Legally Regulate, rather than Outlaw

Posted on Actualizado enn

In my Last Post, I spoke about Humanitarian Intervention and explained that though law does not permit it, practice shows that it does exist.

Having established the fact that Humanitarian Intervention does indeed exist, the issue now is not whether a state should intervene or not, rather, what the state that intervenes should conform to. Over the last 40 years, a number of governments have justified unilateral military action with reference to the “customary law” of military humanitarian intervention in one form or another, and without exception, the international community has refused to recognize these actions as legitimate. But this “customary law” is not “written” or “codified” and offers no guidance to the manner in which the intervention itself should be conducted.

The conspicuous lack of legally “binding” material governing humanitarian intervention has led to a situation of marked chaos. Article 2(4) does not suffuse any intervention on humanitarian grounds with legality. In the Nicaragua Case, the ICJ explicitly ruled that the use of force could not be the appropriate method to monitor or ensure respect for human rights. The ICJ added that that there is no general right of intervention in international law, and therefore, intervention violated international law. Scholarly writings and perspectives are divided on the legality of intervention on humanitarian grounds, and the law as it stands notes that any military intervention on humanitarian or related grounds, violates international law.

Even in practice, many states are both wary, and uncomfortable with the way Humanitarian Intervention can go, in practice. In theory, the ideals are lofty, the intentions are creditable and the proposed methods are fantastic. But when they translate into practice, the issues at stake are plenty – the collateral damage is heavy, the basic essence of a state’s existence is assaulted by the damage to its sovereign and territorial integrity, and there is always a sense of “how much is enough”, that stands out as a niggling feeling when it comes to morals.

So why not “outlaw” humanitarian intervention altogether, then? For the simple reason that one of the special characteristics of International Law lies in that violations of law may lead to the formation of a new law, so that an international custom could be intentionally created. The ground reality outweighs the dictates of the legal regime, and therefore, it is time that humanitarian law be legally regulated, instead of outlawed.

Self-defence, the only legally recognized exception to the prohibition on the use of force is governed by a five-pronged procedural mandate that functions as a precondition. A similar legal framework propping humanitarian intervention would be in order, to bridle the implementation under the rubric of the law.

A proper course of action within the framework of the law should essentially provide for a mandate that requires adherence to six principles.

The legal instrument must ideally mandate:
1.    Just cause.
2.    Prior and mandatory authorization from a multilateral body
3.    Bona fide intention.
4.    Probability of Success.
5.    It must not involve the use of force, except as a last resort.
6.    If force is used, it must be necessary and proportionate to the degree of graveness in the situation.

The six grounds that should in effect be the key drivers behind intervention on humanitarian grounds will be discussed in the next post.

Source: Global Ethics Network

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