Forceful Intervention for Protection of Human Rights in Africa
- LAST MODIFIED: 15 January 2020
- DOI: 10.1093/obo/9780199796953-0197
- LAST MODIFIED: 15 January 2020
- DOI: 10.1093/obo/9780199796953-0197
Article 2(4) of the Charter of the United Nations (UN) obliges States to refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN. The formulation of Article 2(4) of the UN Charter gives room to argue that military intervention for purposes of protecting human rights is not covered in the prohibition if it does not threaten the territorial integrity or political independence of a State, especially since promotion of human rights is one of the purposes of the UN under Article 1(3) of the Charter. However, the majority of commentators argue that the Charter prohibits any unilateral use of force and the travaux préparatoires leave no doubt that the terms ‘territorial integrity’ and ‘political independence’ were included not to qualify an absolute prohibition of the use of force but rather as intensifiers to emphasize the protection of States from acts of aggression. The purpose of inserting the phrase ‘or in any other manner inconsistent with’ in Article 2(4) was not to open the door to implicit exceptions from the rule but to make the prohibition watertight. Thus, Article 2(4) constitutes general prohibition of use of force in international law, subject only to the two exceptions outlined in the Charter: self-defense under Article 51 and chapter 7 enforcement action by the Security Council. Thus, except in self-defense, the use of force is the preserve of the Security Council. On this basis, any use of force to protect human rights in another State is subject to authorization of the Security Council.
In support of the doctrine of humanitarian intervention, Reisman 1995 maintains that “in modern international law, what counts is the sovereignty of people and not a metaphysical abstraction called the state” (p. 83). Ruys, et al. 2018 presents a wide range of cases involving different forms of humanitarian intervention, including by invitation, prodemocracy intervention, and intervention to protect humanitarian intervention. Neuhold 2007 (cited under Why Use Military Force for Protection of Human Rights?) specifically tackles the issue of use of force for protection of human rights—a similar topic which Roberts 1993 termed humanitarian war. Tesón 1997 provides a philosophical explanation and justification of the prohibition of use of force and whether force can be used for protection of human rights purposes. The International Council on Human Rights Policy 2002 provided a useful guide to overcoming the challenges posed by military interventions in human rights crises. Alston and MacDonald 2008 (cited under Why Use Military Force for Protection of Human Rights?) clearly explains circumstances when military forces can be deployed for human rights protection purposes. The period following the controversial military intervention by the North Atlantic Treaty Organization (NATO) in 1999 saw voluminous publications on the question of humanitarian intervention including the Independent International Commission on Kosovo (Kosovo Report) 1999, the Danish Institute of International Affairs 1999 report, the 2001 seminal publication by International Commission on Intervention and State Sovereignty, Wheeler and Bellamy 2001, Orford 2003, and Gray 2003 (cited under The Prohibition of Use of Force and Nonintervention in International Law), Wesley 2005, Holzgrefe and Keohane 2003 (cited under Addressing the Question of Humanitarian Intervention), Jütersonke and Krause 2006 (cited under The Prohibition of Use of Force and Nonintervention in International Law), and Roberts 2008 (cited under Why Use Military Force for Protection of Human Rights?). The convoluted question of humanitarian intervention in Africa was answered in Africa by the adoption of Article 4(h) in the AU Constitutive Act. The humanitarian intervention debate was finally settled globally in paragraphs 172 and 173 of the 2005 UN World Summit Outcome. This watershed was marked by scholarly works like Evans 2008 (cited under The Responsibility to Protect) elucidating the notation of responsibility to protection, as well as Kioko 2003 (cited under Article 4(h)-Intervention) and Kuwali 2011 (cited under Right of Intervention of the African Union) digging into the breadth and depth of Article 4(h) intervention and thus providing better understanding for students and practitioners in this field.
Independent International Commission on Kosovo (Kosovo Report): Conflict, International Response and Lessons Learned. Oxford, Oxford Scholarship Online, 1999.
This seminal report assesses the effectiveness of diplomatic efforts to prevent the war, legality of the NATO bombing campaign against Yugoslavia, and the progress of the United Nations in post‐conflict reconstruction.
International Council on Human Rights Policy, International Council on Human Rights Policy, Human Rights Crises: NGO Responses to Military Interventions, Versoix, 2002.
This is one of the most detailed and focused discussions on the challenges posed by military interventions in response to human rights violations.
Lillich, Richard B. “Forcible Self-Help by States to Protect Human Rights.” Iowa Law Review 53 (1967): 325–351.
One of the early but still very enlightening discussions on the question of use of force for protection of human rights. Available online by subscription or purchase.
Orford, Anne. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge, UK: Cambridge University Press, 2003.
This revised version provides an innovative reading of the narratives accompanying humanitarian intervention.
Philip, Alston P., and Euan MacDonald, eds. Human Rights, Intervention, and the Use of Force. Oxford: Oxford University Press, 2008.
This is an excellent edited volume on the tension between principle of sovereignty and the obligation to protect human rights in international law.
Reisman, Michael W. “Haiti and the Validity of International Action.” The American Journal of International Law 89.1 (1995): 82–84.
A precise and straightforward discussion addressing specific questions to the seemingly competing principles of state sovereignty and the obligation to protect human rights. Available online by subscription or purchase.
Roberts, Adam. “Humanitarian War: Military Intervention and Human Rights.” International Affairs 69.3 (1993): 429–449.
A very lucid discussion of the theory and practice of the unilateral or unauthorized use of force for the protection of human rights. Available online by subscription or purchase.
Ruys, Tom, Olivier Corten, and Alexandra Hofer, eds. The Use of Force in International Law: A Case-based Approach. Oxford: Oxford University Press, 2018.
A very recent and eloquent publication tackling the subject of humanitarian intervention by discussing different scenarios of military intervention including by invitation, prodemocracy intervention, and intervention to protect humanitarian intervention.
Schachter, Oscar. International Law in Theory and Practice. Dordrecht, The Netherlands: Martinus Nijhoff, 1991.
This book provides a devoted readable, lucid, and persuasive discussion on the law on the use of force both in theory and practice.
Stacy, Helen. “Humanitarian Intervention and Relational Sovereignty.” Stanford Journal of International Relations (2006).
A very well-articulated article that outlines the theory of rational sovereignty involving a social contract between government and its citizens and the role of the international community where government abdicates its duty to protect its citizens.
Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Irvington-on-Hudson, NY: Transnational, 1997.
Presented from both an international law and international relations perspectives, the work is widely regarded as the classic defense of the legality of the use of force for the protection of human rights—humanitarian intervention—in international law.
Thakur, Ramesh. “The Responsibility to Protect at 15.” International Affairs 92.2 (2016): 415–434.
A very detailed account of the genesis of the concept of the responsibility to protect (R2P) from its conception in 2000 to its evolution and subsequent adoption by the United Nations General Assembly in 2005. Available online by subscription or purchase.
Wheeler, Nicholas J., and Alex J. Bellamy. “Humanitarian Intervention after Kosovo: Emergent Norm, Moral Duty or the Coming of Anarchy?” International Affairs 77.1 (2001): 113–128.
An apt and poignant analysis of the ambiguous concept of humanitarian intervention and its validity after the NATO intervention in Kosovo. Available online by subscription or purchase.
Wesley, Michael. “Toward a Realist Ethics of Intervention.” 19 (2) Ethics & International Affairs, 19.2 (2005):55–72.
An illuminating article which suggests that moral awareness or awareness that morality – not ulterior motives – should be an integral part of the decision to intervene.
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