Restructuring the Debate on Unauthorised Humanitarian Intervention This Part examines the law of unauthorized humanitarian intervention under

the U.N. Charter.7 Reviewing the status of unauthorized intervention, both from a positivist approa h to international law and from the perspe tive of a poli !"oriented approa h, this Part on ludes that international law prohibits unauthorized humanitarian intervention. This Part then turns to the wor# of some international legal s holars to explain how theorists have approa hed the $uestion of how the law should respond to situations in whi h an unauthorized intervention should ta#e pla e, despite its illegalit!. This dis ussion onne ts the popularit! of this approa h to its alignment with the predominant a ount of unauthorized intervention as raising a onfli t between state sovereignt! and human rights. The first steps toward the establishment of the United Nations too# pla e amid the unleashing of aggressive war and the ommission of human rights violations of unpre edented horror and s ale. % & ordingl!, although the promotion of human rights onstituted a signifi ant fo us of the United Nations, the aim of the reators of the new organization was, above all, the suppression of armed onfli t. ' & right of humanitarian intervention, therefore, did not figure into the U.N. Charter. The drafters agreed from the outset to re ognize that the intention of the parti ipating governments in forming the organization was (to save su eeding generations from the s ourge of war.)*+ & ordingl!, the first purpose outlined in the Charter is (,t-o maintain international pea e and se urit!.)** To a hieve this purpose, the U.N. s!stem is built around a entral rule, set forth in &rti le ./01 of the Charter, that prohibits the use of for e in international relations2 (&ll 3embers shall refrain in their international relations from the threat or use of for e against the territorial integrit! or politi al independen e of an! state, or in an! other manner in onsistent with the Purposes of the United Nations.)*. &s a peremptor! norm of international law, this prohibition is binding not onl! on U.N. members but also on all states.*4 5i#e the 5eague of Nations Covenant and the 6ellogg"7riand Pa t of the interwar period,*0 the U.N. Charter established a s!stem in whi h pea e is the default state in international relations and war is an ex eptional o urren e that re$uires 8ustifi ation. The drafters sought to institute a s!stem far more rigorous than that of the 5eague era, however, and the Charter a ordingl! provides for onl! two ex eptions to the prohibition on armed for e. 9irst, in the event of an (armed atta #,) &rti le :* provides states a right of self"defense without Coun il authorization for the use of for e.*: ;e ond, the ;e urit! Coun il, as part of its responsibilit! for the maintenan e of international pea e and se urit!, ma! authorize the use of for e b! member states. To man! international law!ers, the bright"line rule prohibiting

the use of for e b! individual states, ex ept in ases of self"defense or Coun il authorization, indi ates indisputabl! the unlawfulness of unauthorized humanitarian interventions.*7 &lthough the Charter in ludes in the purposes of the United Nations the (a hieve,ment ofinternational o"operation in . . . promoting and en ouraging respe t for human rights,)*% the absen e of an! provision affirmativel! permitting the use of for e to prote t human rights, oupled with the express prohibition on the use b! states of nondefensive for e, *' indi ates that the drafters of the Charter did not intend to allow individual states, absent U.N. authorization, a right of humanitarian intervention. Proponents of a right of unauthorized humanitarian intervention generall! advan e three arguments in opposition to the textuall! fo used lassi al view of international law. .+ 9irst, some s holars ontend that be ause &rti le ./01 prohibits the use of for e onl! against the (territorial integrit! or politi al independen e) of a state, unauthorized humanitarian intervention<whi h see#s neither territorial nor politi al on$uest of the target state<does not violate the Charter..* This laim, however, is in onsistent not onl! with the primar! purpose of the Charter to limit the in iden e of interstate war, but also with the negotiating histor! of the instrument. .. =uring their dis ussions on what would be ome &rti le ./01, the drafters sought to formulate language that would ma#e lear that armed for e should not be used in the absen e of U.N. authorization> smaller states espe iall! were on erned about strengthening the language in order to express an absolute prohibition. The delegates expli itl! onsidered the prospe t that some formulations of the provision might be vulnerable to an interpretation that would allow the use of for e b! a member state (in some manner onsistent with the purposes of the ?rganization) but without U.N. authorization. .4 The drafters believed that the referen e to territorial integrit! or politi al independen e prote ted against this possibilit!, and the! further expe ted that this additional language itself ould not be used to under ut the re$uirement of ;e urit! Coun il authorization. .0 The drafters of the Charter thus in luded the spe ifi ation to strengthen the prohibition on the use of for e, not to restri t its appli ation. .: @ven if an intervening state does not see# to appropriate an! territor! of the target state or hange its politi al or government stru ture, its use of for e still onstitutes a violation of &rti le ./01. ;e ond, some s holars argue that when the ;e urit! Coun il fails to realize one of its prin ipal purposes, su h as the prote tion of human rights, the unauthorized use of for e b! member states is not in onsistent with &rti le ./01..A This poli !"oriented approa h loo#s to the provisions of the U.N. Charter on human rights as well as the $ui #l! developing human rights law regime as eviden e that use of for e for the prote tion of human rights is not prohibited in general. Bf the ;e urit! Coun il fails to a t, then members retain a responsibilit! to prote t human rights and ma! intervene even in the absen e of U.N. a tion..7 This interpretation, however, also fails to refle t both the ontext of the use of for e provision and the

negotiating histor! of the Charter. &s a general matter, it disregards the (presumption against self"help) that lies at the heart of the Charter s!stem as a whole..% 9urther, li#e the referen e in &rti le ./01 to (territorial integrit! or politi al independen e,) the delegates who were negotiating the text intended the phrase (or in an! other manner in onsistent with the purposes of the United Nations) as a reinfor ement, not a limit, to the prohibition against the use of for e..' Cith these two phrases, the drafters believed the! had made lear that unauthorized use of nondefensive for e b! a member state was prohibited absolutel!. Bndeed, the! re8e ted a proposal to in lude separate language to that effe t on the grounds that &rti le ./01 alread! made lear that for e was permissible onl! in self"defense or as authorized b! the Coun il.4+ Third, iting prior interventions su h as N&T?Ds 6osovo ampaign, the Bndian invasion of @ast Pa#istan, the Eietnamese invasion of Cambodia, and the Tanzanian invasion of Uganda, some argue that ustomar! international law provides a right of unauthorized humanitarian intervention.4* Neither suffi ient state pra ti e nor opinio juris, however, exists to support this view. The Bnternational Court of Fusti e /(BCF)1 explained in Nicaragua v. United States4. that (,r-elian e b! a ;tate on a novel right or an unpre edented ex eption to the prin iple might, if shared in prin iple b! other ;tates, tend towards a modifi ation of ustomar! international law.)44 Nonetheless, as in Nicaragua, states underta#ing humanitarian interventions (have not 8ustified their ondu t b! referen e to a new right of intervention or a new ex eption to the prin iple of its prohibition.)40 &side from the 6osovo ampaign, the intervening states in the ases listed above explained their a tions not as exer ises of a right or prin iple of humanitarian intervention, but rather as a ts of self"defense> the! hose to 8ustif! their uses of for e from within the framewor# of the Charter rather than to hallenge its appli ation.4: N&T? also did not attempt to ground its intervention in an! right of humanitarian intervention> most member states avoided asserting an! legal 8ustifi ation at all, turning instead to moralit! to defend the a tion4A and emphasizing repeatedl! that the intervention should not serve as a pre edent for future a tion. 47 Those states that did ite a legal 8ustifi ation proposed that N&T?Ds a tion was an enfor ement of prior ;e urit! Coun il resolutions. 4% Chen N&T? states had to a ount for the intervention in the BCF after Gugoslavia initiated an a tion hallenging the bombing ampaign, onl! 7elgium arti ulated a legal right of intervention, 4' and even then it later expressed its (hope that resorting to for e without the Coun ilDs approval will not onstitute a pre edent.)0+ These ases indi ate that not onl! is ( onstant and uniform) 0* state pra ti e la #ing, but so is an! sense that states underta#ing humanitarian interventions believe their ondu t is in a ordan e with the law, as is re$uired to establish opinio juris.0. ;tates that might have been a ting for humanitarian purposes appeared to 8udge that the! ould not base their a tions on a purported right of unauthorized humanitarian

intervention and did not see# to assert a new right so as to hange the law through pra ti e. &s a result, the! instead turned to the reliable rules of self"defense or negle ted the law altogether. That the ma8orit! of state opinion appears to weigh against a right of intervention further wea#ens the argument.04 These examples not onl! undermine the theor! that international legal rules prohibiting the unauthorized use of for e absent self"defense are (wither,ingawa! through long, total negle t,) but also (reinfor e ,statesDommitment to those rules as binding.)00 B. Looking Beyond the Law of Unauthorized Humanitarian Intervention The ase under international law for a right of unauthorized humanitarian intervention is $uite wea#> few s holars and few states support the view that international law at this time allows states to use for e to prote t human rights in the absen e of ;e urit! Coun il authorization. 9a ed with an apparentl! solid prohibition on the unauthorized use of for e for humanitarian reasons, poli ! ma#ers and s holars have struggled with how to address situations in whi h humanitarian intervention appears appropriate and a state or group of states are willing to use for e to prote t human rights, but the ;e urit! Coun il will not authorize their use of for e. 0: To answer this $uestion, some have turned awa! from the pres riptions of the law. The salient issue, the! argue, is not simpl! what international law sa!s about the unauthorized use of for e, but rather whether following the law might be politi all! or morall! una eptable. 0A This in$uir! leads to further dis ussion of whether unauthorized humanitarian interventions should happen despite their illegalit!<and to what onse$uen es for the intervening state. Ta#ing this alternative perspe tive, a number of ommentators have asserted that in some ases, a state should underta#e an unauthorized humanitarian intervention even though &rti le ./01 prohibits su h a tion. The! have argued that the prohibition on the unauthorized use of nondefensive for e should remain in pla e, but that in ases in whi h moralit! demands a tion, a violation of the law against unauthorized intervention should be tolerated<or even wel omed.07 The resulting s holarship has loo#ed to the riminal law ategories of ex use and 8ustifi ation to frame unauthorized humanitarian intervention.0% Chile maintaining that international law generall! prohibits unauthorized humanitarian intervention and should ontinue to do so, this approa h<whi h B term the ( riminal law approa h)<argues that in ex eptional ases in whi h intervention should ta#e pla e but the ;e urit! Coun il refuses to a t, states should impose no /or onl! nominal1 penalties on a state or group of states that de ides to use militar! for e without U.N. authorization. . !uestioning the Intervention rimina" Law #ode" for Unauthorized

The previous two sub"Parts dis ussed the operation of the riminal law approa h to humanitarian intervention in pra ti e and on luded that it fails to a uratel! hara terize previous instan es of humanitarian intervention and offers little hope of a hieving its stated goals of situating ex eptional ases of brea h into the law so that the underl!ing prohibition against unauthorized intervention remains inta t and preserving the legitima ! of the law. The wea#nesses of the riminal law approa h, however, are not limited to its failure to a uratel! hara terize past instan es of humanitarian intervention or to its aw#ward attempt to map domesti law stru tures onto a $uite different international s!stem. @ven if the international arena evolved to en ompass a ourt s!stem that evaluated ever! purported ase ofunauthorized for e, and even if states used opportunities in institutions li#e the United Nations to assess the legalit! of uses of for e and the existen e of ex using or 8ustif!ing onditions, the riminal law approa h still advo ates a troubling framewor# for thin#ing about unauthorized humanitarian intervention. The deeper problem of the riminal law approa h lies in its failure to a ount for the s!stemi onsiderations that are ru ial to international law and that are 8eopardized b! unauthorized humanitarian intervention. The ex use and 8ustifi ation defenses fo us ex lusivel! on onsiderations that are uni$ue to the parti ular situation that is being 8udged b! the riminal law. Fustifi ation loo#s to the nature of the a t and $uestions whether parti ular ir umstan es operated to transform the a t from one that is wrongful into one that is tolerable.*:+ @x use loo#s to the situation of the a tor and $uestions whether parti ular ir umstan es operated to transform the a tor from a person who is blameworth! for her a t into one who is not. *:* 7! answering the $uestion of whether the international ommunit! should ondone an illegal humanitarian intervention b! referen e to onsiderations su h as the s ale of the humanitarian risis and the failure of the United Nations to a t, the riminal law approa h adopts the basi in$uiries of riminal law defenses that emphasize the nature of the a t and the hara ter of the a tor. 7ut 8udging an unauthorized humanitarian intervention b! referen e to the situation of the parti ular a t and the parti ular a tor ne essaril! ignores the impa t on the stru ture of international so iet! that results when a state hooses to ontravene &rti le ./01 and pursue an unauthorized use of for e against another state. Fustifi ation defenses do loo# to onse$uen es of an a t, but this examination is limited to dire t results> longer"term, deeper impa t on so iet! and the law does not figure as readil! into determining riminal ulpabilit! and punishment. The riminal law approa h see#s to find a (wa! out of the onundrum) in whi h onl! non omplian e with the law leads to a result that is (8ust and moral.)*:. Bn defining what is (8ust and moral,) however, this approa h imports the relevant onsiderations of the riminal law, whi h fit well the predominant hara terization of unauthorized intervention as a matter of the onfli t between human rights and sovereignt!, while distra ting the debate from other aspe ts of

the international s!stem that are impli ated when the international ommunit! ondones an unauthorized use of for e. The following Part argues that an! dis ussion of unauthorized intervention must pa! greater attention to the s!stemi aspe ts of intervention, and parti ularl! to those elements of the U.N. s!stem that serve to onstrain statesD exer ise of power under a s!stem of law.