The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Intervention

In international law, the concept of “intervention” is tied to the notion “interference” and is when a State intervenes in the internal affairs of another State, in violation of the latter’s sovereignty.

Such intervention is prohibited by the United Nations Charter (Art. 2.7), under the principle of non-intervention, or non-interference, which posits that States should not “intervene in matters to preserve the independence of weaker states against the interventions and pressures of more powerful ones.” This concept is presented as the basis for international relations and therefore applies to interstate relations, not to relief activities carried out by impartial humanitarian organizations.

In fact, humanitarian law clearly states that aid activities may in no circumstances be regarded as interference in an armed conflict or as unfriendly acts (API Arts. 64, 70).

In the past, States have used humanitarian arguments to justify direct and armed interventions that violated other States’ sovereignty. The International Court of Justice (ICJ) clarified in 1986 ( Nicaragua v. United States of America , see Jurisprudence) the circumstances in which humanitarian aid can constitute an interference and as such an unlawful intervention into the internal affairs of a State.

Today, the UN Security Council holds the monopoly on the use of armed force in the international arena.

International law recognizes only one “right of intervention” into a State’s internal affairs; it is set forth and limited in Chapter VII of the UN Charter. This right is thus entrusted to the UN Security Council when a State’s behavior can be construed as a threat to international peace and security. In such a case, the Council can undertake a series of measures, including diplomatic or economic sanctions. The Council is also authorized to use force and may decide that an international armed intervention is necessary to make the State in question stop its activities.

Several times, the Council has invoked humanitarian considerations when undertaking military or peacekeeping operations, yet peacekeeping operations obey broad imperatives linked to maintaining or reestablishing international peace and security, according to which humanitarian considerations remain secondary.

Thus, it is important not to confuse “humanitarian intervention” defended by States or the UN with humanitarian actions undertaken by impartial humanitarian organizations in situations of conflict.

Background and Definition

The “right of humanitarian intervention”—or the “right to intervene for humanitarian purposes”—is a notion that achieved widespread popularity thanks to its ambiguity. This concept was used to try to encourage and justify the use of force foreseen in the UN framework in order to protect populations threatened within their own country. This opened the way to armed operations within the framework of the UN, or with its authorization; however, it did not clarify the role that humanitarian considerations play in decisions to use force, nor did it succeed in clarifying UN soldiers’ responsibility in terms of protecting populations in danger.

States have used noble motives for centuries to justify armed intervention into the domestic affairs of other States. Such justifications include the defense of human rights, minorities, and their own nationals. It began with the notion of the “just war,” followed by the ideas of the European countries intervening to protect Christian minorities in the Ottoman Empire in the nineteenth century (1827, 1860, six thousand French soldiers sent to Syria to stop the massacre of Christians; Russian interventions in 1877 to protect Christian minorities in Bosnia and Herzegovina within the Ottoman Empire). More recently, in the 1970s, India intervened in Pakistan to protect the Bengali people from extortion by the army (1971). The common point of all these interventions is the use of force to impose respect for the principles of humanity.

Contemporary international law does not recognize the legitimacy of such intervention when undertaken in a unilateral manner by one State. Just wars, holy wars, and other interventions based on reasons of humanity were replaced in 1945 by a system of collective security under the Charter of the United Nations. Apart from the case of self-defense, a single State may no longer decide to start a military intervention, regardless of the possible justification for such an intervention.

Collective securityPeacekeeping

In the multilateral framework, the only justification for collective use of force against a State foreseen by Chapter VII of the UN Charter rests on the threat that this State poses for international peace and security. Violations of humanitarian law are not explicitly mentioned in these clauses.

Several Security Council Resolutions relied on protection of humanitarian action—or gross violations of human rights—when authorizing the use of international armed force within peacekeeping missions. In practice, however, the objectives of these interventions were military, political, and diplomatic. In some instances, protection of civilians through humanitarian corridors or protected zones failed tragically. Further, militarization of humanitarian assistance—with the presence of international armed forces—negatively impacts on the neutrality of humanitarian assistance and tends to radicalize methods of war. NGOs have no control over or influence on the content of this concept. Interventions under Security Council authority—or authorized by it—remain contingent on military capacities that States will equip the UN with and political choices and consensus that fluctuate depending on outside constraints.

In most peacekeeping operations, agreements establishing the force’s presence are signed with the “host State,” under the aegis of the UN. The population’s access to relief and its protection are rarely enforced since the access and protection are negotiated with the very authorities who control the population.

In practice, UN peacekeepers rarely engage in combat to enforce their mandate—even when it is to provide aid or to protect threatened populations. The kind of equipment they carry (light weapons) and their relatively small numbers have explained their decision not to intervene—even in cases in which their enforcement mandate had been expanded to include use of force—when the populations they were meant to assist or protect were being attacked.

Furthermore, the UN Sub-commission on Human Rights (today the Human Rights Council Advisory Committee) recently reaffirmed (20 August 1999, Resolution E/CN.4/SUB.2/RES/1999/2) that the “duty” or “right” of certain States to carry out “humanitarian interventions” had no legal basis in international law—particularly, when it means the threat or use of force.

AggressionCollective securityHumanitarian principlesPeacekeepingProtected areas andzonesSecurity Council of the UNSelf-defense

Actions undertaken in the name of the “right of humanitarian intervention” are the result of military and political compromises developed by the UN Security Council.

Chapter VI of the UN Charter establishes the possibility of undertaking non-coercive international operations, with the consent of the State concerned. Chapter VII, on the other hand, foresees the possibility of carrying out collective military operations without the consent of the State concerned, in cases when international peace and security are threatened. The UN’s decisions to carry out a “humanitarian intervention” are taken sometimes under Chapter VI but more frequently under Chapter VII of the UN Charter, or at times under a combination of the two. In most cases, these decisions imply that

  • the UN Security Council has not expressly or clearly recognized that the massive violations of humanitarian law or the persecution of civilian populations, against which it has decided to intervene, genuinely represent a threat to international peace and security; and
  • the UN does not have the material means or the military doctrine for these operations to enforce the protection of these populations through force.

Such interventions are part of a new generation of peacekeeping operations. However, they can neither guarantee nor enforce the respect for humanitarian law nor effectively protect the vulnerable populations from violence.

International humanitarian law links individuals’ right to assistance to impartial humanitarian organizations’ right to undertake relief actions. It specifies that aid activities may in no circumstances be regarded as interference in an armed conflict or as unfriendly acts, and in fact parties to the conflict are under the obligation to facilitate such assistance (API Arts. 69, 70). Humanitarian activities should thus be kept separate and independent from political and military initiatives.

Humanitarian Law and Intervention

International law, as codified by the UN Charter, gives priority to the notion of State sovereignty and all but forbids one State from intervening inside the borders of another without the latter’s consent. However, certain exceptions do exist, tied mainly to the concept of collective security.

The notion that non-international conflicts and particularly massive violations of humanitarian law may threaten international peace and security is a recent justification to place armed intervention in a UN framework. However, the UN was unable to give the intervention forces the legal mandate or the material means necessary to protect civilians from massacres such as those that took place in Srebrenica in the former Yugoslavia in 1995 or against extermination or genocide such as that which occurred in Rwanda in 1994. A report on UN peacekeeping operations released in August 2000 (by a panel chaired by Lakhdar Brahimi) is unlikely to change this. While insisting that the Security Council ensure that peacekeeping operations be given the resources necessary to carry out their mandate and arguing that ambiguous mandates can have disastrous consequences, it establishes quite clearly that “use of force only in self-defence should remain the bedrock principles of peacekeeping” (para. 48 of the report) and affirms that it is impossible for UN peacekeepers to protect the civilians in all the areas where they are deployed. ▸ PeacekeepingCollective securitySecurity Council; Sovereignty

In 1977, when the Additional Protocols to the Geneva Conventions were adopted, an important innovation was made with regard to actions undertaken by humanitarian and relief organizations for victims of conflicts or situations of tension. The States Parties acknowledged that offers of relief that are “humanitarian and impartial in character and conducted without any adverse distinction . . . shall not be regarded as interference in the armed conflict or as unfriendly acts.” Such acts must be undertaken if the civilian population of a State in conflict is not adequately provided with supplies, foodstuff, medicine, clothing, bedding, emergency shelter, and other supplies essential to the survival of the civilian population (API Arts. 69, 70).

In the specific case of internal armed conflicts, Additional Protocol II reiterates the UN Charter’s non-intervention principle by stating that humanitarian law cannot be invoked as a “justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs” (APII Art. 3.2). The night of access to victims granted to impartial humanitarian organizations by international humanitarian law should not be confused with the doctrine of state humanitarian intervention.

International law thus distinguishes between two kinds of missions: it confers on States and the UN the mission to prevent and punish war crimes and gives impartial humanitarian organizations the responsibility of organizing relief actions. States have clear obligations to prosecute and punish the authors of grave breaches of the Conventions (namely, war crimes and crimes against humanity) under the principle of universal jurisdiction. The system of prevention, however, is unclear. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide clearly posits that States must “call upon the competent organs of the UN to take such action as they consider appropriate for the prevention and suppression of acts of genocide.”

It is therefore up to the UN Security Council and regional security organizations to define whether and how serious violations of humanitarian law threaten international or regional peace and security and can justify recourse to Chapter VII in order to launch a military intervention.

Collective securityGenocideHumanitarian and relief personnelInternational humanitarian lawPeacekeepingReliefRight of accessRight of humanitarian initiativeSovereigntyUniversal jurisdictionWar crimes/Crimes against humanity

Jurisprudence

The International Court of Justice (ICJ) specified in 1986 the criteria that help to distinguish between humanitarian action and interference ( Military and Paramilitary Activities in and against Nicaragua [ Nicaragua v. United States of America ], Merits, Judgment, ICJ Reports 1986, p. 14).

In this case, the ICJ recalls that “the principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law” (para. 202).

The Court therefore finds that the support given by the United States, up to the end of September 1984, to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention. . . . There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The characteristics of such aid were indicated in the first rapport and second of the fundamental principles declared by the Twentieth International Conference of the Red Cross, that “The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours—in its international and national capacity—to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples” and that “It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve suffering, giving priority to the most urgent cases of distress.” (para. 242)

According to the Court, so as to escape condemnation as an intervention in the internal affairs of a State, the provision of “humanitarian assistance” must be limited to the purposes hallowed in the practice of the Red Cross, namely, “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being,” but it must also, and above all, be given without discrimination to all those in need (para. 243).

The Court concluded that “the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence” (para. 268).

For Additional Information: Evans, G., L. Hamilton, and M. Sahnoun. The Responsibility to ProtectReport of the International Co-mission on Intervention and State Sovereignty . 2001. Available at http://www.iciss.ca/report-en.asp .

Kolb, Robert. “Note on Humanitarian Intervention.” International Review of the Red Cross 849 (March 2002): 119–34.

Küng, Hans. “Religion, Violence and ‘Holy Wars.’” International Review of the Red Cross 858 (June 2005): 253–68.

Moore, Jonathan, ed*. Hard Choices: Moral Dilemmas in Humanitarian Intervention* . Lanham, MD: Rowman & Littlefield, 1998.

Roberts, Adam, and Benedict Kingsbury, eds. United Nations, Divided World: The UN’s Roles in International Relations . New York: Oxford University Press, 1993, esp. 81–125.

Torrelli, Maurice. “From Humanitarian Assistance to ‘Intervention on Humanitarian Grounds’?” International Review of the Red Cross (May–June 1992): 228–48.

Weiss, Thomas G., David P. Forsythe, and Roger A. Coate. The United Nations and Changing World Politics . Boulder, CO: Westview, 1997.

Weissman, Fabrice. In the Shadow of “Just Wars”: Violence, Politics and Humanitarian Action . London: Hurst, 2004.