The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

2.5. Principles Governing International Intervention

International law contains various rules on which are based armed interventions in targeted territories. Through the following lines, a researcher will deal with humanitarian interference and sovereignty.

2.5.1. Humanitarian Intervention and Principle of Sovereignty of States

The principle of State sovereignty is a principle on what are based the relations between Member States of the United Nations since the end of World War II, and affirmed by the Charter of the United Nations.

Sovereignty means in addition that a State which has violated human rights cannot be brought to justice only when it accepts or accepted the jurisdiction of a judge. With the exception of some regional mechanisms (European Court of human rights, Intermediate Court of human rights, for example), so it is extremely difficult to obtain the conviction of a State for violation of Human Rights by an International Court. And even if you got it, nothing guarantees the enforcement of the judgment; sovereignty is inconsistent with the existence of a kind of "international police" at the global level.^58(*) But the State sovereignty today seems to be limited by humanitarian intervention.

2.5.1.1. Humanitarian Intervention

The idea of humanitarian intervention appeared during the war of BIAFRA (1967-1970). The conflict caused a terrible famine, widely covered by Western media but totally ignored by the heads of States and Governments on behalf of neutrality and non-interference. This situation has resulted in the creation of NGOs as Médecins sans Frontières, which defended the idea that certain healthy situations can justify extraordinary delivery cause of the sovereignty of States. The concept has been theorized by the ends of 1980 by the law professor Mario BETTATI and the politician Bernard KOUCHNER.^59(*)

This notion of interference can lead to the confusion and interfere with the principle of the sovereign equality of States. So to understand this intermediary notion of interference, it fits to clarify first its definition and secondly, to specify its content.

The defenders of humanitarian intervention justify it primarily not of an ethic of emergency: "we can't let people die". It has its basis in the Universal Declaration of Human Rights (UNDHR) of 1948. For them, "interference is therefore legitimate that when it is motivated by a massive violation of human rights and it is framed by a supranational body, typically the United Nations Security Council".^60(*)

For Mario BETTATI, intervention means, in international law, interference without title of a State or an international organization in cases that reveal the exclusive jurisdiction of a third State".^61(*) It should, therefore, retain within the scope or the umbrella of the right of humanitarian intervention as the cross-border actions of Governments or public international bodies, excluding NGOs insofar, as their name shows, they are non-governmental.

A researcher does note also that the right of intervention as defined by its creators is, for them, a duty that became matter of international law. However opponents of the concept see it as "a duty which just reveals that a neo-colonialism which seems inappropriate, illegal so that no credits no validity is recognized with the right of intervention".^62(*)

2.5.1.1.1. Content of Humanitarian Intervention under International Law

Humanitarian intervention is a concept apparently discussed and challenged since its origin, in 1987, with the advent of cross-border organizations (Médecins du monde, Médecins sans Frontières, Reporters without borders, etc.).^63(*) The right of intervention includes ethical, political and legal content. It is both "right of", «right to», and even «duty», according to the coast where lies, moral man, doubly, consider it necessary to take action and feels right to act, or well on the side of the victim who is entitled to expect a help. The right of intervention sounds as both a duty and a right. It is right for the intervener; and it is right and duty both for the intervener.

Humanitarian intervention remains a concept prohibited in international law as being not consecrated by a rule of law or the Charter of the United Nations. But that notion seems advanced today with the powerful States actions for the broad interpretations of the resolutions of the UN Security Council while claiming preserved international peace and human rights. Thus, for example the Charter, in its article 42 provides: "If the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. This action may include demonstrations, blockade measures and other operations by air, naval or land of members of United Nations forces. This is what is commonly called "United Nations peacekeeping operation".^64(*)

Even if the Charter doesn't authorize the United Nations to intervene in affairs that essentially fall within the national jurisdiction of a State, "it recognizes them the right of application of coercive measures under Chapter VII".^65(*)

In addition, this study should note that humanitarian intervention is a political right to which are reserved assessment and determination of ethical standards that would justify interference. The policy of the intervening State determines also the opportunity, the nature, degree and duration of the interference.

On the other hand, OLIVIER RUSSBACH even thinks that interference is an attempt to swindling, "misuse of humanitarian law" created since Henry Dunant with Red Cross and confirmed by the Charter of the United Nations, the Hague convention and the Geneva conventions (1949) and their additional protocols(1977).^66(*) It is said to be "one right to the uncertain basis, inaccurate content and variable geometry". It was thought capable of justifying any sort of intervention, even aggressive and secretly loaded of desire for hegemony, intensification of exploitation and re-colonization of poor countries.^67(*)

It is on behalf of a moral conscience supposed to be universal and, in particular, on behalf of the moral of the human rights that the right to intervene is affirmed with insistence^68(*). The French Bernard KOUCHNER and Mario BETTATI, early proponent of this 'new' right, based on a 'morality of extreme urgency facing the inhumanity and the barbarity of the end of the 20th century'. The right of intervention is therefore always already, as observed BETTATI, a component of humanitarian law. Any other kind of interference is unfounded, unlawful, a pure and simple assault. Based on the "morality of extreme urgency; the right of intervention gives an ability to reply to the «misfortunes of others», a right to act in favor of others, and without their consent if necessary. It is based on aspiration whose legitimacy prohibits the conscience to refuse providing assistance to anyone who is in real danger of death and indignity".^69(*)

Even if the concept of humanitarian assistance is recognized to States since December 1988, some believe that it should remain in the sphere of strictly moral values. This notion is totally contrary to the basis of international law which states that a State is bound by a rule of law unless he accepted in ratifying a treaty or adhering to a pre-existing rule. In practice, actions of humanitarian intervention are always implemented by national contingents; fact that may involve two quite different situations; the 'right' of interference and the 'duty' interference.^70(*)

For Jean-François REVEL, meanwhile, the right of intervention is the recognition of the right of one or more nations to violate the sovereignty of another State, granted by a supranational authority. In practice, on behalf of the humanitarian intervention, it is not uncommon that the mandate be provided retroactively: thus the intervention of France in Ivory Coast is made initially without UN mandate.^71(*)

However, the duty of interference is an obligation which is made to all States to provide assistance at the request of the supranational authority. It is clear that it is this concept which is closest to the original concept of humanitarian intervention. It is also widely rejected by States members of the United Nations who see it as an unacceptable challenge to their prerogatives.^72(*)Despite the noble ideas of the concept, which prioritizes among values democracy and respect for human rights it has from its origin aroused questions and criticisms.

As matter of fact, the mission of interference is sometimes contrary to the fundamental objectives of the United Nations (peacekeeping), in any case always conflicted with article 2§7 of the Charter of the United Nations. For many jurists, the creation of this concept has no reason to be. Indeed, the Charter of the United Nations already contains numerous provisions to that effect, in particular, in chapters VI and VII. It was not matter of creating a new right, but the implementation of a right already simply existing.^73(*)

More fundamental than this legal problem, humanitarian intervention suffers from a number of contradictions that are mainly due to the confusion deliberately maintained between right and duty to intervene. It is indeed difficult, under these conditions, to separate the humanitarian motives of political ends and to ensure a total disinterest of the powers involved.^74(*)

Although the declaration of human rights is qualified as universal, it was strongly influenced by the works of Western philosophers of the age of enlightenment and more generally by the Judeo-Christian morality. The interference has always been an action from the Northern countries facing the countries of the South. It is thus unthinkable that Rwandan troops will one day be responsible for peacekeeping mission of peace in Northern Ireland or that Lebanese will operate in the USA.^75(*)

Actually, powerful countries have little risk to be target of an action of interference. For example populations of Somalia are probably as much in danger today than the Ukraine were in a few years, but Russia being infinitely more powerful on the international level than Serbia, it is unlikely that international action to take place there.

In the West also, humanitarian intervention has opponents. For them, it looks like the colonialism of the 19^th century; spreading the values of liberal democracy and whereas other cultures as negligible. It is accused of eventful character: tending to appear in hot action, to give good conscience to Western viewers and neglecting the conflicts forgotten by the media or some them chronic as proves it the crisis around the American intervention in Iraq, the delicate balance between the suppression of the former executioners and respect for the sovereign equality of nations remains so to find.^76(*)

However, the researcher has to emphasize with serenity that international law does not allow a State to intervene in internal affairs of another, even under the pretext of humanitarian intervention. This practice should be rejected under the principle of sovereignty of States.

* ⁵⁸ Gratius, H., op. cit., p.13.

* ⁵⁹ International Commission on Intervention and State Sovereignty: Report. 2001. The Responsibility to Protect, International Development Research Centre Publication available on https//:www.humanrightwotch.org/pdf, accessed on 22/7/2014. .

* ⁶⁰ Mario BETTATI, The Right of Intervention, Ed. Christmas, Paris, 1987, p.12.

* ⁶¹ DEEN BOST, The Right of Interference on Sovereignty of States, Memory, Institute of policy study in London, 2000-2001, p.18.

* ⁶² Ibid.

* ⁶³ James, A., op. cit., p.134.

* ⁶⁴ BETTATTI M., op. cit., p 86.

* ⁶⁵ See article 2 paragraph 7 of the Charter of the United Nations.

* ⁶⁶ O.RUSSBACH, UN Against UN, International Law Confiscated, ed. La Découverte, Paris, 1994, p.45.

* ⁶⁷ Ibid.

* ⁶⁸ M.BETTATI, The Duty of Interference, We Let Them Die? Christmas, Paris, 1987, p.86.

* ⁶⁹ B. KOUCHER, La Misère des Autres, Odile Jacob, Paris, 1991, p.28.

* ⁷⁰ Independent International Commission on Kosovo. Kosovo Report. Oxford: Oxford University Press, 2000.

* ⁷¹ J.F .REVEL, Obsession Anti-Américaine, Dalloz, Paris, 2002, p.32.

* ⁷² Michael Burton. "Legalizing the Sub-Legal: A Proposal for Codifying a Doctrine of Unilateral Humanitarian Intervention." Georgetown Law Journal 1996, p. 417.

* ⁷³ RUSSBACH, op. cit., p. 56.

* ⁷⁴ REVEL JF., op. cit., p.57.

* ⁷⁵ Ibid.

* ⁷⁶ Michael Byers and Simon Chesterman. "Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law." Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge: Cambridge University Press, 2003, p.51.