I think the excellent comments have covered most points, other than where I stand on the issue of Article 26 of the ILC Articles. As Jan points out, Art 26 bars circumstances precluding wrongfulness being available in the case of breaches of jus cogens without referring to the use of force in terms. The ILC commentary does, however, refer to aggression as an example jus cogens.

On this point I favour the view of the early ILC Rapporteur on the subject, Roberto Ago who suggested we need to distinguish between the most grave uses of force (which would be aggression and prohibited as jus cogens) and lesser uses of force (which would still be unlawful but not contrary to jus cogens). See (1980) II YbILC at p.40.

I find this convincing as consent (a circumstance precluding wrongfulness) is generally accepted as excusing what would otherwise be violations of UN Charter Article 2(4) (stationing troops abroad, military overflight, etc). If one may consent to certain uses of force, necessity may likewise be available in principle.

This, of course, simply opens another debate about: (1) whether Ago was right; (2) where the boundary between these levels of force lies and how they might apply in the humanitarian intervention context; and (3) whether this is inconsistent with certain passages in Nicaragua suggesting the general prohibition on the use of force is jus cogens.

However, Jan and I are very much in agreement: the basic question remains whether the basic rule on the use of force itself prohibits humanitarian intervention.

Jan, thank you for the reference to your paper. My thanks also to the other comment-leavers for their very helpful contributions.

Douglas

very interesting thoughts. I have tried to explore this line of argument several years ago in an article, which can be found here (http://www.nottingham.ac.uk/law/hrlc/publications/hrlc.php). I tried to argue that necessity is indeed available and that it was actually used (e.g. by UK in the Kosovo intervention).

There is one more problem with this argument yet. Even though the ILC articles do not deny the applicability of necessity to use of force Article 26 rules out circumstances precluding wrongfulness in cases of violation of jus cogens. So then it turns out to the question whether indeed the prohibition on the use of force is jus cogens and/or the jus cogens norm prohibits humanitarian intervention.

Jan

This is somewhat analogous to a necessity idea, although is not worked through (if I remember correctly) in terms of the notion of necessity in the DA on State Responsibility. But Simon does an admirable job of showing that there is some basis in state practice (the response of states to interventions in Uganda, East Pakistan, Cambodia) for this conceptualization.

4. The use of force to avert overwhelming humanitarian catastrophe has been emerging as a further, and exceptional, basis for the use of force. It was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The doctrine remains controversial, however. I know of no reason why it would be an appropriate basis for action in present circumstances.

(http://www.guardian.co.uk/politics/2005/apr/28/election2005.uk)

I’m not sure what the status of this would be; possibly something less than a full public affirmation in the style of Belgium – but certainly not irrelevant in terms of establishing the opinio juris of the UK either, I wouldn’t have thought.

Just a quick reply to your first question. Indeed, no other state than Belgium has ever publicly invoked the right of humanitarian intervention to justify an otherwise illegal intervention.

As a Belgian I always wondered why they took this position, as Belgium traditionally is really keen on stressing the importance of the Security Council in matters like this.

A Belgian professor of International Law (Mark Cogen) quite bluntly stated in his 2003 ‘Handboek Internationaal Recht’ that there is proof that customary law proved that there existed such a unilateral right to ‘humanitarian intervention’. This professor was for some time legal advisor to the MFA, but i’m not sure if he was an advisor already in 1999. Maybe there’s a link there…

Just two remarks:

1, You mention that “humanitarian intervention begins as an idea supported by academics, is then invoked (not always consistently) by a small handful of States in concrete cases from the 1990s onwards”

Were there any actual cases apart from the well-known example of Belgium in the 1999 ICJ case initiated by the FRY where a country publicly invoked the right of humanitarian intervention to justify an otherwise illegal intervention? I cannot recall any, I might be wrong but I think in all the other cases countries relied on the concept of humanitarian suffering as a policy argument.

2. You repeatedly refer to the ILC Draft. I might be wrong again, but I seem to remember that the ILC actually denied the applicability of the notion of necessity to use of force. Do you consider that interpretation being at odds with customary international law?

Tamás