The Dangers of Humanitarian Intervention and the Responsibility to Protect Doctrine, and a Partial Solution

Abstract

The Dangers of Humanitarian Intervention and the Responsibility to Protect Doctrine, and a Partial Solution Matthew Bellinger (bio) Introduction When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to "save succeeding generations from the scourge of war."1 When President Franklin D. Roosevelt first described his vision for a post-World War II international organization, he envisioned an organization that would promote and facilitate "international cooperation . . . to consider and deal with the problem of world relations."2 He also wanted a council that would "concern itself with peaceful settlement of international disputes."3 The UN Charter itself took the then-unprecedented step of outlawing war, stating that "all Members shall settle their international disputes by peaceful means," and that "all Members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state."4 However, the UN Charter does not address the important potential exception of humanitarian intervention. This lack of clarity has led to a robust debate that continues to this day—can a state legitimately use [End Page 371] force for humanitarian purposes? Today, many countries have embraced the "responsibility to protect" doctrine, which allows countries to intervene in a humanitarian crisis if five criteria are met.5 One is that of reasonable prospects which asks, is "there a reasonable chance of the military action being successful in meeting the threat in question, and are the consequences of action not likely to be worse than the consequences of inaction?"6 Unfortunately, this level of scrutiny needs to be revised; instead, it should be more rigorous to account for world leaders' consistent inability to estimate the effects of their intervention. Additionally, cultural disruption should be considered as one of the negative effects in this balancing test to address concerns about the use of humanitarian intervention as a pretext for colonialism. In this article, I intend to offer a potential solution to address these concerns. In Part I, I will examine the development of the doctrine of humanitarian intervention and its transformation into the Responsibility to Protect. In Part II, I will discuss two of the potential problems with the Responsibility to Protect doctrine. The first problem is countries using humanitarian excuses as a pretext to advance national aims. The second problem is countries not accurately assessing the consequences of intervention. In Part III, I will discuss my potential solution to address these problems–heightening the balance of consequences test. This will be used to determine whether humanitarian intervention should be attempted and requiring countries to consider the desires and culture of the country that is the object of the intervention before intervening. Part I: The Humanitarian Intervention Doctrine and the Responsibility to Protect The United Nations Charter seems to forbid intervention in the domestic affairs of other states. The Charter states that nothing in its contents "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state,"7 but the Genocide Convention of 1948 quickly created an agreed upon exception.8 The Convention states that "[a]ny Contracting Party may call upon the competent organs of the United Nations to take such action . . . as they consider appropriate for the prevention and [End Page 372] suppression of acts of genocide."9 However, none of the Charter nations acted on the Convention during the Cold War. Gareth Evans, in a piece in the Wisconsin Law Journal, argues that the large number of states joining the UN during the Cold War discouraged humanitarian intervention. States saw the norm of non-intervention as one of the few protections against more powerful international actors.10 Indeed, the general consensus in the twentieth century was that unilateral humanitarian intervention was illegal. The UN Charter doesn't exempt humanitarian intervention from the prohibition against the use of force, and the International Court of Justice ruled in Nicaragua v. United States that custom doesn't permit unilateral humanitarian intervention.11 This status quo changed with the end of the Cold War, as a new era of...