Unauthorized interventions
In several instances states or groups of states have intervened with force, and without advanced authorization from the UN Security Council, at least in part in response to alleged extreme violations of basic human rights. Fairly recent examples include the intervention after the Gulf War to protect the Kurds in northern Iraqas well as NATO’s intervention in Kosovo.
Four distinct attitudes or approaches to the legitimacy of humanitarian intervention in the absence of Security Council authorizations can be identified:[21]
1.Status quo: Categorically affirms that military intervention in response to atrocities is lawful only if authorized by the UN Security Council or if it qualifies as an exercise in the right of self-defense.[22] Under this view, NATO’s intervention in Kosovo constituted a clear violation of Article 2(4). Defenders of this position include a number of states, most notably Russia and the People's Republic of China.[23] Proponents of this approach point to the literal text of the UN Charter, and stress that the high threshold for authorization of the use of force aims to minimize its use, and promote consensus as well as stability by ensuring a basic acceptance of military action by key states. However, Kosovo war has also highlighted the drawbacks of this approach,[24] most notably when effective and consistent humanitarian intervention is made unlikely by the geopolitical realities of relations between the Permanent Five members of the Security Council, leading to the use of the veto and inconsistent action in the face of a humanitarian crises.
2.Excusable breach: Humanitarian intervention without a UN mandate is technically illegal under the rules of the UN Charter, but may be morally and politically justified in certain exceptional cases. Benefits of this approach include that it contemplates no new legal rules governing the use of force, but rather opens an “emergency exit” when there is a tension between the rules governing the use of force and the protection of fundamental human rights.[25][26] Intervening states are unlikely to be condemned as law-breakers, although they take a risk of violating rules for a purportedly higher purpose. However, in practice, this could lead to questioning the legitimacy of the legal rules themselves if they are unable to justify actions the majority of the UN Security Council views as morally and politically unjustified.
3.Customary law: This approach involves reviewing the evolution of customary law for a legal justification of non-authorized humanitarian intervention in rare cases. This approach asks whether an emerging norm of customary law can be identified under which humanitarian intervention can be understood not only as ethically and politically justified but also as legal under the normative framework governing the use of force. However, relatively few cases exist to provide justification for the emergence of a norm, and under this approach ambiguities and differences of view about the legality of an intervention may deter states from acting. The potential for an erosion of rules governing the use of force may also be a point of concern.
4.Codification: The fourth approach calls for the codification of a clear legal doctrine or “right” of intervention, arguing that such a doctrine could be established through some formal or codified means such as a UN Charter Amendment or UN General Assembly declaration.[27] Although states have been reluctant to advocate this approach, a number of scholars, as well as the Independent International Commission on Kosovo, have made the case for establishing such a right or doctrine with specified criteria to guide assessments of legality.[28][29] A major argument advanced for codifying this right is that it would enhance the legitimacy of international law, and resolve the tension between human rights and sovereignty principles contained in the UN charter. However, the historical record on humanitarian intervention is sufficiently ambiguous that it argues for humility regarding efforts to specify in advance the circumstances in which states can use force, without Security Council authorizations, against other states to protect human rights.[30]