Humanitarian intervention without Security Council authorization
The lawfulness of unauthorized interventions in the Case of Kosovo

» by Kamala Janakiram

International law prohibits violations of human rights and humanitarian law by states against their own citizens. These duties are owed erga omnes1 and it is therefore incumbent upon all states to respond, individually or collectively and through legal and peaceful means, when these violations occur. However, undertaking military action in order to intervene to end violations being perpetrated against a civilian population, is not a straight forward issue. Indeed, the prohibition of the threat or use of force is embedded in Article 2(4) of the UN Charter and was reaffirmed in the General Assembly's Declaration of 'Friendly Relations' of 1970 which outlawed in absolute terms, forcible intervention as a countermeasure to violations.

Humanitarian intervention, for the purposes of this paper, is defined as "the threat or use of force across state borders by a state (or a group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied". The debate that surrounds NATO's unsanctioned intervention focuses on whether states have the right to transgress the sovereignty of other states and use force in order to protect the human rights of individuals other than their own citizens without Security Council authorization. The scope of arguments on the subject range from whether a new right humanitarian intervention is indeed lawful, to qualifying NATO's 1999 military intervention in Kosovo as a blatant breach of Article 2(4) and of the UN Charter.

This paper will explain why, increasingly, humanitarian intervention is being used as a method to contain humanitarian disasters and what the implications of unsanctioned unilateral intervention are. Crucial to the debate is whether international law permits armed humanitarian intervention when exercised without Security Council authorization.

© Kamala Janakiram 2004.

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