International Law Before and During War Part II

International Law Before and During War Part II

5: Humanitarian intervention

Humanitarian intervention is available when one or more states intervene militarily in another state to protect the basic human rights of the people there. World history is full of examples of massive abuses by a state’s leaders against its own citizens. Other countries have often had support in world opinion when they have intervened in such cases.

The best-known example of recent humanitarian intervention is NATO’s operation in Kosovo (then part of Serbia) in the spring of 1999. Since the Security Council was paralyzed due to disagreement, NATO decided to launch an armed operation with massive attacks on Serbia to halt extensively. human rights violations against the people of Kosovo. The decision and implementation of the action is hotly debated . Nevertheless, there has been broad agreement that even though it could be defended on both an ethical and political basis, it was contrary to international law . Later, questions have arisen as to whether countries can intervene Syria (HHD 2013: 6) and Iraq to protect the civilian population from acts of war when the Security Council fails to agree on effective measures.

It can admittedly be argued that a right to humanitarian intervention should be accepted because international human rights are a fundamental part of the UN Charter. It is also emphasized that these rights have gained far greater weight in the post-war period . States should therefore not be able to refer to the ban on the use of force if they commit extensive human rights violations. It can further be argued that states that commit such abuses have disrupted the basis for the population’s duty of loyalty. Consequently, victims must be able to seek protection from other states.

However, the UN Charter’s ban on the use of coercive force is clear enough. The states are concerned about the consequences if other states, at their own discretion, should have the right to a military invasion. This can open up for abuse, especially on the part of the great powers. There is also concern that Western states will impose on other parts of the world their perception of human rights, at the expense of the states’ right to self-determination. It is therefore widely believed that international law only allows humanitarian intervention by individual states after approval by the Security Council.


It may seem like a contradiction to talk about the international law of war . The purpose of international law is, as mentioned, to avert war. Is it not then a declaration of bankruptcy to give rules about the situation that is primarily sought to be avoided? Is this not proof that international law accepts its own inadequacy?

War is undoubtedly proof of the inadequacy of international law . Yet – even in war – it is a matter of total lawlessness. There are a large number of rules of international law that are precisely aimed at regulating the war situation .

The basic idea behind the international law of war is not to ban war, but to prevent unnecessary suffering in war . A large part of the rules is particularly aimed at protecting those who do not themselves actively participate in the war . They may be civilians, or be excluded from the dispute, e.g. because they have become ill or injured, or have been taken prisoner. No military advantage is gained by torturing or mistreating prisoners of war, or by refusing the necessary medical care to captured enemy soldiers. Often the rules also go a step further, and set the benefits that can be gained militarily by using a certain instrument against the harmful effects it can cause. The ban on the use of gas and chemical weapons is a result of this.

For the international law of war, it is central to find the balance between humanitarian considerations and what we can call the consideration of military necessity. It is a tragic but undeniable fact that the war is inherently inhuman and brutal. The main purpose of combat operations is to put the enemy in a position to resist. The international law of war is an attempt – through a set of legal rules – to avoid the most extreme effects of suffering that a total and ruthless warfare can cause.

At the same time, we see controversy over the scope of these rules. Should prisoners at the US military base Guantanamo Bay (located in Cuba) be considered prisoners of war or criminals (terrorists)? In recent years, according to, the enforcement of the international law of war has been made more efficient by allowing war criminals to be brought to justice in international criminal courts, in particular the International Criminal Court in The Hague. But the United States and some other major powers have so far not joined this court, which could make it difficult to prosecute nationals of those states.


The ban on the use of military force under international law is currently being challenged. This is partly due to the end of the terrorist balance between east and west. In part, it is a consequence of new global threats and needs in the world community, such as the desire to prevent massive human rights violations, international terrorism and access to weapons of mass destruction. Finally, there is a perception that the Security Council is unable to fulfill its task.

It is difficult to set clear criteria for the use of military force in a changing world. However, the ban on the use of military force and the Security Council’s responsibility to allow the use of force was one of the major international breakthroughs of the 20th century. It is important not to let go of these basic principles of international law. This does not prevent the interpretation of the rules from having to be adapted to new international needs.

From the signing of the Briand-Kellogg Agreement in 1928