore not a domestic matter, but an international crime that must be prevented and stopped. According to the Genocide Convention, this can also include the right to military intervention.

In general, it can be argued that military intervention in the case of human rights violations is legally possible, but very controversial. The interpretation of the UN Charta and the decision as to whether an intervention is permissible lies within the UN bodies, above all the UN Security Council. As long as the Security Council authorises a military intervention, it is legal. If the intervention is not approved by the Security Council it becomes complicated.

#Blocked UN Security Council

The UN Security Council has the primary responsibility for peace and security in the world (Art. 2 (4) UN Charta), but according to Art. 1 (1) UN Charta all member states have the responsibility to intervene if the Security Council cannot or will not fulfil its tasks. Thus, the Security Council has the primary responsibility, but not the sole responsibility. This does not mean, however, that the member states are immediately given green light to invade other countries if, for example, the Security Council is blocked due to the veto right of the five permanent members. In this case, the responsibility would first be transferred to the General Assembly and other organs of the UN.

2828949986_505c7958e6_bPhoto: Icons For Now/www.flickr.com/Creative Commons

#Customary law

For a particular conduct to become customary it must be applied regularly in practice and accepted by most states.5 However, previous military interventions without the permission of the UN Security Council (e.g. East Pakistan 1971, Cambodia 1978, Uganda 1979) are not regarded as such state practice because they are denied humanitarian reasons. NATO’s military intervention in Kosovo in 1999 is also not intended to establish any state practice, not least on the basis of NATO statements.6 From today’s point of view, interventions that are not carried out with the permission of the Security Council (or other UN bodies) are illegal. However, it remains to be seen who will punish these interventions, especially when human lives are at stake.

#Moral obligation

Can interventions be legal from a moral point of view? Can state sovereignty be overwritten by higher principles? The Responsibility to Protect (R2P) was developed with this question in mind. According to it, the sovereignty of a state is not absolute, but is linked to the obligation to protect its citizens from atrocities. If a state fails to uphold this obligation, the UN member states can or should intervene. Former UN Secretary-General Kofi Annan put it this way:

‘The UN Charta protects the sovereignty of peoples. It was never intended as a kind of licence for governments to trample on human rights and dignity. Sovereignty demands responsibility, not just power.’7

Regarding the R2P, military interventions in the light of mass murder, genocide and ethnic cleansing are justified when other means and sanctions have not been successful. However, the R2P also demands permission from the UN Security Council.8

#Self-interest

As a counterargument against the ideals of the R2P, it is argued that no state acts without self-interest. If an intervention is based on the ‘humanitarian situation’, then there is always a certain intention or goal behind it, such as access to oil and natural resources or geographical, financial and political influence in the region.9

‘[…] let’s get right away from using the term “humanitarian” to describe military operations.’ – Kofi Annan10

It is questionable whether legitimate national interests are a problem as long as they do not conflict with the humanitarian objectives of the mission. Not all political interests are bad or evil, such as the interest in minimizing the political, financial or social instability of the region. As long as the outcome is humanitarian, the intention should not be overemphasised, because the number of interventions purely out of altruistic reasons would be close to zero. Each intervention costs money, human lives, consumes resources and is accompanied by an immense administrative effort as well as military and diplomatic work – especially in the years after the war.11

14372694895_e7534d0188_bPhoto: Global Panorama/www.flickr.com/Creative Commons

#Right to self-determination

The right to self-determination continues to speak against intervention, because it is the freedom of the state to define and structure itself. It is argued that states should refrain from intervention because the processes within a state are very complex and outsiders often do not understand them. On the other hand, there is the question of whether intervention is nevertheless justified when active self-determination of citizens is no longer possible. Should mass murder and other atrocities be accepted as a means of state-building? Do not all people have the same fundamental rights?12

#War as a means of morality?

There is, of course, a legitimate question as to whether something as terrible as war can be right and humanitarian, because military intervention is nothing more than war and brings suffering, death and destruction. This is where the doctrine of “just war” (bellum iustum) comes in. According to this doctrine, a war or armed conflict is ethically and legally legitimate if, among other things, it is proportionate and there is a valid reason for war and the prospect of peace.13 Especially in the face of genocide and ethnic cleansing, an intervention often saves thousands of lives and ends the rampant violence against civilians. Furthermore, such intervention can provide the often necessary time to find a long-term solution when negotiations between the fronts are at a standstill.

#Conclusion

Military interventions are highly controversial from a legal and moral point of view. It is argued that in serious cases of human rights violations the prohibition of violence and intervention of the UN Charta can be overwritten. On the other hand, it can be argued that these principles are absolute and must not be violated because of human rights violations, but only when international peace and security are threatened. Currently, there is no customary state practice that can be invoked, but the R2P, which is recognized and implemented by the UN, justifies military intervention when a state misses or fails to protect its population from atrocities.

There is no clear ‘yes’ or ‘no’ to the question of whether military intervention is justified. Everyone must decide for oneself which view to follow, but one should not forget Article 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’14

Sources:

# Ayoob, M (2002) ‘Humanitarian Intervention and State Sovereignty’, The International Journal of Human Rights, 6 (1), ff. 81- 102

# Böhm, A. (2014) „Vergeblicher Notruf“, in Die Zeit, Nr. 45 vom 30.10.2014, S.1

# Coady, C. A. J. (2003) “War for Humanity: a critique”, in Chatterjee, D. K. and Scheid, D. E. (ed.) Ethics and Foreign Intervention, Cambridge: Cambridge University Press, ff. 274- 292

# Finnemore, M. (2003) The Purpose of Intervention – Changing Beliefs about the use of force. London: Cornell University Press.

# Hehir, A. B. (2010) Humanitarian Intervention- an Introduction. Basingstoke: PALGRAVE MACMILLAN

# Hemmer, K. E. and Wüst, A. (2008) Völkerrecht. 7. Edition. Würzburg: Hemmer/ Wüst Verlagsgesellschaft.

# Holzgrefe, J. L. (2003) ‘The humanitarian intervention debate’, in Holzgrefe, J.L. and Keohane, R. O. (ed.) Humanitarian Intervention- Ethic, Legal and Political Dilemmas, 2003 Cambridge: Cambridge University Press, ff. 15- 52

# ICISS (2001) The Responsibility to Protect. Available at: http://responsibilitytoprotect.org/ICISS%20Report.pdf (Accessed 24.10.2014)

# Miller, R. W. (2003) ‘Respectable oppressors, hypocritical liberators: morality, intervention, and reality’, in Chatterjee, D. K. and Scheid, D. E. (ed.) Ethics and Foreign Intervention, Cambridge: Cambridge University Press, ff. 215- 250

# United Nations (1945) Charta of the United Nations. Available at: https://www.un.org/en/Charta-united-nations/index.html (Accessed 07.11.14).

# United Nations (1948) Universal Declaration of Human Rights. Available at: https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf (Accessed 11.11.2014).

# Weiss, T. G. (2007) Humanitarian Intervention. Cambridge: Polity Press.

# Welsh, J. (2004) ‘Taking Consequences Seriously: Objections to Humanitarian Intervention’, in Welsh, J. (ed.) Humanitarian Intervention and International Relations, Oxford: Oxford University Press, ff. 52- 68.

1 Böhm (2014) „Vergeblicher Notruf“ in Die Zeit Nr. 45, p.1
2 Holzgrefe (2003) p. 18
3 Hemmer/ Wüst (2008) p. 121
4 Ayoob (2002) p. 95
5 Hehir (2010) p. 92
6 Hehir (2010) p. 94
7 Miller (2003) p. 223
8 Weiss (2007) p. 108
9 Finnmore (2003) S. 4
10 Kofi Annan in Weiss (2007) p. 11
11 Weiss (2007) p. 6
12 Welsch (2004) p. 60- 67
13 Coady (2003) p. 279
14 Art. 1 Universal Declaration of Human Rights

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