Легалност унилатералне хуманитарне интервенције
The Legality of Unilateral Humanitarian Intervention

Author(s): Nebojša Raičević
Subject(s): International Law, Human Rights and Humanitarian Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Humanitarian intervention;Use of force;Human rights;UN Charter;International customary law;
Summary/Abstract: The issue of legality of unilateral humanitarian intervention in con¬temporary international law gives rise to significant difference in opinions among states and scholars. It is primarily due to the fact that the international treaty law contains no rule which explicitly allows or prohibits this kind of intervention. In this legal situation, in order to explore the legality of unilateral humanitarian intervention, we need to analyze the provisions of relevant international treaties and international customary law. The most important international treaty for assessing the legality of unilateral humanitarian intervention is the UN Charter. Article 2(4) of the UN Charter prohibits the threat and use of force, except in case of self-defense or upon the Security Council authorization. Given that unilateral humanitarian intervention does not fall into these exceptions, it constitutes a violation of Article 2(4) of the UN Charter. The fact that the Security Council did not act in cases involving mass or serious human rights violations does not allow states and international organizations to take unilateral military action and breach the aforementioned prohibition of the use of force. Beside the UN Charter, the IHL and human rights treaties are also important for assessing the legality of unilateral humanitarian intervention. Although these treaties envisage many forms of international control over the observance and implementation of human rights, none of treaties allows for the use of armed force in case of human rights’ violation, even in situations involving large-scale violations of human rights. For the purpose of assessing the status of unilateral humanitarian intervention in international customary law, it is necessary to analyze relevant practice in this area and opinio iuris sive necessitatis. After analyzing these two elements, we may conclude that the right to unilateral humanitarian intervention does not exist in the contemporary customary law. Even if such a right had existed before World War II, it was abolished by the UN Charter peremptory norm on the prohibition of the use of force. It is indisputable that, in the aftermath of World War II, the international community did not establish a new customary rule which would provide for undertaking unilateral humanitarian intervention by amending the pro¬visions of the UN Charter.

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