Beyond R2P: A Proposed Test for Legalizing Unilateral Armed Humanitarian Intervention

The current state of the law with regard to humanitarian interventions is that the only legal interventions are those approved by the United Nations Security Council. This framework has produced substandard results. The International Commission on Intervention and State Sovereignty (ICISS) in 2001 sought a way to obtain better results. In a report entitled "The Responsibility to Protect" (R2P), the ICISS set out a new framework for legal armed humanitarian interventions. The ICISS maintained the status quo with regard to authority to intervene by expressing a preference for a paradigm of multilateralism, requiring Security Council approval for interventions. The ICISS articulated the belief that it would be "impossible to find consensus . . . around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General Assembly." The Secretary-General's Report on Implementing R2P reaffirmed the principle of multilateral action and ruled out Unilateral Armed Humanitarian Intervention (UAHI) as a legal use of force. The UN thus currently holds the view that unilateral interventions - no matter the extent of human suffering—are viewed disfavorably by the majority of the international community. This view ensures, in some cases, that action will not be taken in time to alleviate suffering.

As a result, R2P's significant failing is that it did not create a framework for UAHI when the Security Council fails to act. Instead, the ICISS asked—but but did not answer—the question, "where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by[?]" This thesis argues that the answer to the question is the latter—the most harm lies in the damage to the international order if human beings are slaughtered or allowed to suffer while the Security Council stands by. The thesis thus proposes a four-part test to legalize UAHIs when the Security Council fails to act. The test rests on three foundations: just war theory, sovereignty and non-intervention as presumptions, and the necessity that any intervention be both legal and legitimate. These same principles form the foundations for R2P. But, this test goes beyond R2P by establishing a framework under which individual states may intervene when the Security Council fails to act.

The elements of the proposed test are:

1. The United Nations Security Council fails to act under Chapter VII of the UN Charter.
2. The intervening state must show clear and convincing evidence of extreme human suffering—or imminent extreme human suffering—to rebut the presumptions of sovereignty and non-intervention.
3. The intervening state must have a defined mission.
4. The intervening state must intend to carry out—and actually carry out—jus post bellum obligations.

The international community must accept the concept of legal and legitimate UAHIs when this test is met. If the international community does not accept this concept, international law will be powerless and thus irrelevant in the face of extreme human suffering when the Security Council fails to act and R2P does not apply.

Note: Abstract extracted from PDF file via OCR.

TJAGSA Thesis 2014 Haugh;

Contents:

- Introduction;
- The Foundational Principles of International Law and Legal; Bases for the Use of Force;
- The Responsibility to Protect;
- UAHI Named and Defined;
- The Current State of UAHI;
- Proposals for the Legality and Legitimacy of UAHI;
- Three Foundations for the Proposed Test;
- The Proposed Test;
- Objections and Limitations;
- Conclusion.