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 Unauthorized
Humanitarian Intervention in
World Politics

Riyana Karim-Hajiani, McGill University

ABSTRACT
This essay aims to address the question of whether there is sufficient state practice to justify
humanitarian intervention in the absence of a United Nations Security Council mandate, as re-
quired by international law. In the first portion, this essay presents the concept of humanitarian
intervention, mapping its origins with reference to the views of Hugo Grotius, Emer de Vattel, and
Alberico Gentili until the emergence of Article 2(4) of the Charter of the United Nations. In the
second portion, this essay deals with the North Atlantic Treaty Organization’s (NATO) military
intervention in 1999. Pointing to Kosovo, this essay concludes that there is sufficient state prac-
tice to justify the practice of humanitarian intervention in world politics since state practice sets a
precedent for customary norms of international law.

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Introduction authorize action in the face of human suffering
To what extent does international law allow and rights abuses. I support the ‘illegal but le-
for the use of force for unauthorized humani- gitimate’ line of reasoning as advanced by the
tarian intervention1 and is there sufficient state North Atlantic Treaty Organization’s (NATO)
practice to justify the assertion that a right to 1999 intervention in Kosovo; recognizing that
humanitarian intervention exists? Humanitar- because the law is not necessarily just, circum-
ian intervention without United Nations (UN) stances may allow for non-compliance with
Security Council authorization generates enor- the law. I argue that despite the UN Charter
mous debate regarding its legality and legit- Article 2(4) outlawing the use of force against
imacy in world politics. While unauthorized sovereign states without Security Council ap-
humanitarian intervention clearly contradicts proval, unauthorized humanitarian intervention
de jure2 black letter law under Article 2(4) of is legitimate to the extent that it is consistent
the Charter of the United Nations, humanitari- with a set of practices which are internation-
an concerns continues to be cited by states as a ally recognized as legitimate, notwithstanding
de facto3 legitimate reason for using force. The its consistency with written law that is enforced
UN Charter, ratified in 1945, is the “overriding by judicial bodies. That states are justified in
public law of international society” (as cited in their use of force for humanitarian purposes be-
Fassbender 2009, 77). Under Article 2(4) of the cause state practice sets a precedent for custom-
UN Charter, states must refrain in their interna- ary norms of international law, trumping trea-
tional relations from the threat or use of force ty law4 like Article 2(4) of the UN Charter. In
against other states (Charter of the United Na- combination with the political and moral norms
tions and Statute of the International Court of of the international community, unauthorized
Justice 1945, 3). This paper examines the con- intervention for humanitarian purposes in con-
flict between the rules of international law and temporary world politics is supported.
the legitimacy of state practice of humanitarian
intervention, when the Security Council fails to The Roots of Humanitarian Intervention
The present debate about unauthorized hu-
1 Unauthorized humanitarian intervention refers
to the use of force by a state or group of states or manitarian intervention cannot be fully grasped
an international organization against another state, without discussing the pre-UN Charter con-
aimed at preventing or ending massive violations text on the use of force which contemporary
of the fundamental human right of individuals other
than its own citizens (‘strangers’) or of international international law is based upon. The study of
humanitarian law, without the permission of the state humanitarian intervention is traced back to
within whose territory force is applied and without classical scholars of international law such as
the authorization of the UN’s Security Council.
Grotius, Vattel, and Gentili (Rytter 2001, 125).
2 De jure describes a set of practices recognized by
law as a matter of right or fact. 4 Treaty law refers to written agreements of interna-
3 De facto describes a set of practices that is not tional law between consenting states and which has
recognized by law but is accepted as legitimate. been ratified.
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These legal theorists believed that a “war to the purpose of vindicating the law of nations
rescue an oppressed people and to punish injus- against outrage,” or in the interests of humani-
tice was a just war” (Rytter 2001, 125). Vattel ty (Heraclides 2015, 24). For example, Britain,
regards the independent sovereign state as an France, and Russia cited a ‘humanitarian duty’
actor in international relations to which a ‘law to stop Turkish massacres of Greeks as the ba-
of nations’ applies (Glanville 2013, 19). In this sis for their intervention in the Greek War of
context, Vattel suggests a society of indepen- Independence (1827-1830) (Heraclides 2015,
dent states to which European nations are mem- 24). However, this general acceptance of ‘just
bers and to which this “law of nations” applies war’ shifted in the twentieth century, as prin-
(Glanville 2013, 18). Consequently, European ciples of non-intervention hardened alongside
states are duty-bound to one another, requiring the establishment of legal doctrines, including
member states to respect positive law in addi- the 1928 Kellogg-Briand Pact (which attempt-
tion to natural law. Positive law5 obliges states ed to prohibit the use of force in international
to tolerate other states’ behaviour so long as it relations) and the ratification of the UN Charter
does not infringe on the liberty and indepen- (the consequences of which are discussed be-
dence of others within the society, “no matter low). Nevertheless, the desire to protect human
how ‘illegal and condemnable’ the offending rights in the international community did not
state’s actions” (Glanville 2013, 19). However, fade. We now see the evolution of humanitar-
Vattel asserts that there is a right to intervene ianism from a general duty against tyranny to
to rescue the oppressed that is based on a nat- an operation outside of the rules of black letter
ural law of morality and justice. These views law which preserve sovereignty and non-inter-
contradict the eighteenth-century principles of vention principles.
sovereignty and non-intervention, and illustrate
the tension between the rule of non-interven- Article 2(4) of the UN Charter
tion and the need to protect people from tyran- In a classical interpretation of the UN Char-
ny (Glanville 2013, 20). In this context human- ter, Article 2(4) codifies the rule of non-force
itarian intervention appeared as a fully-fledged in public international law. However, there are
doctrine during the nineteenth century (Hera- two legal exceptions to the prohibition of force,
clides 2015, 23-25). Humanitarian intervention one of which is found in Articles 39, 42, and
in the nineteenth century is understood as in- 44. These articles grant the Security Council
terference in another state’s affairs despite the the power to authorize force in response to a
norms of non-intervention and sovereignty, “for threat to peace and security in accordance with
Chapter VII of the UN Charter (Charter of
5 Positive law (otherwise called “Man’s Law”) re- the United Nations and Statute of the Interna-
fers to a set of rules which have been established by tional Court of Justice 1945). The application
an authorized legislature in a political community
of Articles 39, 42, and 44 under Chapter VII
made up of individuals and which does not claim to
be derived from a natural set of principles. in combination with Article 2(4), transfers a
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state’s previously held right to use force to the have been redefined by globalization, situations
Security Council. Thus, Security Council-sanc- involving human rights violations are no longer
tioned intervention is unambiguously legal, categorized as the domestic affairs of a state.
provided it conforms to the Council’s authority Rather, upholding human rights is a global con-
over “threats to international peace and secu- cern, which suggests that Article 2(4) cannot be
rity” (outlined under Chapter VII and Article seen as the absolute legal rule with which we
39) (Hurd 2011, 296). Otherwise, Article 2(4) judge state practice.
clearly does not permit the use of force without
a Security Council mandate. Accordingly, the State Practice and
Security Council is the sole UN organ with the Customary International Law
authority to legalize the use of force. What qualifies as legitimate must be under-
This interpretation of Article 2(4) has been stood in the context of state practice, as when
repeatedly upheld by the International Court of a “norm has been repeated in practice in the
Justice (ICJ), exemplified by the Court’s rejec- international community, so to be generally ac-
tion of the United States’s (US) 1986 applica- cepted, it becomes part of [customary] interna-
tion for humanitarian intervention in Nicaragua tional law as a general principle” (Brenfors and
(International Court of Justice 1986). The Court Petersen 2001, 485). On this view, state prac-
stated that “while the United States might form tice trumps the treaty law that the UN Charter is
its own appraisal of the situation as to respect based upon because it has the power to modify
for human rights in Nicaragua, the use of force the legal rules against the use of force. Howev-
could not be the appropriate method to monitor er, in accordance with international legal the-
or ensure such respect,” rendering the actions ory, state practice must be accompanied by a
of the US in violation of international law be- subjective acceptance by the international com-
cause they occurred without permission from munity (formally called “opinio juris”) in order
the Security Council (International Court of to gain the status of customary rule (Wheeler
Justice 1986, 124; Rytter 2001, 133). Thus, un- 2001, 148-149). From a classical legal inter-
authorized humanitarian intervention is not al- pretation of the post-UN Charter period, opinio
lowed according to the UN Charter’s plain text. juris of unauthorized humanitarian intervention
However, this interpretation ignores other does not exist because the rule of non-force has
relevant considerations, such as the political been repeatedly upheld by various resolutions
and moral dimensions of law not considered and declarations pertaining to non-intervention
in Article 2(4). Indeed, there are moral situa- and sovereignty such as in the 1987 Declaration
tions “in which the unilateral use of force to on the Enhancement of the Effectiveness of the
overthrow injustice begins to seem less wrong Principle of Refraining from the Threat or Use
than to turn aside” and comply with the rules of Force in International Relations (Wheeler
of law (Brenfors and Petersen 2001, 454). Fur- 2001, 149). I do not deny that these promotions
ther, since contemporary international relations of non-force show that opinio juris rejects the
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right of unauthorized humanitarian interven- The UN Security Council determined that the
tion in the immediate post-UN Charter period. Serbian government was violating the human
However, since the end of the Cold War and rights of the Kosovo-Albanian Muslims, which
the fall of the Soviet Union in the 1990s, ‘new constituted a threat to international peace and
interventionism’ emerges wherein violations of security, so they called for the cessation of vio-
Article 2(4) are no longer condemned by the lence in three resolutions (Wheeler 2001, 145).
Security Council and the broader international However, the Security Council did not autho-
community as they previously were. Instead, rize the use of force because Russia threatened
intervention is largely endorsed by the interna- to veto any such attempt, because the country
tional community (Brenfors and Petersen 2001, wanted to avoid setting a precedent for inter-
486). This trend provides evidence of opinio vention in post-Soviet states (Scharf 2013,
juris that was previously absent from interna- 160; Wheeler 2001, 145). Acting without au-
tional law prior to the 1990s and which con- thorization, NATO launched a series of aerial
tradicts preceding resolutions and declarations bombing attacks (“Operation Allied Force”)
of non-intervention and sovereignty as cited by (Scharf 2013, 161). NATO insisted that there
the classical legalist view. Bearing this in mind, was a legal justification for their use of force,
contemporary state practice must be viewed reasoning that the Security Council determined
as setting new precedents of customary norms that there was a threat to peace and security but
which alter the legally binding character of failed to act (Scharf 2013, 162-164). Opposing
non-force under Article 2(4) and are supported actors argued that because no definite authori-
by opinio juris. zation had been extended, NATO had breached
international law. Indeed, the NATO interven-
NATO’s 1999 Intervention in Kosovo tion was illegal, insofar as black-letter law pro-
As stated, state practice in the post-Cold hibits the use of force outside the UN Charter’s
War period has established new customary exceptions. Nevertheless, NATO successfully
norms in international law which support the convinced the international community that
legitimacy of unauthorized humanitarian inter- their actions were consistent with the spirit of
vention, irrespective of Article 2(4) (Morkyte international law, irrespective of Article 2(4)
2011, 129). NATO’s unauthorized humanitar- (Wheeler 2001, 147). NATO’s action was en-
ian intervention in Kosovo in 1999 sets this dorsed by the European Union, the Organiza-
precedent. In 1998, the Serbian military under tion of Islamic States, and the Organization of
the direction of President Milošević sent forc- American States with little public dispute over
es into the region, then a part of Serbia, in re- the necessity of the action to prevent more hu-
sponse to Kosovar insurgents. The government man suffering and rights violations – applying a
campaign ultimately proved to be an effort to political and moral perspective rather than one
ethnically cleanse the region of its majority Al- of de jure law (Scharf 2013, 165).
banian Muslim population (Scharf 2013, 160). In response, Russia proposed that NATO’s
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action be condemned by the Security Council despite illegality according to black-letter law,
like previous instances of unauthorized inter- unauthorized humanitarian intervention is a le-
vention, but their plea was rejected (Brenfors gitimate state practice.
and Petersen 2001, 496). Instead, the Security
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