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Summary: I. Introduction. II. Definitions. III. Legality. IV. Legitimacy. V. Interplay. VI. Conclusion. VII. Bibliography.
I. Introduction
Some of the express purposes of the UN are to maintain international peace and security by taking effective collective measures to prevent threats and suppress acts in breach of peace1 and to foster international cooperation in solving humanitarian problems and promoting human rights.2 However, there is still no consensus as to whether states could lawfully intervene for humanitarian purposes. Despite the end of the Cold War, the Security Council (“SC”) still often finds itself hindered by veto in preventing atrocities such as in Rwanda and Srebrenica.3 Nevertheless, states would risk incurring international responsibility if they proceed to intervene amidst this inaction. While much of academic literature has dealt with how humanitarian interventions could be justified by the thousands of civilian lives at stake and the growing legitimacy of Responsibility to Protect (“R2P”), little has been said about the collective aspect of these interventions, which remains as the preferred format.
Collective humanitarian interventions with SC authorisation under Chapter VII or Chapter VIII of the Charter could be deemed as lawful and legitimate because they enjoy the legitimacy of the UN4 and are rooted in international solidarity5 and cooperation6 in promoting human rights and upholding peremptory norms under international law. Nevertheless, it seems less clear whether collective unilateral humanitarian interventions would be equally lawful and legitimate. The SC may have authorised collective UHIs such as through Resolution 788 concerning the ECOWAS intervention in Liberia. However, the retrospective effect and ambiguity of this kind of resolutions continue to render collective UHIs in legal controversy as UHIs prima facie violate principles on the use of force and non-intervention in international law.7 At the same time, there is legitimacy in the collective action, and this collective legitimacy appears to have some influence in the discourse on the legal status of UHIs.
Therefore, this paper seeks to examine how much collective legitimacy play a part in the question of the lawfulness of UHIs, if at all. To achieve this, it will first define the notion of collective unilateral intervention. Then it will briefly trace the development of the unilateral right to humanitarian intervention and R2P in order to establish the present legal status of UHIs. Subsequently, this paper will discern some sources of collective legitimacy under international law and how they would fair in justifying collective UHIs. Next, this paper will consider the impact collective legitimacy has had on the discourse concerning the legality of (arguable) UHIs in the Dominican Republic (1965), northern Iraq (1991), Liberia (1991), Sierra Leone (1997), and Kosovo (1999). Finally, it will highlight some concerns if collective legitimacy is left to obscure the current legal truth that is the prima facie illegality of UHIs. These points will be discussed specifically in the context of military or forcible UHIs, i.e., UHIs that involve direct and deliberate participation and/or provision of military assistance to change the statu quo of a conflict and not merely peacekeeping actions.8
II. Definitions
1. Collective Action
“Collective” literally means “an action done by individuals or entities as a group”.9 “Collective” would describe the mode of the action taken, not the fact that it involves more than one acting party. The difference could be illustrated through the application of state responsibility laws in the collective action of a group of states. Although collective action would naturally imply that it involves more than one state, the responsibility of each state involved would differ, depending on whether the states acted in concert,10 in complicity11 or independently12 in executing the action.13 In other words, “collectiveness” describe the means of the states’ action while “plurality” and “multilateral” its participants. In turn, the difference between the two would determine the consequences of the action for each of the state participant. In the same way, a collective security action may imply that it is borne of the collective security system under the Charter. However, collective UHIs discussed in this paper cannot be considered as collection security action in this sense because they are a departure from the collective security system, as will be demonstrated in due course.
2. Collective Intervention
On the other hand, collective intervention may be multilateral in the sense that it involves two or more states acting in concert or by loose association,14 or in the sense that it is an action borne of multilateral bodies or treaties such as the UN through the Charter.15 In this regard, Thomas & Thomas defines collective intervention as: “a collective enforcement action to protect the rights of states as a reaction against a violation of international law which can be taken by all members of the international community; a group of states under the obligation of a multilateral treaty; or a single state acting on the authority of general international law”.16 This definition implies more than multistate involvement. It also reflects the intervention’s objective of addressing gross human rights violations, be it under auspices of the UN (e.g., in Somalia, Haiti and Bosnia), through regional or sub-regional organisations (e.g., ECOWAS in Sierra Leone)17 or other international institutions and arrangements outside the UN framework (e.g., NATO in Libya by virtue of SC Resolution 1973).18 This is why this definition is considered most relevant to this paper.
3. Collective Unilateral Interventions
Dupuy suggests that unilateral legal actions can be taken by a group of subjects acting together in a collective body.19 From this perspective, interventions can be both “collective” and “unilateral”, i.e. , taken by a group of states acting together but without the authority of international law. Such an intervention may be done with institutional support (e.g., NATO in Kosovo) or without (e.g., the US-led coalitional airstrikes in Iraq and Syria). “Unilateral” in this instance should not be confused with unilateral in the sense that the intervening state acted individually or in isolation (e.g., Tanzania in Uganda; India in Bangladesh). Individual state humanitarian interventions in the latter category are outside the scope of this paper.
4. Unlawful Interventions
Taking Thomas & Thomas’ definition of collective intervention and Dupuy’s notion of collective unilateral interventions together, one would surmise that collective UHIs are unlawful since an unlawful measure (i.e., an intervention) is used to respond to an unlawful act (i.e., a grave human rights violation). However, the answer may not be as clear-cut. The ICJ in the Nicaragua Case defined an unlawful intervention as one that is calculated to change, through coercive means, matters in which all states, by reason of their sovereignty, shall have freedom of choice under international law.20 On this authority, Teson is of the further view that a forcible intervention would be unlawful if: (i) it involves indirect or direct use of force, and (ii) it is aimed to influence or thwart matters falling under the exclusive domestic jurisdiction of a state.21 It follows that the determination of whether an intervention is lawful and whether a forcible intervention would violate the principle of use of force and non-intervention would thus hinge upon whether the subject matter that the intervention seeks to turn falls within the domestic jurisdiction of a state.22 In this connection, this paper will demonstrate that forcible collective UHIs are better deemed as unlawful based on its intended and realised effects on the sovereignty of the intervened state.
III. Legality
1. Right of Humanitarian Intervention
In the first instance, UHIs violate clearly established principles of international law. Article 2(4) prohibits states from using force or threatening to use force to interfere with territorial integrity and political independence of other states,23 except in self-defence under Article 51 or with SC authorisation under Chapter VII of the Charter.24 Incidentally, Article 2(7) prohibits the UN from interfering in the domestic affairs of states except in application of Chapter VII measures.25 In the Nicaragua Case, the ICJ held that the principle of non- intervention is a principle under customary international law and the US’ act of training and arming the contra rebels in El Salvador to overthrow the Nicaraguan government was in violation of this principle.26 In particular, the US’ actions amounted to a threat or use of force against the sovereignty of Nicaragua within the meaning of the principle under the Friendly Relations Declaration.27 Incidentally, the Declaration on Inadmissibility of Intervention also provides that no state has the right to intervene in the affairs of other states for any reason,28 while the Aggression Definition Resolution provides that no circumstances or grounds whatsoever shall be considered to justify aggression.29 After noting the fundamental nature of these principles under international law in Nicaragua30 and the Armed Activities Case,31 this principle was finally recognised as jus cogens by the World Court in the Armed Activities New Application 2002.32
At the same time, serious violations of human rights is also a legitimate international concern.33 UN member states have pledged to cooperate with the UN to promote universal respect and compliance with human rights under Articles 55 and 56 (c) of the Charter. In the Reservations Advisory Opinion, the ICJ held that the Genocide Convention is based on universally binding principles, the universal condemnation of genocide, and the recognition for cooperation between states in eliminating genocide.34 As such, states would be fulfilling their obligations under this Convention in the interest of the international community and universal respect for human rights rather their own.35 In other words, the cooperation pledge not only requires a joint effort to enforce human rights protection, but also to eliminate human rights violations.
Chief among the major protection mechanisms in force following this pledge is the mechanism to protect the right to life,36 which includes the recognition of gross violations of the right such as genocide and crimes against humanity as jus cogens. In the NuclearWeapons Advisory Opinion, the ICJ categorised rules of international humanitarian law concerning the protection of the civilian population in armed conflicts as “intransgressible principles of international customary law” since they are “so fundamental to the respect of the human person and the elementary considerations of humanity”.37 These rules, such as those embodied under Common Article 3 of the Geneva Conventions, are applicable in both international and non-international armed conflicts,38 while failure to observe them would constitute war crimes.39 In addition, upholding the right to life also entails erga omnes obligations, i.e., collective rights and duties enforceable by and on all states.40 This goes to show to some extent how extensive and severe the legal regime has become in ensuring strict observance of norms relating to the right to life under international law.
In the same spirit, the SC has also deemed some intrastate conflicts which caused or could potentially cause extreme loss of human lives as a “threat to international peace and security”41 and intervened under Chapter VII (e.g., through Resolution 794 concerning Somalia42 and Resolution 940 concerning Haiti).43 However, the SC has not been able to do so consistently as it is still subject to the politics of its permanent members. Although the SC may have unlimited powers under the law,44 it often could not exercise them despite the dire humanitarian situation at hand. The Russian and Chinese veto in the draft resolutions to intervene in Syria45 before Resolution 2118 in 2013 is one recent example of SC’s limitations.
Therefore, the issue becomes whether states could unilaterally intervene when the SC fails to act. To date, neither Article 2(4) nor Article 2(7) has been amended to include this unilateral right as an exception46 or to modify the principles to the same effect under Article 53 Vienna Convention on the Law of Treaties.47 State practice indicating emergence of the right evidenced by positive action or acquiescence48 has also been too inconsistent to change the related customary international law. In Legality of the Use of Force in Kosovo, Yugoslavia argued that as there is no right of unilateral intervention under international law, Belgium’s direct involvement in the NATO bombing of Kosovo was illegal. Meanwhile, Belgium argued that the right exists based on SC practice in Sierra Leone and Liberia.49 This issue remains unresolved as the case was subsequently dismissed for want of jurisdiction.50
Previously, states such as France and Belgium in Zaire (1978) and the US in the Dominican Republic (1963) justified their intervention under the pretext of rescuing their nationals and self-defence. However, this has proven controversial as it is arguably a defence against “armed attack”51 and have often involved the rescue of other nationals or other motives like regime change.52 Supporters of this doctrine have argued that humanitarian intervention could not violate Article 2(4) since it has no direct effect on the territory or political independence of the intervened state. But, as the ICJ held in the Corfu Channel Case, a forcible intervention in such circumstances would remain a “manifestation of a policy of force” always subject to abuse and thus legally indefensible “whatever be the present defects in the Organisation”.53 On the other hand, those in favour argue that humanitarian interventions are consistent with the objectives of the UN in human rights protection54 and with the developments in protection of right to life under international human rights law.55 However, as the ICJ also held in the Nicaragua Case, the objectives of human rights protection under the Charter are incompatible with the conduct of forcible intervention.56 Incidentally, both the Declaration on the Inadmissibility of Intervention and Definition of Aggression Resolution make no room for any justification to intervene57 and provide that the practice of intervention of any kind would violate both the letter and spirit of the Charter.58 States such as Belgium in Congo (1960) have also tried to rely on necessity59 as a defence to intervene.60 However, the ILC made clear that necessity as a circumstance to preclude wrongfulness was never intended to address the issue of legality of humanitarian interventions,61 while Article 26 of the ILC Articles clearly provides that none of the circumstances to preclude wrongfulness under the ILC Articles shall be invoked in respect of breach jus cogens obligations.62 The debate continues to this day. In any event, though one could conclude that as the unilateral right to humanitarian intervention has yet to be clearly established, UHIs would remain prima facie illegal.63
2. Responsibility to Protect
R2P came about in response to the consecutive humanitarian catastrophes in Somalia, Bosnia, Rwanda, Kosovo and Darfur; the unresolved issue of the right to UHI;64 and the growing rejection of sovereignty as a defence for states’ deliberate failure to protect their people from avoidable catastrophes such as mass murder.65 Within seven years, the concept evolved from entailing sovereignty with responsibility to protect internally displaced persons in 1998 to the versions advanced in the eponymous ICISS report in 2001; the High-Level Panel on Threats, Challenges and Change report titled “A More Secure World” in December 2004; the UN Secretary-General’s report “In Larger Freedom” in March 2005; and as finally approved by the World Summit in October 2005.66 The final World Summit version imposes on every sovereign state the responsibility to protect its civilians from irreparable harm and large-scale loss of human life as a result of genocide, war crimes, crimes against humanity and ethnic cleansing, failing which would trigger the responsibility of the international community to step in through permissible means under the Charter.67 The SC first adopted the concept in Resolution 1674 on the protection of civilians in armed conflict.68 Since then, R2P is cited in Chapter VII resolutions (among others) on Darfur,69 Libya70 and Cote D’Ivoire.71
R2P was thought to be the end of the humanitarian intervention dilemma.72 It changed the narrative from a regime of right to that of responsibility73 using pre-existing legal principles74 within a limited set of circumstances.75 It initially showed promise to deal with the situations in Darfur and Libya,76 but eventually lost some lustre after many states led by Russia and China believed NATO had exceeded its mandate in Libya.77 As a result, the SC was reluctant to invoke R2P in Syria and did not intervene until evidence of the Assad regime’s chemical weapons turned up in 2013.78
R2P is also questionable as a legal norm. First, its documentation in General Assembly and Security Council resolutions may be evidence of soft law at best.79 Second, the versions of R2P throughout its development have been inconsistent to constitute international custom. For example, unlike the ICISS report version,80 the SC has the discretion to authorise Chapter VII action only when it deems necessary in the World Summit Outcome version.81 This means that, when the SC is deadlocked or otherwise unable to authorise a Chapter VII intervention,82 states could still proceed to exercise collective self-defence or UHI. In this respect, R2P would have no effect. Third, what triggers R2P of the international community or who should undertake this responsibility when the SC is no longer viable also remains unclear.83 In all the SC resolutions referencing R2P so far, only the violating state authorities’ primary R2P is cited, not the international community’s residual R2P.84 Accordingly, R2P cannot be said to have legalised UHIs nor established a criteria to legalise UHIs. If anything, the prima facie illegality of UHIs is only compounded by the doubtful legal status of R2P.
IV. Legitimacy
1. Multilateralism
Collective and regional unilateral intervention is believed as having greater deference than individual state intervention.85 A decision to intervene made through the established framework of an international organisation is commonly believed as better than that by a single state because the procedure and participation of many states would imply a series of checks and balances.86 Multilateral actions allude to legitimacy since they express consensus, due process and popular will.87 This is why they are believed to be a proven safeguard against abuse, particularly by powerful states.88 On the flipside, the involvement of more than one state in a forcible action weakens the appearance and possibility of hegemony, especially in terms of military might and influence.89 As a result, the approval of other states would be more forthcoming in collective interventions since it could be justified as necessary or taken in the interest of the international community.90 In this regard, Damrosch’s study in 1993 found that the majority of states endorsed collective interventions between 1945 and 1990 because they were taken in situations such as genocide, which are among common interests of the international community.91
More precisely, multilateral institutions derive their legitimacy from the right to rule given by its members. When states recognise an institution to have this right,92 the institution shall not be interfered with in its process and issues.93 The rules that such institution issues shall also be complied with.94 This is why in the case of the UN, for example, member states find it necessary to exhaust efforts to obtain SC authorisation before undertaking any forcible enforcement action in line with the Charter.95 The legitimacy of the UN is hardly ever under challenge.96
However, problems are bound to arise when the institution could not function effectively or fully exercise its legitimate powers due to its own structural flaws. In the case of the UN, this would particularly occur when the SC is deadlocked in the face of a humanitarian crisis. On one hand, although Article 52(1) of the Charter recognises the significant role of regional organisations in maintaining international peace and security97 and regional organisations have proven effective in that role,98 their actions are still limited to the Charter.99 In this regard, Gowland-Debbas argues that regional institutions attain residual and implied powers to intervene if the SC is paralysed100 since the SC has primary101 but not exclusive responsibility in maintaining international peace and security.102 Nevertheless, this residual power must be exercised only after all efforts to obtain prior SC authorisation are exhausted, and not in a manner that would usurp powers of the SC or otherwise violate express provisions of the Charter.103 Therefore, humanitarian interventions conducted through regional organisations and independent of the SC could arguably be deemed as unilateral, while raising the question whether ex post facto legitimisation for interventions such as in Sierra Leone and Liberia are lawful. This further raises the question whether falling back on regional organisations when the SC cannot act despite an urgent humanitarian crisis should be made lawful, as former UN Secretary-General Kofi Annan once did.104
2. Duty of Cooperation
Alternatively, collective UHIs may be deemed legitimate as an exercise of the duty of cooperation under international law. The duty of cooperation can be generally gleaned from the collective and cooperative objectives of the UN under Articles 1(1) and 1(3) of the Charter, in addition to the principle of sovereign equality under Article 2(1) of the Charter and customary international law.105 Article 41(2) of the ILC Articles in more specific terms provides for the duty of all states, including UN non-members, to cooperate in ending serious violations of peremptory norms by using all lawful means.106 In the Wall Advisory Opinion, the ICJ held that pursuant to Article 41(2), states are under a duty: (i) not to acknowledge the illegal situation arising from Israel’s construction of the wall which violated the Palestinians’ right of self-determination; (ii) not to render aid or assistance in maintaining the illegal situation; (iii) to ensure the removal of any impediment to ending the illegal situation;107 and (iv) as members of the UN, to consider further measures to end the illegal situation.108 The ICJ in the Namibia Advisory Opinion nonetheless held that this duty of cooperation concerning peremptory norms would not extend to acts that would otherwise be detrimental to its subjects.109 In addition, the ILC clarifies that while this duty requires states to participate in good faith, it does not require states to find or to agree to any solution proposed in the collaborative effort.110
Accordingly, one could argue that resorting to UHIs would be in furtherance of states’ duty of cooperation to end violations of jus cogens such as genocide or ethnic cleansing111 and/or the international community’s (residual) R2P. However, one should be mindful that first, exercise of this duty under Article 41(2) of the ILC Articles is contingent upon the use of lawful means. To this end, neither R2P nor UHI are conclusively recognised as within the law. Second, R2P under the World Summit document is vague on veto restrictions in humanitarian-related SC resolutions and viable options in the event of such veto. This is unlike the ICISS report, which did not discount the possibility of international cooperative humanitarian effort outside the UN112 and even provided for a recourse to the General Assembly under the Uniting for Peace Resolution113 procedure in the event of SC inaction.114 Therefore, it would still be unclear as to exactly when the duty of cooperation actually arise or when states’ collective R2P is triggered. In light of these ambiguities, UHIs thus cannot be justified, let alone be legalised, by the fact that they were conducted through the cooperation and collection action of states.
3. Principle of Solidarity
Further, collective UHIs may also be a legitimate expression of international solidarity. Solidarity under international law is defined by MacDonald as “a principle of cooperation which identifies as the goal of joint and separate state action an outcome that benefits all states or at least does not gravely interfere with the interests of other states”.115 In the meantime, Boisson de Charzounes defines solidarity as “assistance by some international actors to others to achieve a goal or to recover from a critical situation which takes place within a shared value system at the international community level based on a moral obligation owed between members of the international community”.116 In other words, solidarity is the principle that enables the achievement of common interests through a common effort at the international level117 but without any interference with the sovereignty of states involved.118
There is still no consensus as to whether solidarity creates legally binding obligations on states,119 but it is gaining recognition as the underlying principle in major areas of international law, including economic development, environment, peace and security, and human rights protection.120 R2P would be deemed a manifestation of this principle.121 In this regard, Judge Koroma believes that the collective responsibility of the international community to intervene when a state fails to discharge its R2P vis-à-vis its civilian population arises from the international community’s solidarity with the population.122
However, at least two counter-arguments could be made against a proposition that collective UHIs are pursuant to the principle of solidarity. First, the principle of solidarity so far has only been established between states and, even so, without any compromise to sovereignty.123 Solidarity between the international community and a population within the territory sovereignty of a state in the context of R2P has yet to be established. Second, similar to the duty of cooperation, application of the solidarity principle is always subject to conduct by lawful means. In these circumstances, collective UHIs would be inversely correlated the solidarity principle because their legal status remain doubtful in law while in fact they infringe the sovereignty of the host state.
V. Interplay
1. Consequences of Collective Legitimacy on Questions of Legality
Thomas & Thomas posit that collective intervention undertaken through a multilateral organisation framework would be legal only if the organisation’s constituent treaty expressly grants its members the right to intervene and the intervention fulfils the conditions of exercising such right.124 Neither the fact that the intervention was a joint action nor the force of a group of states conducting the intervention in itself would render the intervention automatically legal.125 In other words, the permissibility of collective interventions taken under the auspices or by the extended powers of an international or regional organisation would depend on whether its treaty expressly provides for the right to intervene in the first place. Therefore, based on this premise, collective interventions under the Charter would only be lawful with prior SC authorisation since there is no express right to intervene under the Charter except under Chapter VII or VIII. It follows that UHIs, collective or individual, presently would not be lawful.
In contrast, African Union member states by the same premise may lawfully intervene as Article 4(h) of the African Union Constitutive Act grants them the right to do so through a decision of the African Union Assembly and in the grave circumstances of genocide, war crimes and crimes against humanity.126 However, Article 4(h) is silent on whether the right extends to forcible interventions. As the principles on the use of force and non -intervention should always prevail given these principles’ jus cogens status and under Article 103 of the Charter, it seems unlikely that Article 4(h) would authorise the use of force. In any event, Article 4(h) has not been invoked in reality so far. Even when it had the opportunity, the African Union only sent its peacekeeping forces to Darfur with the consent of the Sudanese government127 and had rejected any form of military intervention in Libya before the SC authorised Operation Odyssey Dawn through Resolution 1973.128 In this respect, Thomas & Thomas’ proposition on how collective interventions can be deemed as lawful is flawed.
Further, although regional and sub-regional institutions may appear to have multilateral legitimacy, their mandates could still be so outdated that it would not otherwise be lawful for them to take enforcement actions.129 Most constituent treaties of these institutions were intended to address a different set of issues in a different time, which may not include human rights protection.130 Yet, these institutions have often been forced to deal with humanitarian situations in their backyard, particularly when the SC could not.131 For example, in the ECOWAS military intervention in Liberia, ECOWAS’ Protocol on Non-Aggression and Protocol Relating to Mutual Resolution on Defence governing the West African region’s collective security mechanism did not provide any authority for the ECOMOG to intervene132 and consent of the parties in the conflict to the intervention was not obtained.133 These issues would have put the legality of the intervention134 and its status as a UHI precedent under serious question,135 but ECOMOG’s collective action and the support it received from the US and other African states such as Zimbabwe, Botswana, Egypt and Zambia in Liberia was apparently enough to avoid that.136 What’s more, these issues were hardly raised in the UN137 before SC Resolution 788,138 which retroactively approved the ECOMOG military action, was passed a year later.139
The legitimacy of numbers also made a legal impact on the US’ intervention of the Dominican Republic (1965). The US’ was initially condemned in the General Assembly140 for sending its troops to deal with the pro-Bosch rebels in Santo Domingo with the apparent intent of preventing a communist takeover.141 In defence, the US contended that the action was necessary to rescue its nationals in the Republic.142 However, the OAS’ resolution to establish the Inter-American Peace Force comprising of troops from six Latin American states and the US a month after the intervention turned the intervention into a collective one.143 Although nothing in the resolution could imply an endorsement of the US’ initial military action, the subsequent involvement of the OAS in the intervention was apparently enough for Russia’s proposed SC resolution condemning the same to be rejected.144
Similarly, the ECOMOG intervention in Sierra Leone (1997-1999) was deemed lawful as no ECOWAS member questioned its legality145 and as it obtained retroactive approval of the SC under Resolution 1132.146 Although the predominantly Nigerian-ECOMOG forces, which aerially raided and fought the rebels in Freetown to restore the Kabbah government, raised some concerns as to Nigeria’s motives, Nigeria enjoyed the support of the OAU and the Commonwealth in the intervention.147 The legitimacy of ECOWAS, OAU and the Commonwealth in this case seems to have lent to the perception that this collective UHI was lawful even though it was conducted without prior SC authorisation.
On the other hand, NATO member states’ reliance on their collective legitimacy through the OSCE framework148 and the justification of intervening in the interest of the international community149 have been ineffective. The controversy surrounding the lawfulness of the Kosovo intervention remained because firstly, the decisions and actions of a regional military alliance of 19 democratic states without SC authorisation cannot be said as representing the international community.150 Moreover, NATO’s mandate in Kosovo as a non -Article 5 mission under the North Atlantic Treaty, particularly in light of Articles 2(4), 51 and 53 the Charter, is in itself questionable.151 Although some have argued that SC Resolution 1244 offered some retrospective validation,152 nothing in the resolution or its travaux prepartoires could imply that the intervention had been authorised.153 Unlike SC’s express but ex post facto legal reassurances in Resolution 788 on Liberia,154 Resolution 1244 only referred to NATO in the context of establishing an international security presence in post-conflict Kosovo to provide a safe environment for all civilians and means for safe return of refugees.155 In this connection, the ICJ in the Kosovo Advisory Opinion interpreted Resolution 1244 as having only two main purposes: (i) to call parties to end the armed conflict in Kosovo; and (ii) to establish an international civil and security presence under UN auspices for a political solution to the conflict and interim administration of Kosovo.156 Further, Russia’s draft SC resolution condemning the intervention as a serious breach of international law157 only gained the support of China and Namibia.158 The US in voting against the resolution contended that the Charter did not prevent the international community from not acting in the face of atrocities.159 Meanwhile, the UK, who also voted against, was of the view that there is an established exceptional right to intervene on humanitarian grounds which it had in fact exercised to protect the Kurds in northern Iraq in 1991.160 In this regard, most scholars agree that the illegality arising from the NATO threats and airstrikes was justified,161 though some remain wary of the dangers of justifying illegality.162
At first glance, the intervention to protect the Kurdish population in northern Iraq (1991) by a coalition of 13 states led by the US and the UK had the prerequisite authorisation by way of SC Resolution 688.163 Thus, it was arguably neither a UHI nor unlawful. Resolution 688 expressly condemned Saddam Hussein’s campaign to exterminate the Iraqi Kurds by chemical weapons and identified the situation as a threat to international peace and security. However, Resolution 688 was not adopted under Chapter VII and did not authorise use of force.164 As a result, the legality of the subsequent military establishment of no-fly zones and safe havens for the Kurds within the Iraq border could be seriously questioned. Nevertheless, one cannot deny that the intervention to some extent enjoyed the legitimacy of the coalition and, through Resolution 688, the UN. Therefore, in comparison to the other previous instances of humanitarian interventions earlier discussed in this paper, the effect of collective legitimacy on legality in the case of Northern Iraq could be best described as an anomaly.
2. Concerns
The previous section demonstrates to some extent how collective legitimacy distorts the actual legal status of UHIs. This is a dangerous trend to continue. Collective unilateralism is still unilateralism. In reality, there is no legal difference between individual and collective unilateral acts.165 In any event, an action of a group of states is often subject to a single strong actor166 who is either powerful enough to bear the high political, legal and tangible cost and risks involved or influential enough to steer others to play to its interest.167 The reality is, multilateralism cannot truly exist so long as states and international actors are not equal in strength and capacity.168 For example, the NATO intervention in Kosovo might not have been necessary in the first place had Russia not expressed its intent to veto any resolution against Serbia. Therefore, whether a UHI is lawful should be considered by its substance and not by its collective format. To this end, as established earlier in Part 2 of this paper, UHIs remain illegal.
Further, recognising the legitimisation of UHIs by multilateral arrangements outside the UN framework would elevate the status of these arrangements and relegate the UN in the Charter -based collective security system.169 Although some argue that this may be necessary in view of the intermittent failings of the SC,170 the law on the use of force and non-intervention remains unchanged. Until it does, the UN and its organs should remain above regional institutions and looser coalition of states outside the UN. The latter cannot mutually reinforce the UN, even when the SC cannot act.171
Condoning UHIs before the right of humanitarian intervention and R2P fully crystallise into international law could also see a return to pre-1945 self-help and open the floodgates to abuse172 as the possibility of grounds to justify UHIs is endless.173 In the long run, this would undermine the collective security system and return global security governance to one that is alliance-based and no longer Charter-based.174 This would make humanitarian action more selective than it already is as alliances would go crisis shopping according to their interests. In this regard, geostrategic and national interests may prove to weigh heavier than humanitarian concerns and compliance with the law when states consider acts of international solidarity, as seen recently in Syria.175 Before 2013, SC members led by Russia and China were reluctant to implement R2P in Syria on the back of Libya176 even though the situation had already been described as “the worst humanitarian crisis since the end of the Cold War”.177 However, when the situation in the Levant became complicated by ISIL, states were quick to join forces outside the UN to intervene.178 From September 2015 to February 2016, Russia at the Assad government’s request and with the support of Iran, Serbia and Armenia conducted airstrikes in north-western Syria to defeat opposition militant groups.179 Since September 2014, the US and France have also been leading separate coalitional airstrikes targeting anti-government forces and ISIL in Syria.180 The US, no longer recognising legitimacy of the Assad government, conducted the airstrikes without Syria’s consent. The closest to SC authorisation for the US airstrikes were Resolutions 2170 and 2249. But Resolution 2249 was not adopted under Chapter VII181 while Resolution 2170,182 which was in fact adopted under Chapter VII, did not authorise use of force.183 In this respect, the US-led airstrikes could be reasonable deemed illegal for want of valid SC authorisation.184
VI. Conclusion
Although outwardly justified and commonly perceived as the better form of intervention, collective UHIs should be considered for what it essentially is a UHI. In Part 3 of this paper, we have seen how, despite the development from humanitarian intervention to R2P, UHIs remain prima facie in violation of the non-intervention principle. While the advent of R2P may have changed the discourse on how and why UHIs should be made legal, its rapid and unconventional start as a norm (if it really was intended as one) seem to have only made the legalisation of UHIs more complex. Part 4 then offered three ways in which collective action could further justify UHIs and perhaps the underlying reason why states prefer to join forces when intervening: multilateral legitimacy, the duty of cooperation and the principle of solidarity. However, as later demonstrated in the same Part, these justifications have their own legal complications. Therefore, collective action may not be as good a validation for the already illegal UHIs as it seems.
Nevertheless, as the following Part showed based on previous interventions in Dominican Republic, Liberia, Sierra Leone, Kosovo, and northern Iraq, the legitimacy of collective action has to some extent influenced how some of these interventions is perceived legally. In Liberia, the apparent legitimacy of ECOWAS seem to have led the SC to retrospectively endorse the ECOMOG military action, even though ECOMOG in reality may not have sufficient mandate to do so under ECOWAS laws. In the Dominican Republic, OAS’ involvement later in the intervention arguably turned the initial condemnation of the US’ unilateral action into a rejection of the same condemnation at the SC. In Sierra Leone, the unanimous legitimacy of ECOWAS and the wide support its ECOMOG forces received made the forcible intervention mostly viewed as lawful, notwithstanding the fact that the SC did not approve the action (and even so impliedly) until Resolutions 1132 and 1152 a year later. In Kosovo, collective legitimacy of the NATO action was asserted by the NATO members involved, but it seems to have had little impact in the ensuing vigorous discourse on the legality of the intervention. The intervention in northern Iraq was relatively peculiar in that the Allies did obtain prior SC authorisation via Resolution 688. However, similar to the case in Libya (2011), it was the Allies’ subsequent creation of safe havens and no -fly zones for the Iraqi Kurds during conduct of the authorised action that created legal controversy because the scope of authorisation under Resolution 688 did not seem to extend that far.
The role of collective legitimacy observed in the discourse on the legality of these interventions may not have been deliberate since this paper’s observation is only made now in retrospect. However, collective legitimacy is still found as sufficient to misrepresent the present legal truth of UHIs. If collective legitimacy continues to be considered in this light, the fear is abuse and that it would further complicate the discourse on legalisation of humanitarian interventions. The preceding and penultimate section of this paper explained these concerns in detail using the foreign interventions in the ongoing conflict in Syria as a foreboding illustration.
It is unfortunate that just as the intentions may be noble, the collective form in which UHIs are usually executed -otherwise a picture of states united for humanitarian causes- neither bears legal significance nor contributes to the longstanding quest of solving the humanitarian intervention conundrum. But the significance of the values underlying collective action in the international plane should nonetheless continue in paving inroads to that solution.
