Is humanitarian military intervention in a sovereign state legitimate?

Author: Ibrahim Kaunda, Masters of Law and Legal Practice Course at the University of Law in London, 2022-2023.

Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe.



Humanitarian military intervention has been controversial, and different walks of life have voiced their perception of its legitimacy. Some are of the opinion that it is legal while others think it is not legally acceptable. Different sources of international laws have been examined in detail to establish the legitimacy of Humanitarian military intervention. The laws are not supporting Humanitarian Military intervention.

List of acronyms.

HI – Humanitarian Intervention

HM – Humanitarian Military Intervention

ICISS –  Commission on Intervention and State Sovereignty

NATO – North Atlantic Treaty Organization

R2P/R TO P – Responsibility to Protect

UDHR – Universal Declaration on Human Rights

UN – United Nations

UN Charter – United Nations Charter

UNSC – United Nations Security Council

UNSG – United Nations Secretary-General

UNGA – United Nations General Assembly

UK – United Kingdom

US – United States

USA – United States of America


This Paper is set to answer the question of whether Humanitarian Military Intervention in a sovereign state is legitimate. The findings of this research conclude that it is not.

Humanitarian Intervention is the process of Interfering with the affairs of a sovereign state with the aim of stopping ongoing atrocities (Hassner P, 1998. p16). The Principle of Humanitarian Intervention has been evolving for a long time. The modern principle of humanitarian Intervention, however, emanates from the preamble of the Universal Declaration of Human Rights (UDHR) of 1948. The basis of this development is the requirement of the UDHR to secure peoples’ rights and dignity through justice, peace and freedom. It is believed that Humanitarian Military Intervention is capable of stopping the violations of human rights and dignity through the use of force (Massa A.S, 2009).

On the other hand, the principle of sovereignty is defined as the capacity of a state in dealing with other independent states in the international community. The principle of sovereignty dates back to the Treaty of Westphalia of 1648 (Abiew F, 1999). In the modern world, it is governed by the UN Charter especially the ‘prohibition of the use of force’ in Article 2(4) of the charter. Its main purpose is to maintain peace and order among the states in the international community. It defends the weak states from the abuse of power by the powerful states.

Statement of the Problem

The growing need to protect the human rights of individuals and the respect for state sovereignty has been a controversial issue in International Relations. The question of which one is more important between state sovereignty and human rights has been a source of debate. Some scholars argue that State sovereignty is absolute and any Intervention in the affairs of a sovereign state is illegitimate and violates this principle. While other scholars argue that sovereignty is not an absolute right and when the state violates its people’s rights, loses this right and intervention is appropriate. Now the question is: “Is Humanitarian Military Intervention in a sovereign state legitimate?”

Objective of Study

Having asked that question, it is the purpose of this Paper to answer it. The question will be answered by looking into the leading literature in this area of study. Critically assess the relationship between Humanitarian Military Intervention and State Sovereignty. Finding Factors that compromise these two principles. Assessing the current legal authority of Humanitarian Military Intervention and other relevant laws. The Paper concludes that ‘Humanitarian Military Intervention in the sovereign state is Illegitimate’

Organization of Chapters

The study has been grouped into four main parts of which each has its own subchapters. The first part is the general background of the study. This includes sub-chapters on the background of the principles of state Sovereignty and humanitarian Military Intervention and their development. The second part discusses the general perceptions of schools of thought in this area of study and the different views and arguments in support and opposition. The current legal authority on humanitarian Intervention and the development of new requirements of Responsibility to Protect and its controversial legal gap have been discussed in part three. While part four examines the other possible legitimate sources of Humanitarian Military Intervention authority. In conclusion, the study has found that it is not legitimate for a state or agent of states to militarily intervene in a sovereign state.

Main Literatures involved in the discussion of this topic (Legitimacy of Humanitarian Military Intervention)

The leading literature on this topic is three, although not discussed independently, they form part of the discussions in this Paper all the way to the end:

  1. The first one is the UN report by the International Commission on Intervention and State Sovereignty (ICISS). My Paper has discussed this in detail as it is the current UN framework on this topic. The report tries to strike a balance between the importance of sovereignty and the use of force. It tries to reconcile the norms of sovereignty and respect for human rights. Has provided the framework for dealing with systematic human rights violations (ICISS 2000). It is this report that created the norm of ‘Responsibility to Protect’. The fundamental principle of this report is its definition of Sovereignty which says that sovereignty is a duty, not a right. It defined the duty of sovereignty as a two-way solution i.e. the responsibility to respect the sovereignty of other states and the responsibility to respect the rights and dignity of all its citizens without segregation or bias (ICISS 2001).
  2. The second one is ‘Saving Strangers: Humanitarian Intervention in International Society’ a book written by Nicholas J Wheeler. This book describes the practical examples of abuse and use of Humanitarian Military Intervention and their actual purpose. The book describes Humanitarian Military Intervention as a legitimate action against the sovereignty and also as a guardian of human rights against abuse (Wheeler, 2000). Although not detailed discussed, this book has been referred to in this Paper.
  3. Although not fully engaged in this Paper, ‘Just War or Just Peace’ is another interesting piece of literature on this topic written by Simon Chesterman. This literature rejects the legitimacy of Humanitarian Military Intervention (Chesterman S, 2001).

Background of study

The aftermath of the cold war has seen states increasingly in need of militarily intervening to protect citizens of other countries from atrocities. There have been interventions in different parts of the world with the aim of protecting innocent civilians. For example, the UN’s huge effort to disarm parties and rebuild a state in Cambodia, the no-fly zone over Shiites in Iraq, the alleviation of starvation and establishment of the political order in Somalia, and the military action in  Bosnia (Wheeler 2000). Further to that, the intervention process and the purpose has been evolving over the period as Ayoob puts it that in the recent period, the intervention has been happening in different folds of purposive and projection. The former is that which is different from the traditional intervention but carried with the aim of specifically achieving the purpose of protecting human rights. This type of intervention is characterized as humanitarian in nature rather than political and strategic. While the latter is politically projected, it is taken on behalf of the international community rather than by an individual state or a group of states, for their own goals. These states portray themselves as agents of the international community (Ayoob 2010).

The importance of humanitarian intervention is that it helps to reduce the suffering of marginalized people. It protects them from atrocities caused either by their government or another group of people. The intervention has different perspectives from different theorists. From a Conventional point of view, humanitarian intervention is a strange thing as it does not specifically conform to their conceptual interests (Finnemore 1996, p 319). While for realists, it is important if there are some benefits for the intervening state. These benefits can either be political or geostrategic. Neoliberals emphasize on economic and trade advantages (Keohane R & Nye S, 1987).  This can somehow be proved wrong based on the interventions that have been happening since 1989, they haven’t been motivated by any benefit or any personal gain. For example, the intervention the USA carried in Somalia in 1989 was not motivated by any strategic interest. There were neither economic interests nor was there security interests for the USA as the country was economically insignificant and the USA gave up its military base at Barbera during this intervention. This proves there were no security interests just like the intervention in Cambodia. However, classical liberals could argue that the interventions were motivated by the UN’s plans to democratize these countries. On the contrary, the USA abandoned the state-building and democratization mission in Somalia. Therefore liberals and realists cannot exactly give us the basis of interventions as their approach is based on assumptions. (Finnemore 2002).

The purpose and justification of Humanitarian Intervention have been evolving since the nineteenth century. The evolution has been along with intervening states’ perception and approach, the interveners’ approach is that they choose the group of people to help. Some are basing their approach on the relationship, closeness or commonness with the people suffering as Pierre Van Hoeylandt said: “According to some observers, the decision not to intervene to stop the genocide in Rwanda in April 1994 was particularly difficult to understand, or even morally blameworthy, because there had been ample warning signs of planned massacres” (Hoeylandt 2000). Of all these signs but nothing happened in the international community to stop the genocide which took place for 100 days in Rwanda claiming the lives of nearly 800,000 people. The then Secretary General had this to say to admit the failure in helping those who were in need: “We must all recognize that we have failed in our response to the agony of Rwanda and thus have acquiesced in the continued loss of human life. Our readiness and capacity for action have been demonstrated to be inadequate at best and deplorable at worst, owing to the absence of the collective will.” Report of the Secretary-General (S/1994/640, 31 May 1994).

Comparing the situation in Kosovo where the death of nearly 2000 people raised the alarm of intervention. The intervention bypassed the custom (UNSC authorization) but was still considered legal. One could wonder why it was so slow or no action taken to stop the genocide in Rwanda and why was it so quick to intervene without the proper procedure in Kosovo. As already said, from the constructivists’ point of view, human rights are not universal but socially constructed. Some look at humanitarian intervention and human rights development as norms dominated by Western power politics which decides what to do, and whether to intervene or not (Diprizio 2002 pp234). One can argue that with the power Western states have, they are capable of changing anything in the international arena McGuinness observes that far too many inhumane acts have been committed by these states in the nineteenth century. The focus has changed and not the behaviour (McGuinness 2006 p 391-421).

Humanitarian military Intervention has invited different opinions. The opinions have ranged from academicians, scholars and politicians. Some are in support of it, like Sherman N, who said that “violation of human rights generates obligations on others, outsiders have a duty not only to respect those rights but also to help ensure that governments respect them” (Sherman N, 1998). In his Millennium report, the then UN Secretary-General supported the humanitarian intervention by saying that humanitarian intervention helps to respond to the violations of human rights (Annan K, 2000). While others are opposing it by saying that it is open to abuse of power and also violates the state’s sovereignty. Chilstrom says: “Humanitarian intervention doctrines can indeed be abused, and even where humanitarian motives are genuine, a state may intervene for a variety of other motives, some of them purely selfish” (Chilstrom R.M, 1974 p116). Nurzamman pointed out that humanitarian intervention does not solve the problem but contributes to the suffering of citizens in the country in question (Nurzzaman 2014).


The preamble of the United Nations Declaration of Human Rights (UDHR) is the basis of Humanitarian Intervention, where it is believed to say that power should secure the well-being of humanity. The vision of the good life provided in the UDHR is the justified foundation of the Humanitarian Intervention we see today. ‘Inherent dignity’ of people and the “equal and inalienable rights of all members of the human family” as proclaimed in the UDHR, is the “basis of justice, peace, and freedom in the world” (UDHR 1948). Therefore, the main purpose of humanitarian intervention maintains peoples’ dignity and rights. On the other hand, humanitarian military intervention is based on the conviction that it is likely to stop peoples’ dignity and rights violations through the use of military action. Therefore, in short, humanitarian military intervention is the authentic use of force for humanitarian purposes (Massa A.S, 2009).  However, this is not the absolute definition of humanitarian Intervention as it is widely defined, it can also be defined as an intervention that can happen for humanitarian purposes. This definition means that any intervention that takes place without a humanitarian purpose does not qualify for the definition of humanitarian intervention. Some interventions happen for other purposes like the economic, political, and strategic interests of the intervening states. There are different reasons that stimulate foreign intervention but the common feature is that it involves interference in the domestic affairs of the sovereign state (Hassner P, 1998. p16). Intervention can be done by another state, an international organization, or a group of states with the purpose of influencing the state’s political system against the state’s will. It can be done by force (through military action) or peacefully (through diplomacy) with the aim of achieving a particular political goal (Geldenhuys D, 1998. P6). To be specific, humanitarian military intervention is the intervention that is done with the use of force by a state, group of states, or an international organization with the aim of protecting the citizens of the target country from the extensive deprivation of human rights (Murphy S. D, 1996). As already noted above, the legitimacy of this concept remains controversial considering the longtime existence of the principle of sovereignty. Some scholars believe that intervention violates this concept of sovereignty, they say that humanitarian Intervention only justifies the desired military action of the powerful states (Spalding LJ, 2013).

The Principle of State Sovereignty

For the past hundreds of years, state sovereignty has been defining the principle of states’ International relations and the foundation for world order (ICISS 2001). State sovereignty is one of the basic principles of both International customary law and the United Nations Charter. Its main purpose is to maintain peace and order among states in the international community while also defending the weak from the abuse of power by the strong states. This serves as the recognition of competence and equality of independent states legally. The concept empowers the state to act and decide politically and other matters within the realms of International law without interference from other independent states. Each state has equal rights to choose the political, economic, social, and cultural system of its preference. The foundations of the principles of sovereignty date back to the treaties of Westphalia in 1648 (Abiew F, 1999). The treaty was signed after 30 years of war in Europe. The doctrine of sovereignty was established to avoid another war by creating independent states and establishing equality and order among them (Krasner S,1996. p115). Later in 1945, these principles of state sovereignty were adopted by the United Nations which incorporated them into the Charter (UN Charter, art. 2(1)). The fundamental article on the sovereignty of the state is Article 2(4) of the charter which prohibits all the sovereign states from interfering in the internal affairs of another sovereign state. This article prohibits the use of force against the sovereign state by either a global organization or another sovereign state (UN Charter, Art. 2(4)) (To be discussed in detail). However, with the rise of the principle of humanitarian interventions, the states’ sovereignty has faced a lot of challenges.

Development of the Principle of State Sovereignty

The principle has been developing from time immemorial. Before the Treaty of Westphalia, the world was under the reigns of emperors, monarchs, and princes who did not have any legal power but were governed by the common law of Christendom. During the Reformation, things turned in favour of the reign of princes against the catholic powers (Philpott D, 2001). The recognition of state sovereignty continuously developed through to 20th Century when imperialism took place and colonialism began. During this period, positive international law recognized a sovereign state as a territory with well-defined boundaries, a capable government, and a stable population (Robert H. 1990). Due to these pre-statehood features, some territories that were failing to meet the features were made dependent colonies of the empires who were capable of being states so there were sovereign states of Europe and America. This was how sovereignty in the colonialism period was defined and as a result, no territory in Africa accorded this status of sovereignty but were colonies of European states (Jackson, 67-69). It was during the League of Nations after the First World War when the mandate was established whereby the sovereign states were given the responsibility to bring civilization to the people in their dependent territories. The coming of the United Nations created trusteeship in the charter whereby some states were made trust territories of the advanced states (Jackson, 72-73). Decolonization, ideas of self-determination and anti-colonialism that took place after the Second World War, shaped the concept of sovereignty and as a result, the decolonization process started. Between 1950 and 1960, many countries became independent and attained the status of sovereignty as stipulated in the General Assembly resolution 1514 that declared “Self-determination to all people” in which it said: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (General Assembly resolution 1514 (XV) 1960). This saw different ethnic groups coming together as one nation within the pre-existing colonial boundaries and any ethnic discrimination was condemned. However, one can argue that this could be the basis for the continuous ethnic civil wars that have resulted in human rights abuse in these countries that has eventually caused humanitarian problems. As declared at the UN General Assembly, Self-determination and sovereignty were the most important concepts while colonialism became the most condemned concept of International relations (Jackson, 83). The acceptability of the norm of sovereignty made colonialism lose support in the changing norms of International Relations. Since that time, sovereignty has been the accepted concept in International Relations as the basis of statehood. However, as the norms continuously evolve in international relations, due to the growing violation of human rights, the idea of humanitarianism has affected and limited the concept of sovereignty. This has therefore prompted the emergence of humanitarian intervention that contradicts the non-intervention principle (Philpott, 35-47). The principle of humanitarian Intervention has led to the codification of human rights laws in the international conventions with the aim of protecting individuals against the states that use sovereignty as the right to violate human rights (Jackson, 45-49). Self-determination, independence, and sovereignty are all considered as good but with humanitarian intervention, the state’s immunity is lost when it fails to protect its citizens from atrocities. Therefore, one can argue that international norms such as sovereignty are compromised by the concept of humanitarian intervention and globalization.

Globalization encourages interactions between civil societies, states, ethnic groups and people around the world. It is for this reason that makes states and organizations are more concerned about problems happening in some parts of the world and always ready to intervene in the domestic affairs of other states as it is believed that conflicts in those states may have a negative impact on the international peace and security (Dickens D & Roberts W G, 2000). With globalization and interdependence, states are required to cooperate to manage the challenges faced by the global. State sovereignty, therefore, is no longer considered on its own without other factors affecting the world as a whole. Human rights norms are set standards for global conduct that are monitored by international organizations and non-governmental organizations (Dickens D & Roberts W G, 2000). This restricts the states’ conduct in the domestic as well as in international affairs, this could be the reason why the principle of humanitarian Intervention developed as discussed above.

Different Schools of Thought on Sovereignty

Realists’ view is based on the assumption that analyses states’ sovereignty as units of states with different balanced actors who maximizes their safety to survive in the anarchical world order. They consider power security as the priority to achieve their self-interests. However, the drawback of this thought is that by emphasizing power and self-interest they disregard the relevance of morals and norms to international relations of states. They believe that national politics is most important as compared to international politics which they believe lacks justice and is likely to cause conflicts among states (Stanford Encyclopedia 2017).

While constructivists base their view on the development of specific norms and principles. They believe that actors in international politics share a similar understanding of norms and actions important to the development of international relations. (Krasner, Stephen D. 2001). They believe that change in the norms of sovereignty is driven by changes in ideas in international relations. Constructivists always emphasize ideas and consider changes in norms of sovereignty while realists emphasize material factors in the development of sovereignty. Constructivists ideational believe that the development of the norm of sovereignty through changing ideas has shaped the world through. From the treaty of Westphalia, decolonization which started at the end of the Second World War, the founding of the European Union, and the rise of humanitarian intervention, all these were significant factors that led to the understanding and development of the concept of sovereignty (Philpott D, 1997 p22). While the realists believe that it’s not ideas that shape changes in international relations but materials and structures like technology, economic power, social classes, and military powers and these are the factors that led to the change of the concept of sovereignty. The constructivists’ argument is that if the transformation of rules and norms is based on materially powerful actors, it means that old norms would be replaced by new ones. They argue that it is the spread of ideas that changes the norms in international relations and the material power changes according to the changes in norms (Philpott, 1997, p24-30).

Debates on Humanitarian Intervention and Sovereignty

Different scholars and academicians have debated the topic of humanitarian military intervention by asking about its legality and acceptability in line with sovereignty. The debate has been in two different schools of thought. One group is in support of the concept by saying that it is legal and must be carried at the cost of sovereignty. While the other group is of the opinion that humanitarian military intervention violates sovereignty and therefore must be stopped to preserve this concept (Fleiner, Gerstner and Meyer, 1985, p.277).

The supporters of military intervention insist that sovereignty is not absolute and can be restricted for the sake of human rights. They are of the belief that sovereignty is a responsibility and not a right, therefore where the state violates its citizens’ human rights or where it is failing to protect the citizens’ rights, it loses its immunity to military intervention where possible as the ICISS report says: ‘State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect ( ICISS report 2001). Another point the interventionists are raising is that the modern world encourages states’ interdependence, therefore, the problem one country is facing can affect the whole globe. Therefore to stop the escalation of crisis from one country to another, the responsible organizations and states must intervene. Another argument as advanced is that the global governance concept defines national interests as common to the international community’s interests, therefore need to be protected by the International Community. The state’s sovereignty has therefore been redefined to reflect the requirements of intervention (Gaba, 2011). Others have argued that the gap between International law and what is considered to be moral behaviour, is what makes military intervention justifiable within the legal framework of International law as Nadezhda puts it: “There are times when the use of force may be legitimate in the pursuit of peace” (Nadezhda, 2008).

The supporters of sovereignty propose that sovereignty is absolute as it is the basis of a state’s independence, therefore cannot be limited or reduced. Their opinion is that Humanitarian military Intervention violates international law’s basic principles of state sovereignty which is also important to the maintenance of the current world stability and order because it interferes with the independent nation’s internal affairs. Some scholars have argued that military intervention has caused greater loss than the loss that could happen in violation of rights without intervention (Nadezhda, 2008). “Good intentions do not automatically shape good outcomes. On the contrary, there is no humanitarian crisis so grave that outside military intervention cannot make it worse. The use of military force must always/ always/be the option of last resort, not the tool of choice for dealing with threatened or occurring atrocities” (Nurzzaman 2014). This school of thought argues that intervened conflicts tend to be bloodier than those without third-party intervention because it puts the sovereign state in the worst condition. Military intervention leaves the intervening powers lost in the involvement of long-term outstanding conflicts. Gidon Gottlieb a researcher argues that “the value of an organized state is not belittled: the absence of governmental authority makes an apocalyptic anarchy possible, as events in Somalia which can illustrate the darkest pages of Hobbes’s Leviathan have demonstrated” (Nadezhda, 2008). Where he claims that the nonintervention saves the weaker states from powerful states who take advantage of their status in society and abuse power. (Nadezhda, 2008)

The Interference with the independent state’s internal affairs violates the state’s basic principles of sovereignty unless the interference has met some conditions. The conditions to be met for intervention, are stipulated in the UN Charter. However, one could ask whether these conditions are binding and dependable enough to constitute the action legal. In the next chapter, we are going to discuss the current legal procedures of Military intervention and assess their legitimacy.

Current Process of Humanitarian Intervention Authority

Humanitarian intervention is the military action by an external agent/state in a particular community with the aim of preventing the ongoing loss of lives by focusing on human security. The main focus is individual security and not the state. Its main purpose is to end human rights violations and prevent the humanitarian crisis from spreading further. As provided in the UN charter under article 2(4), it is illegal for a state to use force against another: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations (UN Charter, 1945, art. 2(4)). Therefore Military intervention as it is plainly, is a violation of this UN charter’s provision. After World War 2, Article 2(4), which provides protection for the eruption of another violence by preventing the use of force, has become the cornerstone and is considered to be part of a non-derogated ‘jus cogens’ legal norm of the UN Charter in regulating the use of force in the world. (‘Jus cogens’ is regulated by Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties. About this issue, see: Gray, 2008.).

However as exceptional proves the rule, the UN charter provides the exception to the provision of Article 2(4). The first exception is when the country is acting in self-defence i.e. when the country is under attack, it is allowed to use force to protect itself or its interests. This is provided in the Article 51 of the UN charter as it stipulates: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security.” (UN Charter, 1945, art. 51). The charter also provides under articles 39 and 42 that the use of force is acceptable when it is authorized by the United Nations Security Council as article 39 states: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security.”(UN Charter, 1945, art. 39). While Article 42 stipulates that: “Should the Security Council consider that measures provided for in Article 41[non-forcible measures] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (UN Charter, 1945, art. 42).

To summarize the legal definition of the provisions of the UN charter above, in international relations, the use of force is prohibited except for two circumstances where the use of force is for self-defensive purposes and where it is meant to maintain and or restore international peace and stability and this has been authorised by the UN Security Council. This makes the use of force illegitimate for individual states and leaves the authority in the hands of the UN Security Council only. This was framed with the purpose of limiting the interference in the internal affairs of individual states and also aiming at providing peace and security and protection from International aggression and so making it possible for all countries to participate in International affairs on an equal level with others (Reisman, 1984). In its literal meaning, the UN charter does not guarantee the use of force even for humanitarian purposes. Therefore any act of military action into a sovereign state falls under Article 2(4) of the UN charter which clearly says it’s unlawful except only when authorized by the UNSC. However, despite it being authorized by the UNSC, the use of force (military action) for humanitarian purposes against a sovereign state, can still be regarded as illegal as it doesn’t fall within the exceptional of Article 2(4) in the sense that; Clearly, it is not the act of self-defence (UN Charter, Art 51), neither can the violations of human rights in a sovereign (As stipulated in UN Charter Art, 39) equal to a threat to the international peace and security (Roberts A, 2008). This therefore can conclude that military action for humanitarian purposes lacks legal support and therefore violates principles of sovereignty.

The Responsibility to Protect

The legitimacy of military action for humanitarian purposes in international law has raised many questions that have been debated by different scholars at the beginning of the 21st Century. After Cold War, the nations agreed that the provisions of international order as provided in the United Nations (UN) Charter regarding sovereignty and Intervention, are long overdue and need to be revised to suit the current situation that threatens International Security (Chandler, 2004: P 59). The Nations then agreed on the need to establish an institution to watch over the international security framework that gives emphasis on the shared norms of human rights and democracy (Heathershaw, 2008: P 598). With this setting, the North Atlantic Treaty Organization (NATO), launched military action in Kosovo in the year 1999. This action by NATO was extremely contested by the International community. The International community contested this by saying that NATO’s action is contrary to the provisions of International Law, however, despite that and also depending on the nature and motive behind the intervention, it went unsanctioned and the UN considered it legitimate (Roberts A, 1999. P 103). This action of military intervention in Kosovo is one of the examples of humanitarian intervention’s violation of state sovereignty and many governments condemned it (Thakur, 2013 pp 61). Trying to solve this issue, the then UN secretary general held a meeting to find out the appropriate ways of military intervention for humanitarian purposes (UN doc A/54/2000, paragraphs 215-219). It was in this meeting that the International Commission on Intervention and State Sovereignty (ICISS), an independent commission was established by the Canadian government with the aim of addressing the questions of moral, legal, operational and political in relation to military intervention for humanitarian purposes and the state sovereignty (ICISS, 2001: vii). The main purpose of establishing this commission as Thakur puts it, was to develop an alternative approach to the moral right of natural law in claiming the right to intervene which has been increasingly criticized by the developing countries following the intervention in Kosovo in 1999 (Thakur, 2013 pp 65). Following the successful research, in 2001 the commission (ICISS) came up with the report entitled ‘The Responsibility to Protect (R2P)’. The R2P came up with three pillars as a proposition of a new international order framework and the pillars are that:

  1. the responsibility to protect populations from war crimes, ethnic cleansing, genocide, crimes against humanity, and their incitement, lies in the hands of the state in question.
  2. Where the state in question is not capable of discharging its responsibility, the international community is responsible to encourage and assist the state in question to fulfil this responsibility. 3. Where the state in question fails to carry its responsibility of protecting its population, the R2P mandates the international community to take collective action to protect the populations as provided in the UN charter (UN handbook 2009 pp 89).

At the World Summit of 2005, the R2P was adopted by the UN Member states and since then, particularly the third pillar of R2P is regarded as the powerful legitimate provision for those states who claim the use of force for the humanitarian purpose to compromise sovereignty in the international humanitarian intervention (Paris 2014, pp 261).

The Controversy and Legal Gap of Responsibility to Protect in Relation to Sovereignty

The emergence of the R2P although clear that it would allow for intervention as stipulated in chapter vii of the UN Charter (ICISS 2001, P16), it is ambiguous on how the unauthorized intervention for humanitarian purposes can become legitimate in cases where the UN Security Council has failed to pass the resolution consenting the intervention. In the third pillar, R2P recognizes the different states’ disagreement by suggesting the option of acting through loopholes like ex post facto authorization (ICISS 2001, pp 54) or by General Assembly’s legitimization (ICISS, p53) but failed to take into consideration the possibility of the unauthorized intervention. For that reason, since the Invention of R2P in 2001, there have been controversies in military Intervention, for example as Reisman puts it, the 2003 Iraq war was contested after the American government failed to prove the availability of weapons of mass destruction in Iraq as claimed. It has been controversial all the way including the Libyan legal UN Security Council authorized military Intervention in 2011 as it is not clear the limits of military intervention in regard to the state’s sovereignty (Reisman M, 519).

As already explained above, the coming of R2P was to institutionalize the humanitarian military intervention so that it can be more legal than the process before. In his voice during the summit,  the then UN Secretary-General Kofi Annan said: “If humanitarian intervention is, indeed an unacceptable assault of sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?’ (UNSG Report, 2000, p. 35). The ICISS’s report for coming up with the R2P was to commit the humanitarian intervention process to be more effective and legitimate (Bellamy A, 2009 pp35). The report urged states to be proactive by trying as much as possible to take action to prevent genocide, crimes against humanity, war crimes, and ethnic cleansing when they have noticed the likelihood and potential of them taking place. This was declared in the ICISS report where it was said that its purpose was to introduce a broad doctrine of crisis prevention as it stated: “prevention is the single most important dimension of the responsibility to protect” (ICISS 2001 p xi). Creating a two-way responsibility to protect, the R2P imposes to the host state the primary responsibility to protect its citizens and to the international community intervention where the host state is failing or abandoning its responsibility (ICISS, 2001). This, therefore, changes the debate from the ‘right to intervene’ to the ‘responsibility to protect’ this then focuses on the individual human beings and by doing so it disregards the sovereignty of the host state. It seems right that it does not contradict the state sovereignty where the host state fails to fulfil its responsibility, however, as stipulated in the ICISS report, military action is only acceptable when carried in a ‘just cause’ i.e. where human rights are extremely violated like where it is done in a large scale or where it is ethnic cleansing and it is meeting the following criteria:

  1. The intervention must be done with just intention ‘just intent’;
  2. All the means to maintain peace or to stop the atrocity have failed ‘last resort’;
  3. The action must not be extreme to the point that it causes a lot of damage ‘proportionality’;
  4. The action must be done to achieve that mission’s probability of success ’. (ICISS 2001 paras 4.19, 4.32-4.43)

The question is how to measure these criteria before the action and assess how effective was the action after the mission to find out whether it was within the set criteria. As mentioned above, it is still not clear who can authorize the military action as the ICISS report left the key responsibility with the UN Security Council to follow the provisions of the UN Charter, as they confirmed that there is no prospect of amending the current provisions in relation to veto power. Where the resolution is blocked by veto, the report sought alternative approval from the UN general assembly or a relevant regional organization. This was justified in the report where they say that it is unacceptable to ignore a grave humanitarian crisis because of one veto (ICISS 2001 paras 6.13, 6.20). Therefore they urged UNSC permanent members to try as much as possible to adopt a ‘formal, mutually agreed practice’ to save the world from atrocities (ICISS 2001 para 6.21). On the legality of the unauthorized Interventions, the report avoided calling it illegal but blamed it on a lack of global consensus and was further confused when it mentioned the danger of carrying out military action without the UNSC authority while also at the same time putting emphasis on the damages that may be caused due to inactivity of the UNSC where peoples’ rights are being gravely damaged (ICISS 2001 para 6.37). Mentioning the UNSC’s inactivity and failure to carry its responsibility when the peoples’ rights are being gravely violated, is proof that this concept lacks a stable legal stand and can open up to the nations’ taking the law into their hands. The report further says that the states will be free to intervene either in coalition or unilaterally to stop the atrocities where the UNSC is inactive (ICISS 2001). This could cause a lot of damage to the international order and justice as it can open up to abuse by the powerful states and consequently a violation of the state’s sovereignty as earlier mentioned. This can be proved by the controversies the military action has had since the release of the ICISS report (Thakur R, 2013). This, therefore, has invited suggestions to look into what can be seen as alternative legal sources to humanitarian military intervention. In the next chapter, we are going to explore the other possible legal sources of humanitarian military intervention.

Other Possible Legal Sources for Humanitarian Military Intervention

While we explore other possible sources of power for humanitarian military intervention, we should note that these other sources have limitations regarding binding power. While the coming of these other legal sources and the continuous development of human rights has made this area of international relations complicated. Some scholars have argued that the articles of the UN charter are rigid and fail to accommodate these developments of human rights in the humanitarian intervention (Tetzlaff K). These sources are regarded to be coming from three separate sources namely: International humanitarian law; International human rights law and International Customary law.

The International Human Rights Law

World War Two encountered massive fundamental human rights violations. In reaction to this, the UN Charter established another body of law. International Human Rights Law was established based on the fundamental principles of the Universal Declaration of Human Rights as adopted in the year 1948 (UDHR). This body is now acting as a legal source of the International human rights protection authority. While the states have a primary responsibility of protecting human rights, this body acts as an international subsidiary for the protection of human rights at the international level. At the World Conference of Human Rights in 1993, it was confirmed that the protection and promotion of international human rights are the basic legal authorities of this body for the respect of the human rights of all persons. The UN charter established that states should always respect human rights and where the human rights principles conflict with sovereignty, human rights should always prevail (Atwood, Susan J, 2003). It is in the interest of international human rights law that some of the international human rights customary laws should bind the states regardless of their origin treaties (Orakhelashvili A, 2008). It has however been argued by some experts that the evolution of some human rights provisions has reached a point where they cannot be set aside just like the prohibition of the use of force in Article 2(4) of the UN Charter (Gray C, 2008). However, if this can be adopted, it could as well be argued that these human rights provisions are capable of overriding article 2(4) of the UN Charter. Therefore granting Humanitarian Military Intervention a full legal right. This has however been defeated by other scholars who said that that perception could require clear proof that human rights norms are internationally accepted with no derogation. Clearly, it is not allowed to do so and it’s highly debatable as human rights are not universal. And on the other hand, it could also in a similar manner mean that the International community consents to the use of force to protect these rights yet it’s clearly not the case at the moment (Gray C, 2008). The supporters of Humanitarian Military Intervention have also argued that the stipulation in the last part of Article 2(4) which urges states to refrain from the use of force“…in a manner inconsistent with the Purposes of the United Nations.” (UN Charter, 1945, art. 2(4)). Therefore Humanitarian Military Intervention is consistent with the purpose of the UN for protecting human rights. However, this understanding of Article 2(4) is openly against the UN General Assembly resolution (UNGA declaration 1970) that strictly prohibits the use of force even for humanitarian purposes (Gray C, 2008 p34). Further to that, it is also against a definition of aggression as adopted by the UN General Assembly in 1974 which states: “… consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression” (UN General Assembly, 1974, art. 5). With this, therefore, it is worth noting that no matter how severe the human rights violation can be, it does not make the Humanitarian Military intervention legal (Gray C, 2008). Although the human rights law sets some sanctions for the states’ violation of human rights, it does not make external military intervention a legitimate solution (Haar B, 2000).

International Humanitarian Law

International Humanitarian Law is regarded as another source giving a legal right to humanitarian intervention. It originates from the conduct and responsibilities of states and individuals involved in the warfare known as ‘jus in bello’. This source of law is made up of different treaties like the Geneva Convention of 2005 whose legal protection focuses on a certain class of people during wartime (Geneva Protocol III, 2005), and the Genocide Convention which requires states to prevent genocide and punish all involved in genocide (Genocide Convention, 1948) and the customary International Law emanated from the Nuremberg Trails (Meron T, 2000). During wartime, International Humanitarian Law is mainly interested in protecting civilians and enforcing the political leaders to respect their dignity as attached to these norms (Don H & Bonser M, (2001)). Genocide convention states that genocide is a crime under International law and so should be punished. Consequently can result in member states to the convention, requesting the UN to use force in order to stop genocide (Genocide, 1948, art. 8). From the 1990s, International Humanitarian Law has been frequently used in the prevention of abuse by governments. It is a result of this law that led to the establishment of the International Criminal Tribunal for the former Yugoslavia and Rwanda in 1993 and 1994 respectively. The landmark application of this law is the establishment of the International Criminal Court (ICC) in 1998 (Haar B, (2000)). Under Article (8) of the Rome Statute of the International Criminal Court, it is a criminal offence any violation of human rights like war crimes from international or civil wars and the perpetrators can be punished (Don H & Bonser M, (2001)). Under some limited circumstances, these criminal offences under International humanitarian law can equate to legitimate reasons for humanitarian military intervention. This can be possible following the interconnection of International Humanitarian Law and International Human Rights Law based on the common interest of protecting humanity which has evolved into customary law (Meron T, 2000). The International Criminal Court of Justice confirmed that these laws must be recognised by all countries regardless of their status in the convention (International Court of Justice Report, 1996, par. 79). However, this does not qualify for making the Humanitarian Military Intervention legitimate as both of the laws deals with specific circumstances under different situation i.e. International Humanitarian Law is applicable to the war situation while International Human Rights Law as discussed above is applicable where states are dealing with its citizens (Meron T, 2000).

International Customary Law

International Customary Law can be considered another source of the legal framework for Humanitarian Military Intervention. This type of legal framework develops as a reaction to how states deal with each other in a certain norm. It is made up of codified doctrines, treaties, court judgments as well customary conduct (Rome Statute of the International Criminal Court, 1998). Customary law develops through the conduct of states who perceive that the norm is created by continuously acting and accepting it in such a way. The main and most important elements of this customary international Law are consistency and generally accepted international practice. The perception of the states over the application of the emerging norm plays an important role as only a few application of that norm, qualifies of becoming part of the law (Bederman, D. J (2001)). Some scholars believe that the state’s conduct in consistently launching the Humanitarian Military intervention can become a norm against the prohibition of the use of force in Article 2(4) of the UN Charter. Therefore this conduct can become legal under international customary law that makes the Humanitarian Military Intervention legitimate (Seybolt T.B, 2008). Their argument is based on the fact that looking at the history of humanitarian military intervention, it has been a successful consistent trend in conflict management where the UNSC is inactive (Walzer M, 2004). However, this could be also argued that while we have seen successful interventions without the UN in different parts of the world (Wheeler N J, 2000), there are also many unsuccessful interventions the recent one being the controversial Intervention in Libya which although authorised by the UN, it remained controversial because it did not meet the required purpose and was highly criticized (Mccall M, 2017). This, therefore, counter-attacks the development of a norm and has resulted in the defeat of this assumption of consistent and generally accepted practice (Welsh J M, 2002). The legitimacy of general acceptance of Humanitarian Military Intervention and its consistent application has been challenged by some scholars who said that the lack of consensual about the existence of the right of Humanitarian Intervention both at the International and state level, is enough evidence of the failure of development of this norm (Arend A & Beck R 1993). This gives a perception that the right to humanitarian military intervention is dominated by Western countries and hence continuously opposed by other states (Holbrook J, 2002). The customary right of humanitarian military intervention is seen as less valuable as it develops from the conduct of states therefore it is likely to be misused by powerful nations who are capable of turning tables around in any direction of their choice in the international arena (Brownlie I, 2000).


In conclusion, following the discussions above, it is worth noting that the current international Law does not guarantee humanitarian military intervention as a legitimate means of protecting against human rights violations. Therefore, ‘it is not legitimate to militarily intervene in the affairs of a sovereign state’. Humanitarian military intervention only becomes legitimate on two conditions. i.e. where the UN Security Council has authorized it and where the targeted state has requested for it. This, therefore, makes it unlawful for any military intervention in a sovereign state without meeting these given conditions. However as observed in the discussions above, despite the restrictions on the use of force, there have been interventions without the authority. This stems from the disagreement of scholars on the interpretation of Article 2(4) of the UN Charter. It has clearly been discussed that the current legal framework does not authorize the use of force by a sovereign state without the UNSC’s consent. The use of force for humanitarian purposes does not fall into any exceptions of this article. Military intervention for humanitarian purposes does not represent a threat to the international community as provided in Article 51 of the UN Charter, and neither does it fall within the exceptional circumstance of self-defence of Article 39 of the UN Charter.

The coming of the Responsibility to Protect, however, has not solved the problem of this lack of legitimacy of military intervention as it also fails to critically propose a legitimate way of authorizing military intervention. This can be seen as opening a can of worms where it said that the primary protection of human rights rests with the state in question and where the state fails, the international community. Further, the Responsibility to Protect has openly stated that the states have the duty to intervene either collectively or unilaterally where the UNSC is seen to be inactive in responding to atrocities. This openly invalidates the purpose of humanitarian military intervention that will end up being abused by powerful nations.

An alternative legitimacy as sought from other sources of law has also proved futile in legitimizing humanitarian military intervention. Human rights law is only capable of setting sanctions against the states that violate human rights and doesn’t legitimize external military intervention for humanitarian purposes. International Humanitarian Law although capable of criminalizing some conducts of violating human rights, does not legitimize humanitarian military intervention as it deals with specific circumstances. The conduct of states that develops customary law, is not capable of legitimizing humanitarian military intervention as it is feared that it can tend to be abused by powerful nations.

This, therefore, concludes that: ‘humanitarian military intervention to a sovereign state, is not legitimate’.


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