CYIL 2012

JOSEF MRÁZEK CYIL 3 ȍ2012Ȏ In the nineteenth century humanitarian intervention for various reasons was allowed by classical international law. Some authors argue that an armed intervention to protect the lives of civilians, to form pro-democratic regimes or eradicate the terrorists, is permissible in contemporary international law. At present it is necessary to take into consideration mainly Art. 2 (4), Art. 39, and Art. 51 of the Charter. There is so far no general law of intervention in support of an opposition within another state. Contemporary international law, due to international protection of human rights, no longer treats internal armed conflicts as internal matters only. “Classical” international law developed the categories of rebellion, insurgency and belligerency. 40 Nowadays these categories, especially in connection with fighting terrorism and international protection of human rights, are losing their clarity. It seems that also the concept of neutrality is losing its original significance. International “assistance” upon request of an official government has been accepted by other states as legal. Nowadays any support for a totalitarian regime may be rather controversial and a subject of political and economic rivalry. The legitimacy of intervention is often denied. One party to the conflict may seek foreign assistance to the “lawful” governmental authority and the second one may ask for aid which is aimed at overthrowing the government. A number of states are willing to assist insurgents or rebels for political reasons. The Declaration on Principles of International law of 1970 stipulated that “no state shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state”. In some cases military interventions were realized without express authorisation from the UNSC. In res. 688/1991 the UNSC condemned the widespread repression of Kurds and the Shia population in Iraq. On the basis of this resolution the United States and France proclaimed no-fly zones in the north and south of Iraq. It was argued that these zones were justified under international law in response to “overwhelming humanitarian necessity”. The NATO bombing of former Yugoslavia occurred without UN authorisation. Many states expressed their disagreement about the legality of the NATO forces in Kosovo in 1999. Some authors claimed that this action was a flagrant breach of the UN Charter, others maintained that a new right to humanitarian intervention was emerging. 41 The United Kingdom through its Secretary of State for Defence stated that “in international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken.” 42 The Security Council by twelve votes to three rejected a resolution condemning NATO’s use of force. In April 1999 former Yugoslavia made an application to the ICJ against ten of the

40 Shaw M. N., International Law , Cambridge 2004, p. 1040. 41 Ch. Gray, see note 25, p. 28.

42 British Foreign Office wrote that “a limited use of force was justifiable in support of the purposes laid down by the Security Council without the Council’s express authorization when that was the only means to avert an immediate and overwhelming humanitarian catastrophe”.

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