Abstract
This article is based on a presentation given at the British Institute of International and Comparative Law in London on 25 October 2012 on the occasion of its Annual Conference and its theme for this year of “International Law, the Rule of Law and Constitutional Change.” I must begin by saying that the topic of my presentation — ‘Massive Violations of Human Rights and the Use of Force’ in the context of the Arab Spring — was not one of personal design reached after moments of prolonged deliberation — but, rather, in a very good old-fashioned way, it was allocated to me by the conveners of the annual conference for the British Institute of International and Comparative Law. I volunteer this background fact only because I think it would be quite useful to commence by explaini ng some of the challenges associated with the formulation of ‘massive violations of human rights’ of the Arab Spring and then relating that matter to the ‘use of force’ — itself quite an instructive term because it does tend to delimit our thinking about how States and international organisations strategise toward chosen ends, when, as we know full well, threats of force have become a rather significant part of modern international relations and are deserving of the same critical scrutiny afforded to uses of force under the regimen of the Charter of the United Nations...
Highlights
I must begin by saying that the topic of my presentation — ‘Massive Violations of Human Rights and the Use of Force’ in the context of the Arab Spring — was not one of personal design reached after moments of prolonged deliberation — but, rather, in a very good old-fashioned way, it was allocated to me by the conveners of the annual conference for the British Institute of International and Comparative Law
I volunteer this background fact only because I think it would be quite useful to commence by explaining some of the challenges associated with the formulation of ‘massive violations of human rights’ of the Arab Spring and relating that matter to the ‘use of force’ — itself quite an instructive term because it does tend to delimit our thinking about how States and international organisations strategise toward chosen ends, when, as we know full well, threats of force have become a rather significant part of modern international relations and are deserving of the same critical scrutiny afforded to uses of force under the regimen of the Charter of the United Nations.[1]
I am driven to make these introductory remarks because this invitation could have asked me to speak on the topic of ‘massive violations of international humanitarian law’ — a topic on which I am perhaps more qualified to share some thoughts — and which must surely have gained in thematic relevance since the International Committee of the Red Cross determined, in July 2012, that the hostilities in Syria had reached the dimensions of a non-international armed conflict — or ‘civil war’, as it has been widely reported.[2]
Summary
Oppenheim was writing at a time when there was no general prohibition of war in place, quite apart from one concerning the threat or the use of force — of the order that we find in Article 2 (4) of the Charter of the United Nations.[39] That there is such a prohibition is, not in question; what is in question is whether States have sought, in the intervening decades and via their respective practices and accompanying opinio juris sive necessitatis, to qualify the scope of the prohibition of force and its kindred prohibition of intervention.[40] We can address this matter by asking what (if any) empirical grounding exists for upholding a right of humanitarian intervention for States in international law and, approached from this angle, the intervention that occurred in Libya in March 2011 is not all that helpful — for intervention there occurred pursuant to an authorisation from the Security Council under Chapter VII of the Charter of the United Nations.[41] It did not occur pursuant to any right of humanitarian intervention that States may have under international law — in other words, to any entitlement that exists independent of the arrangements set forth in the Charter: by virtue of the fourth operative paragraph of Resolution 1973 of March 2011, the Council authorised those member States “acting nationally or through regional organisations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures ...
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