Intervention: When, Why and How?

 

Written evidence from the Humanitarian Intervention Centre

Abstract

This paper intends to provide Her Majesty’s Government with a comprehensive overview of the international legal framework regulating the use of military force by sovereign states and highlights some of the current issues which exist within the context of military intervention in order to assist the House of Commons Defence Select Committee in developing an effective policy to guide decision making in respect of future military interventions. This paper principally focuses on the use of military force for humanitarian purposes and the concept of pre-emptive self defence.

Summary

Introduction

The introduction will explain the context of the information that is provided and the issues which are analysed within this paper. It explains that the effective operation of the international framework regulating the use of force by states, enshrined within the Charter of the United Nations, has been placed under increasing strain in the post-Cold War era by the human rights discourse and modern threats to international peace and security including the proliferation of Weapons of Mass Destruction and this has made taking decisions in relation to the use of military force increasingly difficult. The introduction details what issues the paper will address and how it proposes to assist the Committee.

The Law of the Use of Force

The unilateral use of force against the territorial integrity or political independence of sovereign states is prohibited under international law subject to two exceptions. This section will provide a comprehensive overview of the international legal framework regulating the use of military force by sovereign states including an explanation of the role of the collective security system, the power of the United Nations Security Council to authorise military intervention and the inherent right of states to use force in self defence. This section will also highlight some of the flaws in the current system which will then be explored in more detail in the other sections of the paper.

Humanitarian Intervention

Since the tragedies of Rwanda and Srebrenica and the NATO intervention in Kosovo in the 1990s, it has been widely discussed whether or not there should be a right of humanitarian intervention. This section will examine the legality of humanitarian intervention and draw upon the doctrine of the Responsibility to Protect to determine whether this position has changed. Syria will be used as a case study to illustrate when humanitarian intervention would be justified.

Legality vs Legitimacy

One of the most difficult decisions faced by states is what to do when a state is perpetrating gross human rights violations against its own peoples causing a humanitarian catastrophe to unfold but the United Nations Security Council has failed to authorise military intervention through the collective security framework, thus prohibiting lawful military intervention. This section considers whether a state or coalition of states can or should intervene in such circumstances despite the fact that any military action taken against the offending state would be technically unlawful under current international law.

Pre-Emptive Self Defence

Whilst self-defence is a well established principle of international law, the issue of pre-emptive self defence is less certain. This section will examine the legality of the practice within the context of the 2003 Iraq war and the Bush Doctrine and an analysis of the Blair Doctrine of the international community. There will also be a discussion of the possibility of using force against non-state actors in self-defence in the fight against terrorism.

Objectives and Consequences of Military Intervention

This section concerns the objectives and consequences of military intervention. After considering the role of military intervention in protecting human rights and preventing genocide, it highlights the importance of protecting civilians during military intervention. In addition this part examines the possible negative consequences for the intervening state and gives a brief outline of the supporting role of the International Criminal Court in deterring future gross human rights violations.

Occupation and Exit Strategies

This section gives a brief outline of the law on occupation, followed by an evaluation of the importance of exit strategies in military interventions. The section examines the elements of a sound exit or transitional strategy together with common obstacles which stand in the way of devising such a strategy.

Introduction

1. Following the horrors and devastation wrought by the Second World War, the international community came together and agreed to prohibit the unilateral threat or use of force by states in order to create a world characterised by peaceful coexistence rather than aggression and conflict. This new world order was enshrined in the Charter of the United Nations ("the Charter"). It was signed by fifty states in San Francisco on 26 June 1945 and provided the basis for the international legal system regulating the use of force. The United Kingdom is a signatory to the Charter and is thus bound by all of its provisions including the prohibition on the use of force.

2. The United Nations ("UN") collective security system does however provide a means by which military force can be employed to address threats to international peace and security. This has not however always proved effective due to the highly politicised nature of the international system and this has resulted in military intervention being withheld in the face of humanitarian catastrophes or taken unlawfully outside of the international system, neither of which is an acceptable nor sustainable state of affairs.

3. It has become increasingly apparent in the post Cold War era that the international legal framework regulating the use of force between states, as codified within the Charter, is unable to respond effectively to modern threats to international peace and security including the widespread proliferation of increasingly sophisticated and deadly chemical, biological and nuclear weapons, large scale violations of human rights including crimes against humanity and genocide and the presence of well organised and armed non-state actors including terrorist groups and militias.

4. The human rights discourse has gathered significant pace over the past sixty years and it is now widely accepted by the international community that sovereign states have an obligation to protect their peoples from gross human rights violations and consequently to refrain from perpetrating such violations. The notion of state sovereignty has arguably shifted away from an absolutist conception where the state is the sole master of its internal affairs and towards one whereby the right to sovereign status, and the associated rights of non-interference, is predicated upon the effective undertaking of responsibilities expected of a state, as determined by the international community, including the protection of the fundamental human rights of its peoples.

5. Where a state fails to discharge its responsibilities the international community is required to react and take the necessary steps, which may ultimately include the use of military force, to prevent gross human rights violations occurring and to restore international peace and security. As a result there exists a clear tension between the prohibition on the use of force against states, the principle of non-interference in states internal affairs and the promotion and protection of human rights. This is a tension which has not been fully reconciled by the international community and this is reflected by the wide ranging disagreements about, and criticism of, the current state of international law in this area.

6. In light of the foregoing it is clear that the decision about whether or not to take military intervention against another state, or a non-state actor, is a very difficult and complex one which includes a multitude of legal, political, financial, logistical and moral considerations for a state to weigh in the balance when formulating polices and making decisions about military intervention. This paper will seek to assist Her Majesty’s Government in formulating its approach to military intervention by reviewing the legal landscape concerning the use of force by states, highlighting some of the pertinent legal issues which need to be considered and making recommendations.

7. In order to do this the paper will proceed through a number of sections. Section One will set out the international legal framework regulating the use of military force. Section Two will explain the concept of humanitarian intervention and highlight the associated legal issues. Section Three will consider the arguments for and against taking military action without the authorisation of the United Nations Security Council ("UNSC"). Section Four will look at the concept of pre-emptive self defence and its legal status. Section Five will consider the objectives and impacts of military intervention and Section Six will outline the purpose of exit strategies and the law of occupation.

Section 1 - The Law of the Use of Force

1.1 – The Legal Framework

8. Article 2 (4) of the Charter of the United Nations ("the UN Charter") expressly prohibits the threat or use of force against the territorial integrity or political independence of states and Article 2 (3) requires that all interstate disputes are settled by "peaceful means". These are the foundations on which the post-war international system is constructed as the international community sought to create a world characterised by the peaceful coexistence of states in order to save succeeding generations from the scourges of war, as set out in the Preamble to the Charter.

9. The Charter however provides for two exceptions to this rule: individual or collective self defence in response to an armed attack, pursuant to Article 51 of the Charter, and uses of force authorised by the UNSC under Chapter VII of the Charter. These provisions reflect an acceptance that in some situations the resort to military force will be required and should thus be characterised as a lawful exception to the general prohibition on the use of force.

1.2 – The Law of Self Defence

10. Article 51 of the Charter allows a state to use military force in self defence when it is subject to an armed attack or when acting in the defence of other state following a request by the victim state for such assistance. This provision enshrined the inherent customary law right of a sovereign state to defend a forcible interference in its internal affairs by another sovereign state which has been affirmed by the International Court of Justice ("ICJ"). [1] In order for action taken in self defence to be lawful the use of force must be 1) in response to an armed attack, 2) necessary to respond to that attack and 3) a proportional response. The parameters of these terms are however subject to academic debate.

1.3 – The Collective Security System

11. The use of military force is also lawful when it has been authorised by the UNSC. The UNSC has the "primary responsibility for the maintenance of international peace and security" (Article 24) and can authorise the use of force (Article 42) where the existence of a threat to international peace and security has been determined. Threats to international peace and security can include, but are not limited to, the use or threat of military force by one state against another, regional or inter-state armed conflicts, humanitarian catastrophes which cause wider regional destabilisation, perhaps as a result of refugee flows, and gross human rights violations committed by a state against its peoples. In order for the use of force to be authorised by the UNSC nine affirmative votes are required and all of the permanent members must refrain from exercising their veto. Both permanent and non-permanent members may also abstain and this will not cause the vote to fail if there are a sufficient number of votes in favour of the resolution and no veto is exercised.

12. By centralising the use of force within the collective security system it was envisaged that the propensity for international armed conflict would be greatly reduced but at the same time provide for the use of military force when necessary. Furthermore, it was hoped that when such force was authorised it would have a high degree of legitimacy, having been approved by the international community via the UNSC, and therefore garner both moral and military support for the operation.

1.4 - The Protection of Human Rights and the United Nations Security Council

13. Regrettably, the UNSC does not always authorise the use of military force when it is sought and necessary to maintain or restore international peace and security. This is either because there are an insufficient number of votes in favour of the resolution (a lack of political will) or, most commonly, a permanent member exercises or threatens to exercise its veto, as occurred recently when France’s draft resolution authorising limited military intervention in Syria was rejected by Russia. This situation is known as "Security Council deadlock". The UNSC is an inherently political organ and unfortunately its members can vote with strategic allegiances in mind as well as other potentially irrelevant political considerations which can prevent lawful military intervention occurring in circumstances where it is a sensible, necessary and justifiable response to the threat posed to international peace and security.

14. This problem is brought most sharply into focus when such political impasse allows a state to continue perpetrating gross human rights violations against its peoples in contravention of all established international norms and in clear view of the international community. These situations can result in states taking unilateral military action outside of the collective security system which undermines the authority of international law and results in the international community questioning the purpose, necessity and efficacy of the collective security system in the modern world order.

15. The next section will consider in more detail the consequences of UNSC deadlock in the face of humanitarian catastrophes, the concept of humanitarian intervention and the relevant legal rules.

Section 2 – Humanitarian Intervention

2.1 – What is Humanitarian Intervention?

16. Intervention for humanitarian purposes has been defined as "forcible military action by an external agent in the relevant political community with the predominant purpose of preventing, reducing or halting an ongoing or impending grievous suffering or loss of life." [2] It focuses around the notion of human security. This is the concept that the protection of individuals is more important than the national security of the state. The primary purpose of humanitarian intervention is to end human rights violations within the state in which it takes place and prevent the humanitarian crisis from escalating further.

17. Humanitarian intervention can furthermore be described as the use of force taken outwith the parameters of the Charter. As discussed above, Article 2(4) of the Charter enshrines the customary rule of international law that it is illegal for one state to use force against another. The issue of humanitarian intervention arises when there has not been an authorisation by the UNSC under Chapter VII to use force, but it is clear that there is a humanitarian catastrophe ongoing that has to be dealt with.

18. The concept of humanitarian intervention was born out of predominantly three humanitarian catastrophes during the Nineties, namely Rwanda, Srebrenica and Kosovo. In each of these instances, the UN was notably absent from taking action, which led to either a humanitarian crisis occurring, or another body having to take action outwith the law to prevent it.

19. The first catastrophe that led to the call for humanitarian intervention was the genocide in Rwanda in 1994. In the space of approximately 100 days, over half a million Tutsis were killed by the Hutu government and a further two million sought refuge in neighbouring countries. [3] This happened despite the presence of an UN peacekeeping mission, UNAMIR, on the ground. The problem with UNAMIR, however, was that it did not have a robust mandate and thus was not authorised to use force by the UNSC so it could do very little to prevent the attacks, especially when their numbers were actually reduced over this period.

20. Shortly after the genocide in Rwanda came a massacre of Bosnian Muslim males in Srebrenica in 1995. Amongst greater fighting in the former Yugoslavia, the UN created safe areas in Bosnia and Herzegovina in 1995 and UNPROFOR was given the task of defending them. However, when Serb forces launched an attack on the safe areas the peacekeeping force was unable to do anything to stop it, as again they had not been authorised to use force by the UNSC. This resulted in the killing of approximately 7,000 Muslim men. [4] This situation, along with that of Rwanda, highlighted the real need for the international community to step up and help people in these situations, particularly if the UNSC is unable or refuses to act.

21. This is why in the case of Kosovo in 1999 we saw a very different outcome. When the UNSC refused to take any action to combat the persecution of Kosovar Albanians from the FRY due to continued opposition from Russia, NATO stepped in and began a series of aerial strikes in the name of humanitarian intervention. This action by NATO was illegal under international law as the organisation did not have UNSC authorisation to use force charter and it could not be classed as self-defence as a NATO member state had not been attacked. However, it was widely agreed that the intervention was ‘illegal but legitimate’ due to the humanitarian purposes it was trying to achieve. [5]

22. Despite the fact that very few states advocate a right of humanitarian intervention, the above situations demonstrate that in the right circumstances it can be necessary and legitimate. There is an argument that can be made that the sovereignty of a state is conditional on it protecting its citizens and when the government gravely violates the rights of their population then they should lose the protection of non-intervention from other states (a customary principle which is enshrined in Article 2(7) of the Charter). If we are to look at humanitarian intervention from the context of human security then it is difficult to argue that it is not legitimate. Proponents of human security believe that the individual should be the focus of security, not the state. This would mean that if individuals were threatened then humanitarian intervention would be helping them, not diminishing the security of the state.

23. There is a tension in the Charter between human rights and non-intervention. The preamble of the Charter states that one of the founding aims of the organisation is to "reaffirm faith in fundamental human rights." Furthermore, Article 1(3) states that one of the purposes of the UN is "To achieve international cooperation in… encouraging respect for human rights" and Article 55 states that states should promote universal respect for human rights. This would appear to imply that not to act to protect human rights would be a violation of the Charter, but, conversely, if states are not allowed to act without the authorisation of the UNSC then how are they supposed to fulfil this obligation? Legitimising humanitarian intervention in certain circumstances could be the answer to this question.

24. Humanitarian intervention is clearly a very delicate matter and thus we argue that it should only be taken in appropriate circumstances. States should carefully consider their decision to intervene and the manner in which they do so in order that they don’t do more harm than good. The ultimate objective of any humanitarian intervention should be to protect civilians and alleviate suffering, not an ill-founded attempt by a state to gain more power.

2.2 - The Law on Humanitarian Intervention

25. The basic rule, as it stands, is that humanitarian intervention outwith the collective security framework is illegal under international law. Any intervention, even if on humanitarian grounds, must take place within the framework of the Charter. This means that the UNSC must authorise the use of force – or it be a legitimate action of self-defence – in order to be legal.

26. As previously established, the Charter prohibits the use of force unless there is legitimate self-defence under Article 51 or an authorisation from the UNSC to use force under Chapter VII. It is rare that humanitarian intervention will be taken under the auspices of self-defence as it would require an armed attack on a state and if that happens then the resultant use of force can be classed as a simple self-defence mission, not humanitarian intervention. If there has been no armed attack then there can be no use of force. However, there has been an argument put forward that self-defence can be used to defend ‘common interests and values’ [6] and thus an armed attack against another state would not be needed, but this view is disputed.

27. Humanitarian intervention is more likely to come into play with an authorisation by the UNSC to use force under Chapter VII. If the UNSC determines there is a threat to, or has been a breach of, international peace and security, then it can authorise states to use force to counteract it. Without this authorisation to use force then any intervention will be illegal under international law. If a state chooses to go ahead and use force without authorisation from the UNSC then not only would that state violate the prohibition on the use of force, but they would also violate the customary principle of non-intervention in the sovereign affairs of another state.

2.3 – The Responsibility to Protect

28. There is thus a necessity to attempt to bridge the gap between UNSC authorisations – as they are rarely approved where intervention is sought in politically sensitive situations – and violating the use of force principle in times of need. Kofi Annan, in his role as Secretary General of the UN, made desperate pleas to the international community following the bombing of Kosovo in 1999 to resolve the conflicting of norms and find legitimate means to take forcible action where necessary to protect individuals from mass human rights violations. [7] This is how the Responsibility to Protect was formed.

29. The Responsibility to Protect – or R2P as it is otherwise known – came about from a report from the International Commission on Intervention and State Sovereignty (ICISS) in 2001. In that report, the panel of 11 independent experts advocate a shift away from focusing on humanitarian intervention on those terms and instead wanted to focus on the responsibility of states to protect their populations. This would focus efforts on the needs of the individuals rather than the state which reflected the growing acceptance and application of the human security paradigm The report brought forward the idea that sovereignty is limited by the responsibility to protect populations from mass atrocities – essentially sovereignty is not a right, it is a responsibility.

30. If the state fails to protect their citizens then they lose the protection from non-intervention in the Charter and thus the international community has the duty to step up and do something to help. The report envisaged that when there have been grave violations of human rights or other widespread abuses and if the UNSC failed to take action then other states could collectively take action legitimately to combat it. Whilst the panel felt that the UNSC is the most legitimate gatekeeper to intervention, the international community could turn to the General Assembly under the Uniting for Peace procedure if the UNSC is deadlocked, and if there is still no consensus then unilateral or collective action could be taken under the auspices of R2P. The report broadened R2P to go beyond pure humanitarian intervention and encompass the responsibility to prevent, the responsibility to react and the responsibility to rebuild.

31. The ICISS wanted to created a right of humanitarian intervention outwith the auspices of the UN Charter, but the international community ultimately rejected this. The High-Level Panel on Threats, Challenges and Change in their 2004 report [8] agreed that the international community has a responsibility to protect populations when their government doesn’t, but limited this to saying that the UNSC is the gatekeeper to intervention. At the World Summit in 2005 the international community debated R2P and adopted it in paragraphs 138 and 139 of the World Summit Outcome Document. The R2P they adopted, however, was much narrower than that envisioned by the ICISS. The World Summit Outcome document limited application of R2P to situations of war crimes, crimes against humanity, genocide and ethnic cleansing. The document furthermore stated that any action must be taken within the framework of the Charter and thus limited interventions to those authorised by the UNSC.

32. Ultimately the Responsibility to Protect has not changed the legal position on intervention. Despite widespread hope for the concept following the ICISS report, it has not emerged as a developing legal norm, although it has the potential to be. Future interventions still have to be authorised by the Security Council and thus all R2P has done is add more legitimacy to these authorisations to use force. To date, R2P has only been employed in Libya and the Côte d’Ivoire and its advancement has been seriously compromised by lack of application in Syria.

33. The Humanitarian Intervention Centre believes that the UK could become the leading nation in championing the Responsibility to Protect doctrine. If the UK is firm in emphasising the fact that sovereignty is conditional on protecting your population and that they will take action if the state fails to protect, then they can use R2P to legitimise interventions in the future. The application of the responsibility to protect in the Libya conflict is a prime example of when the principle should be used in practice

2.4 – The Situation in Syria

34. Since fighting began in 2011, there have been repeated calls to intervene in Syria akin to the intervention in Libya. However, the UNSC has repeatedly failed to reach consensus on this issue due to continued opposition from Russia, and to a lesser extent, China. This has led to calls for humanitarian intervention instead, particularly in light of the revelations that the Assad regime used chemical weapons against the civilian population. Any use of force without the authorisation of the UNSC would per se be an illegal violation of Article 2(4), but there are some convincing arguments in favour of intervention nonetheless.

35. As President Obama said in an address to the UN, " sovereignty cannot be a shield for tyrants to commit wanton murder, or an excuse for the international community to turn a blind eye to slaughter… should we really accept the notion that the world is powerless in the face of a Rwanda or Srebrenica?" [9] This is perhaps the most convincing argument in favour of intervention – if the international community stands by and does nothing then we could see mass slaughter that potentially supersedes any internal conflict we have seen before.

36. The Washington Post argued that five of the best reasons for striking Syria are as follows: punish Assad for using chemical weapons, deter future dictators from using chemical weapons, deter Iran from obtaining nuclear weapons, force Assad to the negotiating table and stop the bloodshed. [10] Whilst each of these aims is legitimate to an extent, the ultimate focus of any humanitarian intervention has to be to halt the ongoing suffering in the country. To use the concept of humanitarian intervention or the Responsibility to Protect as a means through which to deploy a military offensive to do nothing more than punish the Assad regime or bring about regime change would be to seriously damage the credibility and legitimacy of the doctrine and make other states wary about sanctioning such intervention in the future. For this reason it is vital that when considering whether or not to intervene militarily on humanitarian grounds the basis for such intervention must be thoroughly considered, reasoned and justified with the use of evidence.

37. Former legal advisor to the US Department of State, Harold Koh, has argued that Article 2(4) of the UN Charter potentially permits a use of force outwith the scope of the Charter if the UNSC ‘obstructs the UN’s capacity to achieve its stated humanitarian, anti-war purposes.’ [11] This is a legal grey area, but is where the scope for argument in favour of humanitarian intervention is founded. The US was one of the main proponents for intervention in Syria and Koh has set out the American position on interventions outwith the scope of the Charter. In the view of the US, intervention within the context of Syria would be legitimate if:

1. The humanitarian crisis creates consequences significantly disruptive of international order creates an imminent threat to the acting nations, giving rise to an urgent need to act in individual and collective self-defence under Article 51. This would apply in Syria as a result of the use of chemical weapons, the high number of refugees and the destabilization of the region

2. A Security Council resolution was not available due to persistent veto and all other remedies had been exhausted. In this case, Russia continue to block any proposed action and diplomatic negotiations have thus far failed to reach peace in the country

3. Force used is limited to genuine humanitarian purposes necessary and proportionate to address the imminent threat.

4. The action is collective and not one state acting unilaterally. Utilizing the General Assembly’s Uniting for Peace Procedure or regional arrangements under Chapter VIII would demonstrate this

5. Force used would prevent the use of per se illegal means by the state, in this case chemical weapons

6. Force would be used to prevent a per se illegal end, such as war crimes or crimes against humanity and avert a humanitarian disaster. Whilst essentially each of these have already occurred in Syria, humanitarian intervention would prevent them from getting worse.

38. Furthermore, respected judge Antonio Cassese has advocated a right of humanitarian intervention where 6 conditions are fulfilled [12] :

1. There have been gross and egregious human rights breaches leading to the loss of hundreds or thousands lives and amounting to crimes against humanity. These atrocities are carried out by the central government or because the government has collapsed and cannot prevent them

2. The crimes against humanity result from anarchy in the state. The government consistently refuses to comply with the UN.

3. The Security Council is unable to take any action due to disagreement or the use of the veto.

4. All peaceful avenues have been explored

5. A collective group of states take action with the support (or at least non-objection) of a majority of UN member states

6. Force is used for the sole purpose of ending the atrocities and restoring human rights.

39. Whilst we would not advocate such a tick box exercise for legitimising humanitarian intervention outwith the scope of the Charter, it is clear that the case of Syria is a prime example of when humanitarian intervention should have been employed. Most commentators are of the view that any intervention in Syria on humanitarian grounds without the authorisation of the UNSC would be unlawful under current international law. It could however be considered a "legitimate" intervention, such an in Kosovo, given the scale of the humanitarian catastrophe brought about by the actions of the Assad regime.

40. Any proposed interventions, either within the context of Syria or any other future conflict, which do not have UNSC authorisation, should thus be treated with caution and given thorough consideration given that no sound lawful basis for intervention currently exists, even if the human rights justifications are overwhelming. This Centre is however of the opinion that military intervention in Syria to stem the ongoing gross human rights violations could be justified due to the ongoing devastation in the country. Furthermore, this Centre is of the opinion that a change in the law should take place to create a lawful basis for humanitarian intervention outside of the collective security framework and this may require states to act in breach of current international law and intervene militarily to prevent or stop gross human rights violations being perpetrated where the UNSC has failed to authorise intervention for such a purpose.

2.5 – The United Kingdom’s Position on Syria

41. The UK government supported the possibility of taking humanitarian intervention in response to the atrocities taking place in Syria. Following the use of chemical weapons of the Assad regime, the UK government issued a note on the 29th of August 2013 setting out their legal position on humanitarian intervention in Syria. [13] The government determined that intervention in Syria would be legal provided three criteria were met:

‘(i) There is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) It must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) The proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).’

42. The government went on further to establish that these conditions had been met as over 100,000 people have been killed and there are over 2 million refugees; the use of chemical weapons in a heavily populated area is a war crime; all means to resolve the conflict thus far have failed and if they UNSC remains blocked then there will be no other option; and the use of military force to target the government in order to deter future attacks would be necessary and proportionate. Despite this firm stance on the part of the government, it was unfortunate that they did not receive the backing from Parliament to go ahead with intervention in Syria. This is particularly disappointing in light of the fact that the UK pushed for intervention in Libya in 2011.

43. Despite attempts to advance arguments in favour of humanitarian intervention, it still remains illegal under international law. Unless the Charter is amended to allow for it or customary international law advances quickly through state practice and opinio juris, then it is unlikely that we will see a right of humanitarian intervention develop anytime soon. However, the Responsibility to Protect could provide the platform to do this on. The UK could lead the charge for developing R2P outwith the constraints of the Charter. As it stands, R2P has been far diluted from what it was originally envisaged, but the UK could help to strengthen its position in international law as a basis for legitimising intervention. We would encourage using the term R2P within the context of Syria because, as it stands, both the Syrian government and the international community have failed to protect the Syrian people.

44. The next section will go on to consider in more detail whether military intervention should be taken outside of the UN collective security system when the use of military force has not been authorised by the UNSC and will highlight the relevant considerations for states considering taking such action.

Section 3 –The Use of Military Force: Legality vs Legitimacy

45. One of the most pressing problems faced by the international community is what to do when military force is required to be taken in response to a threat to international peace and security, including where gross human rights violations are being perpetrated by a state, but the UNSC is unable authorise military intervention under Chapter VII because of the exercise of a veto by a permanent member. In such circumstances the use of military force is legally impermissible and would be unlawful if taken. States are faced with a stark choice between doing nothing and complying with international law or taking action in contravention of well established norms to avert or stop human suffering and restore international peace and security.

3.1 – Military Intervention without United Nations Security Council Authorisation

46. It is open to states to take military action without UNSC authorisation and outside of the UN collective security system. This may occur where a state considers that military intervention is absolutely necessary to prevent an imminent threat to international peace and security materialising, to stem an ongoing breach of international peace and security or where it cannot stand idly by in the face of an unfolding humanitarian catastrophe. This was the case when NATO bombed Kosovo in 1999 in order to prevent the ongoing ethnic cleansing of Kosovo’s Albanian population, after the coalition of states failed to gain UNSC backing for the intervention.

3.2 – NATO’s Intervention in Kosovo

47. It is widely accepted that the action taken by NATO was unlawful given that the UNSC had not authorised the intervention and it could not be considered to be action taken in self defence. It was however considered to be a legitimate use of force given the need to prevent ongoing gross human rights violations. The late Antonio Cassese, a prominent legal scholar, said of the matter that "from an ethical viewpoint resort to armed force was justified. Nevertheless...I cannot avoid in the same breath that this moral action is contrary to current international law". [14] The Independent International Commission on Kosovo also concluded that the intervention was illegal but legitimate based on an emerging international moral consensus. [15] It is also important to note that NATO’s intervention was never formally criticised which can be considered tantamount to widespread acceptance that it was the correct course of action in the circumstances, despite it amounting to a breach of international law at the time.

3.3 - The Impact of Unlawful Interventions on International Law

48. Justifying intervention on moral grounds alone is however far from ideal and we must carefully consider the potential impact of such breaches on a fundamental principle of international law prohibiting the unilateral use of force against sovereign states.

49. International law is to some extent based on a mutual reciprocity of recognition and adherence and therefore if a fundamental principle international law, such as the non-use of force, is regularly breached, the credibility and authority of that principle is undermined and states may choose not to adhere to it in the future. This is less of a concern if a rogue states acts in contravention of international law as any such breach is likely to been perceived by the international community as unlawful and unjustifiable. However, if the United Kingdom for example, which has a moral, legal and political authority on the international stage, was to regularly act in contravention of, and with disregard for, international law, whatever the stated objective of military intervention, there is a concern that other states may choose to follow suit. This is a concern as it could eventually result in the gradual disintegration of the international system and a return to a world order regulated solely by politics.

50. However, unlike domestic law, existing international law can be created or amended as a result of state practice. In order for a new customary rule of international law to be established there must be "evidence of general practice accepted as law". [16] Therefore, somewhat confusingly, breaches of international law are one method of bringing about a change in the law. It can therefore be said that if states intervene on humanitarian grounds outside of the UN framework and under the auspices of R2P, a lawful basis for intervention could be created in the future, if there is sufficient state practice coupled with sufficient expression of the view that humanitarian intervention is a lawful exception to the prohibition on the use of force, which is known as opinio juris.

3.4 – A New Legal Basis for Humanitarian Intervention

51. Therefore in order to bring about a change in international law and create a right of humanitarian intervention outside of the collective security framework states need to explicitly adopt and advocate the concept of humanitarian intervention and R2P. It is critically important that a state makes clear that its military action is being taken under the auspices of R2P in order that it can be distinguished from a standard breach of international law with no productive purpose – what can be considered to be a "breach only breach". It appears from the legal advice published by the Conservative government, as set out above, in respect of proposed military intervention in Syria that it was advocating a right of intervention on humanitarian grounds outside of the UN framework and this is to be commended.

52. It is this Centre’s position that forcibly military intervention should be taken against those states that perpetrate gross human rights violations against their peoples in order to prevent or stop such atrocities occurring and that such intervention should take place without UNSC authorisation – if this cannot be secured after all reasonable efforts have been made – and provided a thorough consideration of whether intervention is appropriate and capable of achieving the proposed objectives. Attempting to secure UNSC authorisation should not however be an overly drawn-out process and should not cause a delay in intervention occurring such that the objective of intervention can no longer be substantially achieved.

53. The value of acting cooperatively and with the backing of the international community cannot be overstated and it is this Centre’s view that states should always seek UNSC authorisation for military intervention in the first instance, but where this cannot be secured as a result of UNSC deadlock this should not preclude unilateral or multilateral humanitarian intervention under R2P.

54. The protection of human rights is a fundamental objective of our civilised society and we should not allow the perpetual achievement of this objective to be compromised by irresponsible politics and political impasse. Although it is important to observe and comply with international law, this cannot occur where to do so would be morally objectionable and in stark contradiction to our other obligations as responsible members of the international community, such as protecting the most vulnerable people in the world from the gross and heinous excesses of state power. Thomas Franck, a great legal scholar, rightly argues that "international justice is better served by sometimes breaking the law rather than respecting it" and he cites NATO’s intervention in Kosovo in support of this proposition. [17]

55. The next section will go on to consider whether it is lawful for defensive military action to be taken against a state in anticipation of an imminent breach to international peace and security occurring, but which has not yet materialised.

Section 4 - Pre-emptive Self Defence

4.1 – The Legal Position

56. As discussed above, it is a well-established rule of international law that self-defence is an exception to the prohibition of the use of force. In order for a state to be allowed to use self-defence they must have been subject to an armed attack within the context of Article 51 of the Charter. A state that has been subject to an armed attack can then intervene to deter the ongoing attack until the UNSC chooses to get involved. A less clear-cut case is when the armed attack has not yet happened but is imminent.

57. Since the Caroline incident in the 19th century, it has been an accepted principle of customary international law that states can defend themselves against an imminent armed attack and thus they don’t have to wait until force has been used against them before they can launch a defensive attack. Correspondence between Great Britain and the United States over the incident discussed the position of self-defence in international law and the US Secretary of State set out that self-defence could be employed before an armed attack when "necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation." [18]

58. This customary rule has been accepted by the international community within its interpretation of Article 51 of the Charter. The UN High-Level Panel on Threats Challenges and Change has stated that, "a threatened State… can take military action as long as the threat is imminent, no other means would deflect it and the action is proportionate." [19] Furthermore, the former UN Secretary General Kofi Annan stated, in a discussion of self-defence, "lawyers have long recognized that this covers an imminent attack as well as one that has already happened ." [20] It is therefore accepted that a state can intervene in another state for the purposes of preventing an imminent attack, provided the action is necessary and proportionate.

59. It is not entirely clear how imminent an imminent attack has to be in order for force to be used. This has led to a debate as to whether pre-emptive self-defence is also acceptable. The legality of pre-emptive self-defence is an important matter, as states face the challenge of how to deal with protecting their territorial integrity from serious spontaneous threats, such as the use of WMD, and thus pre-emptive self-defence may become a basis for intervention that states begin to rely on in the future.

60. Pre-emptive self-defence is the idea that a state can take action to defend their territory and interests even before an attack becomes imminent. Proponents of pre-emptive self-defence (mainly the United States) have argued that imminence is too restrictive a concept, as sometimes it can be too late to deter an imminent attack and action has to be taken sooner. This is particularly true when looking at cases of terrorism or nuclear attacks, as these types of attacks can be so spontaneous that they are impossible to deter effectively. The US has been the main champion of pre-emptive self-defence and attempted to rely on it as a justification for the war in Iraq, as discussed below.

61. It is difficult to find any legal justification for pre-emptive self-defence in international law. Furthermore, most states, including the UK, have rejected the notion put forward by the Bush Doctrine, which is discussed in more detail below. However, that is not to say that pre-emptive self-defence may not be justified in certain appropriate circumstances. If a serious threat to a state can be reliably proven beyond reasonable doubt, then it would seem unfair to require a state to wait until the threat is more imminent before it takes action, as by that point it may be too late.

4.2 – The War in Iraq (2003)

62. There are two legal bases upon which the UK and the US attempted to justify their intervention in Iraq as lawful under international law. The first of these was that it was an act of pre-emptive self-defence and was necessary to protect their states from a future armed attack. The second argument was a reliance on Resolution 678 (of 1990) of the UNSC.

63. It was argued by the US in particular that the weapons of mass destruction ("WMD") it believed Saddam Hussein’s government to hold constituted a threat to America and the wider world and thus they could employ self-defence to counteract this. As was established by the Caroline case, a state can take action to deter an attack if it is imminent. The Bush administration stretched this anticipatory self-defence concept much further to extend to what is now known as pre-emptive self-defence. The alleged justification for this was that pre-emptive self-defence is necessary as in modern methods of warfare it could be too late to deter an attack once it becomes obviously imminent. This is particularly clear in the cases of terrorism or weapons of mass destruction, as there is no longer a "visible mobilization of armies, navies, and air forces preparing to attack." [21] This notion of pre-emptive self-defence is what has become known as the ‘Bush Doctrine.’

64. The Bush Doctrine is essentially immortalised within the US’s 2002 National Security Strategy. It stated "We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends." It furthermore highlighted the agreed fact that states doe not have to suffer an attack before they can lawfully take action to defend themselves against an imminent attack. The issue of imminence within the Bush doctrine is what pushes pre-emptive self-defence beyond what is lawful – it would allow states to lawfully use force to defend against what appears to be a remote, unproven threat. This is the main argument against the Bush Doctrine.

65. The second – and more plausible – attempted justification for the invasion relied upon UNSC resolutions from the first Gulf war. This was the position supported by Blair and the UK, as opposed to the above reliance from the US on pre-emptive self-defence. UNSC Resolution 678 authorised the international community to use force to uphold Resolution 660, which requested that Iraq withdraw immediately from Kuwait. At the end of the conflict the UNSC issued Resolution 687 which rescinded the authorisation for the use of force through implementing a ceasefire, including requiring Iraq to destroy all of their biological and chemical weapons and weapons of mass destruction. In 2002, the UNSC in Resolution 1441 held that Iraq had been breaching its obligations under Resolution 687, in particular through not allowing UN weapons inspectors into the country.

66. It was argued by the US and UK that if you read Resolutions 687 and 1441 as one, then the latter was enough to implicitly re-authorise force under 678 without any further UNSC action being needed. The UNSC rejected this interpretation, as it was not clear whether Iraq had sufficiently breached its resolution 687 obligations to justify a revival of Resolution 678. There are strong arguments that can be made on either side of the debate as to whether this intervention in 2003 was lawful, but the general consensus amongst the international community and of academic scholars is that it was not lawful under international law. It must however be recognised that this is a complex legal situation and there are strong arguments that can, and have been made, that the intervention was both legal and justified.

4.3 – The Blair Doctrine

67. On the 22nd of April 1999 Prime Minister Tony Blair (as he then was) made a speech to the Chicago Economic Club in which he described a ‘Doctrine of the International Community.’ By this he meant that states are now more than ever mutually dependant on one another and their interests are to a certain extent intertwined. The Blair Doctrine is not a doctrine for self-defence for the intervening state or the wider world, but rather a doctrine for defending a domestic population under threat.

68. Within his speech [22] Blair outlined the circumstances in which the international community should be intervening in states. He set out five considerations that should be fulfilled before intervention should go ahead:

1. Intervening states must be sure of the reasons for the intervention

2. All diplomatic/peaceful options must be fulfilled first

3. There must be sensible and prudent military operations that can be undertaken

4. Intervening states must be prepared to remain in the country for a long term

5. Are there national interests involved?

69. Blair did not envisage that these would become absolute tests for when intervention should take place, but he advocated that these are the things that should be considered when contemplating intervention. Legally, it does not matter whether or not these things have been considered – if a unilateral or multilateral intervention takes place outwith the scope of the Charter then it will always be illegal under current international law. However, these considerations do help to legitimise when intervention should take place. More recently Tony Blair has stated, "I think you intervene when the consequences of non-intervention are worse ." [23] He said this when discussing the decision not to intervene in Syria. [24]

70. It is the opinion of Mr Blair that the decision not to intervene in Syria has come about because the situation appears more difficult than that in Libya, rather anything to do with the severity of the situation, as it is much worse, and that this is not the correct approach to an intervention policy. He warns that intervention would be hazardous due to the religious tension in the country, but that is also what makes it most important. " Intervention can be uncertain, expensive and bloody ," espoused Blair, but he is still a firm supporter of it and so is this Centre. The Blair doctrine has at its heart the protection of humanity and a decision not to intervene when human rights violations are grave is not a noble act, but rather could be devastating for those involved.

4.4 – Use of Force Against Non-State Actors in Self Defence

71. There has been increasing discussion in international law since the September 11th terrorist attacks regarding the use of force against non-state actors. In the wake of 9/11 the UNSC, for the first time, passed a resolution stating that force could be used against terrorist organisations. This cemented the growing notion that self-defence can be used against non-state actors. Whilst there may be growing consensus within the international community over the use of force against non-state actors, there is little to no agreement on how this should be implemented.

72. On the face of it, using force against non-governmental groups or individuals is not legal as the rules on force only allow it to be used against another state. However, if a state is subject to an armed attack from a non-state actor then how do they defend themselves against it? This is a complicated matter, as even if the right of self-defence were triggered, the state wishing to exercise that right would have to violate the territorial integrity of another state in order to do so. However, this issue could be circumvented if the intervening state has the permission of the other state to do so.

73. It is also important to bear in mind when attacking non-state actors, that whilst it might necessarily violate the jus ad bellum (the law governs when states can resort to warfare), it will not automatically breach the jus in bello (the law that governs how warfare in conducted) provided there is a nexus between the attack and an armed conflict. This is an important issue to consider within the context of drone strikes against terrorists.

74. In some instances, the use of force by a non-state actor can be attributed to a state and thus the exercise of self-defence against that state is perfectly justified. In order for an action of a non-state actor to be attributed to a state, that state must have effective control over the actions of that actor. The meaning of effective control was discussed in the ICJ Nicaragua judgment. The court established that the US had carried out an indirect use of force against Nicaragua due to their support of the rebels. Effective control thus meant that the state in question must do more than merely finance the non-state actor. This is the issue that is comes into play when terrorism is concerned – it has been proven in the past that certain states have financed certain terrorist organisations, but without further evidence of effective control, the actions of those terrorist organisations cannot be attributed to that state.

75. The more pressing issue is whether a non-state actor is capable of carrying out an armed attack within the scope of Article 51. In the Nicaragua case, the ICJ set out that only the gravest forms of armed attack would be enough to trigger the right to self-defence. However, since Nicaragua, the possibility of an accumulation of events doctrine has opened up. In the Oil Platforms case, the ICJ affirmed the high threshold for an armed attack in Nicaragua and stated that "even taken cumulatively" the events in this case would not have reached it. This has inferred that there is a possibility that the Court would accept that a series of small-scale attacks – like terrorist attacks – could amount to enough to justify triggering self-defence. There is one important counterargument to this viewpoint – the whole purpose of the self-defence doctrine is to allow states to defend themselves from an ongoing attack, but in the case of a series of terrorist attacks, the attacks are normally over before the state can do anything in defence. If the international community was to accept an accumulation of events doctrine then that would place the world in a permanent state of armed attack as a state could claim self-defence any time another terrorist attack takes place.

76. As it stands, the use of force against non-state actors is a legal grey area. Formally it appears to be illegal under international law as states can only traditionally use force against other states. However, there is growing acceptance of the practice in the fight against terrorists, provided a state does not intervene illegally in another state in order to carry out such attacks.

Section 5 – The Objectives and Consequences of Military Intervention

77. In the past military intervention taken by the international community to stop or prevent gross human rights violations has often been inconsistent resulting in a lack of credibility. This section will discuss the situations that may warrant intervention, the protection of civilians in conflict situations, possible implications for the intervening states, and lastly the role of the International Criminal Court ("ICC") in holding perpetrators of war crimes and crimes against humanity to account.

5.1 – Protecting Human Rights

78. Defining exactly when the protection of fundamental human rights warrants military intervention is an extremely difficult task. Humanitarian interventions generally take place to prevent the pervasive and widespread suffering of the civilian population. A proportionate approach requires that the harm inflicted by military intervention should not outweigh the harm prevented by it This is known as the ‘do no harm’ principle.

79. This being the case, the prevention of genocide – the deliberate extermination of a large group of people, especially those of a particular religious or ethnic group – is seen as one of the leading examples of when intervention is justified. After all, genocide is often described as the most fundamental of all crimes against humanity. However, if genocide were the only trigger for military intervention, this would clearly set the bar too high. Intervention could also be justified where an assault on the right to life takes place more generally including, but not restricted to, massacres, large-scale attacks on civilians and extra-judicial executions of political prisoners. Similarly, violations of the right to freedom from torture may provide grounds for humanitarian intervention.

5.2 – The Prevention of Genocide

80. A quick response is vital to prevent genocide, since genocide and ethnic cleansing often occur in the early phases of intra-state conflict [25] . Even where it is not successful in stopping war straight away, external intervention can often mitigate violence against civilians, since it forces potential perpetrators to divert time and resources away from the slaughter of civilians and towards defending themselves. Syria serves as a good example of where a devastating loss of life could have been prevented by earlier intervention instead of international inaction.

81. Genocide Watch issued its first Genocide Alert for Syria in June 2011, pointing out the regime’s widespread attacks on civilians, the detention and execution of its political opponents, as well as the genocidal massacres of whole villages of Sunni Muslims [26] . As of August 2013 the total number of overall casualties in the conflict was estimated to be at least 106,000, and a further 1.9 million people have been displaced. Since the rate of killing is accelerating, with the quadrupling of death tolls in a single year, the number is set to rise significantly further still [27] . What is more, with the use of chemical weapons by the Assad regime, there is a grave potential for these acts to escalate further into full-scale acts of ethnic cleansing.

5.3 – The Role of Deterrence

82. The example of Syria also serves to illustrate a further point, namely the importance of the deterrence aspect of humanitarian intervention. In order for humanitarian intervention to have a successful deterrent effect, it is necessary for the international community to adopt a principled and consistent stance on when it will intervene. Failure to intervene in circumstances where it is required, such as where large-scale gross human rights violations are being perpetrated or where a state uses chemical or biological weapons against its people, leads to a loss of credibility and undermines the effectiveness of military intervention as a deterrent to the state against which it is threatened as well as other similar regimes.

83. This is amply demonstrated by the failure of the US and the international community at large to intervene in Syria after the use of chemical weapons by the Assad regime against Syria’s population became known. President Obama had repeatedly declared that the use of such weapons would be crossing a red line, almost inevitably leading to military intervention, but yet no intervention came. In these circumstances collective failure to act almost certainly encouraged the Syrian regime to continue perpetrating human rights violations, unimpeded by foreign interference. The damage inflicted on the credibility of the US and the collective security system in general, by effectively granting Assad impunity, means that similar regimes around the world are likely to take similar threats of intervention less seriously in the future. This drastically weakens the deterrent effect of humanitarian intervention which is disappointing and regrettable.

5.4 – Protecting Civilians During Military Intervention

84. While one of the principal aims of humanitarian interventions is to protect civilians, conversely it may also serve to exacerbate the suffering of the local population, especially where it is carried out improperly. For instance civilians may get caught between the warring factions, or alternatively they may be left unprotected in the vacuum that ensues after the toppling of their country’s government.

85. For instance, these issues arose during the joint military intervention in Iraq, where US and UK forces ultimately found themselves unable to ensure the security of the country they had invaded. Shortly after the taking of the cities of Basra and Baghdad, foreign forces failed to prevent widespread looting and civil disobedience. Later on they remained powerless to protect the local population from sectarian violence and the rising insurgency.

86. One reason for this is that the military is a blunt instrument, inherently ill-suited to handle the problems likely to arise in the aftermath of military interventions, since it essentially lacks the capabilities to appropriately deal with crowds and lower levels of organised violence. In these circumstances constabulary forces are needed to provide security in an environment which is not yet fully stabilised. Trained in military skills but with a focus on non-lethal use of force, constabulary forces are essentially a hybrid of police and military, whose role is to efficiently defuse potentially violent situations [28] .

87. In 2004, a study by the U.S. Defense Science Board concluded that US constabulary capabilities were grossly inadequate [29] . The same year, several European states founded the European Gendarmerie Force ("EGF"), which had its first deployment in 2007. However, the force which currently consists of constabulary forces from France, Portugal, Spain, the Netherlands, Italy, Romania and Poland [30] is too small and too divided to be truly effective. It is suggested here that the UK should strive to significantly enhance its constabulary capabilities and that it would be desirable for the UK to play a leading part in further developing and strengthening the role of the EGF.

5.5 – The Consequences of Military Intervention

88. Involvement in military intervention may have a number of negative impacts on the intervening state. Firstly, and maybe most obviously there is the financial burden which intervention places on the intervening state. This cost will not be discussed in great detail here, but it can vary immensely depending on duration, extent, and type of the mission. Operations with an unlimited mandate are especially susceptible to uncurbed costs and expenses. Secondly, there are also security costs, which are essentially two-fold: an intervening power may have to fear reprisal attacks on its citizens on foreign soil, who may become a preferred target for kidnappings and executions; and intervention may also increase the risk of domestic terrorist attacks by national terror networks. Both of these were feared by the French after their military intervention in Mali in early 2013, and these fears seem to be at least partially well-founded, since attacks against French citizens in western Africa have markedly increased, with at least 15 French being taken hostage by Islamist extremists [31] .

89. Furthermore, military intervention may also come at a political cost which can manifest itself both at national and international level. The way an intervention is perceived by the international community in terms of its legitimacy and implementation may impact on a country’s standing and reputation within the community. On a national level perceived risk of mission creep and the death of soldiers on foreign soil may lead to "body-bag syndrome" and negative domestic political reactions. Such opposing national pressures may ultimately lead to early withdrawal and a mission’s premature termination. A further point worth noting is that military intervention is always associated with a risk that conflict might spill out across the country subject to intervention and into neighbouring states. In this regard international intervention may have potentially destabilising effects on a region. But on the other hand, non-intervention may similarly lead to regional destabilisation, especially where terror networks spread out across porous borders and into neighbouring countries that are often powerless to prevent this.

90. Finally, a risk which may be of more minor concern but should nonetheless be noted here is the potential for incurring civil liability for state action during an intervention. Two recent cases make this possibility more likely. In a historic ruling earlier this year, the Dutch Supreme Court held the state liable for the deaths of three Muslim men during the Srebrenica genocide. While an English court may not necessarily come to the same result, the significance of this judgement should not be underestimated as it marks the first time that a national government has been held to account for the conduct of its peacekeeping troops under a UN mandate [32] .

91. In the UK the Supreme Court recently held that the families of British soldiers killed in Iraq could bring a claim in common law negligence, as well as under human rights legislation against the Ministry of Defence, since the situation fell outside the scope of combat immunity [33] . While it remains to be seen whether the families’ claims will ultimately succeed before a court, the Secretary of State for Defence has already expressed concern that the ruling could make it more difficult for troops to carry out operations.

92. It must be noted that when conducting military operations UK soldiers are bound by the rules of warfare set down in the Geneva Conventions. The four Conventions and their two Additional Protocols provide rights to the sick and wounded on land and at sea, prisoners of war and civilians during international and non-international armed conflicts. One of the most fundamental principles contained within the Conventions is the distinction between combatants and civilians. Individual or collective breaches of these conventions are war crimes and can result in both civil and criminal liability. It cannot be stressed strongly enough that when considering any intervention that soldiers know these rules and abide by them so as to prevent any unnecessary suffering to civilians.

5.6 – The Role of the International Criminal Court

93. The need for a world criminal court capable of prosecuting and punishing persons responsible for crimes of international concern, such as genocide, crimes against humanity and war crimes, has long been recognised. The International Criminal Tribunals for Yugoslavia ("ICTY") and Rwanda ("ICTR"), which were set up ad hoc in 1993 and 1994 to deal with the atrocities committed in these countries, further highlighted the need for a permanent international criminal court to deal with violations of this kind quickly and effectively. Finally the ICC became the first independent and permanent treaty based international criminal court. It was established to help end impunity for perpetrators of the most serious crimes of concern to the international community. The ICC only tries those accused of the gravest crimes – war crimes, crimes against humanity, genocide and, now as a result of the Kampala amendments, aggression – and as a court of last resort it will not act if a case is under investigation by a national judicial system, unless the national proceedings are not genuine [34] .

94. Unfortunately not all states recognise the jurisdiction of the ICC. 122 countries are currently State Parties to the Rome Statute, which established the ICC. However, some key players in the international system, most notably the US, have so far refused to ratify the Rome Statute. Other states which have not signed up to the ICC include India, China, Israel, and Russia. The absence of such major actors from the community of the ICC weakens the Court’s legitimacy to some extent as well as its operational effectiveness. Moreover, the Court has in the past also been accused of not providing sufficient checks and balances and failing to adequately safeguard the rights of accused persons. Probably the most damaging criticism so far has been the allegation of selective and biased enforcement, labelling the ICC a tool of Western imperialism.

95. Despite the criticism, the existence of an independent international organisation, which can hold perpetrators of the gravest crimes accountable, is of vital importance. Securing justice at an international level becomes especially crucial in the absence of a state government who is willing to hold culprits to account. There can be no impunity for the perpetrators of war crimes and crimes against humanity, and where the individual state is unable or unwilling to bring an investigation, the international community has to step in to fill the void. Since the ICC performs such an important function, steps should be taken to strengthen its legitimacy and operational effectiveness as well as to address the other criticisms labelled against it.

Section 6 – Exit Strategies and the Law of Occupation

96. Some of the most serious political and institutional issues concerning humanitarian intervention arise after military combat operations have been completed. Yet, while peace and state building operations have received considerable attention over the past decades, the subject of exit strategies, which conclude the final stages of such operations, has often largely been ignored. However, the importance of attempting to formulate a sound exit strategy prior to engaging in humanitarian intervention cannot be overstated. The paragraphs below will give a brief outline of the law on military occupation, followed by a discussion of what exit strategies are, and the challenges in formulating precise transitional strategies at the outset of an intervention.

6.1 – Military Occupation

97. Article 42 of the 1907 Hague Regulations on Land Warfare [35] gives a definition of ‘occupation’, which provides that a territory becomes occupied if, in the conflict between two or more states, it is "actually placed under the authority of the hostile army". This definition has three notable aspects: Firstly, it is strictly limited to interstate conflicts. Secondly, foreign forces must actually be present on the state territory; coercion outside the state territory, no matter how effective, is not enough to constitute an occupation. And lastly, the presence of foreign troops in itself does not constitute occupation – the territory must be "under the authority of the foreign power". As the ICJ has held, foreign forces must have "substituted their own authority" for that of the occupied regime [36] .

98. In addition, the duties of the occupying power are spelled out primarily in Articles 42 to 56 of the Hague Regulations together with the Fourth Geneva Convention on the protection of civilians (GC IV, Articles 27-34 and 47-78) [37] , certain provisions of Additional Protocol I to the Geneva Conventions [38] , and customary international humanitarian law. Amongst other things, agreements between the occupying power and the local authorities cannot deprive the population of the protection afforded by international humanitarian law (GC IV, Art. 47) and protected persons themselves can in no circumstances renounce their rights (GC IV, Art. 8) [39] .

6.2 – What Are Exit Strategies?

99. An exit strategy is a transitional plan for disengagement and ultimate withdrawal of external parties from a state’s territory, ideally after having attained their principal objectives. Nevertheless, an exit does not necessarily mark the end of all international involvement [40] . So far there has been little explicit discussion of exit strategies in US military doctrines. Similarly, the UN has not issued any guidance on appropriate exit strategies for humanitarian intervention. The term did not find common application in foreign policy until the US engagement in Somalia in 1993, which is often hailed as the prime example of an ill thought-out and rushed exit. In thinking about exit strategies, it is important to emphasise the fact that an exit is a process, not an event; they may therefore more appropriately be described as transitional strategies.

6.3 – Elements of a Sound Exit Strategy

100. Prior to a more detailed discussion on the elements of exit strategies, it is worth noting that the grounds for exit generally lie in the accomplishment of key elements of a mission’s mandate. As a result, the content and suitability of a mission’s mandate are of particular relevance. Because the success of an exit strategy depends to a great extent on an appropriate entrance and intermediate strategy, even a sound transition cannot make up for serious shortcomings in the earlier two.

101. Above all, a successful exit strategy will take account of local circumstances, and any factors that may impede or further exit. For example the existence of a functioning state prior to intervention will speed up the transitional process, while failed or weak states which lacked an effective administration and advanced economy prior to the outbreak of conflict will be much harder to stabilise.

102. In terms of grounds for exit, consolidated peace should be the minimal objective of post-conflict state building operations. Consolidated peace is self-sustaining and characterised by the absence of major threats to public security, and while its ultimate attainment can only be assessed after the exit of the intervening forces, it is generally said to require the establishment and maintenance of basic security, the development of effective and legitimate government institutions, together with the creation of basic conditions for social and economic wellbeing.

103. When it comes to measuring and evaluating the progress of transition, benchmarking can be a useful tool. Benchmarks are pre-established standards of achievements, the attainment of which is expected to contribute to the achievement of an operation’s overall objective. Nevertheless, to be of value benchmarking needs to be concrete and precise with the use of meaningful indicators. For example it is unhelpful and misleading to measure inputs rather than outcomes. At the same time performance indicators need to be applied consistently across the board by the different actors so as to achieve comparable outcomes [41] . In the end, the division of deadlines and timetables for a phased exit can have both positive and negative effects. On the one hand, rigidly fixed timetables make it difficult for actors to respond to unanticipated events, on the other hand their predictability may be desirable because it ensures local and international participants that the operation will not continue indefinitely.

6.4 – Challenges in Developing a Sound Exit Strategy

104. There can be a number of obstacles to the creation of a successful exit or transitional strategy. Most importantly, exit strategies are delusive; the question of departure can never be fully planned in advance. Instead exit strategies are dependent on a large number of contingent factors and the actions of autonomous parties which are often impossible to foresee in advance. This necessitates flexibility and the continuous re-evaluation of goals, objectives, and timeframes during the course of an intervention. As mentioned earlier, exit strategies are to a large degree dependent on sound entrance and intermediate strategies and even a sound transitional strategy may not be able to make up for serious short-comings in these other areas. Finally, exit strategies can only be properly evaluated retrospectively, as their consequences often only become apparent years later when the relevant territory either remains stable or descends back into conflict.

105. In conclusion, while a clear road map to an exit at the outset of an intervention is unrealistic, the importance of planning for exit even prior to an operation cannot be overstated. Transitional strategies are fundamentally influenced by the mandate of an operation, hence it is important to continually review them in light of the mission’s progress. Above all, greater flexibility and patience is required. Building institutional capacities often requires a lot more time than originally anticipated. Thus it is important to resist the temptation for a quick fix. Otherwise, a rushed exit may serve to unravel all the hard-fought for goals of an intervention.

Section 7 – Conclusion

106. As can be seen from our extensive consideration and analysis of the legal framework pertaining to military intervention, it should not be taken lightly and without a thorough consideration of the legal position, the benefits and drawbacks of intervention, operational capacity and planning issues. However, in pressing cases of humanitarian catastrophe, states need to be willing to intervene quickly and without undue hesitation. It is important when considering intervention that the intervening state gives due regard to the impact that this could have on the ground, versus the impact that not intervening would have.

107. The United Kingdom is bound by both the UN Charter and customary international law. Any use of force taken outwith the scope of these legal rules are prima facie illegal under international law. Due to these rigorous rules in international law on the use of force, there is little scope for application of humanitarian intervention legally at the present time. However, it is still seen as legitimate in several circumstances, such as egregious and systematic human rights violations, as was demonstrated in Kosovo.

108. We believe that humanitarian intervention should occur without UNSC authorisation when the UNSC is deadlocked and there are ongoing atrocities that need to be halted. It is this Centre’s opinion that the Responsibility to Protect doctrine could provide a foundation on which a legal right to intervene in states for humanitarian purposes could be developed and established in international law. Whilst, as has been discussed, the current conception of R2P does not provide scope for intervention outwith the Charter, we believe that it should do and that the UK could take the lead in advancing a legal basis for intervention within the R2P framework.

109. As well as intervening in the name of humanitarian intervention, states can also intervene in the pursuit of self-defence. The right of self-defence is not disputed in international law. As has been explored, pre-emptive self-defence is a more disputed right, but in appropriate circumstances – namely, serious security threats – it could be seen to be a legitimate form of intervention. Intervening in pursuit of non-state actors following terrorist activity is becoming more and more accepted in international law, particularly following the accumulation of events doctrine.

110. It is important that when deciding to intervene states also give considerable thought to the consequences that intervention could have, as well as exit strategies. Part of the Blair Doctrine encapsulated the fact that states have to be prepared to go the long haul when intervening and shouldn’t just consider the short-term implications. States suffer serious problems in the aftermath of any type of intervention and it is the responsibility of the intervening state to help rebuild. This is important for ensuring that the conflict does not reignite at a later date.

111. This concludes a comprehensive overview of the legal issues that the Defence Committee should consider when determining the future of the UK’s intervention strategy.

Contributors:

Julie Lenarz: Executive Director

Simon Schofield: Senior Fellow

Daniel Wand: Junior Fellow

Eva Brockschmidt: Research Assistant

Michelle McKenna: Research Assistant

November 2011