Yes, No, Maybe: Why No Clear 'Right' of the Ultra-Vulnerable to Protection via Humanitarian Intervention?
Sara A. Dillon
Suffolk University Law School
March 1, 2012
Michigan State International Law Review, Vol. 20, 2012
Suffolk University Law School Research Paper No. 12-17
Whether or not unilateral humanitarian intervention should be considered 'legal' in public international law remains unresolved, and is apparently unresolvable. (Unilateral humanitarian intervention here refers to international military intervention by one or more countries in the territory of another, in the absence of clear Security Council mandate, and designed to protect a population under immediate threat of violence.) This article argues that, when seen from the point of view of the world’s most vulnerable populations, the humanitarian intervention question is in fact the most significant question in contemporary international law. Its resolution is also key to the consistent and coherent functioning of the international legal regime. Especially when comparing recent events in Libya to other long running - but neglected - conflicts, international law seems to have contented itself with an ad hoc, even arbitrary, approach to the question of when military intervention on behalf of a besieged population is permitted. By contrast, a disproportionate amount of intellectual energy is directed at post-conflict criminal tribunals, which are far less important to the international rule of law than a strong, positive doctrine of humanitarian intervention would be.
The article reviews the history of U.N. Charter 'dysfunction,' in that the international military force intended to meet threats to international peace and security was never created, and the problem of gridlock on the Security Council - although certainly less acute now than during the Cold War - was never fully resolved. The result, as the article details, has been a string of tragedies, in which vulnerable populations are often left to fend for themselves in the face of brutal violence. The article pays particular attention to those situations, as in Uganda, where populations have been terrorized by small, low tech military bands, whose violent activities would have been quite easy to put a stop to, but where the international community has felt no compulsion to step in. Such conflicts often run for many years.
The article discusses in detail the evolution of international thought on the matter of unilateral humanitarian intervention. In particular, it notes recent attempts to reframe the concept as an international 'responsibility to protect.' The argument is made that this change is attractive in the sense of linking military intervention with the idea of 'rights' belonging to those under threat; however, it might prove less effective than the more robust notion of a unilateral right of nations to intervene on an as-needed basis.
The article makes the further argument that it is a grave mistake to treat the issue of unilateral humanitarian intervention as just another thorny issue in international law, whereas in fact a viable legal system simply cannot allow genocidal events to run their course. The article also reviews the old arguments as to whether international law is in fact 'law' as we understand that term, and suggests that a negative response to that question might refocus the scholarly mind on revamping the Charter system to ensure clear protective responses to genocidal threats.
Number of Pages in PDF File: 50
Date posted: March 2, 2012