Analysis of International Relations Series: Legal Frameworks for Humanitarian Interventions

Foreword    

In the realm of International Relations, where conflict, displacement, and natural disasters shape our ever-changing landscape, a nuanced understanding of humanitarian action is paramount. In the series "Analysis of International Relations," the reader will embark on a journey to unravel the multifaceted dimensions of humanitarianism.   

From delving into introductory notions and concepts to dissecting ethical considerations and legal frameworks, this series offers a nuanced understanding of humanitarian interventions. Each article examines key aspects such as the historical evolution of interventions, the role of anthropology in shaping humanitarian practices, and the diverse typologies of approaches to intervention, including sovereigntist, pacifist, and human rights-based perspectives.   

Furthermore, readers will grapple with the ethical dilemmas inherent in humanitarian interventions, exploring questions of impartiality, consent, and the unintended consequences of aid. The legal frameworks underpinning interventions, as well as the roles of international organizations like the United Nations and NATO, are scrutinized to evaluate their effectiveness and challenges in coordinating and implementing humanitarian efforts.   

Historical case studies, including pivotal moments in Bosnia, Rwanda, and Kosovo, provide valuable insights into the successes, failures, and lessons learned from past interventions, shedding light on their impact on international relations. Moreover, readers will confront present and future trends and challenges in humanitarian interventions, from the implications of new technologies to the complexities of climate change and the rise of non-state actors.   

Ultimately, this series aims to equip readers with the analytical skills necessary to navigate the complexities of humanitarian interventions within the broader context of international relations. As we explore the intricacies of global humanitarian action, may these insights inspire thoughtful reflection on the importance of compassion, solidarity, justice, and collective action in the face of adversity.   

This series is divided into eight articles, including:    

1. Introduction to Humanitarian Interventions   

2. Theoretical Perspectives on Humanitarian Interventions 

3. Approaches to Humanitarian Interventions

4. Legal Frameworks for Humanitarian Interventions   

5. Ethical Considerations in Humanitarian Interventions    

6. Anthropology and Intercultural Aspects of Humanitarian Action    

7. Historical Case Studies of Humanitarian Interventions 8. Present and Future Trends and Challenges in Humanitarian Interventions

Legal Frameworks for Humanitarian Interventions

This article explores the legal frameworks governing humanitarian interventions, focusing on international law, the role of the United Nations, and the principles of sovereignty and human rights. The legality of humanitarian intervention is primarily governed by international law, which consists of treaties, customary international law, and general principles recognized by nations. The most relevant sources of international law in this context are the United Nations Charter, customary international law, and emerging doctrines like the Responsibility to Protect (R2P). 

Public International Law and Sovereignty

Public International Law comprises a set of rules and principles that govern the conduct of states, international organizations, and their interactions with individuals. Its origins trace back to the late Middle Ages and were formalized with the Treaty of Westphalia in the 17th century. Central to Public International Law is the notion of sovereign equality, where states define themselves as independent within their territorial boundaries while acknowledging the legal systems of other states (Rahmouni, 2006). Although this principle has provided a stable foundation for international relations, it can obstruct international efforts to address severe human rights violations. States often invoke sovereignty to resist external interventions, even when such interventions are necessary to prevent atrocities. This reliance on sovereignty as a shield underscores the need for a more nuanced approach that respects state independence while allowing for international action in extreme circumstances. 

According to Rahmouni (2006), International Law draws from several sources:  

• Customary Law: Practices consistently followed by states out of a sense of legal obligation.

• Conventional Law: Agreements between states, which can become customary law if widely accepted.

• General Principles: Common legal principles are applicable when specific customary or conventional laws are absent.

• Jurisprudence: Decisions from international courts that, while not always binding, serve as significant precedents.

Figure 1: International Court of Justice (Encyclopædia Britannica, n.d.),

Customary international law is defined by the Statute of the International Court of Justice as "a general practice accepted as law." It requires two key elements: state practice (actual behavior of states) and opinio juris (the belief that such behavior is legally required, prohibited, or permitted). The International Court of Justice emphasizes that both elements must be present to establish a rule of customary international law, as illustrated in cases like the Continental Shelf case (Henckaerts & Doswald-Beck, 1997). State practice involves identifying and assessing state behaviors that contribute to customary law and determining if these practices are consistent enough to form a rule. Opinio Juris necessitates that these practices are carried out with a belief in their legal necessity, with the form of expression varying depending on whether the rule involves a prohibition, obligation, or right (Henckaerts & Doswald-Beck, 1997). The requirement for both state practice and opinio juris to establish customary international law (Henckaerts & Doswald-Beck, 1997) provides a robust framework for legal norms. This dual requirement ensures that customary laws are grounded in actual state behavior and a belief in their legal necessity. However, the subjective nature of opinio juris can lead to varying interpretations and selective compliance by states. This variability can result in a lack of uniformity in the application of customary international law, undermining its effectiveness as a global standard. Nevertheless, customary law’s flexibility can lead to inconsistencies and selective enforcement. The adaptability of customary law allows it to respond to new challenges, but this same flexibility can create uncertainty, especially when states disagree on what constitutes customary practices. This ambiguity can hinder the development of clear and enforceable international norms. 

International Humanitarian Law (IHL) 

International Humanitarian Law, traditionally referred to as the "laws and customs of war," has deep roots in the customary practices developed by armies over centuries. The development of IHL, from the Lieber Code during the American Civil War to the Hague Conventions, demonstrates a long-standing commitment to mitigating the horrors of war (Henckaerts & Doswald-Beck, 1997). These practices, influenced by the concept of a soldier’s honor and the writings of religious leaders, sought to restrain behavior that was deemed unnecessarily cruel or dishonorable. The focus was on protecting combatants and civilians, emphasizing a code of conduct that was not universally applied but varied across different armies and enemies (Henckaerts & Doswald-Beck, 1997). International law has taken definitive steps to combat genocide and crimes against humanity. The 1948 Genocide Convention obligates member states to enact legislation to prevent and punish genocide. The Geneva Conventions further detail protections for civilians during wartime. Various international tribunals have been established to prosecute war crimes, leading to the creation of the International Criminal Court (ICC) in 2002 (Conlon, 2004). The UN Charter emphasizes the promotion and protection of human rights. Article 1(3) states that one of the UN’s purposes is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting respect for human rights. Articles 55 and 56 further mandate UN members to promote universal respect for human rights and fundamental freedoms, highlighting a collective commitment to human rights within the international community (Conlon, 2004).

Figure 2: Lady Justice (Tingey Injury Law Firm, 2020).

A pivotal moment in the codification of IHL was the drafting of the Lieber Code by Professor Francis Lieber during the American Civil War. Promulgated as General Order No. 100 by President Abraham Lincoln in 1863, the Lieber Code laid the groundwork for future codifications of the laws and customs of war. This document influenced the draft presented at the Brussels Conference in 1874, which, despite not resulting in a binding treaty, paved the way for the 1899 and 1907 Hague Conventions (Henckaerts & Doswald-Beck, 1997). The "Martens clause," inserted in the preamble to the 1899 Hague Convention, underscored the continued importance of customary law. It affirmed that in cases not covered by the adopted regulations, populations and belligerents remained under the protection of international law principles derived from civilized nations' customs, humanity laws, and public conscience requirements (Henckaerts & Doswald-Beck, 1997). However, the effectiveness of these codifications relies heavily on state compliance, which remains inconsistent. States often interpret and apply IHL based on their interests, leading to uneven protection for those affected by conflict. 

Enhancing Compliance

The International Conference for the Protection of War Victims in 1993 highlighted the need for more effective implementation of IHL rather than the adoption of new treaty provisions. Following this, an Intergovernmental Group of Experts recommended in 1995 that the ICRC prepare a report on customary rules of IHL applicable in both international and non-international armed conflicts. This recommendation was endorsed by the 26th International Conference of the Red Cross and Red Crescent, reinforcing the mandate of the ICRC to enhance the knowledge and application of IHL (Henckaerts & Doswald-Beck, 1997). 

Despite the comprehensive framework provided by the Geneva Conventions and their Additional Protocols, the past decades have witnessed numerous violations of IHL, resulting in extensive suffering and loss of life. These violations are not attributed to the inadequacy of the rules but to a lack of willingness to respect them, enforcement challenges, and ignorance among political leaders, military commanders, combatants, and the general public (Henckaerts & Doswald-Beck, 1997). Efforts to improve IHL compliance, such as those led by the International Committee of the Red Cross (ICRC), emphasize better implementation rather than creating new treaties (Henckaerts & Doswald-Beck, 1997). The ICRC's role in documenting customary IHL applicable to both international and non-international conflicts is crucial. However, the impact of these efforts depends on states' willingness to adhere to and enforce these norms. The gap between the theoretical framework of IHL and its practical implementation remains a significant challenge, as states may lack the political will or capacity to fully comply with their obligations.

Figure 3: Country Delegates at the Geneva Convention (Wasserman, M., n.d.).

State Obligations Under International Humanitarian

State obligations under international humanitarian law (IHL) are comprehensive and aim to prevent and address violations in both international and non-international armed conflicts. Customary international law, as reflected in Rule 144, mandates that states not only refrain from encouraging IHL violations but also exert influence to prevent and halt such breaches. This principle is echoed in Common Article 1 of the Geneva Conventions and Additional Protocol I, emphasizing states' duty to ensure universal respect for IHL (Henckaerts & Doswald-Beck, 1997). Moreover, states are obligated to establish universal jurisdiction over grave breaches of IHL (Rule 157). This entails prosecuting war crimes irrespective of where they occur, reinforcing global accountability efforts (Henckaerts & Doswald-Beck, 1997). Despite its importance in combating impunity, the application of universal jurisdiction remains uneven, often hindered by reluctance among states to prosecute foreign nationals. Additionally, under Rule 150, states responsible for IHL violations must provide full reparation for the harm caused, underscoring the principles of accountability and restitution for victims (Henckaerts & Doswald-Beck, 1997). These obligations are reinforced by various international treaties and customary international law. 

States have implemented collective measures to uphold IHL, including convening international conferences, investigating potential violations, establishing ad hoc criminal tribunals such as the International Criminal Court, imposing international sanctions, and deploying peacekeeping or peace-enforcement missions. These efforts reflect a coordinated global endeavor to enforce IHL standards (Henckaerts & Doswald-Beck, 1997). Diplomatic protests serve as another significant avenue for states to address IHL violations. These protests, often conveyed through bilateral channels, international forums, or resolutions by international organizations, are a common method for states to express objections, even in conflicts where they are not directly involved (Henckaerts & Doswald-Beck, 1997). However, the effectiveness of these measures can be hindered by political considerations within international organizations and the variability in enforcement mechanisms, which can undermine efforts to ensure compliance with IHL. 

Figure 4: A boy rides his bike past destroyed cars and houses in a neighborhood recently liberated by Iraqi security forces on the western side of Mosul, Iraq (Felipe Diana, 2017).

The Role of International Organizations 

The United Nations (UN), founded in 1945, plays a pivotal role in maintaining international peace and security. The UN Charter provides mechanisms for peacekeeping, sanctions, and humanitarian intervention, albeit with respect for state sovereignty. Regional organizations also contribute to maintaining peace and security in alignment with the UN's principles (Rahmouni, 2006). The UN Security Council and General Assembly have supported the interpretation that states must ensure respect for IHL beyond their own actions. Resolutions concerning conflicts, such as those involving Israel, have called on states to ensure compliance with the Geneva Conventions. International organizations like the Council of Europe, NATO, the Organization of African Unity, and the Organization of American States have similarly urged their member states to respect and ensure respect for IHL (Henckaerts & Doswald-Beck, 1997). 

The ICRC, founded in 1863, has also been a cornerstone in the development and promotion of IHL. It spearheaded the creation of the Geneva Conventions, which have evolved from 1864 to the Additional Protocols of 1977. These conventions provide legal protection to war victims, including the wounded, sick, shipwrecked, prisoners of war, and civilians. The ICRC's efforts also led to treaties addressing specific issues, such as the ban on antipersonnel landmines and the establishment of the International Criminal Court (Henckaerts & Doswald-Beck, 1997). 

Figure 5: International Court of Justice (Encyclopædia Britannica, n.d.).

Sovereignty and Humanitarian Interventions 

A core tension in Public International Law is the balance between humanitarian intervention and state sovereignty. The UN Charter and other legal instruments provide a framework for intervention in severe humanitarian crises, yet the principle of state sovereignty often limits such actions. This ongoing debate reflects the complexity of enforcing international law while respecting the autonomy of nation-states (Conlon, 2004). Numerous multilateral treaties limit state sovereignty to protect human rights, including conventions on torture, genocide, refugees, racial discrimination, and the rights of women and children. These treaties, supported by a supermajority of states, underscore the international community's commitment to human rights, suggesting that certain state actions against their own citizens are subject to international scrutiny (Conlon, 2004). 

Contrary to the belief that human rights undermine state sovereignty, Donnelly argues that human rights are actually embedded within sovereignty. He suggests that while the understanding of sovereignty has evolved significantly, its core remains robust and largely unchallenged, particularly in relation to human rights issues (Donnelly, 2014). Human rights, viewed as universal rights held by all individuals, pose a theoretical challenge to state authority. Yet, in practice, international human rights norms are primarily implemented and enforced at the national level. Treaties and declarations, such as the Universal Declaration of Human Rights and subsequent covenants, articulate these universal rights but place the responsibility for implementation squarely on sovereign states (Donnelly, 2014). Under the current international system, states are obligated to report periodically on their human rights practices to international committees. Despite this oversight, enforcement mechanisms remain limited, with states retaining the authority to manage human rights within their borders. This sovereignty-respecting approach underscores the predominant role of states in determining and executing human rights policies. While international organizations like the United Nations and non-governmental organizations monitor human rights abuses and advocate for improvements, their ability to enforce compliance is constrained. The international community, for the most part, respects state sovereignty in dealing with internal human rights issues, reinforcing the idea that enforcement remains a national prerogative (Donnelly, 2014). 

Figure 6: Health workers in Sa'ada governorate (WHO, 2016).

Historically, sovereignty has undergone transformations to accommodate evolving norms and challenges in international relations. Donnelly notes that while states are bound by international human rights norms and customary laws, these obligations do not subordinate them to a higher authority. Sovereignty in this context means that states are answerable to their own laws and international obligations but retain ultimate authority over their domestic affairs. The emergence of comprehensive international human rights frameworks in the past century marks a significant shift from earlier ad hoc approaches. This global regime, while influential in shaping domestic policies and norms, does not diminish the sovereignty of states but rather integrates human rights into the broader fabric of international law and politics (Donnelly, 2014). One notable exception to the principle of non-intervention in sovereign affairs is genocide. The international community, through mechanisms like the United Nations Security Council, may authorize multilateral intervention in cases of genocide. This narrow exception, however, does not signify a broader erosion of sovereignty but rather underscores the international community's reluctance to intervene in most other human rights violations. 

While international human rights norms exert significant normative influence, their enforcement remains firmly within the purview of sovereign states. The evolving nature of sovereignty accommodates new global challenges while preserving states' autonomy in managing domestic affairs. Ultimately, the coexistence of sovereignty and human rights highlights the complexities of international governance. As states navigate their responsibilities under international law, the challenge lies in striking a delicate balance between respecting national sovereignty and upholding universal human rights standards in an increasingly interconnected world. This balance, as Donnelly argues, is crucial for fostering stability, justice, and cooperation in global affairs (Donnelly, 2014).

Figure 7: A Syrian refugee camp near Erbil (Mustafa Khayat/Flickr, n.d.)

Protection of Sovereignty in the UN Charter 

The principles of sovereign equality, peaceful dispute settlement, and prohibition of force enshrined in the UN Charter are foundational to international peace and security (Conlon, 2004). However, these principles can sometimes impede timely and effective humanitarian interventions. The tension between respecting state sovereignty and addressing human rights abuses is a persistent challenge within the UN framework. While the UN aims to maintain international order, its adherence to these principles can limit its ability to intervene in crises promptly and effectively. 

• Principle of Sovereign Equality: Article 2(1) of the UN Charter establishes that the organization is based on the principle of the sovereign equality of all its members. This principle underscores the importance of national sovereignty within the international system (Conlon, 2004). 

• Peaceful Settlement of Disputes: Article 2(3) mandates that all member states settle their international disputes by peaceful means, ensuring that international peace, security, and justice are not endangered (Conlon, 2004). 

• Prohibition of Use of Force: Article 2(4) explicitly prohibits the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN. This provision aims to prevent unilateral military actions that could destabilize international peace (Conlon, 2004). 

• Non-Intervention Clause: Article 2(7) states that the UN has no authority to intervene in matters that are essentially within the domestic jurisdiction of any state. This clause reinforces the concept of state sovereignty by protecting internal affairs from external interference (Conlon, 2004).

Exceptions to Non-Intervention

The UN Charter provides two notable exceptions to the principle of non-intervention:  

• Chapter VII (Article 42): The Security Council can authorize the use of force to maintain or restore international peace and security if it determines that there is a threat to peace, breach of peace, or act of aggression, and non-forceful measures (Article 41) are inadequate (Conlon, 2004). 

• Article 51: States retain the inherent right to individual or collective self-defense if an armed attack occurs until the Security Council takes necessary measures. Any use of force in self-defense must be reported to the Security Council immediately. These exceptions ensure that while sovereignty is protected, the international community can respond to significant threats to peace and security (Conlon, 2004). 
  

Figure 8: The United Nations Children's Fund (UNICEF) provides freshly baked bread for a girl and her family in a refugee camp outside Beirut (UNICEF, 1948).

Humanitarian Intervention and R2P

The concept of "Responsibility to Protect" (R2P) reflects a moral rather than a legal obligation to intervene in cases of severe humanitarian crises. This principle, while gaining moral acceptance, does not establish a binding legal duty for intervention, thus preserving state sovereignty as the primary principle in international relations (Donnelly, 2014). Overall, the Responsibility to Protect (R2P) doctrine seeks to assert that the international community has a duty to intervene when states fail to protect their populations (Conlon, 2004). R2P provides a moral and legal basis for intervention, but its implementation is often contentious. The criteria for legitimate humanitarian intervention—just cause, right intention, last resort, proportional means, and reasonable prospects—are essential safeguards but can also serve as barriers to swift action. These criteria are designed to prevent abuse of the doctrine, but their strict application can delay necessary interventions, potentially allowing human rights abuses to continue unchecked.  

The Responsibility to Protect (R2P) emerged in response to the failures and controversies surrounding humanitarian interventions, aiming to create a robust framework for preventing atrocities. The obligations under R2P stem from established rules and principles of International Human Rights Law (IHRL) and International Humanitarian Law (IHL). Explicitly framing R2P within this legal framework clarifies the legal basis for intervention and guides how states interpret and implement their responsibilities (Gierycz, 2010). Initiated by UN Secretary-General Kofi Annan, R2P was formalized through the ICISS report, which shifted the focus from the right to intervene to the responsibility to protect (Gierycz, 2010). The ICISS report emphasized that while states are primarily responsible for protecting their citizens, the international community must intervene when states fail. This framework outlined that military intervention should be a last resort, meeting criteria such as right intention, proportional means, and reasonable prospects. The UN Security Council (UNSC) was recommended as the primary body to authorize interventions, with alternatives like the General Assembly or regional organizations if the UNSC fails to act (Gierycz, 2010). The obligations under R2P stem from established rules and principles of International Human Rights Law (IHRL) and International Humanitarian Law (IHL). Explicitly framing R2P within this legal framework clarifies the legal basis for intervention and guides how states interpret and implement their responsibilities (Gierycz, 2010). 

Figure 9: Mahmoud and his family, Syrian refugees living in a village near Gaziantep (IOM/Emrah Özesen, n.d).

Despite the formal adoption of R2P at the 2005 UN World Summit, significant obstacles remain. The "protection clause" in the Millennium Declaration lacks detailed guidance on implementing interventions when the UNSC is paralyzed by political divisions, leading to continued atrocities in regions like Darfur, Myanmar, and the Democratic Republic of the Congo (Gierycz, 2010). The emphasis on UNSC authorization aims to prevent misuse of R2P but has not alleviated concerns about selective interventions and political bias. A critical issue with R2P is the ambiguity surrounding who holds the responsibility to protect. While the primary responsibility rests with the state experiencing the crisis, it shifts to the international community when the state is unable or unwilling to protect its citizens. However, the term "international community" is inherently vague, allowing states to avoid their commitments (Pattison, 2008). This vagueness undermines R2P's effectiveness, as seen in ongoing crises where timely and decisive international action is absent. 

R2P represents a shift from the traditional concept of humanitarian intervention, which focuses on the right to intervene. Instead, R2P emphasizes the responsibilities of states and the international community, introducing a hierarchy of responsibilities. However, R2P's reliance on UNSC authorization and the absence of clear intervention criteria create practical challenges (Gierycz, 2010).  

Reframing R2P as a human rights concept offers a comprehensive framework for addressing intervention and protection efforts. It provides a clear legal foundation, emphasizes preventive measures and accountability, and promotes broader civil society engagement and international jurisprudence. This approach can enhance the effectiveness and legitimacy of R2P in preventing and responding to mass atrocities while upholding human rights standards (Gierycz, 2010). For R2P to be effective, it must move beyond general commitments to specific, enforceable obligations borne by identifiable entities. The ICISS posits that the UNSC is the most appropriate body to authorize military intervention for humanitarian purposes. However, the duty to protect must be assigned to specific agents to be claimable and effectively enforced (Pattison, 2008). Broader civil society engagement is essential for R2P's effective implementation. Aligning R2P with human rights advocacy efforts enables civil society organizations, human rights activists, and affected communities to play a crucial role in monitoring human rights situations, documenting violations, and advocating for action. Drawing on international jurisprudence strengthens the legal basis for interventions under R2P, providing precedents and guidance for consistent application across different contexts (Gierycz, 2010). 

Figure 10: Ali, originally from Khartoum, is now forced to sleep in the open air in Northern Sudan ( IOM/Noory Taha, n.d.).

The Trend Against Belligerent Reprisals 

While belligerent reprisals—actions that would otherwise be unlawful but are deemed lawful in response to adversary violations—have been a traditional enforcement method, their use is increasingly discouraged (Henckaerts & Doswald-Beck, 1997). According to Henckaerts and Doswald-Beck (1997), the stringent conditions for lawful reprisals include:

• Purpose: Reprisals must react to serious IHL violations and aim to induce compliance, not for revenge or punishment. 

• Authorization: The highest level of government must authorize reprisals. 

• Termination: Reprisals must cease once the adversary complies with the law. 

• Last Resort: Reprisals can only occur when no other options are available, considering diplomatic and collective measures.  

The international community recognizes the ineffectiveness and risks associated with reprisals, including the potential for conflict escalation. Diplomatic channels and collective measures are seen as more effective and preferable methods for ensuring respect for IHL (Henckaerts & Doswald-Beck, 1997). 

Conclusion 

The legal frameworks for humanitarian interventions are intricate, balancing the principles of sovereignty with the imperative to protect human rights. While the foundational principles of Public International Law and the detailed codifications of IHL provide a robust legal structure, their effectiveness is heavily dependent on state compliance and the political will to enforce these norms. Strengthening the mechanisms for enforcement, enhancing international cooperation, and ensuring consistent application of these frameworks will be essential for ensuring that humanitarian interventions effectively protect human rights without undermining state sovereignty. This requires a concerted effort by the international community to address both the legal and practical challenges that currently hinder the implementation and enforcement of humanitarian intervention laws. 

Bibliographic References

Conlon, J. (2004). Sovereignty vs. human rights or sovereignty and human rights? Race & class, 46(1), 75-100.

Donnelly, J. (2014). State sovereignty and international human rights. Ethics & International Affairs, 28(2), 225-238.

Gierycz, D. (2010). The responsibility to protect: A legal and rights-based perspective. Global Responsibility to Protect, 2(3), 250-266.

Henckaerts, J. M., & Doswald-Beck, L. (1997). Customary international humanitarian law.

Pattison, J. (2010). Humanitarian intervention and the responsibility to protect: who should intervene? OUP Oxford.

Rahmouni, H. (2006). Searching for a Legal International Framework for Humanitarian Intervention.

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