The ‘humanitarian intervention’ heresy and its perils

In a Guardian article on 25 May 2005 (unguardedly headed ‘We must not give up on intervention’), Professor Brian Brivati, Professor of Contemporary History at Kingston University, appealed to the UK and other countries to bind themselves by their own laws to intervene militarily in other countries to stop or prevent mass killing, wherever it might be happening or likely to happen. “It is time,” wrote the professor, —

that the logic of the promotion and protection of rights through domestic legal codes be extended to the victims of state-perpetrated mass murder. The answer to the question of when Britain should go to war is contained in the text of the genocide convention: it should go to war to stop mass killing. Therefore, the genocide convention should be incorporated into UK law.

And if the Security Council could not be persuaded to authorise the use of force in the particular circumstances of the time, or was prevented from doing so by a veto or threat of a veto by one or more of its permanent members? No problem, says the Professor:

In Rwanda, the French and other powers blocked the UN security council from intervening. Today, China and Russia are blocking a proper response in Darfur. In such circumstances this act would force states to intervene.

A somewhat truncated version of my reply to this article was published in the Guardian on 27 May. Here, for the record, is the full text as I submitted it:

Professor Brivati's appeal to the UK and others to incorporate the genocide convention in our domestic law so that it "would force states to intervene… to stop mass killing" wherever it occurs, or seems about to occur, anywhere in the world (We must not give up on intervention, May 25, p.24), performs a useful service by exposing the fallacies and dangers in the neo-cons' and New Labour's proposed doctrine of humanitarian intervention, invented mainly to provide a fig-leaf of legitimacy for the NATO attack on Yugoslavia over Kosovo. The professor implies that the doctrine could and should be used to override a Security Council veto, or the likelihood of one, but there is nothing in the UN Charter to permit this: the use of force without the Council's explicit authority is legal only in self-defence, which doesn't arise here.

Once we try to by-pass the UN, we're in the jungle: who decides what constitutes 'mass killing' in each specific case, or whether the use of force is the only way to prevent or stop it, and at what stage of a crisis, and which countries should launch the pre-emptive attack? Unless there is a single international body responsible for making these grave judgements and decisions, on which thousands of lives may depend, the interventionist doctrine will inevitably be exploited by strong countries to justify intervening in the internal affairs of the weak. The only body capable of performing this supervisory function is the Security Council, whose authority all UN member states agreed to accept by signing the Charter. Those who seek to circumvent it, however idealistic their motives, are helping to undermine the rule of law and the indispensable rules governing the use of force in international affairs on which we all ultimately depend for our security.

Brian Barder

6 Responses

  1. Phil says:

    Once we try to by-pass the UN, we’re in the jungle: who decides what constitutes ‘mass killing’ in each specific case, or whether the use of force is the only way to prevent or stop it, and at what stage of a crisis, and which countries should launch the pre-emptive attack?

    Hear, hear. The flexible approach to international law seem to be very much in vogue. I recently wrote a (rather long) dissenting opinion from Michael Walzer’s thoughts on international law and ‘just war’; you can find it here.

    It’s since been pointed out to me that the criterion of ‘last resort’, which Walzer spectacularly plays fast and loose with, is a relatively recent addition to the ‘just war’ literature. Thomas Aquinas wouldn’t have given me such an easy victory – but I suppose that’s not surprising.

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  3. One of the difficulties I have with Professor Brivati’s piece is his loose terminology. What does “humanitarian” mean? And, as you point out, “mass killing” lacks any legal precision.
    If you want to drive along the Security Council By-pass would it not be better to use the Genocide Convention as your A-Z? After all there are few definitional problems with genocide. Article 1 seems to impose a mandatory obligation on signatories to intervene.
    And any disputes over the meaning and scope of the Convention are dealt with in the ICJ not the Security Council.

  4. Can I throw this into the pot?
    It is a chunk from “BYPASSING THE SECURITY COUNCIL: AMBIGUOUS AUTHORIZATIONS TO USE FORCE, CEASE-FIRES AND THE IRAQI INSPECTION REGIME / By Jules Lobel and Michael Ratner American Journal of International Law January 1999.

    “But in the extreme case of an ongoing genocide for which the Security Council will not authorize force, perhaps the formal law ought to be violated to achieve the higher goal of saving thousands or millions of lives. In these circumstances, the acting state would have to weigh the risk of universal condemnation and sanctions. Thus, it would have to make a convincing case that the military action is not based on a mere pretext and will be effective and proportionate. Silence by the Security Council might then reflect a community consensus that the legal requirement for its authorization ought to give way to the moral imperative. Only claims of this magnitude might fit the extreme cases that would possibly justify using force in violation of international law. In dealing with those cases, it is preferable to recognize that on the rare occasions when a nation is solely motivated by humane considerations, it must violate the law to save humanity, than to use those cases to dilute the prohibition on the unilateral use of force as a whole. The observations of Thomas Franck and Nigel Rodley as to the desirability of creating exceptions to the prohibition on unilateral humanitarian intervention apply with equal force to interventions that rely on implied or ambiguous Security Council authorization: In exceptional circumstances . . . a large power may indeed go selflessly to the rescue of a foreign people facing oppression. But surely no general law is needed to cover such actions. . . . [I]n human experience it has proven wiser to outlaw absolutely conduct which, in practical experience, is almost invariably harmful, rather than to try to provide general exceptions for rare cases. Cannibalism, given its history and man’s propensities, is simply outlawed, while provision is made to mitigate the effect of this law on men adrift in a lifeboat. The hortatory, norm-building effect of a total ban is greater than that of a qualified prohibition, especially at that stage of its legal life when the norm is still struggling for general recognition. This is a question of balance. So long as the preponderant predictable applications of a proposed exception to the prohibition on unilateral force are socially undesirable—and the historical record so indicates—the exception should not be made”.*
    * Thomas M. Franck & Nigel S. Rodley, /After Bangladesh: The Law of Humanitarian Intervention by Military Force,/ 67 AJIL 275 (1973).

  5. Brian says:


    Thanks very much for these interesting and illuminating comments.

    You wrote:
    >>If you want to drive along the Security Council By-pass would it not be better to use the Genocide Convention as your A-Z? After all there are few definitional problems with genocide. Article 1 seems to impose a mandatory obligation on signatories to intervene.
    And any disputes over the meaning and scope of the Convention are dealt with in the ICJ not the Security Council.< < I bow to your legal expertise, which I lack, but I can’t see Article 1 of the Genocide Convention ( as imposing a mandatory obligation on convention signatories to ‘intervene‘ to prevent or stop genocide occurring in another country, especially when read with the rest of the convention. Article 1 requires signatories “to prevent and to punish� acts of genocide as clearly defined in the convention, but it goes on to spell out the action implied by this: to enact legislation to give effect to the convention, not to treat genocide as a political act for extradition purposes, to try persons charged with genocide in the country where the alleged offence has been committed or in an international tribunal, and so forth. The question of ‘intervention’ is dealt with very specifically in a UN context, which can’t possibly be read as permitting UN requirements to be by-passed:

    Article 8
    Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

    And even this is expressed permissively (“may call upon�), not as an obligation (“shall call upon�). So far from providing an alternative route for intervention by an individual state or states in the affairs of another state under the pretext of preventing or stopping genocide, without the constraints imposed by the UN Charter, as Professor Brivati’s Guardian article seemed to be saying (and even as implied in your comment above), it seems to me to do precisely the opposite: it makes it quite clear that any idea of using force in the context of preventing, stopping or punishing genocide must be pursued through the channels provided for in the UN Charter.

    Your quotation from the Lobel and Ratner article in your subsequent comment is splendidly relevant, making the point in magisterial language that while it’s just about possible to imagine a situation in which armed intervention to prevent some enormous genocidal crime without observing the prior requirements of the Charter could very exceptionally be justified, it would probably do more harm than good to seek to provide in international law for such an exceptional eventuality, since to do so would weaken the authority of the essential prohibition of the use of force in international affairs (except in self-defence) without Security Council authority, and would inevitably provide a loophole through which a state intent on using force against another country in its own interests under the pretext of preventing impending genocide would sooner or later contrive to squeeze. This clearly reinforces the importance of ensuring that the argument for intervention outside the UN rules, whether under the new proposed doctrine of ‘humanitarian intervention’ or under the genocide convention, of which Professor Brivati’s Guardian article is an example, should not go unchallenged.

    On exactly the same grounds, I am convinced that we should challenge and rebut all arguments which seek to provide a fig-leaf of legality and respectability for the NATO attack on Serbia over Kosovo in 1999, and the attack on Iraq by the US, UK, Australia, and others in 2003, both of which took place without the authority of the Security Council. In the case of Kosovo (see
    this was because NATO (in practice meaning the US, UK and France) was determined to use force against the Serbs, but refrained from seeking UN authority because it knew that Russia and China would veto any resolution authorising it, due to the manifestly unacceptable elements in the NATO ultimatum to the Serbs whose predictable and inevitable rejection by the Serbs was used to justify the NATO attack. In the case of Iraq, it was because the US and (especially) the UK had ‘desperately’ (Tony Blair’s word) sought to persuade a majority of members of the Security Council to back a resolution authorising the use of force, but had utterly failed to do so. In both cases the aggressors went ahead anyway, seeking to justify their action by reference to the ill-conceived doctrine of ‘humanitarian intervention’ which its proponents claim overrides the most basic provisions of the United Nations Charter. We shouldn’t have a bar of it.


  6. Brian says:


    Thank-you also for your comment, and especially for pointing us to your extremely stimulating and apposite piece about the concept of force as a ‘last resort’ in the context of the criteria for a ‘just war’. I have added my own 5 cents’-worth to this in the form of a comment on your post. I hope readers of the exchange here about the genocide convention and Professor Brivati’s article will also have a look at the equally interesting discussion on the Sharpener blog.


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