Part II of a Two-Part Post
Interpreting Article 2 (4) of the UN Charter
According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.
Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.
Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.
Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. It is implausible that the drafters of the UN Charter might have contemplated such a result, the world having just emerged from the experience of the holocaust.
Even if this had been the case, important changes have occurred since the end of World War II. It is broadly accepted that the UN Charter is a living instrument and there are many instances of its evolving interpretation. Article 2(4) itself opens up this prospect by suggesting that only uses of force ‘inconsistent with the purposes of the Charter’ are precluded. The increased emphasis on human rights and the changing appreciation of the nature of sovereignty alluded to above make it impossible to argue that forcible humanitarian action could be considered inconsistent with the purposes of the Charter. This is confirmed in international practice.
Practice and the Development of Custom
The Security Council has enacted forcible humanitarian action in some 30 cases. Clearly, this practice has confirmed the authority of the Council in this regard. But this practice is also relevant in a broader sense. It represents the universal and collective will of the organized international community to act on behalf of threatened populations in cases of overwhelming humanitarian emergencies. The Council has been enacting the changed understanding of sovereignty and of representation noted above also in relation to humanitarian emergencies. There is no reason to question that this practice, although administered through the Council, confirms and strengthens the underlying doctrine of forcible humanitarian action on which is it based, much as the Council has done when acting in relation to colonialism, armed occupation and the other types of cases it has addressed.
Some states have insisted that the Council should declare that each resolution individually should not be taken as a precedent. Such an attitude rings hollow if repeated again and again. The consistency of the practice and of the universal determination to address overwhelming humanitarian emergencies, forcibly if necessary, can no longer be denied.
This fact is reinforced by positive international standards in favour of forcible humanitarian action. The Constitutive Charter of the African Union expressly mandates the organization to undertake forcible humanitarian operations. This is reflected in a whole series of implementing instruments.
Moreover, sub-regional organizations have undertaken forcible humanitarian operations, either beyond existing Security Council authority (Sierra Leone) or before such authority was obtained (Liberia). There has been no international condemnation of these actions.
Similarly, the humanitarian operations of states and coalitions of states have passed with international approval, or unremarked, as occurred in relation to the two instances of forcible humanitarian action concerning Iraq of 1991 and 1992 respectively.
It is true that the armed action by NATO in relation to Kosovo gave rise to international debate, and was rejected by a number of states, including larger groupings of states such as the Neutral and Non-aligned Movement or the Islamic Conference. However, the value of such group-pronouncements may be doubted. Several of the states voting for these documents actually opposed condemnation of the action in the Security Council, where a Russian initiative to that end was defeated by a spectacular vote of 3 in favour and 12 against, and others still have in fact supported forcible humanitarian actions, such as the ECOWAS operations initially conducted without a Security Council mandate.
Rather than as a mark of division, the Kosovo case may be seen as an initial point impelling states to express themselves formally in favour of forcible humanitarian action as a matter of law. Indeed, it is a myth that only the UK and Belgium have endorsed forcible humanitarian action as a matter of law. The list of positive endorsements also includes Denmark, Hungary, Latvia, Netherlands, Spain, Saudi Arabia and Sweden, with Australia having found the doctrine to be emerging in law and Canada having taken the initiative which led to the adoption of R2P. A very significant number of additional states professed understanding for, rather than uttering condemnation of, the action.
When seen against the actions of the Security Council, the range of support for forcible humanitarian action in overwhelming humanitarian circumstances appears broad. This is even exceeded by international support for R2P, which was universally endorsed at the UN World Summit of 2005. Although focused on Security Council action as a matter of process, the underlying sense that the authority of the government can be overridden in extreme cases is confirmed.
If, as is maintained here, the legal basis for this phenomenon is representation, rather than an exception to the prohibition of the use of force, no new rule of custom would need to be found to exist. Similarly, no such new rule or exception would need to be consecrated if forcible humanitarian action in customary law had remained unaffected by the adoption of the UN Charter. Even if neither of these two positions were accepted, at least it is difficult to deny that there is an emerging rule, based on this practice and opinio juris.
The Jus Cogens Question
Some doubt that support for forcible humanitarian action is sufficient to constitute a new rule of custom. Even if there were sufficient support, they add, it would lack the demanding characteristics of uniformity and special opinio juris required of a change to the prohibition of the use of force, which is undoubtedly a jus cogens rule.
This argument is indeed decisive, although it works the other way. It is indeed unquestioned that the prohibition of the use of force is a jus cogens rule. A jus cogens rule is one from which no derogation is permitted. A legal instrument containing a provision offending against jus cogens is null and void in its entirety.
No-one has argued that the Constitutive Charter of the African Union is a legal nullity, given its endorsement for the doctrine of forcible humanitarian action.
Moreover, states are required to resist serious violations of jus cogens by failing to recognize the result of the violation, abstaining from providing assistance in maintaining it, and acting together in overturning that result. The UN has not opposed, but formally endorsed, regional action in relation to Liberia and Sierra Leone. While not endorsing coalition action in relation to Iraq, it has nevertheless taken over the humanitarian operation commenced by the intervening states through the deployment of UN guards, rather than seeking to overturn the outcome of the operation. Similarly, the UN literally administered the result of NATO action concerning Kosovo over close to a decade, in accordance with Security Council Resolution 1244 (1999). The end-result, Kosovo independence, occurred with active UN involvement, in consequence of a UN-sponsored status process.
All of these facts conclusively demonstrate that forcible humanitarian action cannot be prohibited by the jus cogens rule of the prohibition of the use of force reflected in Article 2 (4) of the Charter.
This overall finding is now also increasingly reflected in scholarship. While this is of course not a scientific test, during the Cold War years, opposition to forcible humanitarian action stood at a ratio of about two to one, with a further group arguing that action would be at least legitimate, if not lawful. Now, the figures are reversed. Opposition stands at about one third, with about a third supporting the doctrine, and a further third arguing that it is emerging, or that forcible humanitarian action is at least legitimate.
Process Issues and the Risk of Abuse
There is of course a clear preference for action through the Security Council. Some opponents to unilateral forcible humanitarian action would at least admit the doctrine if the UN General Assembly endorsed action in the event of the Council veto. This admission too strengthens the case in support of forcible humanitarian action as a matter of law.
The General Assembly has no authority to authorize the use of force that is not already permitted in international law. In endorsing humanitarian action in individual cases, it rather serves to authenticate the facts which trigger the application of the authority to use force, confirming the underlying legal basis in general international law.
This process function is not confined to the UN General Assembly. It can be exercised by other, best placed, international agencies, including the Security Council making a determination of that kind without granting a mandate, potentially regional organizations, or possibly even particulary well-placed and well-respected UN expert bodies or Rapporteurs of independent standing.
This requirement to obtain external validation of claims of fact, coupled with clear legal criteria for action, adds a useful safeguard to the application of the doctrine. Of course, all legal justifications for the use of force can be abused. Virtually all unlawful uses of force have been defended as self-defence by the perpetrators. But this does not mean that self-defence cannot exist as a legal justification. Instead, the existing legal tests for forcible humanitarian action, which cannot be reviewed here for reasons of space, have proven robust. They have, for instance, helped identify the abusive invocation of that doctrine in relation to Georgia, while helping to defeat the wrongful condemnation of operations undertaken for genuine humanitarian purposes.
The problem with the doctrine of forcible humanitarian action is thus not its frequent abuse. Rather, the problem is the fact that governments, acting in the Security Council or outside of it, have been reluctant to devote lives and treasure towards its application where genuinely overwhelming humanitarian circumstances so demand.
Mr Jake Rylatt kindly offered corrections and comment.