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Home EJIL Analysis Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Published on September 12, 2013        Author: 

Sir Daniel Bethlehem KCMG QCsir-daniel-bethlehem is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.

The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention.  Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally. 

There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence).  The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.  This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.

The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling.  As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case.  Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law.  In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic.  The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy.

Threads of this second strand of argument are well known – the United Kingdom’s 1998 Kosovo principles, Responsibility to Protect (R2P), etc.  But there has so far been a failure, at least in the public debate, to draw these threads together in a manner that actually makes the case, as opposed to simply asserting it.  The 29 August 2013 paper indicating the UK Government Legal Position notes as a matter of proposition that “[i]f action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria … under the doctrine of humanitarian intervention, provided three conditions are met”.  Those conditions reflect the criteria for humanitarian intervention advanced by the UK in its 1998 paper circulated to NATO allies in respect of the unfolding humanitarian catastrophe in Kosovo.  The August 2013 HMG paper does not, however, set out any of the legal analysis that presumably underpinned the proposition of law that it asserted.

With the caveat that each thread that would go to make up this strand of argument is nuanced and would require elaboration to be properly developed, elements going to make up this strand of argument might include the following – these not being sequential points but rather part of a tapestry of argument.

1.      The compelling objective of the United Nations, as expressed in the preamble of the UN Charter, is “to save succeeding generations from the scourge of war” and “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”.

2.      International law acknowledges a tightly constrained last resort right of States to act in situations of distress (to save life) and circumstances of necessity (to safeguard an essential interest against a grave an imminent peril).  While these principles – reflected in Articles 24 and 25 of the International Law Commission’s Articles on State Responsibility – do not provide a basis for humanitarian intervention of the kind here in contemplation, they reflect an appreciation that the law will be cautious about condemning limited action in last resort that is aimed at addressing extreme humanitarian exigencies.

3.      International law also precludes the wrongfulness of an act of a State towards another State if that act constitutes a counter-measure against the latter State aimed at procuring the cessation of an illegal act by that latter State.  This principle – addressed in Article 22 of the International Law Commission’s Articles on State Responsibility – would not provide a legal basis for humanitarian intervention of the kind here in contemplation (notably as it addresses non-forcible counter-measures only), but it nonetheless reflects an appreciation of law that it may not be tenable to allow manifestly illegal and egregious conduct by a State to simply go unaddressed.

4.      Whether or not justified by reference to a legal principle of humanitarian intervention, there have been notable examples over the years of States using force to intervene in other States for humanitarian purposes in the face of dire humanitarian need.  Three examples of such action, much discussed in the legal literature, were the Tanzanian intervention in Uganda, which led to the ousting of Idi Amin, the Vietnamese intervention in Cambodia, which led to the removal of the Khmer Rouge, and the Indian intervention in East Pakistan, that ultimately led to the creation of Bangladesh.

5.      The no-fly zones in Iraq from 1991, and the forcible action taken by the US, UK and France to police those zones, are an important part of this tapestry.  While Security Council resolution 688 (1991) expressed the Council’s grave concern at the repression of the Iraqi civilian population and the magnitude of human suffering, this resolution was not a Chapter VII resolution of the Security Council, did not recall or rely upon SCRs 678 (1990) or 687 (1991), which had authorised the use of force, and cannot therefore be relied upon for purposes of characterising the no-fly zones military action as UNSC authorised action.  It was not.  It was humanitarian intervention outside of the framework of a Chapter VII UNSC authorisation, albeit with some non-binding UNSC cover.

6.      The Kosovo intervention by NATO is the next building block in the crystallisation of a legal principle of humanitarian intervention, containing at least two important elements.  First, in October 1998, the United Kingdom circulated a note to NATO allies in which it explicitly advanced a narrowly tailored humanitarian intervention legal basis for military action absent a UN Security Council authorisation.  It is this same legal basis that HMG set out in respect of any action in Syria.  At the very least, this statement of position constitutes a clear and unambiguous view by the UK that there is a limited right of humanitarian intervention outside of the framework of the UN Charter.  Second, the UK statement cannot, however, simply be taken as an isolated expression of view of one State alone.  Although only few of the other NATO States that participated in the Kosovo military action in 1999 came out publicly to explain the legal basis of their action, there can be little doubt that most, if not all, considered that action to be lawful.  And, absent any other legal basis for that action, it is evident that the legal basis relied upon by NATO and its participating States – even if not expressed publicly – was that of humanitarian intervention.  The Kosovo precedent is therefore a much wider and more robust precedent than is often acknowledged.  Adam Roberts’ discussion of these issues in the October 1999 volume of Survival provides an illuminating account of this episode.

7.      The emergence of the concept of Responsibility to Protect provides a further link in the analytical chain.  While many academics suggest that the effect of the concept of R2P is to close down the space for action by States outside of the framework of the UN Charter – on the grounds that the R2P discussion has focused almost exclusively on action by the UN Security Council – there is room for a different view.  This is that, if the Security Council fails to act in what the Canadian-established high level International Commission on Intervention and State Sovereignty (ICISS) described in its 2001 Responsibility to Protect report as a “conscience shocking situation” – circumstances such as the genocide in Rwanda – reason and politics suggests that States are likely to act on other bases.  While noting the absence of a consensus accepting the “validity of any intervention not authorised by the Security Council or General Assembly”, the ICISS (in its 2001 report) went on to observe that, “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”  While this and other similar comments in an R2P context do not endorse the legality of non-UNSC authorised ad hoc humanitarian intervention, they acknowledge the fundamental challenge posed by Security Council inaction.  And, in the face of a conscience shocking situation but inaction by the Council, it is not a stretch of legal reasoning to say that the responsibility to protect admits of a narrowly tailored right of ad hoc action for a proper purpose.

8.      The significant developments, over the past 20 years, in the field of international criminal law further bolster the case in favour of a limited right of humanitarian intervention.  While genocide, war crimes and crimes against humanity have been crimes under international law for a much longer period, the past 20 years have seen the establishment of ad hoc international, and similar, criminal tribunals to try such offences, including in respect of acts committed in the circumstances of internal (or what began as internal) conflicts, such as those in the former Yugoslavia, Rwanda, Cambodia, Sierra Leone and elsewhere.  The establishment of the International Criminal Court is an important part of the same trend.  Flowing from this, and as a matter of the coherence of the law, it would raise a real issue of the credibility of the law for the international community to compel the post-hoc prosecution of those who are alleged to have committed the most heinous of atrocities but to deny a tightly constrained right of States to take action as a matter of last resort to prevent the (further) commission of such crimes in the first place in the face of manifest evidence of such conduct.

Drawing all of these – as well as other (such as developments in the law on human rights) – threads together, there is a case to be made in favour of the emergence of a tightly constrained principle of humanitarian intervention that is consistent with traditional conceptions of customary international law.  As to what the tightly constraining conditions of such action are or should be, elements drawn from the law on necessity and distress, as well as the criteria identified by the ICISS and others in respect of R2P, provide a good starting point.

As regards the relationship of such a principle with the UN Charter, three possible constitutional theories are apparent: (a) the customary international law principle could sit alongside the UN Charter (following the reasoning of the International Court of Justice in the Nicaragua case); (b) the customary international law principle could operate at an interpretative level, by reference to the interpretative canon reflected in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, as regards the interpretation of the scope of Article 2(4) and other provisions of the UN Charter; and/or (c) the principle could be regarded as a supervening, later in time, principle of customary international law for purposes of filling in the gaps in, or even prevailing over elements of, the UN Charter.

Beyond the preceding, in the context of Syria, a full analysis would require consideration of a whole host of other legal issues, including at least: (a) the legal effect of the Security Council’s failure to act, (b) the legal effect that attaches to the use of chemical weapons, as distinct from other massive humanitarian violations that have occurred previously; (c) the legal effect of resolutions of the Arab League; (d) the legal effect of the opposition of Russia, China, Iran and others to the suggestion of intervention; and (e) the legal effect of the massive cross-border refugee flows into Turkey, Jordan and elsewhere.  Whether any intervention on humanitarian grounds would ultimately be assessed to be lawful would also be heavily contingent on the facts (including the soundness of the evidence relied upon) and the appreciations of the proper purpose of any such action and likelihood that such a purpose would be achieved.  The points set out above are therefore only the bare bones of the case to be made in favour of the existence of a principle of humanitarian intervention.  They are not a justification of any conduct that may be taken in reliance thereon.

One point in conclusion.  The debate in the UK Parliament, and the vote thereafter, cannot be taken as a rejection of a right of humanitarian intervention.  References to the law in the debate were brief, passing and inconclusive.  The vote, quite apart from the narrow party-political elements that contributed to its outcome, was focused on the wisdom of intervention, not on its legality.  For purposes of assessing the existence of a right of intervention, the HMG statement of position, asserting the existence of a narrowly tailored right to intervene, remains intact and relevant to an assessment of the international practice in this area.

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28 Responses

  1. Here is some of the relevant literature (books, in English) for assessing arguments “for and against” a principled approach to humanitarian intervention for international law:

    • Abiew, Francis Kofi. The Evolution of the Doctrine and Practice of Humanitarian Intervention. The Hague: Kluwer Law International, 1999.
    • Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
    • Buchanan, Allen. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
    • Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
    • Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
    • Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
    • Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
    • Glennon, Michael J. Limits of Law, Prerogatives and Power: Intervention after Kosovo. New York: Palgrave Macmillan, 2001.
    • Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
    • Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
    • Hoffman, Stanley. The Ethics and Politics of Humanitarian Intervention. Notre Dame, IN: University of Notre Dame Press, 1996.
    • Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
    • Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
    • Kennedy, David. The Dark Side of Virtue: Reassessing International Humanitarianism. Princeton, NJ: Princeton University Press, 2004.
    • Orford, Anne. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge, UK: Cambridge University Press, 2003.
    • Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
    • Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.
    • Wheeler, Nicholas J. Saving Strangers: Humanitarian Intervention in International Society. Oxford, UK: Oxford University Press, 2000.

  2. […] and currently a visiting faculty colleague of mine at Columbia) has a piece in EJIL Talk titled Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention.  Especially interesting is his argument about methodology for determining legality of force: […]

  3. Jonathon

    I wonder if Bethlehem would have made this argument in 2008 when Israel gassed and massacred the Palestinians. Should Pakistan (a nuclear power), Iran and Turkey (with large armies) have intervened on the same legal basis that Bethlehem advocates?

    He wants exceptionalism – the right to humanitarian intervention is only the right of the western powers. If the right is for all, then it could lead to WW3.

  4. Jordan

    I disagree with the view set forth in #5 (since there was indeed a S.C. authorization to engage in three types of armed force, Res. 678, and it was still operative), and I disagree with #6 (because the NATO authorization was sufficient, given U.N. arts. 52 and 53 — see, e.g., http://ssrn.com/abstract=2272291 re: “regional action” authorized by NATO and the OAS). Much of what you have articulated, however, is at the very least quite interesting and highly relevant to a policy-serving interpretation of a number of provisions of the U.N. Charter — even Article 2(4) of the Charter, which per terms of the text and in view of various objects and purposes of the Charter, is malleable.
    I did not mention “humanitarian intervention” as one of the seven possible bases for lawful use of force in Syria (see http://jurist.org/forum/2013/09/jordan-paust-force-syria.php ), but the 2(4) claim had been made by Professor Tony D’Amato with respect to a basis for humanitarian intervention as such in Kosovo.

  5. David

    It seems to me that all arguments that try to establish a principle of humanitarian intervention will be clutching at straws until more states (if they ever do, which they will most likely not) recognise such a principle.

    Those states that claim international legality for their use of force in another state without support from the relevant UN Charter provisions are on very shaky foundations.

  6. Hoffmann Tamás

    1. “The compelling objective of the United Nations, as expressed in the preamble of the UN Charter, is “to save succeeding generations from the scourge of war”

    Exactly, the central objective of the creation of UN is to outlaw unilateral use of force save from self-defence.

    2. International law acknowledges a tightly constrained last resort right of States to act in situations of distress (to save life) and circumstances of necessity (to safeguard an essential interest against a grave an imminent peril).

    Exactly, and the ILC expressly rejected its application in the field of inter-state violence.

    3. “International law also precludes the wrongfulness of an act of a State towards another State if that act constitutes a counter-measure against the latter State aimed at procuring the cessation of an illegal act by that latter State… reflects an appreciation of law that it may not be tenable to allow manifestly illegal and egregious conduct by a State to simply go unaddressed.”

    Exactly, it reflects an appreciation that egregious conduct must be answered by peaceful means.

    4. “Whether or not justified by reference to a legal principle of humanitarian intervention…”

    Well, they were not, which should matter something, shouldn’t it?

    5. “The no-fly zones in Iraq from 1991… was humanitarian intervention outside of the framework of a Chapter VII UNSC authorisation, albeit with some non-binding UNSC cover.”

    The creation and enforcement of the no-fly zone might have had a humanitarian objective but none of the participating states relied on a RIGHT of humanitarian intervention.

    6. The Kosovo intervention by NATO was only qualified as humanitarian intervention by 2 states, the UK and Belgium. With all my appreciation to Adam Roberts, his scholarly views do not constitute opinio juris and state practice.

    7. “in the face of a conscience shocking situation but inaction by the Council, it is not a stretch of legal reasoning to say that the responsibility to protect admits of a narrowly tailored right of ad hoc action for a proper purpose.”

    Save from the fact that the international community expreslly rejected ALL FORMS of unilateral action with reliance on R2P. So I suggest that in the face of the unanimous position of the international community that forcible action under the R2P doctrine can only be carried out under Security Council authorization, I respectfully suggest that it is a pretty big strech…

    8. “The significant developments, over the past 20 years, in the field of international criminal law further bolster the case in favour of a limited right of humanitarian intervention.”

    No, it bolsters the case for post-conflict accountability. I’m not aware of humanitarian intervention being a kind of criminal sanction addressed to individuals…

    “Drawing all of these – as well as other (such as developments in the law on human rights) – threads together, there is a case to be made in favour of the emergence of a tightly constrained principle of humanitarian intervention…”

    X times nothing equals nothing. With respect again, none of the adduced arguments are even remotely convincing. They are isolated incidents, analogies or simply moral principles dressed as law.
    Any analysis of the legality of humanitarian intervention should address the inconvenient truth that there is a huge body of opinio non juris in the form of explicit rejection of the legality of the purported right, mainly by third world countries. So while you have found two single countries in the world that accepted the legality of humanitarian intervention, there is more than 100 countries that expressly rejected it. That might be taken into account as well…

  7. Rahul Hemrajani

    Even if it is assumed that the principle of humanitarian intervention has crystallised as a customary international norm, it would still have to overcome the argument that the prohibition of use of force as presented in Article 2(4) is jus cogens. Article 53 of the VCLT provides that a jus cogens norm may only be modified by a subsequent norm of general international law having the same character. Therefore, to apply as a new exception to 2(4), the principle of humanitarian intervention must not only be accepted as customary but also as jus cogens, which I think is very unlikely.

  8. Ralph

    @Rahul,
    your argument regarding the ius cogens status may be disputed; after all, humanitarian intervention would not try to “overrule” the prohibition on the use of force but modify it. In this sense, the ius cogens status would remain untouched and there would be no clash of norms.
    After all, I still agree with those disputing the emergence of any norm of humanitarian intervention. The weird argument put forward above, namely that Israel allegedly “gassed and massacred Palestinians” is a case in point. It is indeed likely that some states would adhere to such bogus asssesments of asymmetric warfare, especially if staets/religions/ethnicities they hate are involved. Therefore, the arbitrariness regarding the sensitive issue of the use of force must be kept at the lowest level possible. Humanitarian intervention would not only be abused almost permanently, it would further strengthen fears of arbitrary application raising memories of the times of colonization as only western powers/in particular NATO as the new de fact- Security Council.

  9. Manuel Ventura

    Rahul,

    As I’ve pointed out before in the comments to another post on EJIL: Talk!, I don’t buy the argument that the prohibition on the use of force is jus cogens. Why? Because the prohibition has two exceptions. How can a jus cogens norm have two exceptions? Does the prohibition of torture have exceptions? Or the commission of genocide? Does it sound ok to say that torture is prohibited except when in x or z circumstances? If not, then why is it ok in the context of the use of force?

  10. Azadean

    lets assume for a moment that article 2(4) is Jus Cogens,I’m wondering, how to reconcile human rights as jus cogens with artcile 2 (4) of jus cogens. i red some articles that talk about how human rights are jus cogens and as such they present a higher level then other sources of law, but what happens when two norms or laws of jus cogens oppose each other? what is the solution then? is there a legal system that solves these kinds of dilemmas?

  11. Rahul Hemrajani

    @Ralph
    The word used in Article 53 is in fact “modified”, which is exactly, as you pointed out, what a new exception to the prohibition on use of force would do. Therefore, Humanitarian intervention would in fact be a derogation of the jus cogens norm of 2(4).

    @Manuel
    I think there is an argument to be made that the jus cogens norm is not an isolated Article 2(4), but 2(4) in its charter framework i.e. Article 2(4) along with its charter exceptions. Thus self-defence and chapter 7 action by the SC would constitute internal exceptions within the norm and not separate norms which are in derogation of 2(4). I don’t think this leads to any contradiction.
    VCLT certainly doesn’t prohibit such internal exceptions. It merely states that the norm should be accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted. States are thus free to choose the exact content of the norm. If states accept that the content of the norm is ‘prohibition of use except in cases of self defence and security council authorization’- then it will be this norm from which no derogation is possible. Whether states have actually accepted 2(4) (with or without its exceptions) as a jus cogens norm is debatable, but I do not think the fact that the charter contains 2 exceptions can imply that 2(4) can never be jus cogens.

  12. Giacomo Biggio

    Manuel,

    I think that an argument can also be made that the prohibition on use of force is actually made by art 2(4) and its exceptions. So you can affirm its jus cogens status by saying that the prohibitions allows no exceptions, safe for those explicitly provided by the Charter. Otherwise, I cannot see how the ILC and ICJ statements in Nicaragua could make any sense

  13. ius cogens norms are essentially fundamental, general and universally recognized principles in their essence, only this giving them the cogens characterization. thus they contain and legality and legitimacy. being principles their conflict is no binoumous yes/no decision but , so the principle-discussion in philosophy of law: weighing among them, so that each still keeps its normative character. three authoritative interpretations of the UN Charta of priciples come in focus with the topic of humanitarian intervention: the general declaration of human rights, the friendly relations declaration and the definition of aggression. weighing between these three is to be done.agression against the own people ~ friendly relation between the interested states ~ human rights of the people aggressed by their own government. it seems to me clear, that the aggressed people doesn’t need the third aggression from outwards, but the rescue in willingfully taking refugees or better solutions owed to more phantasy like creating ideal speech situations concepted by habermas. the security council’s is some sort of notstandsvollmachten with the cautionary key embedded that only consens between the five mightiest powers secures<<<! the case of emergency after all other means, even the most unconventional ones besides the use of force, have failed. the weighing between the ius cogens principles has to have found universal, general and fundamental consens. it is no failure of the security council, but its security mechanism working, not to use force unilaterally or besides the Charta.

  14. Ralph

    @Rahul,
    well, here we go. The prohibition of the use of force has always been a ius cogens norm INCLUDING the 2 exceptions. One could, if one wants to twist words to a certain extent, argue that hum int is based on ius cogens norms itself and therefore capable of modifying 2(4). Or, as Reisman has done in connection with forceful regime change towards democracy, one could say that 2(4) presumes a certain kind of sovereignty that is well in accordance with hum int in the sense that 2(4) requires a state to act in a certain way.

  15. Daniel

    With regard to the jus cogens status of the prohibition of the threat or use of force, one has to admit that it is a very odd type of jus cogens rule that only bars non-consensual uses of force. For if a state agrees to the deployment of foreign forces on its territory, then the prohibition is not breached. But what sort of jus cogens norm admits of an exception when the receiving state consents? Jus cogens, by definition, means that a receiving state cannot agree to the permit the type of activity prohibited by the rule, whether by treaty or otherwise.

    Of course, one might be content that the formalism that the prohibition only applies as jus cogens within the limits and system established by the charter. But then the content of the jus cogens norm must be identified by interpreting the charter. In this regard, it is not irrlevant to recall that the charter is a constitutive document–the sort of document that calls for an evolutive interpretation that gives regard to practice and contempory community values. In other words, if the jus cogens prohibition on the threat or use of force is tied to the UN charter expression of that principle, with its attendant exceptions, then it is a special type of jus cogens norm–one that must be interpreted within the system in which it exists. A sort of lex specialis of jus cogens where the general VCLT rule on jus cogens would have to be adapted to the circumstances.

    None of this, of course, addresses what the current scope of the prohibition is, but rather it attempts to argue that the norm is not necessarily a static one. Its expression in the UN charter must be interpreted in light of, among other things, subsequent practice.

  16. Ralph

    Jus cogens, by definition, means that a receiving state cannot agree to the permit the type of activity prohibited by the rule, whether by treaty or otherwise.>>>
    You’re making things unneccessarily complicated. Ius cogens means that the norm must not be violated. It does not say anything about the content and the character of the norm. So the norm may well be that no state may use force against another state EXCEPT self defenec and with SC permission. Intervention on invitation does not constitute using force in that sense and thus does not violate ius cogens. I

  17. Mike

    Can two norms of jus cogens contradict each other (say human rights vs. prohibition on the use of force) and if so is there a hierarchy?

  18. Manuel Ventura

    I get the argument that a jus cogens norm can have exceptions “built in” and that no derogation other than those exceptions is permitted. It’s a creative theory, but unfortunately I’m still unconvinced. If we look at the common characteristic of uncontested jus cogens norms – the prohibition of genocide, torture, slavery – none of these allow for any exceptions whatsoever. In fact, it would be odd to suggest that they even should. If we can all agree that these are jus cogens – when they have absolutely no exceptions – is this is not evidence of the sort of content that we believe jus cogens should possess?

    I wonder however, whether we’re not actually closer on the issue than we may think. For example, I would absolutely agree that the prohibition of aggression is jus cogens, again for the simple reason that like our other undisputed jus cogens norms it does not allow for any exceptions. Even the ILC is with me on this point: in UN Doc. A/56/10 they refer not to the prohibition on the use of force but rather aggression as being a jus cogens norm. I have no doubt that the language used (“aggression” as opposed to “unlawful use of force”) was carefully chosen.

    Unfortunately, I think we’ll need a court decision for this to be settled.. (or not!)

  19. Ralph

    If we look at the common characteristic of uncontested jus cogens norms – the prohibition of genocide, torture, slavery>>>
    well, slavery is close to forced labour and forced labour essentially excludes compulsary military service and the like. Although lawyers tried to take the definition route (compulsary services are per definitionem not slavery/forcesd labour) this nevertheless amounts to an exception.
    I think with self-defence you could also take a b-route by suggesting that it does not constitute the use of force strictu sensu since you’ve been attacked. Even with the collective use of of force, you could argue the same way. Besides, your argument on aggression is quite reasonable. Now equal the use of force and aggression (this is indeed an arbitrary distinction that was never intended by the drafters) and there you go, ius cogens is rescued once again!

  20. Jordan

    The first intellectual “error” involves missing the point that, whether or not Article 2(4) is jus cogens, it does not expressly prohibit all uses of force. The text lists only three types of force and each type contains words that have to be interpreted in light of the various objects and purposes of the treaty and the ordinary meaning of the various terms.
    Another involves missing the point that norms jus cogens are a higher form of customary international law (with a special opinio juris that they are of a jus cogens nature) and, as such, they can grow or die or contain exceptions as the opinio juris expands, shrinks, or changes over time. Moreover, opinio juris need only exist in general patterns of human expectation that something is legally appropriate or required. There is no need for uniformity of expectation. See also http://ssrn.com/abstract=2293188 regarding types of actors, the nature of CIL and jus cogens, Realist insights, etc.

  21. Heiko Recktenwald

    I still think the situation of Kosovo was special. This case cannot be generalised. But it was obvious that it could and maybe would be misused later in a much different situation.

    Kosovo was not only in the middle of Europe in the time after 1989. Yugoslavia had allready fallen into parts that collectiv selfdefense of a former province had become a legal possibility. That Serbia owned the old capital Belgrade did not make it better.

    The intervention of Vietnam into Cambodia could have been a strong case of an humanitarian intervention but nobody saw it in this way.

    And I dont think the UNCh can be construed as a legal base for intervention. There is not only hope for a better common future but also the will that all states are equal and free to decide their own future themselves.

  22. Heiko Recktenwald

    I would read 2 (4) together with selfdefense and chapter 7 as a ius cogens norm. Selfdefense is not an exeption but the norm itself and so is chapter 7. No other case of violence is allowed.

  23. Heiko Recktenwald

    This is very interesting when it comes to former Yugoslavia and the ICTY:

    “8. “The significant developments, over the past 20 years, in the field of international criminal law further bolster the case in favour of a limited right of humanitarian intervention.”

    No, it bolsters the case for post-conflict accountability.”

    IMHO there is indeed a contradiction but maybe it speaks against the ICTY.

    “I’m not aware of humanitarian intervention being a kind of criminal sanction addressed to individuals…”

    The idea of humanitarian intervention is exactly bellum iustum against a hostis humanitatis. Thats why they call Assad a dictator. But maybe it also shows that international criminal law was and is not such a good idea.

  24. Ralph

    Heicko, from what case are these comments?

  25. Jordan

    It is interesting that the Restatement (Third) of Foreign Relations Law of the United States, section 905, comment g, declares that it is generally accepted that Article 2(4) does not prohibit limited force to rescue persons whose lives are endangered, as in Entebbe.
    It seems that most others have viewed the Israeli use of force in Entebbe to free Israeli hostages from certain death while they were under armed guard, etec. (with the start of an “armed attack”) as an instance of self-defense under Article 51. The Restatement’s claim is consistent with a U.S. view that not all uses of armed force are necessarily violative of the three types of circumstances epressed in Article 2(4).

  26. Jordan

    p.s. the U.S. view would also be that the non-state actor armed terrorist attacks today in Kenya trigger a U.S. right of self-defense (defense of U.S. nationals) against those who directed the attacks from Somalia.

  27. Well written justification. Does it now apply to Iraq, given all the bombing there?

  28. […] agree with former British Legal Adviser Sir Daniel Bethlehem that “[i]n the case of the law on humanitarian intervention, an analysis that simply relies […]