The Asia-Pacific Security Lexicon (Upated 2nd Edition)

HUMANITARIAN INTERVENTION

145 HUMANITARIAN INTERVENTION The idea that in certain cir cumstances it is permissible under international law for a state or states to use military for ce to intervene in another state’s territory , in or der to pr event a humanitarian disaster fr om taking place, even without the permission of the government of that state. While the idea has developed an extensive literature, it is strongly disputed by some governments. Legal scholars also dif fer over its scope and substance. According to Peter Malanczuk, “there are numerous and often conflicting definitions of ‘humanitarian intervention’, some of which appear to be mere de facto ‘working definitions’, and others which are meant to be normative in the sense that the definition itself purports to establish criteria of legality or illegality.”1 Legal scholar Wil Verwey attempts to find what he calls an “authentic definition” of humanitarian intervention as a legal concept, but concludes “one is immediately confronted with a major analytical obstacle: it soon appears from a comparative analysis of relevant instruments and literatur e that ther e may be few concepts in international law today which ar e as conceptually obscur e and legally controversial as ‘humanitarian intervention’.”2 He attributes this to the lack of consensus on the legal meaning of both the terms intervention and humanitarian. 02 A_Pac Security Lexicon 9/28/07, 2:49 PM 145 146 Sean Murphy uses a working definition which assumes that humanitarian intervention “is the threat or use of force by a state, group of states, or international or ganization primarily for the purpose of pr otecting the nationals of the tar get state fr om widespread deprivations of internationally r ecognized human rights”.3 Baxter emphasizes that the for ce used must be “short term”.4 Verwey argues that to be consider ed as “humanitarian”, forcible action must be “for the sole purpose of pr eventing or putting a halt to serious violations of fundamental human rights, in particular thr eats to the life of persons, r egardless of their nationality”. His stipulation that it be solely for preventing these violations is so strict that he does not think ther e have been any genuine examples so far.5 Other authors stress the importance of form: that any intervention should be multilateral and not unilateral. As Martha Finnemore notes, during the United Nations debates that followed V ietnam’s invasion of Cambodia in December 1978, no states spoke in favour of the existence of a right to unilateral humanitarian intervention, and several states that had pr eviously supported humanitarian intervention arguments in the United Nations voted for the r esolution condemning Vietnam.6 Since 1945, it has been possible to ar gue for humanitarian intervention based on the codification of human rights in the United Nations Charter . The C harter contains a number of principles which are difficult to reconcile. Article 2 stresses the basic principles of state sovereignty and non-intervention.Article 1, on the other hand, emphasizes the fundamental importance of human rights, a focus that is also supported by legal instr uments such as the Universal Declaration of Human Rights and various international treaties. Articles 2(3) and 2(4) call on states to settle their disputes peacefully and also to r efrain from the use or threat of use of force against the territorial integrity of any state. With humanitarian intervention, the central question is “how to reconcile the principle of territorial sover eignty of states, still envisaged in legal terms as a cornerstone of international relations, the principle of non-interfer ence into the domestic affairs of states and the pr ohibition of the use of armed for ce, stipulated in the United Nations Charter , with the ef fective protection of human rights in extr eme situations of their violation and with international peace and security .”7 Under what circumstances does sover eignty give way to the need for the protection of human rights? HUMANITARIAN INTERVENTION 02 A_Pac Security Lexicon 9/28/07, 2:49 PM 146 147 During the Cold War, numerous cases of intervention wer e debated by international lawyers. The best-known cases include the British and Belgian intervention in Congo in 1964; India’s war with Pakistan over East Pakistan (now Bangladesh) in 1971; the Belgian intervention in Zaire in 1978; Tanzania’s invasion of Uganda in 1979 to overthrow the regime of Idi Amin; Vietnam’s invasion of Kampuchea...