II. Approach and Restrictions

The large majority of writers on the issue of humanitarian intervention have nowadays accepted the idea that in the pre-Charter period there was no customary norm on humanitarian intervention, in the absence of consistent state practice and opinio iuris. Since both humanitarian intervention and humanitarian assistance necessarily have to operate within the context of the UN Charter, this will be the legal framework from which to commence the investigation. This is important, as it will be shown that this determination has a fundamental impact on the conceptual and legal framework.

It seems, secondly, rather futile and unproductive to try to define humanitarian intervention in exact legal terms in the light of the abundant but rather inconsistent literature, the broad range of views on this topic and the absence of consistent, uniform and transparent state practice. is

Hence the purpose of this article is not to search for an "authentic" definition or to attempt to develop criteria or conditions necessary to determine the "legality" of a humanitarian intervention. It is, therefore, not the intention to determine the legal relation between hitherto "sacrosanct" principles of international law like the prohibition on the use of force, territorial integrity, sovereignty etc. and the nowadays generally accepted opinion that gross and systematic violations of human rights are no longer exclusively within the domestic jurisdiction of a State (according to some commentators the reason for speaking of the emergence of a right to humanitarian intervention). The intention is to provide a conceptual framework.

A third fundamental restriction is to acknowledge that humanitarian intervention by definition implies the use of armed force and the absence of valid consent by the lawful government for the humanitarian actions undertaken by a third State or groups of States. These legal requirements, or constitutive elements, are cumulative. If one of those elements is missing, the operation may, however, still qualify as one providing humanitarian "assistance" (see infra), but not be characterized as humanitarian intervention.

This means that, legally, at least five situations are not covered by the doctrine of humanitarian intervention, even if humanitarian concerns are present within the context of such operations:

a) actions Involving the Use of Armed Force on the Invitation of the Lawful Government (Including Those Based on Agreements);

b) actions which occur within the framework of a traditional peacekeeping operation of the United Nations;

c) military operations which are undertaken by a State in order to rescue its own nationals abroad from an imminent danger to their lives and/or serious injury;

d) coercive actions not involving the use of armed force; and

e) operations involving the use of armed force undertaken in the absence of the consent of the lawful government, but without having predominant . humanitarian motives.

Actions qualifying under category a. do not, in principle and from a theoretical point of view, violate the territorial integrity and political independence or sovereign equality of States, as the consent of the government has been obtained. It should be observed that there are situations in which it will be difficult to ascertain what the lawful government is or whether the consent has been validly given, but this aspect is, as such, unrelated to the concept of humanitarian intervention.

So far, the peace-keeping operations of the United Nations have always been undertaken with the consent of the host State and on the basis of an agreement with the United Nations. The tendency within the UN Secretariat to introduce notions like "UN cease-fire and/or enforcement units" not only go beyond traditional peace-keeping, but have also not yet been sufficiently developed in UN and state practice and would, furthermore, be based on a previous cease-fire agreement reached by the respective parties.

Military rescue operations to save the lives of nationals abroad, do not fall under the concept of humanitarian intervention as those operations are based on the right of self-defence as formulated under Article 51 of the UN Charter. Neither the question of the scope and legality of such rescue actions under the UN Charter, nor the situation in which military operations are undertaken which involve both the rescue of own nationals and measures to protect citizens of the affected country against imminent danger to their lives, will therefore be touched upon.

Actions qualifying under the fourth category which involve coercive measures short of armed force, like economic and political measures, are unrelated to humanitarian intervention, as this aspect is related to the issue of the prohibition on the use of force under the UN Charter, its scope and contents.

Which actions qualify under the fifth category is, as has been proven in state practice and doctrine, always very difficult to ascertain, since it depends upon the (subjective) interpretation of "political" facts and diplomatic declarations and the prevailing political relation between the actors involved. But, for our purpose, the relevant point at stake is that here we are confronted with military operations in the context of, for example, assisting a people with the realization of their right to self-determination, actions to counteract aggression or to assist the government in an internal war (sometimes on the explicit invitation of the lawful government and, hence, possibly also falling under category a., or military operations undertaken without the consent of the lawful government but directed towards maintaining or strengthening economic and/or political interests. The nature of this type of military operations and the legal questions involved, however, are of a fundamentally different kind than the questions which must be answered in relation to humanitarian intervention.

Fourthly, sometimes the term "humanitarian intervention" is used to denote situations in which, actually, humanitarian assistance to a population is urgent because large-scale natural disasters have taken place, or a similar emergency situation exists, which cause great human suffering and result in the loss of human life, the destruction of property and the mass displacement of populations.

This issue has for the first time been comprehensively dealt with at a global level in the Third (Social, Humanitarian and Cultural) Committee of the General Assembly in 1988 and has resulted in GA Res. 43/131 of 8 December 1988, called "Humanitarian assistance to victims of natural disasters and similar emergency situations". After having recognized the responsibilities of the international community towards the victims of such disasters and emergency situations, the General Assembly went on to stress that the access to the civilian population and the supply of food, medicines or health care and other forms of rapid relief, may avoid an increase in the numbers of victims. Access to victims is open to both governmental and non-governmental organizations.

However, the General Assembly made it absolutely clear that in such situations the consent of the State concerned is a prerequisite for any relief operation, irrespective of whether those actions are undertaken at a governmental or non-governmental level:

"Reaffirms also the sovereignty of affected States and their primary role in the initiation, organization, co-ordination and implementation of humanitarian assistance within their respective territories;[...]".

Such relief operations, once commenced, must be undertaken in a neutral and impartial way.

The requirement of the consent of the State was furthermore confirmed in an Annex to GA Res. 46/182 of 19 December 1991 on the "Strengthening of the co-ordination of humanitarian emergency assistance of the United Nations".

"3. The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country".

This type of humanitarian assistance, or humanitarian relief operations, for which the politico-legal framework has been determined by the relevant resolutions of the General Assembly and appropriate programmes, agencies and departments of the United Nations, however, falls outside the scope of this contribution, as it bears no relation whatsoever to the concept of humanitarian intervention as used in international law, nor does it involve the type of humanitarian assistance which is covered by our investigation. For neither is it dependent upon the consent of the affected country, nor is it in itself a response to gross and systematic violations of fundamental human rights in this affected country, nor does it involve the use of armed force, and neither is it applicable in a situation of armed conflict.

It may, therefore, be preferable to describe this type of operation in legal terms as a "humanitarian emergency relief operation", given its already rather well-defined and delimited legal framework, and to reserve the term "humanitarian assistance" for operations undertaken in situations as indicated in the Introduction (armed conflict situations).