In contrast, responses to humanitarian intervention become more disapproving when actions are taken by a neighboring state, or a state that has affairs with the state, rather than by U.N. peacekeepers, or, at least, by a group of states within a regional organization. However, when widely publicized large-scale atrocities have happened and individual intervention occurred, intervening states have experienced approval, at least quietly through a lack of condemnation. Strong examples are the Tanzanian invasion of Uganda to oust Idi Amin in 1979, and the 1979 Vietnamese invasion of Kampuchea to oust the Khmer Rouge. While the legal validity of these interventions is an unanswered question, fundamentally humanitarian motivation was beyond any reasonable doubt.

The much more common and difficult situation encountered is the one in which the motivations and justifications for intervention, as declared by the invading state itself, are ambiguous and numerous. It can be difficult to determine which justification is most significant. Nevertheless, multiple competing reasons should not be determinative of the strength of argument made for humanitarian intervention. It is still necessary to include such cases in a general discussion of the doctrine and, eventually, to evaluate the strength of the claims made.

A review of the traditional doctrine of international law demonstrates that humanitarian intervention was intentionally never completely recognized as part of positive law.1 It was hypothesized by Sir W. V. Harcourt in 1863 that:

[I]n the case of intervention as that of revolution, its essence is illegality, and its justification is its success.2

Yet, it has remained an unanswered question if the justification for humanitarian intervention is meant to be evaluated exclusively in terms of its success, or if the ICC could include moral and legal justifications for intervention without relying solely on the results.

This comment has three parts. The thesis is that the criteria for legitimate humanitarian intervention should be narrowly subscribed and clearly defined. The analysis of the thesis is broken down into three sections. One, what the substantive criteria should be: a cost-benefit analysis of force used, weighed against the nature of violation occurring; analysis of the selfish interest the intervening state has in the region of the intervention; and that the de jure government is affected as minimally as possible to assure the stop of the violation of rights. Two, the procedural criteria should entail a declaration of intent to intervene as early as possible. And third, that collective intervention be preferred over individual or unilateral intervention. I conclude by holding that humanitarian intervention is necessary and needs to be clearly defined in order to stand the test of time. The ideas I have combined and put forth are a strong basis for the ICC to rely upon to define the criteria that distinguish humanitarian intervention from the crime of aggression, therefore ensuring that, in extreme situations, a state may be temporarily relieved from its U.N. Charter Article 2 (4) restraints so that, in the most dire situations, a state may take unilateral action to enforce basic human rights. As Lillich stated thirty-four years ago:

[T]o require a state to sit back and watch the slaughter of innocent people in order to avoid violating blanket prohibitions against the use of force is to stress black letter at the expense of far more fundamental values.3

Therefore, the Office of the Prosecutor must outline parameters that would help define the permissible forms and instances of humanitarian intervention.

Humanitarian intervention always stands in need of justification. Walzer, the moral philosopher, points out that the most common situations are, “mixed cases where the humanitarian motive is one among several.”4 There are clear rescue and emergency relief situations, but there is often issues of economic interest, strategic considerations, plain-faced expansionism, and “benevolent imperialism.” As he explains:

[W]e worry that, under the cover of humanitarianism, states will come to coerce and dominate their neighbors.5

Walzer has argued the following set of propositions:

[T]here exists an international society of independent states […]. International [s]ociety has a law that establishes the right of its members, above all the rights of territorial integrity and political sovereignty[…]. Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act[…]. Aggression justifies two kinds of violent response: a war of self-defense, and a war of law enforcement by the victim and any other member of international societ[…]. Nothing but aggression can justify war[…]. Once the aggressor state has been militarily repulsed it can also be punished.6

Because of this standard, if not done to repel an earlier aggression, military intervention by a state or group of states would constitute aggression even when initiated with the most altruistic of motives.

However, Walzer notes that the legalist paradigm contains within itself an exception known as the “the rule of disregard”,7 therefore we do not treat all interventions as a form of aggression. “The paradigm, unrevised, cannot account for the moral realities of military intervention.”8 For example, intervention could be part of collective self-defense of the victim of aggression. Or consider a situation of civil war where there is no clear aggressor. An intervention to prevent a massacre, mass starvation, enslavement, etc., would certainly represent a reasonable revision of the legalist paradigm. Walzer argues:

[W]hen the violation of human rights within a set of boundaries is so terrible that it makes talk of community or self-determination […] seem cynical and irrelevant.9

[W]hen a government turns savagely upon its own people, we must doubt the very existence of a political community to which the idea of self-determination might apply.10

Nonetheless, Walzer is correct in insisting that intervention must be justified, as it inherently threatens the territorial integrity and political independence of the invaded states. Walzer supports that the burden of proof should fall on any political leader who tries to manipulate domestic affairs or change any of the conditions of life in a foreign country. This burden should just as strongly apply to an international organization as well. For what one state cannot do, a group of states are not permitted to do just because they are more in number.

If the ICC concludes that the U.N. Charter did not remove the customary international law practice of humanitarian intervention, and that Articles 2 (4), 2 (7), and 51 could be read to allow intervention under certain circumstances, then the task for the international legal community must be to define the criteria for analyzing the legality of suspect cases of humanitarian intervention. This is where Fonteyne and like-minded scholars have made key contributions to international law by attempting to define criteria for assessing the legality of claims of intervention in aid of human rights protection. I propose that Fonteyne’s criteria serve as a basis for the ICC, and the international criminal law community at large, to base their criteria upon.

In 1910, Rougier was among the first writers to take on the responsibility of creating a list of criteria for permissible intervention. He favored collective and disinterested intervention.11 He lists three criteria for intervention:

1. the motivation to intervene comes from acts of state and not of individuals;

2. the acts in question violate the laws of humanity (rights to life, liberty, and legality), not merely national positive law; and

3. that the intervention fulfills certain “circumstantial requirements,” such as opportunities for success, and the extent of the violation, etc.

Jean-Pierre Fonteyne, in his seminal 1973 article,12 appears to use Rougier’s framework and expand upon it to deliver some more detailed criteria for judging the validity of particular cases of humanitarian intervention. He broke down his criteria into three subcategories: substantial, procedural, and preferential.

I. Substantive Criteria

A. Cost-Benefit Analysis

A primary and dominate goal of humanitarian intervention needs to be finding a balance between the seriousness of the rights being violated and the magnitude of destruction caused by the intervention. As the unilateral use of force to prevent human rights violation is an extraordinary measure, it ought to be used only in response to substantial human rights violations on a large scale. However, gross violations to a smaller population may warrant the same reaction as lesser violations to a large population. Fonteyne’s ambiguous “cost-benefit” component of his criteria is basically that the severity of the violation (the nature of violation, amount of people affected, and persistence of violence) should be balanced against the degree of destruction necessary to halt the violations. If the violation is imminent or is taking place, a greater urgency for action exists, but the intervening state or organization must be certain that the violation is imminent and will occur without intervention.13

Fonteyne’s cost-benefit analysis refers to the need:

[T]o balance the destruction that intervention would cause, and the size of the group affected by the violations, as well as the fundamental character of the threatened human rights.14

The preservation of values to be achieved by intervention must be weighed against the extent of the disruption of internal structures and domestic processes that will necessarily result from the foreign action.15

This criterion is highly subjective and therefore difficult to apply. Fonteyne noted that this could lead to unsympathetic decisions against intervention in desperately needed situations:

Even in an extreme case of violation of the most fundamental human rights of a large group of people (such as in the case of the organized policy of genocide…), foreign intervention of a forceful nature would probably not be warranted if there is a reasonable prospect that the deprivations will end in the immediate future as a result of internal political or other processes.16

B. Disinterestedness of the Intervenors

Ideally, humanitarian intervention is altruistic. But, there is the tendency of most states not to get involved unless there is some political or national incentive for them. The ICC should consider the degree of self-serving interests of the intervenors have in the state or region intervened in. Factors include: the use of force, affection to government, and length of operation. Nevertheless, the “disinterestedness” standard should not be held as an absolute, if the superseding motive is the protection of human rights.17

C. Minimal Affection to Existing Government Structure

If force is necessary, it should be as unobtrusive as possible to the authority structures of the target state. In all aspects, the intervention should reflect humanitarian goals.18 In addition, there should be no unnecessary occupation of the intervened in state; the intervention ought to last only for the amount of time required to implement the humanitarian changes necessary to prevent the violation of human rights and to ensure the stability of such.

II. Procedural Criteria

Given the U.N.’s goal of conflict minimization, force must always be considered a last resort. To assure acceptable levels of disinterest on the part of the interventionist, the intervening state should have to declare their motives as soon as possible to the world and regional organizations for appraisal.19 Universal and regional organizations are best suited for humanitarian intervention in a manner that is consistent with the interests of the world or regional community. Unilateral intervention should be taken only after it is apparent that such an organization will not take any effective action.20

III. Preferential Criteria

A. Collective Intervention

Collective intervention21 is preferred over individual or unilateral measures.22 Unilateral intervention ought to be avoided if possible by obtaining the clear and unambiguous consent or invitation of the de jure government of the state where the intervention is to take place.23 Yet, absence of consent sought does not preclude the possibility of humanitarian intervention provided all the other requirements have been met.24

“Avoidance of any unnecessary affectation of the authority structures of the state intervened in” also requires clarification. There needs to be severe limitation on alterations by the interventionist of the internal authority structures of that state, and that any action in that direction should be limited to those situations where:

[T]he overthrow of the government in power or even secession of a part of the population appears to be the only available means of putting an end to ongoing or threatened human rights violations of particular gravity.25

If the protection of human rights requires the overthrow of authority structures it would seem best to require U.N. authorization as a prerequisite for action. Moore observed that:

To allow unilateral action in such cases would be to permit all manner of self-serving claims for the overthrow of authority structures.26

Conclusion

From the 1860s onwards, philosophers and legal scholars seemed increasingly receptive to the suggested legal validity of humanitarian intervention by individual states or group of states, acting outside the auspices of any international organization.27 In the period immediately preceding World War I, the majority of writers had apparently accepted the legality of humanitarian intervention, even though there were still strong opponents of this position.28 It seems fair to assert that immediately prior to the adoption of the U.N. Charter in 1945, humanitarian intervention was a fairly settled practice under customary international law, even if there was never unanimity on its legal status.

At the Nuremberg Trials in 1946, Sir Hartley Shawcross confidently declared that:

[T]he rights of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the recognized law of nations.29

Nevertheless, some scholars still disagree on whether this right of intervention survived the U.N. Charter, in view of the well-established principle of non-intervention codified in Articles 2 (4) and 2 (7) of the Charter.

Over the past two decades, there have been quite a few dramatic cases of unilateral military interventions, some of which have been castigated as self-serving and thus not motivated primarily by humanitarian goals. There have also been various U.N. peacekeeping operations, including those in former Yugoslavia and Rwanda, which had strong elements of humanitarian intervention.

When humanitarian interventions are undertaken not just in accordance with the U.N. Charter, but by U.N. peacekeepers or regional groups ratified by the U.N., the case for humanitarian intervention rests on even more solid ground. Only from a united perspective and protocol can robust peacekeeping humanitarian intervention serve its purpose as a necessary part of our moral and legal duty. Therefore, the Office of the Prosecutor must outline parameters that will help define the permissible forms and instances of humanitarian intervention. The criterium put forth by Fonteyne are the best foundation for the ICC to rely upon.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Hersch Lauterpacht, The Grotian Traditional in International Law, 23 Brit. Y.B. Int’l L. 1 (1946), available online. ↩

2. 2.

   Id.; William Vernon Harcourt, Letters by Historicus on Some Questions of International Law, Reprinted from “The Times” with Considerable Additions (MacMillian 1863), available online. ↩

3. 3.

   Richard B. Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 344 (1967), paywall. ↩

4. 4.

   See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 86 (2d ed. 1992), paywall. ↩

5. 5.

   Id. at 106. ↩

6. 6.

   Id. at 61–62. ↩

7. 7.

   Id. at 86. ↩

8. 8.

   Id. at 108. ↩

9. 9.

   Id. at 90. ↩

10. 10.

    Id. at 101. ↩

11. 11.

    See Antoine Rougier, La Théorie de l’Intervention d’Humanité, in La Revue Générale de Droit International Public 1 (1910), available online. ↩

12. 12.

    Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 Cal. W. Int’l L.J. 203, 204 (1973), paywall. ↩

13. 13.

    Id. at 260. ↩

14. 14.

    Id. at 259. ↩

15. 15.

    Id. at 260 n.244. ↩

16. 16.

    Id. ↩

17. 17.

    Id. at 262–63. ↩

18. 18.

    Id. at 265. ↩

19. 19.

    Id. at 266–67. ↩

20. 20.

    Id. ↩

21. 21.

    Id.

    (Notes the distinction between multilateral and unilateral humanitarian intervention).

    (“Multilateral intervention refers to action taken by or authorized under an appropriate international body, such as the United Nations or a regional organization such as the Organization of American States. […] Unilateral intervention refers to the use of force either by a collective group of states or a single state without the authorization of a relevant international organization.”). ↩

22. 22.

    Id. ↩

23. 23.

    Id. at 267. ↩

24. 24.

    Id. at 268. ↩

25. 25.

    Id. at 263. ↩

26. 26.

    John Norton Moore, The Control of Foreign Intervention in Internal Conflicts, 9 Va. J. Int’l L. 205, 264 (May 1969), paywall. ↩

27. 27.

    See Fonteyne, supra note 12, at 219. ↩

28. 28.

    Id. at 223. ↩

29. 29.

    The International Military Tribunal for Germany, Twelfth Day, 3 Nuremberg Trial Proceedings (Dec. 4, 1945), available online. ↩