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

2.5.3.1 The Doctrinal View in the Favor of Humanitarian

The authors in favor of humanitarian intervention admit its implementation subject to certain conditions. In no case they equate the intervention to a discretionary competence to intervene militarily as soon as they consider that human rights are threatened or even violated in another State. The conditions mentioned by the authors of the doctrine of humanitarian intervention, include the criterion of the purpose of the armed action. According to them, it is the humanitarian goal which legitimate armed intervention.

Charles Rousseau, in his Manual of Public International Law, generally defines the intervention of humanity as the action brought by a State against a foreign Government, "with the goal of stopping the treatment contrary to the laws of humanity applies to its own nationals".^102(*) In the same spirit Abiew considers that humanitarian intervention must fill the essential condition of the exclusive pursuit of the humanitarian interest by a state pretending to be the protector.^103(*)

Antoine Rougier on his side makes the legality of an intervention of humanity to the circumstance that the intervening State is relatively disinterested. For him the intervention of humanity is by disinterested definition. He considered that: "intervention ceases to be selfless when the intervener has an interest to go beyond the limits where should be extended his action».^104(*)

These criteria for the humanitarian purpose of the armed action was mentioned by all the authors in favor of humanitarian intervention but it is far from being the only one to be highlighted. The authors of this doctrinal trend consider, first, that human rights must have been seriously violated in the State the army intervention. This condition has already been formulated by Ali Tarik, one of the adepts of the concept of intervention of humanity. Ali Tarik legitimized the right to intervene when a Government violated the rights of humanity by injustice and cruelty excesses that deeply hurt our morals and our civilization.^105(*)

In 1934, Georges Scelle thought about interventions of humanity in the Turkish Empire that that the legitimacy of these actions is explained by the need to maintain international order, facing the explosion of religious fanaticism.^106(*)

Thus were legitimate interventions against any Government which violates the right of humanity by excesses of injustice and cruelty against certain classes of subject defiance of the law of civilization at that time. On this basis relied the intervention of France, an agent of power in 1860 in Syria, to save massacred minority. Georges Scelle goes further and does not hesitate to recognize the legitimacy of military intervention undertaken by the Government to ensure compliance of a certain numbers of fundamental rules of international law, such as respect for the human person, his life of its freedoms, its property.^107(*)

This condition of serious violation of human rights has been taken by all proponents of humanitarian intervention. For example, Pérez-Vera speaks especially revolting crime of extreme cruelty and that governmental complicity leaves unpunished, or the massacres chocking the consciousness of humanity. Other criteria were still mentioned by the doctrine. ROUGIER for example, claimed that the State author of the intervention of humanity could act jointly with other States.^108(*) Rolin-Jacquemyns goes further in his reasoning and admit the intervention only if it is exercised by an international organization. In contrast, other authors justify a right of humanitarian armed intervention to any State, whether individually or collectively.^109(*) In this regard, Bernard Kouchner takes a contradictory position where he states on one hand that the interference cannot be carried out by a unique State, but must be collective and, on the other hand, he describes as licit the military operations unilaterally conducted without the consent of the Security Council such as operation "provide comfort" which took place in April 1991 in the Iraqi Kurdistan. Teson considers that an essential condition of a humanitarian intervention is that victims of violations of human rights demand and accept the foreign invasion. In the end, Verwey insists in general on the conditions of necessity and proportionality^110(*).

In terms of definition of humanitarian intervention and without wondering about the basis of the doctrine, a researcher can express some reservations. In general, its content remains unclear. Humanitarian law aims at legitimizing an armed intervention to help a population that needs to be rescued, even if the 'host' countries should oppose. The concept of humanitarian intervention has historically attempted to justify the use of the international force under the United Nations to protect endangered populations inside their own borders. States have since centuries tempted to justify their interventions in the internal affairs of other States by grounds such as the defence of human rights, the defence of minorities, expatriation of theirs nationals or other patterns of humanity.^111(*)

Seen thus, that the content of this doctrinal trend is not only inaccurate but it leaves especially, the door open to all kinds of abuses. It is unclear how a State commit to military action with all the risks that this action would consist of (potential loss in human and equipment), in a disinterested purpose. Authors like Pérez-Vera and Rougier are entirely of the same opinion taking it as a requirement for the exclusive pursuit of the strictly humanitarian interest.^112(*)

Other authors are aware that States involved in pursuit of objectives other than the protection of human rights at the same time trying to develop a certain hierarchy and some criteria to release predominant humanitarian grounds. Teson was the first to develop a hierarchy to identify predominant humanitarian grounds. For Teson, a military intervention must be undertaken within a truly humanitarian goal to be justified. He recognizes that the problem of making certain standards to measure the humanitarian reasons for armed intervention. First, he considers that the intervening State should limit its armed action to it i.e to stop the violation of human rights by the Government. Then, he stresses that although there are jointly the non-humanitarian reasons, they must in no case reduce the main objective of the intervention which is to stop the violation of human rights. Finally, Teson concluded that any military intervention must be inspired by purely humanitarian grounds in order to protect human rights.^113(*)

The same author also arises a series of questions in order to determine as objectively as possible if the humanitarian aim of the armed intervention in question is really important. He proposes to ask the question whether the intervening State is designed to dominate the targeted State or it is for truly humanitarian reasons.^114(*)

It seems, then, obvious that it is extremely difficult to implement a 'real' humanitarian intervention in a specific case. The questions that arise are various and numerous. In particular, how can we determine if the intervening State seeks to dominate the target State? At what moment should move to evaluate the effective restoration of human rights? It is not really easy to answer these questions and thus precisely define the criteria for the humanitarian purpose of humanitarian intervention.^115(*)

The criterion of the seriousness of violations of human rights which is unanimously mentioned by the doctrine in favor of humanitarian intervention, poses exactly the same kind of problems. Indeed, how can understand a particularly revolting crime and what kind of act likely to violate the laws of humanity? One may wonder if there are not considerations close to natural law which can lead us to a particularly dangerous situation more especially as some authors admit military intervention as soon as there is an imminent danger but no violation was found.^116(*)

As it has already seen that in almost all carried out military intervention on humanitarian considerations were far from being the only ones to motivate them. Furthermore, it should be noted that other worst violations of human rights have been often committed what with no reaction from the so called defenders of human rights. On the other hand, do not forget that even when they were decided «those humanitarian» interventions have often caused more victims than that they were supposed to avoid. It is understandable that the assessment of the importance of violation of human rights is essentially based on criteria of legitimacy which varies according to the members of the international community.^117(*)

* ¹⁰² C.ROUSSEAU, Droit International Public, volume IV, Paris, Sirey, 1980, p. 49.

* ¹⁰³ Abiew, F. K., The Evolution of the Doctrine and Practice of Humanitarian Intervention, Kluwer Law International 1999, p. 39.

* ¹⁰⁴ Antoine Rougier, « La théorie de l'Intervention d'Humanité », RGDIP, 1910, pp. 486-526.

* ¹⁰⁵ Tariq Ali. Masters of the Universe? NATO's Balkan Crusade. New York: Verso, 2000, p. 79.

* ¹⁰⁶ G.SCELLE, Précis de Droit des Gens - Principes et Systématique, 2 vol. Paris 1932 et 1934 (rééd. Dalloz, 2010), p.51.

* ¹⁰⁷ Ibid.

* ¹⁰⁸ Antoine ROUGIER, op. cit., p. 89.

* ¹⁰⁹ G.Rolin-Jacquemyns, Note sur la Théorie du Droit d'Intervention, in Revue de Droit International et de Législation Comparée, 1876, pp. 673 - 68.

* 110 W.D.VERWEY, Humanitarian Intervention under International Law, Netherlands International Law Review Issue 03 / December 1985, pp. 357-418.

* ¹¹¹ Idem, p. 357.

* ¹¹² E. Pérez-VERA, et alii., "The Protection of Humanity in International Law", R.B.D.I, 1969, p.417.

* ¹¹³ F.R.TESON Humanitarian intervention: An inquiry into low and morality, Dobbs ferry/New York, Transnational Publishers, 1988, pp. 119-120.

* ¹¹⁴ Ibid.

* ¹¹⁵ G.SCELLE, Précis de Droit des Gens - Principes et Systématique, 2 vol. Paris 1932 et 1934. (rééd. Dalloz, 2010),

p. 49.

* ¹¹⁶ G.SCELLE, op. cit., p.41.

* ¹¹⁷ DREYFUS, op. cit., p. 162.