Humanitarian Intervention and the Clean Hands Doctrine in International Law
48 Israel Law Review 219-251 (2015)
34 Pages Posted: 10 Feb 2014 Last revised: 12 Jun 2015
Date Written: February 9, 2014
A serious issue that has confronted the international community is the legality of humanitarian intervention. Although the majority of scholars reject the existence of a doctrine of humanitarian intervention, could the attacked state invoke the responsibility of an intervening state before an international tribunal? This article attempts to answer this question in light of the often misunderstood clean hands doctrine in international law. It first concludes that under the lex lata, humanitarian intervention is prohibited under international law. This raises the question whether the clean hands doctrine may nevertheless preclude a court or tribunal from adjudicating in favour of a state that has been subject to humanitarian intervention. Although the clean hands doctrine exists under international law in various manifestations, its applicability in cases concerning humanitarian intervention is lacking. The article finally considers whether the jus cogens status of the prohibition of the use of force would prevent the applicability of the clean hands doctrine to humanitarian intervention cases were the clean hands doctrine to evolve into a customary international legal norm.
Keywords: Humanitarian intervention, Clean hands, Procedural rules, Normative hierarchy
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