CYIL 2012

JOSEF MRÁZEK CYIL 3 ȍ2012Ȏ by the UNGA. It is worth mentioning that many states, including France and the UK, said at that time that violations of human rights could not justify the use of force. In 1984, for example, the UK Foreign and Commonwealth Office expressed doubts as to the existence of the controversial doctrine of humanitarian intervention as a justification for the use of force by states. From August 1992 the UK moved gradually towards an expression of the doctrine of humanitarian intervention as a justification for the action in Iraq. The Foreign and Commonwealth Office said that international law develops to meet new situations. 33 Humanitarian intervention without express authorisation was undertaken by the USA, by the UK and France in 2001 to protect the Kurdish population and Shiites in Iraq after the Kuwait conflict. The UNSC resolution called on Iraq to end the repression of civilian population and to allow access to humanitarian organisations and recalled Art. 2 (7) of the UN Charter, prohibiting intervention in matters within domestic jurisdiction. Some members of the UNSC voted even against this resolution or abstained. The interveners in this case did not mention humanitarian intervention as a reason and justification for their armed action. Ch. Gray mentioned that this might be seen as an indication that “there was not well established doctrine of humanitarian intervention at that time” and the interveners did not seem to feel the need to put forward “any legal justification”. Despite the lack of authorisation by the UNSC, this military action was not condemned by the UNSC or by the UNGA. Without authorisation of the UNSC those intervening countries proclaimed no-fly zones over north and south Iraq to protect the Kurds and Shiites, stating that they were acting in support of UNSC res. 688. This reasoning was an “apparent attempt to bring their action within an ‘implied authorization’ by Security Resolution in the absence of any express authorization” and as “a pattern that was to be followed in the future”. One of the reasons given for the US intervention in Panama in December 1989 was “restoration of democracy”. In the UK Policy Guidelines on Humanitarian Crisis in 2001 it was observed that the SC should authorise action to halt or avert massive violations of humanitarian law and that in response to such crises, force may be used in the face of overwhelming and immediate humanitarian catastrophe when the government cannot or will not avert it, when all non-violent methods have been exhausted, the scale of real or potential suffering justifies the risks of military action, if there is a clear objective to avert or end the catastrophe, and if there is clear evidence that such action would be welcomed by the people at risk and that the consequences for suffering of non action would be worse than those of intervention. Further, it was advised that the use of force should be collective, limited in scope and proportionate to achieving the humanitarian objective and consistent with international humanitarian law. 34 The proponents of the “humanitarian intervention” exception to the general rule of non-intervention seek to resolve this conflict in favour of military action. J. Donnelly 33 Gray Ch., see note 25, pp. 32-35. 34 BYIL 2001; (72) 1, P. 696, quoted by Shaw M. N., International Law, Oxford, 2004, p. 1047.

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