By Nikhil Shah
06 September, 2013
@ Countercurrents.org
There has been a lot of discussion recently about the U.S. intervention
in Syria being justified as a humanitarian intervention with the Kosovo war as a
precedent. Many international
commentators in the U.S. have stated that as the U.S. is unable to get Security
Council authorization for a strike against Syria, international law must
‘evolve' to allow for a humanitarian intervention to avoid prohibited chemical
weapons from being used or from further atrocities from being committed by the
Asad regime. All these discussions
about humanitarian interventions have conveniently avoided a discussion of
whether they have been accepted as part of customary international law. The International Court of Justice
Statute defines customary international law in Article 38(1)(b) as "evidence of
a general practice accepted as law."
This is generally determined through two factors: the general practice of
states and what states have accepted as law. Widespread objections by states to a
practice cannot constitute customary international law.
In the case of humanitarian interventions, most nation states have widely
rejected humanitarian interventions by other states even where the death toll
was higher than the Syrian conflict.
Michael Byer, an international legal scholar, in his book War Law:
Understanding International Law and Armed Conflict has pointed out that in the
aftermath of India's intervention in the civil war between West and East
Pakistan (now Bangladesh), the international community failed to endorse India's
intervention even though it put an end to the horrific atrocities committed by
Pakistan. In his book, Byer states
that in the aftermath of India's intervention, “A Security Council resolution
calling for a ceasefire and immediate withdrawal of Indian troops from the
country was vetoed by the Soviet Union, which at the time was a close ally of
India. The UN General
Assembly adopted essentially the same resolution in a 104-11 vote with ten
abstentions. Most importantly not
one country endorsed India's humanitarian intervention claim, so no opinion
juris was expressed in its favor.” [1] Similar, distinguished
international law scholar, Luis Henkin, in the book Right v. Might pointed out
that military intervention by Vietnam into Cambodia which ended Pol Pot's
atrocities was similarly rejected by the UN General Assembly by a majority vote.
[2] Many nation states were
very vocal in their objections to both these military interventions carried out
on humanitarian grounds. Byer
pointed out that during the conflict with Vietnam and Cambodia even Bangladesh,
which had benefitted from Indian intervention failed to endorse the Vietnamese
intervention. [3] The International Court of Justice in the case, Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986
I.C.J. 14 (June 27), concluded that binding customary law prohibits coercive
military intervention in the internal affairs of another state.
During the Kosovo war, two Security Council members, Russia and China
publically condemned NATO's intervention.
In addition, Foreign Ministers of 132 countries passed a Declaration
within the Group 77 in which they “rejected the so-called right of humanitarian
intervention, which has no basis in the UN Charter or in international law.”
[4] From these objections it is
apparent that these types of humanitarian interventions cannot be considered
legal under customary international law.
There are several legal alternatives to circumvent the U.N. charter to
stop certain atrocities. The U.N.
Charter does not prevent the Security Council from intervening in matters within
the domestic jurisdiction of a state when applying enforcement measures under
Chapter VII. Of course, any such response would be subject to the veto or
failure to obtain majority support in the Council. However, in the event of
Security Council veto, authorization for at least voluntary collective action
could be sought from the General Assembly under the Uniting for Peace resolution
if the crisis is grave enough. [5]
Additionally, the UN can create a special international court such as was
the case in Yugoslavia, Rwanda and Sierra Leone to prosecute any crimes
committed. If a member of the
Security Council vetoes the resolution creating the court, then the
International Criminal Court (ICC) may also get involved. The ICC statue allows the court to get
involved in situations where it determines that the fair and genuine prosecution
of war crimes has not taken place at a national level by a country. All of these legal alternatives would be
far preferable to the alternatives suggested by the U.S. which find no
justifications in international law.
Nikhil Shah is an attorney
in Los Angeles, CA
[1] Michael Byers, War Law: Understanding International Law and Armed
Conflict , (Grove Press, 2007) pg. 94.
[2] Louis Henkin, Stanley Hoffmann and Jeane J. Kirkpatrick, Right v.
Might: International Law and the Use of Force , (Council on Foreign Relations,
1991), page 42.
[3] Supra note 1 at page 95. [
4] O. Corten, ‘Un Renouveau du ‘Droit d'Inter vention humanitaire' ?
Vrais Problèmes, Fausses Solutions', 41 Rev. trim. dr. h. 2000, p. 698.
[5] G.A. Res. 377(V)A, U.N. GAOR, 5th Sess., Supp. No. 20, at 10, U.N.
Doc. A/1775 (1950).
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