While law and morality often occupy different positions with respect to the permissibility of humanitarian intervention, the need to reconcile the two is crucially important. Citing the legal theorist, H.L.A. Hart, Fernando Tesón eloquently argued in his seminal dissertation on humanitarian intervention that legal principles are far from technical, morally neutral precepts, but rather "speak to some of our most basic moral principles, convictions and institutions."[11] In this sense, law can be understood as a purposive human activity that necessarily maintains a moral significance that is subject to moral duty, while also giving rise to moral responsibility.[12] Insofar as law is an enterprise that aims to subject human conduct to the governance of rules, the codification of moral precepts into law is thus intended to be prescriptive with respect to how actors coordinate their behavior; which in the context of international law refers to the guidelines that states follow in achieving their international policy goals.[13] At a jurisprudential level, then, the role of international law is to fix a policy response to an international societal need. Insofar as the debate on humanitarian intervention maintains a substantive moral dimension, the relevant societal need is morally defined, but must be recognized as a legal construct if states and international actors are to behave with a reasonable amount of predictability when contemplating the use of force for humanitarian purposes.[14]

For legal theorist, Lon Fuller, whether or not a body of law is "moral" depends not only on its substantive content, but also its "procedural" aspects.[15] The word "procedural," however, is not to be confused with its common usage in legal discourse, but rather as a contrast to the substantive dimension of legal rules. For the purposes of this article, to judge whether a body of law is "sufficiently principled" is to necessarily be concerned with the way in which a system of rules that governs human conduct should be constructed and administered if it is to be efficacious with respect to the activity that it purports to govern.[16] Fuller proposes a set of "procedural" requirements that a hypothetical body of law must meet, several of which are relevant to the existing law that purportedly governs humanitarian intervention. Collectively, Fuller's framework applied to the current law relating to humanitarian intervention requires that this body of law maintain clear, non-retroactive, substantive rules that are not contradictory.[17] At a very minimum, therefore, a sufficiently principled legal basis for humanitarian intervention requires, 1) the existence of an actual set of non-contradictory rules, such that 2) every situation does not have to be decided on an ad hoc basis, and 3) that the course of action in a given circumstance is clearly prescribed by such rules based on the realities of the situation. So, for a law of humanitarian intervention to be moral according to Fuller's analysis, it must be clear which human rights violations are legally permissible grounds for the use of force. This article shall proceed based on this insight.

The prohibitive principle in the UN Charter most relevant to humanitarian intervention is Article 2(4), which regulates the use of force.[31] Article 2(4) of the UN Charter reflects the well-founded presumption that the use of force by states poses an unacceptable danger to global security, and thus must be regulated by law. It reads:

All Members shall refrain in their international relations 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 United Nations.[32]

With respect to humanitarian intervention, which is the explicit, non-self-defensive use of force, the (largely textual) debate has centered on whether the language italicized above was intended to restrict or to reinforce the general prohibition of the use of force. The argument for the former is that Article 2(4) does not forbid all uses of force, just that which is directed against the territorial integrity and political independence of states, and that which is inconsistent with the purposes of the UN Charter.[33] In other words, humanitarian intervention is the use of force that is neither directed against the territorial integrity nor the political sovereignty of a state, nor is inconsistent with the purposes of the Charter.[34] As such, this debate hinges on three issues: treaty interpretation, the usages of the terms "territorial integrity" and "political independence," and what, exactly, are the purposes of the UN Charter.

Based on the prevailing rules of treaty interpretation found in the Vienna Convention on the Law of Treaties, treaties are to be interpreted with respect to their "context" and "in light of their object and purpose."[35] Thus, the fact that subsequent restrictions or exceptions to Article 2(4) are explicitly mentioned in Article 51 (the self-defense exception), and Articles 39, 42, and 43 (the Security Council's Chapter VII enforcement exception) is evidence that statements in 2(4) are not intended to be implicit exceptions. Furthermore, pursuant to the Vienna Convention's allowance for recourse to the "preparatory work of the treaty and circumstances of its conclusion"[36] in instances of ambiguity, reference to the travaux préparatoires makes it clear that the language in Article 2(4) was not intended to be restrictive. In fact, the terms "territorial integrity" and "political independence" were not part of the Dumbarton Oaks Proposals at all, but were subsequently inserted at the San Francisco Conference as a result of arguments by several smaller states (e.g. Australia, New Zealand, Belgium, Bolivia) that protection of territorial integrity and political independence should be specifically emphasized.[37] Simon Chesterman has even pointed out that the United States delegation defended the inclusion of these terms in especially strong terms, suggesting that such language should be inserted to convey an "all-inclusive prohibition [of the use of force] . . . designed to insure that there should be no loopholes."[38] This — as illustrated by the writings of Ian Brownlie[39] and Hersch Lauterpacht,[40] as well as in contemporary debates[41] — is now the dominant view with respect to Article 2(4).

Even if these terms were intended to be exceptions to the general rule in Article 2(4), it does not follow that humanitarian intervention fails to have an effect on a state's territorial integrity and political independence. Nevertheless, observers, such as Anthony D'Amato, have argued, based on exhaustive research into the historical legal usage of the term, that "territorial integrity" means that no part of a state's territory may be forcibly separated and given over to another state.[42] What D'Amato overlooks, however, is that this usage employed in tandem with the term "political independence" necessarily refers to the ability of a governmental authority within a state to pursue policy under its sovereign prerogative. The realities of most humanitarian interventions have been such that they rarely achieve their purposes without the removal or at least disablement of an incumbent regime.[43] Thus, insofar as humanitarian intervention takes place within a state's territory and is aimed at preventing a state's governing apparatus from carrying out a policy (human rights violations), it is unlawful under a textual reading of Article 2(4). In the words of Oscar Schachter, to conceive humanitarian intervention as not involving violations of territorial integrity or political independence "demands an Orwellian construction of those terms."[44]

Concerning humanitarian intervention being legal since it is potentially "not inconsistent" with the purposes of the UN, a textual analysis suggests that the phrase "or in any other manner inconsistent . . ." is intended to have inclusive meaning. That is, the intent of the drafters was to convey that the use of force that is not directed against the territorial integrity or political independence of a state, but is inconsistent with the purposes of the Charter (explicated in Article 1), is also illegal.[45] Since the "purposes" of the UN Charter include to "promote and encourage respect for human rights," as suggested by Article 1(3), and also to "maintain international peace and security" as stated in the very first sentence in Article 1(1), the debate is arguably one of emphasis. As such, some have argued that order indicates emphasis, and that the drafters did not regard human rights on equal footing with peace.[46] This argument, however, is not entirely persuasive in light of subsequent developments in human rights law, which will be addressed below.

Furthermore, it has been suggested that Articles 55 and 56 further indicate that human rights are among the fundamental purposes of the Charter.[47] These Articles respectively read:

The United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms,[48]

and:

. . . all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.[49]

Nevertheless, the "Purposes and Principles" of the Charter are explicitly expounded in Chapter I, while these paragraphs are contained in Chapter IX, which deals with "International Economic and Social Cooperation."[50] To interpret the meaning of these provisions as contributing to an exception to Article 2(4) is to exaggerate even an "Orwellian" approach to interpretation. Furthermore, "promoting" and "taking action" cannot be reasonably understood using any interpretive method as calling for the use of military force. At best, these human rights provisions in the Charter suggest that human rights are not under the exclusive jurisdiction of states, which is merely to address the nonintervention principle in Article 2(7). To suggest that "intervention in matters that are essentially within the domestic jurisdiction of a state" does not include human rights issues is quite different from saying that military force may be used to rectify human rights violations. Therefore, a textual interpretation of the Charter's provisions on the use of force in light of its object, context, and purpose can be read as nothing other than a purposive effort to prohibit the unilateral use of force by vesting sole authority for the non-defensive use of force in the Security Council.[51]

Based on the discussion thus far, one can see that there are at worst, no legal avenues in the text of the Charter that allow for unilateral humanitarian intervention, while at best what we have are contradictory, unclear, and imprecise rules. Neither scenario is favorable for a potential legal grounding for humanitarian intervention. Applying the criteria for a sufficiently principled basis to this body of law as it pertains to humanitarian intervention, we find that the Charter principles dealt with thus far are insufficient for the following reasons. First, although this debate is largely settled, the duty to promote human rights as one of the chief purposes of the UN is ostensibly inconsistent with Article 2(7), which is unclear regarding which activities are under the sole jurisdiction of the state. Second, since it is highly doubtful that humanitarian intervention is permissible under Article 2(4), authorization for intervention must come from the Security Council's Chapter VII enforcement powers.[52] Finally, even if we were to assume that the human rights provisions in the Charter provide a loophole to the prohibition on the use of force, the Charter's rules give us no clear prescription on the human rights violations under which the use of force is permissible. Given the scarcity of substantive human rights provisions in the Charter, this latter problem is obvious if we circumscribe the analysis to the Charter itself. Thus, this third issue is dealt with in the next section where I incorporate supporting human rights treaty law.

The initial problem with the Charter is that its rules relevant to humanitarian intervention are apparently contradictory. According to Fuller, this denotes a failure of a body of law to effectively govern certain activity.[53] In their defense, it is likely that the Charter's drafters were not writing the text with humanitarian intervention in mind. Thus, the Charter is being employed to regulate an activity that it was not designed to manage. If one reads the relevant Charter rules prescriptively as saying "promote and protect human rights, but do not use force," we must either assume that the framers did not intend the unilateral use of force to be lawful in response to human rights violations,[54] or accept the inherent "repugnancy"[55] of this statement and conclude that the Charter is insufficient to properly govern unilateral humanitarian intervention.

If the Charter is to effectively govern humanitarian intervention at all, recourse must be had to the Chapter VII enforcement powers of the Security Council.[56] Indeed, in the 1990s the Security Council found it expedient to characterize human rights violations as "threats to the peace" under its Article 39 powers, and then authorize enforcement under its general Chapter VII authority.[57] By granting the Council this authority, the drafters of the Charter were replacing the notion of state self-help with the idea of collective security. This explicit exception to Article 2(4) was to be subject to the rule of law in the form of the Council's legal monopolization of the use of force.[58] Thus, the framers assumed that the decision on what constituted a "threat to or breach of the peace" could be safely left to case-by-case interpretations by the Council. The San Francisco Conference, therefore, did not consider the issue of whether the Security Council would be required to treat "like cases alike."[59] If the Council had worked as intended, it would have obviated the need for the unauthorized, unilateral use of force, and the debate on the textual meaning of Article 2(4) would be unnecessary.[60] But as we know, the Council has never worked as it was envisioned by the framers.

Counterfactual reasoning is illuminating. What if the Cold War had not descended and the Security Council had not been paralyzed for 50 years? What if the Council was able to take swift and decisive action against human rights abusers? Unfortunately, we live with reality and not counterfactuals, and the reality is that Security Council decisions under Chapter VII lack principled coherence.[61] As the only body legally authorized to sanction the non-self-defensive use of force, any such use of force without the Security Council's sanction is illegal, despite the fact that the political realities of the Council are such that it is unable to assume its role as enforcer in a principled way.[62] Even if it could, there exists no set of guidelines (formal or informal) that the Council would follow in determining threats to the peace — and by proxy, it follows no principled legal or moral criteria in determining when humanitarian intervention is permissible. If it possessed and followed such guidelines, humanitarian intervention would have been authorized in Rwanda and Kosovo just as it was in Bosnia and Haiti. Consequently, the Charter framework is devoid of any principled criteria for determining the human rights conditions under which humanitarian intervention is permissible; there are only the ad hoc determinations of the Council, which is dominated by powerful states. This, according to Fuller's analysis, is another reason why the Charter's framework would be insufficient as a body of law.[63] The Council operates giving us no stable framework of expectations, no legal certainty, and the moral authority of its decisions is tainted by the arbitrary and selective exercise of power.[64] At a very minimum, Fuller would argue, the Council must provide some level of predictability for when it will authorize force.[65] The only legal rules in the Charter governing the use of force are Articles 2(4) and 51, neither of which prescribe a clear legal avenue for humanitarian intervention. Thus, relying on the Security Council to provide legal authority for humanitarian intervention is not a sufficiently principled legal basis.

The UN Charter enshrines the promotion of human rights as one of its purposes, yet says virtually nothing about substantive human rights beyond "human rights and fundamental freedoms."[66] While the Charter requires its members to promote and respect human rights standards, the document itself does not specify what these standards are.[67] However, numerous human rights instruments created subsequent to the Charter provide detailed descriptions of the human rights that are purported to be authoritative statements of the Charter's human rights standards, particularly the 1948 Universal Declaration of Human Rights (UDHR).[68] The UDHR is not a binding treaty, however, but a General Assembly Declaration, which has no legal effect since the Charter does not give the Assembly the power to make authoritative legal interpretations of Articles 1(3), 55, and 56.[69] To the extent that this hortatory statement can be read as codifying the human rights principles of the Charter, and thereby potentially explicating human rights standards subject to "protection and promotion," the UDHR can at best only offer evidence of state attitudes, and given consistent state practice, perhaps customary law.[70] However, neither governments nor courts have accepted the UDHR as anything other than what ought to become principles of law to be acted upon by states over time.[71]

Given its non-legally-binding nature, it is unlikely that the UDHR could be utilized as a legal standard that specifies which human rights must be "protected and promoted" in the form of humanitarian intervention as an exception to Article 2(4). In fact, the General Assembly has passed several resolutions in support of Articles 2(4) and 2(7) — which also offer evidence of state attitudes — that are in tension with these human rights principles to the extent that they set standards for intervention. The Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty was adopted by the General Assembly in 1965 and emphatically affirms that the norms of sovereignty and nonintervention preclude intervention on any grounds.[72] Annex II of The Declaration of the Inadmissibility of Intervention and Interference in the Internal Affairs of States adopted in 1981 even urges states to refrain from distorting human rights issues as a means of interference.[73] Thus, even states' attitudes indicated by these General Assembly declarations as bases for determining customary law (the opinio juris requirement) are contradictory.

Legally binding human rights treaties, however, place more explicit obligations upon states. According to Michael Reisman, the normatively uncertain place accorded to human rights in the UDHR has been elevated to an imperative level of international law supported by widespread demands for enforcement, as evidenced by the passage of various legally-binding human rights instruments.[74] Given the existence of a significant number of legally-binding multilateral human rights treaties, one can reasonably conclude that the human rights codified in these treaties are no longer within the "essential domestic jurisdiction of states" as a matter of law relating to the Charter's Article 2(7)."[75] The Genocide Convention, the Convention on the Elimination of Racial Discrimination, the two principal human rights Covenants, the Convention on the Elimination of Discrimination Against Women, the Convention Against Torture, the Convention on Rights of the Child, and the Convention on Rights of Migrant Workers are a few of these important legal developments. In fact, many of these instruments maintain accompanying implementing organs that are essentially authorized to inquire into the extent to which signatory states are complying with the terms of the treaty.[76]

There are two potential problems in using the rights enunciated in these instruments as a principled legal basis for humanitarian intervention. First, it is debatable at best whether these instruments maintain clear language calling for the use of force to enforce the provisions therein. Thus, while we can comfortably say that human rights treaties have collectively had a profound effect on what matters are to be held within a state's domestic jurisdiction for the purposes of Article 2(7), the same cannot be said with respect to Article 2(4). Second is the issue of whether any of these treaties adequately address the fundamental concern of which human rights in these treaties may potentially be subject to humanitarian intervention. In other words, to ground humanitarian intervention in human rights treaty law, the relevant treaties must consider, at least implicitly, the fundamental moral substance of the humanitarian intervention problem: that only certain (severe) human rights violations are to be met with force. In other words, these treaties must express a prioritization of human rights, such that those rights of a higher priority maintain a unique legal status and are thus deserving of special protection. I identify two multilateral human rights treaties that potentially create avenues relevant to a sufficiently principled legal framework for humanitarian intervention: the Genocide Convention and the Civil and Political Covenant.

The Genocide Convention speaks most directly to humanitarian intervention because, of all the aforementioned multilateral treaties, it alone contains language that could potentially be construed as authorizing the use of force to achieve its purposes, in that it creates an obligation that requires states to "prevent and punish" the crime of genocide.[77] Such language suggests that if a government permits or itself commits genocide, then other signatories would be obligated to take steps to prevent, suppress, and punish the crime.[78] This explicit language calling for action to be taken by states against other states who commit such a crime is unparalleled in human rights treaty law, as even such instruments as the Convention Against Torture do not imply such trans-boundary action,[79] while the human rights provisions in the UN Charter only require that states "take action to promote" human rights.[80] As a result of the vague and ostensibly permissive language in the Genocide Convention, it has been argued that it could be read to permit humanitarian intervention to halt or avert the crime of genocide,[81] though neither the Convention itself nor its drafters explicitly discussed the unilateral use of force as a remedy.[82]

Pursuant to the Vienna Convention's rules on treaty interpretation, recourse to the travaux préparatoires of the Convention suggests that the obligation in Article I of the Convention to "prevent and to punish" the crime of genocide refers only to legislative and judicial activity. In considering the Draft Convention on Genocide, the Sixth Committee of the General Assembly addressed the issue of punishment of genocide by discussing the establishment of an international tribunal to punish the crime.[83] This debate came to the fore when the French representative argued that, since it is governments who commit genocide, punishment in domestic legislation would be insufficient; thus the need for an international tribunal.[84] Even this was feared by many members as a potential infringement of the national sovereignty of states.[85] The subsequent debate centered on whether states alone should take responsibility for preventing or punishing genocide, or whether an international tribunal should be established; but the preventative (contrast punitive) mechanism was always penal legislation, and neither punishment nor prevention was discussed in the context of military force.[86] Only once was the concept of military force ever uttered in the negotiations, and it was done so by the British representative in the context of arguing against the establishment of an international tribunal, saying pejoratively that "genocide committed by states was punishable only by war."[87] In general, however, the consensus among the negotiators was that their objective on this matter was to debate whether and the extent to which "states [should] provide for the prevention and punishment [of genocide] in their national legislatures."[88]

With respect to the prevention of the crime, the use of force was again never discussed. The contemplation of preventative measures was again debated in the context of national legislatures drafting legislation that would prohibit activities in preparation for genocide, such as "incitement and propaganda for racial or religious hatred . . . or racial superiority."[89] Remarks by the representative of the USSR reflect this sentiment when he declared that the prevention and suppression of genocide should be "provided for in the legislation of all democratic states . . . and must apply to all propaganda which stirred (sic) up the hatred leading to genocide."[90] The representative of Yugoslavia even suggested that a state would fail in its duty under the Convention to "prevent and punish" only if it failed to proscribe genocide in its domestic legislation.[91]

It is thus highly unlikely that the drafters of the Convention intended the unilateral use of force to be a preventative or punitive measure for the crime of genocide, or that the crime of genocide was intended to act as a loophole to Article 2(4). Even if such a notion was on the minds of the drafters, it is worth mentioning that one representative, Mr. Chaumont of France, made reference to genocide such that it could be construed as a threat to "international peace and security." In such instances, he argues, the matter "should be brought before the Security Council."[92] Thus, even if the use of force entered the thought processes of the Convention's drafters, it is likely that they intended the use of force to remain a matter to be dealt with at the discretion of the Security Council. As has been argued, however, the ad hoc nature of the Council's approach is not a sufficiently principled legal grounding for humanitarian intervention because it fails to give us legal certainty as to which activities are subject to the use of force. To categorically say that the crime of genocide is subject to the use of force does take into account the moral content of the humanitarian intervention debate by addressing a specific human rights violation. However, the Convention's drafters' apparent deference to the Security Council on the matter of using force precludes a principled approach to the problem, for under this framework genocide might at times trigger the use of force and other times it might not.

The principal purpose of drafting both the Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social, and Cultural Rights (ICESCR) was to develop in more detail the rights enumerated in the UDHR in the form of a legally binding treaty.[93] Because of existing political realities, however, this effort resulted in two separate treaties, each containing different categories of rights. Nevertheless, if it is accepted that the rights in the UDHR are an expression of what ought to become the human rights principles of the UN Charter principles, then the development and codification of these rights in subsequent legally-binding form can be reasonably pronounced to be the human rights principles of the UN Charter as a matter of law.[94] As such, when the Charter requires that states "promote . . . universal respect for, and observance of, human rights,"[95] one can conclude that this is in reference to the human rights provisions embodied in the two Covenants, which, like the UN Charter, aspire to universal membership. Likewise, when Article 1(3) of the Charter pronounces the vague notion of "respect for human rights" as one of the purposes of the UN, again it is in the two Covenants where one can find what "human rights" are for the purposes of UN Charter law. It is important to note, however, that the Covenants only bind those UN member-states that are parties to the Covenants. While the Covenants aspire to universal membership, as a technical legal matter, any standards gleaned from these instruments would only apply to UN members who have ratified the relevant Covenant; just as the duty to "prevent and punish" genocide only obligates parties to the Genocide Convention.

This proposed understanding of the relationship between the two Covenants and the UN Charter has important implications for interpreting Article 2(4) of the Charter pertaining to humanitarian intervention. As I suggested above, it is possible that since promoting and encouraging respect for human rights is one of the purposes of the UN Charter, the use of force that is not "inconsistent with the purposes of the UN Charter" could include using force without Security Council approval to protect human rights, if only the Charter specified what it meant by "human rights." Given the potential status of the Covenants as authoritative interpretations of the human rights provisions of the Charter — again, technically applying only to parties to the Covenants — can one say that the use of force is permissible to protect those human rights enumerated in the two Covenants, since the purpose of the UN is to protect and promote these rights, and the use of force is only prohibited if it is against the purpose of the UN? This is a very plausible reading of the Charter as an organic document,[96] but proponents of a legal right of humanitarian intervention have refrained from making this argument, and for very good reasons that are related to the moral reality of humanitarian intervention.

The main problem with this approach is that it would undermine another important purpose of the UN Charter — the maintenance of international peace and security[97] — by permitting the use of force in response to violations of "everyday" human rights ranging from freedom of expression and the right to marriage, to the right to form trade unions and the right to scientific research and creative activity.[98] While these are important rights, creating a legal avenue for the use of force as a means to ensure the enjoyment of such rights fails to consider fully the moral content of the humanitarian intervention debate. Grounding humanitarian intervention in this legal framework can be understood as principled in the sense that there exist clear, non-arbitrary rules that appeal to precise human rights standards. Nevertheless, this body of law operates devoid of the moral consideration that permitting war as a matter of law in response to all human rights violations will itself undermine human rights. In other words, using this law to ground humanitarian intervention is to ignore the moral requirement that a law of humanitarian intervention must maintain some limitations, such that the use of force itself does not eclipse the human rights that it is said to be protecting. Using the two Covenants en bloc as the human rights standard for the use of force is to fail in this requirement unless the Covenants can be shown to prioritize certain human rights violations as fundamentally worse or more egregious than others.[99]

It is possible to interpret the ICCPR as doing just this. While there is no clear standard for how human rights ought to be prioritized legally,[100] Article 4(2) of the ICCPR provides a list of human rights therein that are to be considered "non-derogable."[101] These non-derogable rights are the right to life, freedom from torture, freedom from slavery and servitude, freedom from imprisonment for failure to fulfill a contract, freedom from ex post facto laws, equality before the law, and freedom of thought, conscience, and religion.[102] For the purposes of Article 4, these rights are to be specifically safeguarded and intended to retain their full strength and validity, in particular during times of public emergency.[103] However, reference to the travaux préparatoires of the ICCPR reveals no intent on the part of the drafters to suggest that these non-derogable rights are deserving of any differential enforcement mechanism or punitive measure in response to their violation, much less are subject to the use of force.[104] These rights may simply not be suspended under any circumstances.

Using the UN Charter in tandem with the human rights provisions in the two Covenants and the non-derogation clause in the ICCPR comes very close to providing a sufficiently principled legal basis for humanitarian intervention that considers the moral content of humanitarian intervention. However, this legal avenue must be regarded as tentative because the language in this clause pertains to categorically prohibiting the suspension of these rights, and does not suggest that they are deserving of any special punitive or preventative activity, which is the case regarding the Genocide Convention. Such evidence in the ICCPR is also — as a technical legal matter — insufficient to make a substantive leap from the idea of non-derogation, to enforcement, or prevention by military action. Furthermore, a single paragraph in one human rights treaty is likely not sufficient evidence of an accepted system by which "privileged" rights can be acknowledged and their content determined, particularly since membership to this treaty is not yet universal. It would also be prudent to question the substance of the non-derogable rights in Article 4 as standards for humanitarian intervention. It is not clear by any stretch of the imagination that each of the rights enumerated in Article 4(2) of the ICCPR, when violated en masse, are equally subject to the waging of war as a means of enforcement. Pursuant to the moral concern of proportionality that aims to minimize human suffering, which any potential law that governs humanitarian intervention must take into account, we must seriously consider whether, for example, freedom of expression is morally on par with the right to life. In other words, the moral reality of humanitarian intervention is not fully addressed even if it is reserved for violations of these non-derogable rights only.

The conventional approach to customary rule formation is that the behavior at issue must form a persistent pattern of consistent state activity.[107] The emergence of a customary rule from state practice can thus potentially change existing treaty law, which has in fact happened numerous times. Most notably, the concepts of the 12-mile territorial sea and the 200-mile economic zone both arose as a form of custom that effectively modified the Law of the Sea Convention.[108] The question, then, is whether there exists sufficient state practice of humanitarian intervention to constitute a modification of the Charter's rules on the use of force in the form of an exception for humanitarian intervention.

Initial efforts to create new customary law are a risky venture, especially when the behavior in question consists of the non-self-defensive use of force. Furthermore, these initial efforts are necessarily illegal at the time that they occur, which in the case of humanitarian intervention is to violate the prohibition on the use of force — a norm that has arguably achieved jus cogens status as a peremptory norm of international law.[109] As Allen Buchanan has argued, "[t]he first acts a state performs hoping to initiate the process of creating the new norm will be illegal [because] they will violate the existing norms concerning the scope of sovereignty."[110] Thus, state behavior cannot modify existing rules unless the existing rules are broken.[111] As a methodological matter then, much of the state practice of humanitarian intervention that has potentially contributed to the formation of a new permissive customary rule may not be considered a part of accumulated state practice of unilateral humanitarian intervention because it was authorized by the Security Council, and was thus perfectly legal under Charter law. Such instances include humanitarian interventions in Northern Iraq (1991), the former Yugoslavia (1992-95), Somalia (1992), Haiti (1994), Sierra Leone (1997), and East Timor (1999). This is largely why numerous authors have pointed to Kosovo as state practice supportive of a new customary rule — because it was widely considered illegal and is therefore suggestive of an emerging rule permitting military force absent Security Council authorization.[112]

Before addressing Kosovo, it is important to review the various contemporary incidents commonly suggested as humanitarian interventions that have potentially contributed to a customary rule. Simon Chesterman has identified 11 instances deserving of consideration for this matter: Belgium in the Congo (1960), Belgium and the US in the Congo (1964), the US in the Dominican Republic (1965), India in East Pakistan (1971), Israel in Uganda (1976), Belgium and France in Zaire (1978), Tanzania in Uganda (1978), Vietnam in Cambodia (1978), France in the Central African Republic (1979), the US in Grenada (1983), and the US in Panama (1989).[113] Of these interventions, most observers agree that the humanitarian elements in the US's interventions in the Dominican Republic, Grenada, and Panama are highly questionable. The intervention in Grenada was largely conducted under the auspices of an evacuation of US and other nationals,[114] the intervention in Grenada was explicitly cited by US officials as not being justified under a right of humanitarian intervention,[115] and the intervention in Panama was undertaken, in the words of President Bush, "to combat drug trafficking and to protect the integrity of the Panama Canal Treaty."[116] The same goal of rescuing nationals is also commonly associated with all three interventions in the Congo/Zaire.[117] In fact, the only remaining interventions that are not widely contested as examples of the protection of nationals abroad were those in East Pakistan, Uganda, and Cambodia,[118] which are held by many to be the only contemporary instances of genuine humanitarian intervention before 1990.[119]

Even in these three cases it is uncertain whether it can be accurately contended that they constituted genuine humanitarian interventions. If one takes as a requirement that the intervening parties must overtly invoke humanitarian concerns as justification for their action,[120] the intervention in East Pakistan might qualify, while those in Uganda and Cambodia clearly do not qualify as humanitarian interventions. A persuasive case can be made that each of these interventions achieved a positive humanitarian outcome.[121] However, only in India's intervention in East Pakistan were humanitarian justifications invoked, and were so in tandem with self-defense justifications.[122] In neither Tanzania's nor Vietnam's interventions were humanitarian considerations invoked as the justification for the use of force.[123] Thus, to say that these interventions constitute state practice supportive of a customary rule permitting humanitarian intervention depends on how one defines the concept. As the ICISS defines humanitarian intervention, and as it is defined here, only India's intervention could potentially contribute to a customary rule that would permit humanitarian intervention.

The most recent instance of the illegal use of force for humanitarian purposes was, of course, NATO's intervention in Kosovo. Kosovo is widely touted as an almost perfect example of humanitarian intervention, where the intervening actor(s) had few if any intentions beyond rescuing innocent civilians from a brutal dictator.[124] Even UN Secretary-General Kofi Annan believed that this intervention was defensible on moral grounds and was a supporter of NATO's effort.[125] Importantly, the action was justified almost exclusively on humanitarian grounds, as evidenced by US President Clinton's statement that "[w]e act to protect thousands of innocent people in Kosovo from a mounting military offensive [and] to prevent a wider war . . .."[126] However, it is widely acknowledged that as a legal matter, NATO's action was a violation of the UN Charter,[127] though arguments for its legality have been put forth based on customary law and even innovative readings of relevant Security Councils resolutions.[128] What is at issue here, however, is the extent to which the Kosovo intervention — insofar as it was illegal under the UN Charter — contributes to the emergence of a customary rule permitting humanitarian intervention absent Security Council approval. Many of those legal experts who recognize Kosovo's illegality under existing law also argue that it is an initial instance of state practice that will eventually make humanitarian intervention lawful.[129] However, many of the details of Kosovo's intervention make even this conclusion uncertain.

The main problem for the Kosovo intervention is that the intervening agents did not demonstrate a sense of opinio juris. In fact, statements by US officials suggest a desire to avoid setting a legal precedent at all. Secretary of State Madeline Albright stressed in a press conference shortly after the campaign that "it is important not to overdraw the lessons that come out of it."[130] In other words, the action in Kosovo was a response to a unique situation in the Balkans and is not to be applied elsewhere. Probably even more mindful of precedent, US government lawyers have justified Kosovo using "fact-based factors," so as to preclude the emergence of any universal rule that could be used by other governments to justify similar military interventions.[131] For his part, British Prime Minister Tony Blair also repeatedly emphasized the exceptional nature of the intervention.[132] Furthermore, according to the ruling in the Nicaragua case, activity aimed at challenging an existing rule of law (therefore initiating the creation of new law) must be predicated upon an alternative rule of law.[133] Throughout the campaign, however, the NATO states never argued that their humanitarian intervention was legal on a basis of law that existed apart from the Charter.[134] It was only in the recent suits against many of the intervening European NATO states filed by Yugoslavia in the International Court of Justice that the respondents began to provide legal justifications; and even then, only Belgium has used humanitarian intervention as a possible legal defense.[135]

Even if it is conceded that Kosovo does contribute to an emerging customary rule, we are faced with the reality that there have been at most, four instances of illegal humanitarian intervention contributing to such a rule, and in all likelihood, only two (East Pakistan and Kosovo). Whether or not this is sufficient state practice is thus a matter for lawyers to further debate. Assuming that these two or four instances of humanitarian intervention do effectively create a permissive rule for humanitarian intervention, one must still judge the desirability of having such a permissive rule in light of the need for a sufficiently principled legal standard. Drawing from these instances of purported humanitarian intervention, one can make a few observations regarding the content of this hypothetical customary rule.

With respect to whether a customary rule permitting humanitarian intervention is consistent with other international rules, we have a different framework of analysis than with UN Charter law. Pursuant to Fuller's reasoning, law governing a certain action (humanitarian intervention) must not be contradictory[136] — a particularly difficult criterion to apply to non-codified customary norms. However, since customary law is created by essentially breaking the law — therefore creating what is in essence a narrow exception to the general rule — customary law is, by definition, not contradictory to the general rule from which it departs. In other words, the strong non-intervention/non-use of force presumption at the core of the Charter is affirmed, but a narrow exception to this rule is also affirmed by state practice that occurs under certain circumstances that most states find persuasive.[137] So the question of the consistency of a customary exception with Charter rules is largely irrelevant. What is relevant for Fuller's requirement of consistency is whether there exists other customary law that is contradictory to that which permits humanitarian intervention. However, having "contradictory customary law" is a misnomer, since what we really have is a preponderance of evidence either in favor or against a customary law exception for humanitarian intervention. The fact that when human rights violations on the scale of what occurred in the Balkans and in East Pakistan are hardly ever met with force, accompanied by the numerous General Assembly resolutions that explicitly condemn intervention,[138] is state practice and opinio juris that stands against permitting intervention as a matter of law. However, if Kosovo were allowed to count toward the formation of customary law, since it took place subsequent to much of this activity and with widespread accptance by the international community,[139] it might be indicative that customary practice is quite possibly taking a step in the direction toward permitting humanitarian intervention.[140] Still, the absence of opinio juris in the case of Kosovo makes it a poor candidate for contribution to customary international law.

Assuming that at least the interventions in Kosovo and East Pakistan could contribute to a customary rule, one can see that the conditions for humanitarian intervention would be addressed as a matter of law by the empirical conditions that were present during these interventions. Indeed, the moral reality of humanitarian intervention would be addressed by customary law in that the human rights conditions under which the interventions took place would be those that were intended to be halted or averted. In this sense, a customary law of humanitarian intervention would explicitly deal with the types and extent of human rights violations that must be present before the use of force is permissible. The existence of a customary rule would by default suggest that states agree that the human rights violations at issue in a given circumstance are those that may be opposed with military force as a matter of law. In East Pakistan, there was indiscriminate killing of Bengali civilians, attempted extermination of Hindus, arbitrary arrest and torture, and widespread looting and rape perpetrated by the Pakistani Army.[141] Similar atrocities took place in Kosovo, including rape, torture, and indiscriminate killing of Albanian civilians at the hands of Serbian paramilitary and the Yugoslav National Army.[142] Incorporating the interventions in Uganda and Cambodia we find documented evidence of comparable atrocities.[143] The question is whether these conditions are similar enough to say that the state practice of humanitarian intervention is consistent; and the answer is most likely affirmative.

If it is agreed that these interventions can be employed as evidence of a customary rule for humanitarian intervention, then the resultant law is reasonably clear and consistent about the types and severity of human rights violations that are sufficient to justify the use of force. However, as argued above, it is highly unlikely that interventions in Uganda and Cambodia constitute genuine humanitarian interventions, while NATO lacked the opinio juris requirement in Kosovo. Thus, it is hard to argue for the existence of a persistent pattern of state practice when only one or two instances of humanitarian intervention can be counted as evidence of customary international law. While a potential customary law basis for humanitarian intervention could possibly be a sufficiently principled body of law that considers the moral reality of humanitarian intervention, based on the accepted methodology for determining customary international law, it is unlikely that this body of law currently exists.