By Ruchika Mohapatra, National Law University, Odisha.
Firstly, to understand the concept of Crime of Aggression, it is important to understand the relevant international conventions and treaties as well as the customary international law, and finally the general principles that define acts of aggression. A general act of aggression, as discussed in the U.N. Charter and a ‘crime of aggression’ are basically two separate concepts as per law. The “act of aggression” is the state-performed violation, while the “crime of aggression” is the individual criminal liability that the instigator or planner of an act of aggression may face.
“Humanitarian Intervention is the threat or use of force across state borders by a state or group of states aimed at preventing or ending the widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory that kind of force is applied”.
While reviewing the status of humanitarian intervention these two types of behaviour occasionally associated with the term are mostly ignored- one, being non-forcible interventions such as threat/use of economic, diplomatic, or other sanctions; and the other one being the forcible interventions which are basically aimed at protecting or rescuing the intervening state’s own nationals. It is done because the question of whether the States may use force to protect the human rights of individuals other than their own citizens is more urgent and controversial in today’s context.
Overwhelming humanitarian necessity can be a definite reason to approve of military intervention. However, the collateral damage that arises out of such acts is a bit too colossal to be dismissed off nonchalantly. There are two conflicting views regarding the right to humanitarian intervention against the wishes of the territorial sovereign. One justifies the emergence of such intervention in customary international law in order to alleviate the prevalent humanitarian crisis while the other view completely bans the threat or use of force to affect the territorial and political integrity of any foreign state.
The first view says that a new right has emerged, in customary international law, right to humanitarian intervention-which gives states a right to unilateral use of force in order to assuage the humanitarian crisis. UN Charter empowers the Security Council with the responsibility to act when international peace and security is being threatened and that if the Security Council fails to do so, individual States can begin unilateral intervention.
Even if the unlawful act may have the origin of legally recognised intervention, no evidence supports the assertions that a new principle legitimising humanitarian intervention has been made. Article 2(4) of the UN Charter prohibits only the threat or use of force against the territorial integrity or political autonomy of any State, or in any manner inconsistent with the purposes of the United Nations It does not forbid every use of armed force under Article 2(4). One can argue that the unilateral use of force required for achieving purposes of the UN Charter such as peace, security, self-determination of the people, and human rights may be justified. Article 2(4) is not a general prohibition of the use of force but a limited one and it does not extend to the use of force to protect human rights and to averting a humanitarian catastrophe.
The second view upholds that there is no ‘right’ to humanitarian intervention under international law, treaty or customary. The UN Charter and customary international law generally prohibit the use of force. The principle of Article 2(4) has been reaffirmed in a number of General Assembly resolutions and by the International Court of Justice (ICJ). Despite being phrased in terms of UN members, the principle as to the use of force incorporated in Article 2(4) of the UN Charter is a rule of customary international law legally binding on all States. While Article 2(4) raises several questions of interpretation, it stands undisputed that it applies to armed force used directly or indirectly by States.
An argument is raised that UN Charter prohibits the use of force ‘against the territorial integrity or political autonomy of any state,’ any use of force that is motivated for humanitarian purposes does not violate Article 2(4). Article 2 also prohibits the use of force ‘in any other approach contradictory with those of the United Nations’. ‘Political autonomy and territorial integrity’ have been used on many occasions to epitomize the legal rights which a State has which include the right to non-intervention by military force of other States without authorisation by the UN Security Council.
The UN Charter provides two exceptions to the ban on the threat or use of force, namely individual or collective self-defence and force used or authorised by the UN Security Council. There exists no third exception allowing unilateral use of force by States as a humanitarian intervention, necessity or catastrophe. Even when a State such as Syria openly violates laws such as the 1925 Geneva Protocol prohibiting the use of chemical and biological weapons, no unsanctioned intervention is allowed.
Notwithstanding the support of a few powerful States including the US of the claim that international law allows humanitarian intervention in exceptional circumstances, the overpowering majority of contemporary legal opinion comes down against the subsistence of a right to humanitarian intervention. First, the UN Charter and the body of international law do not specifically incorporate such a right; secondly, state practice since 1945, provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, the scope of abusing such a right argues strongly against it. In essence, the case against making humanitarian intervention an exception is that the doubtful benefits would be heavier by the cost in terms of respect for international law.
The international reaction to use of force has been assorted as on the one hand, it has been welcomed by those who argue that the veto used by the permanent members in the Security Council cannot be allowed to stand in the way of the defence of human rights. To begin with, there is the trouble of identifying a humanitarian intervention’s direct and immediate consequences – let alone its peripheral and collateral ones. Next arises the problem of determining how these consequences affect human well-being. While these problems are alarming, they are not undefeatable.
In the face of the civilian populations increasingly becoming victims during times of armed conflict and turbulence, the need for the international community to continue to search for solutions to eradicate violations of international law is pressing. One possibility for creating an opening for humanitarian interventions would have been to tinker with the mens rea element of the crime of aggression with respect to the definition of the “crime of aggression”.
New developments, which provide clarity and extra focus upon existing obligations of States to ensure the protection of their civilian populations, are necessary. Such developments need to re-enforce existing legal frameworks. If bona fide humanitarian intervention used as a last route to protect fundamental human rights is deemed criminal, it would create a split between law and morality and that would be a humanitarian catastrophe.