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Crimes against humanity and the development of international law.

American jurists in occupied Germany developed international law with the concept of crimes against humanity, then grappled with its meaning.

Top Image: Judges of the International Military Tribunal. United States Army Signal Corps photo courtesy of the Harry S. Truman Library & Museum, 2004-437.

One of the great legal innovations of the post-war world is the concept of crimes against humanity. Aimed at the protection of civilian populations during both peacetime and wartime, even from civilian populations’ own governments, it remains a major pillar of international law to this day. The revolutionary concept was developed on the eve of the Trial of the Major War Criminals at Nuremberg  (1945-1946), and then sharpened in subsequent US trials in occupied Germany between 1946 and 1949.

The world had been disturbed by mass crimes against civilians throughout the nineteenth and early twentieth century, ranging from atrocities during the Greek war of independence to pogroms against Jews in the Russian empire. The Hague Conventions of 1899 and 1907 were the first international agreements to define laws and customs of war on land and sea. But they limited themselves to outrages committed in wartime between states against one another’s soldiers, sailors, or civilians during and after combat operations. Deliberate abuses of a country’s own citizens were considered beyond the reach of international law. The Hague Conventions addressed those kinds of crimes only vaguely in their preambles, which noted that populations remained under protection of the “laws of humanity,” regarding incidents occurring outside the provisions of conventions themselves.

In May 1915 during World War I, the Entente powers of Great Britain, France, and Russia condemned the Ottoman Turkish government’s mass killing of its Armenian population in eastern Anatolia by referring to “new crimes … against humanity and civilization.” Delegates at the Paris Peace Conference in 1919 hoped to hold Turkish officials criminally responsible. But the US delegation, though equally appalled by Turkish actions, rejected the notion that prosecutions could occur without an existing statute. Though the Germans could be prosecuted for combat and occupation related war crimes under various articles of the Hague Conventions, the vague reference to laws of humanity were not enough to try Turkish offenders.

The unprecedented nature of Nazi Germany’s crimes against Jews and other civilian populations in Europe were clear to governments-in-exile, Allied diplomats, and neutral observers who received reports from German-occupied Europe throughout World War II. It was also certain that Nazi crimes against civilian populations were distinct from German military operations, that crimes on a large scale had begun before the war against Jews and others who were actually German citizens, and that these crimes were systematic in nature, carried out at the behest of the government and not by a few rogue military or police officers without official approval.

President Harry Truman selected Supreme Court Justice Robert Jackson Trial of the Major War Criminals at Nuremberg to represent the United States at the June-July 1945 London Conference, which created the machinery for the International Military Tribunal, the court that would try the major Nazi criminals at Nuremberg. Jackson had known Hersch Lauterpacht, a distinguished scholar of international law originally from the Lvov region of East Galicia who had immigrated to England in the 1920s and who was now on the British legal team. Lauterpacht still did not know the fate of his family in the Lvov region; as Jews they had all been murdered. In the wake of World War II, Lauterpacht and Jackson sought a new kind of legal instrument to address Nazi crimes.

Justice Robert Jackson at the Nuremberg Trial. The United States Holocaust Memorial Museum, courtesy of Harry S. Truman Library.

The London Charter of August 8, 1945 established the International Military Tribunal. Article 6 of the Charter contained the laws under which the Tribunal would try the major Nazi criminals ranging from government ministers to top military commanders. These were Crimes against Peace (i.e., launching a war of aggression), conventional war crimes as established by the Hague Conventions, and Crimes against Humanity, defined by article 6 c as follows:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The most important legal innovations included “any civilian population,” “before or during the war,” and “whether or not in violation of the domestic law of the country where perpetrated.” In theory, international law could hold Nazi leaders criminally liable for offenses against their own citizens in peacetime, irrespective of whether domestic law permitted their actions. The vague statements of the Hague Conventions concerning the “laws of humanity” now had teeth. After the Trial of the Major War Criminals concluded, Truman wrote Francis Biddle, the US judge at Nuremberg, that, “An undisputed gain coming out of Nuremberg is the formal recognition that there are crimes against humanity.”

Francis Biddle. The National WWII Museum, Gift of Dylan Utley, 2012.019.756.

Yet the new concept was not accepted as a whole. On the eve of the trial, the English and French texts of Article 6 c were harmonized with the Russian text, substituting a comma for the possibly mistaken semicolon between the phrases “during the war” and “or persecutions.” The comma tied the two parts of the law together so that a crime against humanity only occurred legally if it was committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal,” that is, in connection with aggressive war or conventional war crimes. This phrasing became known as the “war nexus.” It meant that pre-war Nazi actions against German civilians were not crimes against humanity by the language of the London Charter unless prosecutors could tie such acts to the primary crime investigated by the tribunal, Germany’s preparations for war.

The small adjustment in punctuation limited the reach of the new concept for those remaining uncomfortable with the primacy of international law over individual state sovereignty. It might have eased the minds of the Soviets, who had persecuted whole populations within the Soviet Union on political and ethnic grounds; the British and the French, who had committed violent acts within their empires (the French at Sétif in Algeria on V-E Day itself); and even the United States for its own racial discriminatory policies. As Jackson himself said, “we have some regrettable circumstances in our own country in which minorities are unfairly treated.” Historians argue today that the required war nexus existed in the case of Nazi Germany. Its pre-war persecution of political opponents and Jews was  aimed at preventing a stab-in-the-back during wartime, which the Nazis believed responsible for Germany’s defeat in 1918. But this was not fully understood at Nuremberg.

The International Military Tribunal’s judgment in October 1946 ruled that pre-war Nazi actions against German Jews, German political opponents, and others, “revolting and horrible as many of these crimes were,” were not crimes against humanity as defined in the Charter and were thus not criminal in the eyes of the court. On the other hand, the tribunal ruled that the Germans had committed numerous crimes against humanity during  the war. German war crimes against civilians being so extensive, ranging from the mass deportation of resistors to slave labor in concentration camps to mass starvation on the Eastern front to mass shooting in the USSR to mass gassing in Poland, the judgment did not parse between war crimes and crimes against humanity. It mixed them in a joint category, noting that “from the beginning of the war in 1939, War Crimes were committed on a vast scale, which were also Crimes against Humanity….”

It was up to subsequent tribunals to sharpen the concept of crimes against humanity. In December 1945, the four occupation powers in Germany issued Control Council Law No. 10. The law governed the judicial punishment of lower-level Nazi perpetrators. Crimes against humanity were included in the charter, but redefined. They defined additional specific crimes such as torture and rape. Crimes against humanity also stood on their own, separated from crimes against peace, as the war nexus was absent from the text. Article II c of Control Council Law No. 10 thus defined crimes against humanity as follows:

Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

American Military Tribunals held 12 “subsequent” trials in Nuremberg between 1946 and 1949. Most of these American tribunals focused on a distinct professional segment of German society to demonstrate how that segment had diverged from western liberal traditions. The cases included a “Medical Case” against German physicians; a “Justice Case” against German jurists including judges and prosecutors; a “High Command Case” against senior German military officers; a “Ministries Case” against senior government officials; three separate cases against leading industrialists, and so on.

Most of the 183 defendants in the subsequent Nuremberg trials were indicted for war crimes and crimes against humanity, and many were convicted of both. Taken together, the tribunals managed to come to some consensus on what exact factors defined crimes against humanity. For instance, the law’s reference to civilian populations meant for the tribunals that crimes against humanity were not isolated incidents, but mass crimes, systematic in nature, committed as a measure of state. They were also committed not in occupied territory such as Poland or the Soviet Union, where even particularly severe mass crimes against civilians were still governed by the Hague Conventions as war crimes, but in friendly unoccupied regions such as Hungary, a German ally during the war. Thus Edmund Veesenmayer, the Reich plenipotentiary in Hungary in 1944, was found distinctly guilty of crimes against humanity for facilitating the deportation of Hungary’s Jews to Auschwitz.

Edmund Veesenmayer. United States Holocaust Memorial Museum, courtesy of Robert Kempner.

The tribunals were split on the more daring aspects of the crimes against humanity statute. The judges were not innovative juridical scholars. They came from state courts in the United States rather than US federal courts, none had international law experience, and most were conservative concerning the ability of international statutes to trump national sovereignty. Thus, in considering pre-war Nazi crimes against humanity, most of the tribunals assumed the validity of the war nexus from the London Charter, even though Control Council Law No. 10 had deliberately omitted it, and even though US officials had proposed an amendment defining crimes against humanity as having taken place from the moment the Nazis assumed power in January 1933. The tribunal trying senior members of the Friedrich Flick coal and steel concern argued that the omission of the war nexus in Control Council Law No. 10 was surely accidental, and that consequently the tribunal had no jurisdiction over pre-war German actions. The tribunal trying Oswald Pohl and members of the SS Economic Administrative Main Office argued that domestic German laws, even those imposed by Nazi terror, were the business of the German people, not the tribunal itself.

Consequently, the tribunals were also cautious with regard to Nazi crimes against German nationals. The Nuremberg Medical Case focused primarily on wartime medical experiments on foreign nationals in concentration camps. The tribunal touched on mass killings of the disabled under Nazi Germany’s euthanasia program mass killings of the disabled under Nazi Germany’s euthanasia program , as lead defendant Karl Brandt had headed the program, but it excluded euthanasia killings of German nationals as criminal. Rather its judgment pointed out that “almost at the outset of the program non-German nationals were selected for euthanasia.” The same tribunal tried members of the Race and Settlement Main Office and concluded that in the case of Richard Hildebrand, the Higher SS and Police Leader in Danzig-West Prussia, that “euthanasia, when carried out under state legislation against citizens of the state only, does not constitute a crime against humanity.”

Karl Brandt on trial at the Palace of Justice in Nuremberg, Germany. US Army. Photo No. OMT-I-D-144.

The American tribunal for the “Justice Case” was more audacious, perhaps as it was forced to grapple with the validity of German law itself. Though the defendants were not tried for their pre-war activities, they were tried for wartime transgressions against “any civilian population,” including German Jews. The court also noted that many of the defendants’ transgressions–ranging from approving seizure of Jewish property to selective prosecution of Jews to the denial of civil status to Jews in German courts, to the punishment of sexual crimes having to do with racial mixing–were based on laws that appeared between 1933 and 1939 which the tribunal deemed arbitrary. 

The tribunal thus had no patience with the defense arguments that German law legitimized the defendants’ actions, or that crimes against humanity was a law unjustly applied after the fact– ex post facto . “The Nuremberg Tribunals,” read the judgment, “are not enforcing German law…. On the contrary, the jurisdiction of this tribunal rests on international authority.” The defendants were proven to be willing political advocates of extra-Nazi programs. They acted based on ideology rather than law, confident that they would never be held to account.

American jurists in occupied Germany developed international law with the concept of crimes against humanity, then grappled with its meaning, refining it within an emerging post-war world. It was up to the international community to develop the concept further. 

In December 1946, the UN General Assembly affirmed the legal principles of the London Charter and stated its intention to incorporate them into an international criminal code. The Cold War slowed this process due to differences over how certain crimes, from aggressive war to crimes against humanity itself, were to be defined. In 1996, owing to the end of the Cold War and the mass killings of civilians in Yugoslavia and Rwanda civil conflicts, the UN revisited the Nuremberg principles when creating ad hoc tribunals to adjudicate mass killings in those countries and in developing the 1998 Rome Statute for the International Criminal Court, which re-defines crimes against humanity.

The Rome Statute, adhered to by 123 countries, expands the list of individual crimes against humanity to include a variety of sexual crimes as well as “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Critical too, however, is this. As contemporary mass atrocities have occurred within states rather than between them, the nexus connecting crimes against humanity to international war has been removed once and for all. In theory and practice, state officials are responsible to the international community for the treatment of their own citizens.

Meet the Author 

Norman JW Goda is the Norman and Irma Braman Professor of Holocaust Studies at the University of Florida. He received his PhD from the University of North Carolina at Chapel Hill. He studies modern European history and specializes in the history of the Holocaust, war crimes trials, and twentieth century diplomacy. He teaches courses on the Holocaust and Nazi Germany from historical and interdisciplinary perspectives. Goda has published extensively and served as a consultant to the US and German governments, as well as for various radio, television, and film documentaries in the US, Europe, and Israel.

Further Reading

Bassiouni, M. Cherif. Crimes Against Humanity: Historical Evolution and Contemporary Application . New York, 2014.

Douglas, Lawrence. The Memory of Judgment: Making Law and History in the Trials of the Holocaust . New Haven, CT, 2001.

Heller, Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law . New York, 20212.

Pendas, Devin O. Democracy, Nazi Trials, and Transitional Justice in Germany, 1945-1950 . (New York, 2020).

Priemel, Kim Christian. The Betrayal: The Nuremberg Trials and German Divergence . New York, 2016.

Sands, Philippe. East West Street: On the Origins of “Genocide” and “Crimes Against Humanity.” New York, 2016.

This article is part of a series commemorating the 75th anniversary of the end of World War II made possible by the Department of Defense.

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• Definitions
• Atrocity Crimes

Crimes Against Humanity

• Ethnic Cleansing

It is not clear in which context the term “crimes against humanity” was first developed. Some scholars [1] point to the use of this term (or very similar terms) as early as late eighteenth and early nineteenth century, particularly in the context of slavery and the slave trade, and to describe atrocities associated with European colonialism in Africa and elsewhere such as, for example, the atrocities committed by Leopold II of Belgium in the Congo Free State. Other scholars [2] point to the declaration issued in 1915 by the Allied governments (France, Great Britain and Russia) condemning the mass killing of Armenians in the Ottoman Empire, to be the origin of the use of the term as the label for a category of international crimes.

Since then, the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.

Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime.

Rome Statute of the International Criminal Court

Article 7 Crimes Against Humanity

• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
• ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

Elements of the crime

According to Article 7 (1) of the Rome Statute , crimes against humanity do not need to be linked to an armed conflict and can also occur in peacetime, similar to the crime of genocide. That same Article provides a definition of the crime that contains the following main elements:

• Imprisonment;
• Grave forms of sexual violence;
• Persecution;
• Other inhumane acts.
• A contextual element : “when committed as part of a widespread or systematic attack directed against any civilian population”; and
• A mental element : “with knowledge of the attack”

The contextual element determines that crimes against humanity involve either large-scale violence in relation to the number of victims or its extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental or isolated acts of violence. In addition, Article 7(2)(a) of the Rome Statute determines that crimes against humanity must be committed in furtherance of a State or organizational policy to commit an attack. The plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances.

In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent. The perpetrator must also act with knowledge of the attack against the civilian population and that his/her action is part of that attack.

[1] For example, William Schabas, Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals , Oxford University Press, 2012 – p. 51-53.

[2] For example, M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law , Martinus Nijhoff Publishers, 1999, p.62

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23. Crimes Against Humanity: Comments on Some Problematical Aspects

• Published: June 2008
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This chapter examines the notion of crimes against humanity. After briefly tracing its history, it focuses on some problematical traits that need to be clarified. At present the notion of crimes against humanity is accepted as firmly established in customary international law. It has been restated in the statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. It has been laid down in the Statute of the International Criminal Court as well. There is also general consensus on the basic content of the notion: crimes against humanity are those gross violations of human rights or humanitarian law that shock our sense of human dignity, and are part of a widespread or systematic practice of inhumanity.

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Final outcome, analytical guide to the work of the international law commission, crimes against humanity.

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“Crimes Against Humanity” by Ward Churchill Essay (Article Review)

In the article Crimes against Humanity, Ward Churchill describes the most terrible and impressive crimes that affected our civilization. Throughout the essay, he puts a lot of words and phrases in quotation marks to underline the unique and figurative meaning of these phrases. Most of the words and phrases put in quotation marks are used in figurative meaning: “warpaint”, “no big deal”, “good, clean fun”, “good cheer”, “inoffensiveness” (536, 537).

His initial response is to find refuge in objectivity, in a brief discourse on the historical origins followed by the most objective and scientific description that yet appears in the essay. Such language oversimplifies; it is too stipulative, too parched, too bare of the contradictory impulses that feed Churchill’s work. The images represent a deliberate and continuing attempt to signify the unsaponifiable. Out of this impulse both to reach beyond the literal and tap the subliminal power of a word, To some extent, words and phrases in quotation marks attract readers’ attention and appeal to emotions. Churchill has introduced into his work a particular kind of figurative meaning: he underlines the irony and humor, sarcasm and mockery.

Also, Churchill puts in quotation marks historical terms and personal names: “Jungle Bunnies”, “Chief Illiniwik”, “Slopes”, “Gooks”, “the Washington team’, ‘crime against humanity’. It would be difficult for a reader to understand the nature and meaning of these words without quotation marks which highlight a special meaning of the phrases. The narrator’s character thus becomes the chief means of persuasion.

The main effect of quotation marks is close attention to the phrases and words. The power of the fused image is that it locates itself ambiguously, between the literal and the figurative. It possesses no clear border, thus denying the reader any clear ground for a response. It can help develop in readers the kind of understanding and appreciation of style that they lack and sorely need. What these quotations toward greater simplicity and directness do is impart an air of authenticity to the author’s voice which leads one to identify with his point of view and thus share his experience and the sharp sense of personality.

But even these findings are useful since they demonstrate that stylistic effects typically result from a combination of devices, and not necessarily the ones that would first come to mind. Also, these phrases make the narration more vivid and impassive, colorful, and personal. For instance, Churchill writes: “Understand that the treatment of Indians in American popular culture is not “cute” or “amusing”, or a “good clean fun” (543). Success or failure in that effort is proportionate to our ability to share those feelings. The author’s voice has not seemed especially visible to other readers. Churchill has called attention to the consequences of questioning the speaking subject.

Churchill talks about the special status of people in history. The ordinary becomes metaphorical; the unquestioned observer becomes figurative, a figure of bias and difference. Churchill gives readers what appears to be the natural, real-world of experience and breaks it open, to expose its figurativeness. Churchill admits the painful sacrifice of self-involved in the pursuit of knowledge. All in all, these statements and pieces engage a wide range of issues and problems concerning the purpose of the essay, the subject matter of the essay, the form of the essay and the style.

Works Cited

Churchill, W. Crimes Against Humanity . pp. 536-543.

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IvyPanda. (2022, June 8). “Crimes Against Humanity” by Ward Churchill. https://ivypanda.com/essays/crimes-against-humanity-article-by-ward-churchill/

"“Crimes Against Humanity” by Ward Churchill." IvyPanda , 8 June 2022, ivypanda.com/essays/crimes-against-humanity-article-by-ward-churchill/.

IvyPanda . (2022) '“Crimes Against Humanity” by Ward Churchill'. 8 June.

IvyPanda . 2022. "“Crimes Against Humanity” by Ward Churchill." June 8, 2022. https://ivypanda.com/essays/crimes-against-humanity-article-by-ward-churchill/.

1. IvyPanda . "“Crimes Against Humanity” by Ward Churchill." June 8, 2022. https://ivypanda.com/essays/crimes-against-humanity-article-by-ward-churchill/.

Bibliography

IvyPanda . "“Crimes Against Humanity” by Ward Churchill." June 8, 2022. https://ivypanda.com/essays/crimes-against-humanity-article-by-ward-churchill/.

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Article contents

Humanitarian intervention and international security.

• Taylor B. Seybolt Taylor B. Seybolt Graduate School of Public and International Affairs, University of Pittsburgh
• https://doi.org/10.1093/acrefore/9780190846626.013.217
• Published in print: 01 March 2010
• Published online: 22 December 2017

Humanitarian intervention is the use of military intervention in a state to achieve socioeconomic objectives, such as keeping people alive and communities functioning by providing basic necessities, without the approval of its authorities. There are three eras of humanitarian intervention: the entire time up to the end of World War II, the Cold War, and the post-Cold War period. These three eras are distinguished by differences in the structure of the international system. Ultimately, the Western intellectual tradition of just war is the foundation for contemporary international law governing armed conflict. It is grounded in natural law, which recognizes the right of sovereigns to use force to uphold the good of the human community, particularly in cases where unjust injury is inflicted on innocents. Eventually, a diverse body of literature on humanitarian intervention has developed. The contemporary debate focuses on the long-standing disagreement between positive law and natural law about coercive intervention. Political scientists use realist and constructivist paradigms to analyze the motives of intervening states and to argue for or against the practice. Proponents favor humanitarian intervention on the basis of legitimacy and the consequences of nonintervention. Opponents argue against intervention on the basis of illegitimacy, practical constraints, and negative consequences. Meanwhile, skeptics sympathize with the humanitarian impulse to help civilians but are troubled about methods and consequences.

• humanitarian intervention
• military intervention
• international law
• natural law
• coercive intervention
• constructivism
• sovereignty

Introduction

Humanitarian intervention lies at the intersection of realism and liberalism, where power and the material interests of states meet human rights and the responsibilities of sovereignty. Military intervention for avowed humanitarian purposes has been common since the end of the Cold War and has re-energized the debate about when states can and should use military force. The literature on humanitarian intervention re-examines long-held ideas about the relationships between state sovereignty and human rights, between politics and ethics, between peace and justice. This re-examination has led to a discernible shift in the balance of opinion over the past two decades from the primacy of state sovereignty and the principle of nonintervention to an emphasis on human rights and the effort to find an agreed threshold for legitimate intervention.

Humanitarian intervention – more accurately, humanitarian military intervention – is “military intervention in a state, without the approval of its authorities, and with the purpose of preventing [or ending] widespread suffering or death among the inhabitants” (Roberts 1993 :429). The essential characteristics of humanitarian intervention are the use of military means in a contentious political environment to achieve socioeconomic objectives: to keep people alive and communities functioning by providing basic necessities, such as physical security, food, and water. In most cases, humanitarian intervention leads to explicitly political endeavors of post-conflict reconstruction, nation-building, and democratization. These longer term objectives seek to address the causes of the humanitarian crisis and prevent additional violence and suffering. Humanitarian intervention does not include military extraction of foreign nationals or emergency relief operations by aid organizations without the involvement of foreign military units.

The literature on humanitarian intervention is driven by events and policy debates, rather than by theoretical arguments. Is it legitimate to intervene with force to protect people and keep them alive? If it is, what is the threshold for intervention? Who should intervene? How can such interventions succeed and what can go wrong? Answers to these questions are firmly grounded in enduring intellectual positions on moral obligation, international law, state sovereignty, and human rights. They run the gamut from strict prohibition on intervention to advocacy for action. The literature also engages new debates about appropriate roles for international organizations and nongovernmental actors in international affairs.

The following section of this essay provides a broad overview of the literature by identifying the central issues at stake, pointing out the richly diverse disciplines that inform the debate, and indicating the weaknesses in the literature taken as a whole. The next section summarizes the intellectual foundations of “just war” and state sovereignty as they relate to humanitarian intervention. In the rest of the essay, the contemporary literature’s strong orientation toward policy is recognized, and work is discussed as being in favor of humanitarian intervention, opposed to it, or sympathetic but skeptical about its efficacy.

Overview of the Literature

Historically minded accounts identify three eras of humanitarian intervention: the entire time up to the end of World War II (pre- 1945 ), the Cold War ( 1945–90 ), and the post-Cold War period ( 1991 –present) (Murphy 1996 ; Barnett 2008 ). The three eras are distinguished by differences in the structure of the international system. As the distribution of power has changed, so has the frequency of humanitarian intervention. The attention of scholars and policy analysts has followed suit: little was published on the topic before and during the Cold War, but with the activism of the present era, there is a striking jump in the number of publications.

For most of the twentieth century , neither states nor intergovernmental organizations engaged in humanitarian intervention. Two world wars and the collapse of empires during the first half of the century provided ample opportunities for humanitarian action, but governments understandably were preoccupied with power transitions and the demands of statecraft. After World War II, the bipolar balance of power gave geo-strategic significance to all military interventions. In that context, a strong presumption in favor of state sovereignty and nonintervention dampened the threat of superpower war and the potential for humanitarian interventions. Consequently, the topic received little attention as a subject of study.

Humanitarian intervention became a popular academic subject in the 1990s, in direct response to changes in the international system and the behavior of a few governments. The end of the Cold War in 1989 created a permissive environment in which military action by Western powers no longer contained the danger of escalation to a catastrophic international war with the Soviet Union and the Eastern bloc. The end of the bipolar balance of power also freed the United Nations (UN) Security Council from the reciprocal vetoes of the two superpowers and allowed it to become much more active. In this “new world order,” as the immediate post–Cold War period was known, Western governments, with authorization from the UN Security Council, launched interventions to protect and provide aid to civilians in northern Iraq in 1991 , Somalia in 1992 , and Bosnia in 1992 . The number of publications on humanitarian intervention shot up in 1992 and has remained high ever since.

During nearly two decades of sustained attention, a diverse body of literature has developed from the contributions of lawyers, philosophers, political scientists, humanitarians, military officers, and policy analysts. Each of these fields brings its own intellectual perspective to the topic. The unusual range of expertise is useful for understanding the multifaceted principles and practices of humanitarian intervention. Unfortunately, the intellectual diversity has not led to much innovative and interdisciplinary work. With a few exceptions (Damrosch 1993 ; Holzgrefe and Keohane 2003 ), authors from different fields talk past one another, resulting in a theoretically underdeveloped body of literature.

To the extent that there is a shared conceptual framework, it can be found in the legal and normative work that comprises the majority of publications on humanitarian intervention. The contemporary debate is a variation of a long-standing disagreement between positive law and natural law about coercive intervention. Legal positivists base their arguments on written documents and place a high value on precedent. They focus on the stability of the international system and contend that state sovereignty and the principle of nonintervention must prevail (Arend and Beck 1993 ). Advocates of natural law base their arguments on moral reasoning and place a high value on actions judged to be ethically sound. They focus on the ethical treatment of humankind and contend that the rights of people trump the rights of states (Teson 1988 ).

Running parallel to this debate, political scientists use realist and constructivist paradigms to analyze the motives of intervening states and to argue for or against the practice. Realists emphasize the risks and costs of these “optional” interventions, while constructivists discuss the role of norms in changing the motives for intervention (Posen 1996 ; Crawford 2002 ; Finnemore 2003 ). Constructivists also write about the consequences of inconsistency; that is, intervention in some humanitarian crises and not in others. A separate strand in the political science literature draws on institutionalism to highlight the weaknesses and strengths of the UN and its role in the international system (MacFarlane and Khong 2006 ).

Pragmatism is the hallmark of publications on the military aspects of humanitarian intervention. Some authors concentrate on tactics and practices to improve the outcome of military interventions from a humanitarian perspective. Most, however, anchor their analysis in the common understanding that military action is used in the pursuit of political goals (Mockaitis 2004 ). Traditionally oriented authors argue that the military should not be involved in humanitarian operations that weaken the military’s ability to protect strategic national interests (Schmitt and Donnelly 2007 ).

The politicization and militarization of aid are anathema to humanitarians. Literature from their quarter is rooted in the principles of impartiality, neutrality, independence of action, and assistance given on the basis of need alone, all of which become corrupted by political and military interests. These principles are the conceptual foundation from which humanitarian authors argue for one of two things: to improve the outcomes of interactions with military actors, or to return to the separation of humanitarian from political and military action (Minear 2002 ; Terry 2002 ).

Despite its broad range of intellectual perspectives, the literature is dominated by just two methodological approaches. Lawyers and ethicists use rational argumentation based on legal precedents and normative principles, illustrated by reference to empirical examples. Case studies are the method of choice for political scientists, military analysts, humanitarian practitioners, and policy analysts. There is virtually no quantitative analysis or formal modeling.

Most of the good case studies delve deeply into a single country to provide case-specific analysis and rich secondary material (Clarke and Herbst 1997 ). Some authors, mostly political scientists, use case studies to test competing hypotheses against empirical evidence by using process tracing, multiple congruence procedures, or structured comparison (Lischer 2005 ). Unfortunately, the majority of the literature lacks methodological rigor. A good many authors selectively draw on cases to support their arguments and use limited evidence to make sweeping generalizations.

The literature is notable for repeated reference to a limited number of countries. Studies of the pre-World War II era look at the British effort to end the slave trade, the attack on the Barbary pirates, and intervention in Algeria. The three Cold War era cases always cited are East Pakistan ( 1971 ), Cambodia ( 1979 ), and Uganda ( 1979 ). In the post–Cold War period, the five core cases are northern Iraq after the Gulf War ( 1991 ), Somalia ( 1992–5 ), Bosnia ( 1992–5 ), Rwanda ( 1994 ), and Kosovo ( 1999–2000 ). Four cases that are often cited but have not received as much attention are Haiti ( 1994 ), Liberia ( 1990–7 ), Sierra Leone ( 1997–2005 ), and East Timor ( 1999–2000 ). Underrepresented cases include Burundi ( 2003–6 ) and the Democratic Republic of the Congo ( 1999 –present). Darfur, Sudan ( 2004 –present) is a constant reference point in the policy literature but, as an ongoing event, it has not been the subject of much social science research.

Despite methodological limitations, the breadth of intellectual contributions ensures that the literature on humanitarian intervention remains vibrant. The most comprehensive bibliography on the subject contained over 3,600 entries in March 2009 . Reflecting the range of disciplinary approaches and the complexity of humanitarian intervention in practice, the printed version of the bibliography divides entries among 12 categories. The online version offers a list of 30 keywords (ICISS 2001 , 2009 ).

A simpler, three-part categorization in the following sections draws attention to the core issues of legitimate thresholds, methods, and consequences. Proponents favor humanitarian intervention on the basis of legitimacy and the consequences of nonintervention. Opponents argue against intervention on the basis of illegitimacy, practical constraints, and negative consequences. Skeptics sympathize with the humanitarian impulse to help civilians but are troubled about methods and consequences.

The Evolution of Humanitarian Intervention

The Western intellectual tradition of just war is the foundation for contemporary international law governing armed conflict. It is grounded in natural law, which sees proper behavior in international politics as being governed by precepts that can be known by reason and are binding on all rational beings. Chief among these precepts is that natural rights accrue to people simply by their being human. Natural law recognizes the right of sovereigns to use force to uphold the good of the human community, particularly in cases where unjust injury is inflicted on innocents (Chesterman 2002 ; Nardin 2002 ; Bellamy 2004 ).

Christian theologian Thomas Aquinas developed the ethical framework in the thirteenth century , building on the earlier work of Saint Augustine. Often interpreted as a license to intervene on behalf of people subjected to erroneous religious beliefs, the just war tradition guided kings and princes for about 400 years until political and intellectual developments brought about a profound shift toward positive law. In the early seventeenth century , Hugo Grotius sought to rein in Europe’s constantly fighting princes by arguing that natural law allows intervention to protect innocents, but does not require it. Indeed, natural law prescribes mutual forbearance, for the first concern of sovereigns and all human beings is self-preservation. Grotius, however, allowed for the possibility of a sovereign using force to punish crimes against natural law, even if the misdeeds were committed by another sovereign against his own people on his own territory (Walzer 1977 ; Nardin 2002 ).

The Treaty of Westphalia in 1648 ushered in a period of peace in Europe, after the Thirty Years’ War, by placing positive law and the idea of mutual forbearance before natural law and the idea of justified intervention. This enabled the development of the modern international system, with the sovereign state as the ordering principle of power and nonintervention as the central norm (Smith 1999 ). The tenets of political realism fit neatly within the sovereign state system. Based on Thomas Hobbes ’s conception of sovereignty as supreme authority, and Niccolò Machiavelli’s emphasis on the sovereign amassing power to realize his interests, state behavior is – and ought to be – driven by pursuing the state’s own interest, which demands acting on the basis of relative power, not ethical ideals.

The realist paradigm has prevailed for the past few centuries, but has been challenged by cosmopolitan arguments based on natural law. Among the most significant of these, for the topic of humanitarian intervention, is A Memory of Solferino , Henry Dunant’s ( 1986 ) account of caring for wounded soldiers at the final battle of Italian unification in 1859 . Dunant’s call “to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers” led to the founding of the International Committee of the Red Cross (ICRC). The ICRC pioneered concerted humanitarian action for victims of war on the basis of international law (ICRC 2004 ).

Following World War II, the historical tension between inviolable state sovereignty and the obligation to respect and protect individual rights was built into the new institutions at the center of the international system. On one hand, the primacy of positive law and the prohibition on the use of force, except in defense of a sovereign state, are the core ideas in the Charter of the United Nations. On the other hand, the Universal Declaration of Human Rights, also an essential document of the UN, declares rights for people. During the Cold War, this tension usually was resolved in favor of state sovereignty over human rights, nonintervention over intervention, and international peace over justice (Ramsbotham and Woodhouse 1996 ; Danish Institute of International Affairs 1999 ). Even three cases that authors cite in retrospect as humanitarian interventions – India’s invasion of East Pakistan that led to the independent state of Bangladesh ( 1971 ), Vietnam’s invasion of Cambodia that overthrew the Khmer Rouge regime ( 1978 ), and Tanzania’s invasion of Uganda that overthrew Idi Amin ( 1979 ) – were justified at the time on national security grounds. Self-defense as a reason for the use of force better reflected the dominant normative and legal ideas of the time (Wheeler 2000 ; Finnemore 2003 ).

The quest to find a balance between peace and justice led to the revival of just war precepts. The essential modern text is Michael Walzer’s Just and Unjust Wars ( 1977 ). Walzer emphasized the limits of the legitimate use of military force. In most cases, he argued, the nonintervention principle should prevail, but he did not adhere to a strict legalist paradigm. Arguing “against realism” that communal liberty and human rights have greater intrinsic value than state sovereignty, Walzer highlighted the principles of just cause and reasonable prospects of success. “Humanitarian intervention is justified when it is a response (with reasonable expectations of success) to acts ‘that shock the moral conscience of mankind’” (Walzer 1977 :107).

India’s intervention in East Pakistan sparked a debate among a small number of legal scholars and ethicists. Franck and Rodley asked ( 1973 :275), “Is the Bangladesh incident to be seen as creating a new common law, one which accords priority to human rights and self-determination over the norms of international conduct, including legal restraints on the unilateral use of force?” Seeking to uphold the primacy of state sovereignty, they argued that the incident did not contain the basis for a definable, workable, or desirable change in international law. None of the UN conventions on human rights, they argued, allows for unilateral military enforcement (Franck and Rodley 1973 ). Writing after the Vietnamese and Tanzanian actions, German legal scholar Helmut Rumpf expressed alarm at the erosion of the nonintervention principle in the name of an ever-expanding set of “universal” human rights. He argued that nonintervention must be the basis of international law but, foreshadowing future arguments about the limits of sovereignty, he allowed that intervention might be justified if a state wantonly violated basic human rights (Rumpf 1981 ).

Arguing strongly in favor of humanitarian intervention, Teson ( 1988 ) took the position that international law is based on judgments about what is right and wrong, as is national law, and therefore is inherently normative. Drawing on the natural law tradition, Teson argued that the rights of states are derived from the rights of individuals: states do not have autonomous moral standing independent of their populations. A government that substantially violates the human rights of its people forfeits its domestic and international legitimacy. In such circumstances, military action is morally allowed to end egregious suffering and oppression (Teson 1988 ).

Before the Cold War drew to a close, the post–World War II emphasis on legal positivism and the realist conviction that military power should be used solely in the pursuit of national interests began to give way to natural law arguments and a cosmopolitan belief in universal moral principles and rights (Wheeler 2000 ). While it remained the majority position, insistence on strict adherence to the principle of nonintervention did not allow its adherents to engage with recurrent questions of theoretical and practical importance. Are states’ rights always morally and legally superior to individual rights, or are there circumstances in which states forfeit certain rights in favor of individual rights? How should governments address this tension inherent in the UN Charter? Can a meaningful distinction be made between legal and legitimate action? If states engage in humanitarian intervention, should they be condemned or instead have their actions held to high standards of judgment? These and similar questions pushed themselves to the top of the agenda at the beginning of the 1990s. Answers were shaped by events during the ensuing decade, especially interventions in Iraq in 1991 and Kosovo in 1999 .

Immediately following the 1991 Gulf War – a traditional conflict in which a coalition of states drove the Iraqi military out of Kuwait – the United States encouraged the Shia population in Iraq’s southern marshlands and the Kurdish population in the northern plains to rebel against Saddam Hussein . A substantial portion of the Iraq military had survived the war and Saddam used it to crush the rebellions. The Shia received no assistance during or after their uprising and suffered severe retaliation. The Kurdish rebellion enjoyed initial success, but the Iraqi military regained control, killed as many as 20,000 Kurds and Turkomans, and drove hundreds of thousands of people toward Iran and Turkey. Turkey refused to honor its refugee asylum obligation, stranding about 400,000 people in cold mountain passes. Western governments were reluctant to intervene but rapidly changed their stance when Turkey, a member of NATO, called for help, and televised images of dying Kurds began to tarnish the shine of the recent Gulf War victory. Claiming authority to act under UN Security Council Resolution 688, France, Turkey, the United Kingdom, and the United States launched Operation Provide Comfort, the first humanitarian intervention of the post–Cold War era (Seybolt 2007 ).

The rescue operation was a turning point. It was seen widely as a triumph of human rights over tyranny, as recognition of the UN’s central role in conferring legitimacy on military intervention, and as proof that military means could achieve humanitarian ends. Conveniently, military action also served the interests of the great power states and the cost was relatively low. The line between cosmopolitanism and realism blurred. The egregious violation of human rights had become an offense against ethical norms of the society of states, and powerful countries saw it in their interest to do something about it (Donnelly 2002 ).

UN Security Council Resolution 794, authorizing intervention in Somalia in 1992 , established that humanitarian crises could constitute “a threat to international peace and security,” thereby meeting the requirement of Article 2(4) for the use of force. The legal precedent for humanitarian intervention, however, was not advanced significantly by Somalia or subsequent cases, because each case was declared to be “exceptional” and not the beginning of a new legal rule. The exceptionalism of humanitarian intervention was pushed further by the 1999 NATO intervention in the Federal Republic of Yugoslavia to protect ethnic Albanians in the province of Kosovo from the Serbian government of Slobodan Milosevic. NATO violated international law when it used military force in Kosovo without authorization from the Security Council (where Russian and Chinese vetoes would have ruled out military action). Consistent with evolving state practice, alliance members offered an ethical justification for the action but they did not provide a legal defense. The lack of legal justification and the opposition of many states to humanitarian intervention suggest that the practice is far from being established in customary international law, even if there is a trend toward accepting the use of force on moral grounds in exceptional cases (Hilpold 2001 ; Farrell 2005 ).

Humanitarian Intervention Proponents

Proponents of humanitarian intervention tend to be constructivists who argue that states’ interests must be investigated, not assumed. Interests change as norms evolve, leading to changes in states’ actions (Finnemore 2003 ). From the constructivist point of view, military action to save the displaced Kurds demonstrated that the norm of human solidarity had developed to the point where powerful states saw it as in their interest to act. Proponents of humanitarian intervention applaud the intervention in Kosovo as evidence of a shift from inviolate state sovereignty toward the protection of human rights.

Proponents refute the legal positivist notion that nonintervention is the right approach to international relations. They advocate forceful intervention to protect innocents, and see the realist preference for supremacy of state sovereignty over human rights as morally untenable. Many proponents welcome a new era in which international actors increasingly are willing to intervene in response to human rights abuses (Chopra and Weiss 1992 ; Weiss 1994 ). Others give credence to humanitarian intervention by emphasizing its historical precedence instead of its novelty (Knudsen 1997 ; Bass 2008 ).

The strongest proponents hold that state behavior ought to be driven by moral concern and respect for certain universal principles. They begin from the cosmopolitan proposition that all people have inalienable rights. Drawing on Walzer’s work, they contend that governments, as moral agents, have an obligation to respect those rights. When a government violates the basic human rights of its population to the point of being morally abhorrent, it should no longer be protected by international law. Outsiders have a responsibility to rescue the victims of tyranny and anarchy, if the victims want to be rescued and it can be done at a reasonable cost (Teson 2001 ). “There are circumstances under which one is ethically bound to use force as a last resort to stop a greater evil” (Malazogu 2003 :127).

Proponents are confronted with the argument that natural law can lead to the abuse of humanitarian intervention rhetoric by strong states to pursue selfish national interests. The United States, for example, claimed humanitarian motives for its 2002 invasion of Iraq. Russia claimed humanitarian motives for its 2008 intervention in Georgia. Proponents respond that the misuse of humanitarian rhetoric can be controlled by understanding that natural law and positive law are complementary. “Natural law provides a common way of thinking about the morality of war, while legal positivism acts as a vital break on abuse” (Bellamy 2004 :144). The best way to find the appropriate balance is through collective deliberation – a process of negotiated consent that confers legitimacy on the decision to intervene (Donnelly 2002 ; Barsa 2005 ) Governments engage in collective deliberation when they seek approval from the UN Security Council, as they did, for example, in Somalia ( 1992 ), Bosnia ( 1992 ), Rwanda ( 1994 ), and East Timor ( 1999 ). This multilateralism simultaneously constrains the abuse of power and legitimizes the use of force.

Proponents recognize that the Security Council will not always approve military intervention, even in response to atrocities, because of the veto power of the five permanent members and the resistance of many smaller states to the erosion of the nonintervention principle. This recognition divides proponents into three positions on the importance of UN Security Council authorization. The first group, positivist by inclination, insists that Security Council authorization is necessary. The UN Charter forbids the use of force except in self-defense or as authorized by the Security Council. Unauthorized use of force weakens the UN, opens the door to great power adventurism, and delegitimizes humanitarian intervention (Thakur 2006 ).

The second group strongly prefers Security Council authorization but says that other multilateral bodies, such as the UN General Assembly or a regional intergovernmental organization, have legal authority to approve an intervention if the situation is dire and the Security Council does not authorize action (Wheeler 2000 ; ICISS 2001 ).

The third group prefers Security Council authorization but argues that humanitarian intervention can be legitimate even if does not comply with international law. The commission established to investigate NATO’s attack on the Federal Republic of Yugoslavia over the matter of Kosovo caused a small sensation when it concluded that the action was illegal but legitimate on the basis of extreme humanitarian need (Independent International Commission on Kosovo 2000 ). A few authors go as far as to argue that unilateral humanitarian intervention should be considered legal as well as legitimate if it addresses severe human rights abuses and intergovernmental organizations are paralyzed and unable to stop the abuse (Benjamin 1992 ).

Multilateralism is the preferred method of intervention because it bolsters legitimacy by serving as a check on the military activities of a single state (Hoffman 1995/6 ). In the early 1990s, the quest for legitimacy led a number of writers to call for the building of a capable UN military (Connaughton 1992 ; Mazarr 1993 ). After observing the poor record of UN military efforts in Somalia, Bosnia, and Rwanda, analysts questioned the wisdom of relying on UN forces in hostile environments. Reliance on states, however, raises suspicion about motives and activities (Danish Institute of International Affairs 1999 ). When France set up Zone Turquoise in south-western Rwanda at the end of the 1994 genocide, it asked other states to be involved. The only other troop contributor was France’s ally Senegal, which did little to assuage suspicion that France’s intention was to rescue its erstwhile allies in the genocidal Rwandan government (Des Forges 1999 ). In other cases, such as the Australian-led intervention in East Timor in 1999 , multilateral intervention has dampened charges of neocolonialism.

Nowhere is the suspicion of political motives stronger than among humanitarian aid organizations. Yet, in the early 1990s, some aid organizations came out as proponents of humanitarian intervention in the new world order. They strenuously called for military help to address the famine in Somalia because violence and banditry prevented effective aid operations. Virtually all aid organizations now consider that to have been a grave mistake. The fundamental humanitarian principles of delivering aid on the basis of need, independence, impartiality, and neutrality all rest on the idea that humanitarian action is separate from politics and the competition for power (Sphere Project 2004 ). Experiences from Somalia to Afghanistan have reinforced this point of view. Aid organizations recognize that they can sometimes benefit from military intervention in cases of ongoing violence, but they seek a strict division of labor such that the military creates a secure environment and stays away from humanitarian relief activities.

In contrast to humanitarian practitioners, the strongest proponents of humanitarian military intervention say that the gravest political mistake is the failure to intervene in places where the world knows there are mass atrocities (Weiss 2004 ). The lack of intervention often is attributed to the failure of political will. Since humanitarian crises usually happen in countries that are not strategically important for the great powers, there is little political motivation to accept the risks and pay the costs of intervention (Hoffman 1995/6 ). A second explanation is that intervention is not feasible in many cases. No one called for humanitarian intervention in the Russian province of Chechnya, despite massive civilian suffering during the war. A third explanation – that there simply is not agreement on when humanitarian intervention is allowed or expected – returns to the debate on the conditions for the legitimate use of force.

Former UN Secretary-General Kofi Annan brought that debate to the forefront of diplomatic discussion and analysis after the NATO-led military operation in Kosovo in 1999 . In his “Millennium Report” to the General Assembly, Annan challenged states to find a balance between the principles of state sovereignty and humanity: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?” (ICISS 2001 :vii).

Annan’s challenge led to the publication by an independent commission, the International Commission on Intervention and State Sovereignty (ICISS), of The Responsibility to Protect (ICISS 2001 ), which has become the centerpiece of the humanitarian intervention literature. The report changed the nature of the debate by predicating state sovereignty on the protection of basic human rights. It emphasized that sovereignty confers responsibilities as well as rights. In particular, the commission argued, a government must safeguard the lives of people on its territory. If a government does not or cannot fulfill that responsibility, other governments, authorized by the UN, have the right to act, including to use military force as a last resort (ICISS 2001 ).

The UN has been the main forum for discussing the implications of reconceptualizing sovereignty as responsibility. The Secretary-General’s High-level Panel on Threats, Challenges, and Change recognized in 2004 “the emerging norm that there is an international responsibility to protect [civilians][…]in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law…” (United Nations 2004 ). The concept of the responsibility to protect was included in the Secretary-General’s report In Larger Freedom in preparation for the General Assembly’s World Summit (United Nations 2005b ). On the occasion of the sixtieth anniversary of the founding of the UN, the largest ever gathering of heads of state endorsed the 2005 UN World Summit Outcome Document , which contained two extraordinary paragraphs regarding the responsibility to protect. The leaders committed to:

use appropriate diplomatic, humanitarian and other peaceful means […] to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations […]. (UN 2005 )

Timely and decisive collective action, in accordance with Chapter VII, is UN diplomatic parlance for military intervention without the consent of the sovereign government. The heads of state, in other words, put their signatures to a fundamental challenge to the positivist concept of state sovereignty. The idea that governments and, if they fail, other international actors have a responsibility to protect people from four types of atrocities also has won supporters among those analysts who are sympathetic to humanitarian intervention but skeptical about its application on political and normative grounds (e.g. Thakur 2006 ).

To summarize the proponent position, there is a fair amount of agreement on when to intervene, a narrow but opposing set of answers on who should do it, and little thought given to how to intervene. Since the publication of The Responsibility to Protect report, proponents have coalesced around a modern interpretation of just war principles. The report sets out the principles of just cause and right authority as threshold criteria for military action, and the principles of proportionality, last resort, right intention, and reasonable prospects of success as “other precautionary criteria.” The Outcome Document is more specific when it defines just cause as genocide, war crimes, ethnic cleansing, and crimes against humanity. Right authority, according to the report, rests with the UN Security Council (ICISS 2001 ; United Nations 2005a ).

The remaining disagreement among proponents about who should intervene is between those who continue to favor UN-led interventions and those who believe that experience has shown that humanitarian objectives are better served by state led coalitions authorized by the UN. In either case, governments must show the political will to contribute troops and equipment. As Kurth ( 2005 ) and others point out, governments willing to risk their troops do not have the military capacity to intervene without considerable help from others; governments that do have the capacity are rarely willing to risk their troops. Moreover, the United States, the most capable of intervening, has undermined its legitimacy by fighting the war in Iraq (MacFarlane et al. 2004 ; Kurth 2005 ).

Proponents have not addressed in a serious and sustained way difficult questions about how military force can be used for humanitarian ends. When writers sympathetic to the humanitarian argument engage the question of how to intervene, they tend to move into the camp of skeptics, discussed below.

Humanitarian Intervention Opponents

Scholars and policy analysts who oppose humanitarian intervention make strong arguments that the practice is normatively indefensible, does not conform to international law, does not advance the interests of the intervening states, and is ineffective.

The broadest critique of humanitarian intervention is really an argument against the current international order. According to this perspective, the discourse on intervention is unable to move beyond a limited focus on decision-making because it fails to examine the liberal internationalist context in which humanitarian emergencies take place. Humanitarian intervention is a problem-solving approach that ignores the “economic statism” that leads to humanitarian crises and simply seeks to restore the international order that gave rise to the conflict in the first place (Pawlowska 2005 ).

Less radical writers also pay close attention to international context, often with emphasis on power imbalance. They argue that humanitarian intervention is a variant of colonial depredation: it is an instrument of strong states’ domination over weak ones. European and North American governments choose the targets of intervention according to their strategic interests. The involvement of the UN Security Council does not help, as the Council is “less than representative” and gives a handful of states inordinate influence through the veto provision (Ayoob 2001 ). In addition to being patently discriminatory, forcible intervention encourages violence. Any intervention eventually will provoke local opposition (Roberts 1993 ).

Opponents’ third criticism is that military intervention is not appropriate or necessary. Violence was an essential part of the process that established political order in the West. On one hand, we should expect there to be violence as new, weak states struggle to impose their authority. On the other hand, when a state is overly oppressive and abuses its population, the people, through the principle of self-determination, have a right to use violence against the government. That right does not extend to actors outside the state, who are not subject to the abuse. Intrastate violence, even with refugee flows, does not constitute a threat to international peace and security (Walzer 1977 ; Ayoob 2001 ). Adam Roberts makes the point that those who are concerned about justice should not underestimate the power of patient promotion of human rights. The principle of nonintervention reduces the risk of war, respects the differences between societies, and allows for the development of rights within societies rather than imposing them from outside (Roberts 1993 ).

Opponents make a similar argument based on international law: the UN Charter fundamentally prohibits humanitarian intervention; self-defense is the only unambiguous justification for the use of force. “[A]s a legal concept […] humanitarian intervention is incoherent – any ‘right’ of humanitarian intervention amounts not to an asserted exception to the prohibition of the use of force, but to a lacuna in the enforceable content of international law” (Chesterman 2002 :2). Arguments that humanitarian intervention is compatible with Article 2(4) of the UN Charter are not persuasive, opponents say. Even when international law is not enforceable for practical reasons, the prohibition on the use of force remains. In extremis, a state invalidates its sovereignty when it perpetrates atrocities against its citizens, but it is up to the people to exert their right of self-determination (Chesterman 2002 ).

These normative and legal objections are bolstered by an array of pragmatic arguments against humanitarian intervention. First, humanitarian intervention attempts to do the impossible. Effective humanitarian action necessitates understanding the limits of humanitarianism: it is beyond the competence of humanitarianism to advance the cause of human rights, contribute to conflict resolution, and promote social justice. It is delusional to imagine that an ambitious peace and justice agenda can be met by using force, simply because humanitarian imperatives are matched with just war principles. Historically, national militaries fight wars to win not merely to secure humanitarian access for aid workers. Western countries, the most militarily competent to carry out interventions, continue to view humanitarian action as an instrument to achieve self-interested objectives. It is not reasonable, therefore, to expect military practice to reflect the ideal of moral universalism (Rieff 2005 ).

For most realists, the problem is not that humanitarian action is instrumental for achieving self-interested objectives, but just the opposite. They worry that interventionist countries lose touch with their national interests. In the early post–Cold War years, when liberal internationalists saw great potential to do good in internal conflicts by working through the unshackled UN, realists cautioned that the “new interventionism” could grow out of hand “until the United States and the United Nations ultimately take on tasks for which they are ill-prepared, leaving themselves embroiled in numerous internal conflicts without the will or resources to bring peace to any” (Stedman 1993 :2). The Clinton administration did exactly that by treating US foreign policy as “social work.” Three failed military interventions in the peripheral countries of Bosnia, Somalia, and Haiti, in its first year in office, dominated the foreign policy agenda of President Clinton’s entire first term and prevented the United States from focusing on its vital interests (Mandelbaum 1996 ).

In addition to distracting governments from national interests, opponents say that humanitarian intervention is inherently difficult and likely to fail. At best, even a large military force can do only a little good (Posen 1996 ). When political leaders commit themselves to humanitarian intervention, they must recognize that they are engaged in a military operation where one or more armed parties do not consent to a foreign military presence. They should be ready for a fight, as experiences in Somalia, Bosnia, and the Democratic Republic of the Congo show. Intervening troops attempt to deter attacks on civilians and aid operations, or to compel gunmen to stop attacks after they have begun (a harder task), but the attempt often fails. When deterrence fails, interveners must choose between standing by as atrocities occur (like the Dutch UN battalion in Srebrenica, Bosnia) and using deadly force against the attackers (like the Australians in East Timor). According to this view, intervening forces should be able to dominate the battlefield in order to attain their objectives quickly with as few casualties as possible. Dominating the battlefield almost always requires significant air and ground forces and a large logistical infrastructure to support them (Seybolt 2007 ). Rarely have governments committed the necessary resources for short-term success, much less for the complex phase of rebuilding shattered societies.

While realist opponents see danger to national interests when militaries get involved in humanitarian efforts, recent practice has turned this around, and has confirmed the worst fears of humanitarian opponents. In Afghanistan and Iraq, the US government considered humanitarian work to be “a force multiplier” – a term usually used for things that confer military advantage, such as a good intelligence system or a strong logistics train. Using humanitarian aid for political ends in a conflict zone was an explicit objective of the Provincial Reconstruction Teams (PRTs) that American and allied troops first established in Afghanistan in 2002 . Military personnel, with some civilians, staff PRTs with the aim of improving local governance and doing quick impact development projects to win hearts and minds (Perito 2005 ).

Many humanitarian practitioners argue that the economic development activities of military personnel in PRTs challenge the humanitarian principles of impartiality, operational neutrality, and independence. There is only weak evidence to suggest that the principles are challenged, according to a study by an author sympathetic to the humanitarian view, but the purposes the principles are meant to serve – safety and access – have suffered. Politically motivated attacks on humanitarian workers in Afghanistan and Iraq increased and the amount of coordination with humanitarian nongovernmental organizations (NGOs) decreased, making aid operations less efficient (Harmer 2008 ).

Finally, opponents contend that the concept of the responsibility to protect is untenable. Its critical weakness is that reaction to atrocities has been framed as coercive protection that can be undertaken without the consent of the host government. Preventive measures and noncoercive persuasion have been ignored. This interpretation demands an international protection capability that does not now exist and cannot realistically be expected. The case of Darfur highlights the operational and strategic shortcomings of the concept. The African Union Mission in Sudan and its successor, the UN–African Union Mission in Sudan, lack the ability to protect civilians. Worse, their deployment distorted the negotiation process and made resolution of the conflict more difficult (De Waal 2007 ).

Humanitarian Intervention Skeptics

Skeptics support humanitarian intervention on moral grounds but they caution that there are myriad problems to be addressed. The international lawyers who belong to this category distinguish themselves from opponents of intervention by finding contextual legal justification for action in the face of atrocity. Most skeptics – writing from political, military, and humanitarian points of view – focus on the unintended consequences and pragmatic difficulties of intervention. They do not, however, conclude that humanitarian intervention should be avoided. Instead skeptics seek to understand the circumstances under which it is more likely to succeed by devoting most of their attention to questions of who should intervene and how.

Most troubling for skeptics are the unintended negative consequences of intervention. Humanitarian intervention can exacerbate the conflicts whose consequences it seeks to address by distorting local economic markets, feeding militants and their families, creating spoilers, empowering warlords, and providing incentives for future conflict (Macrae and Zwi 1994 ; Anderson 1999 ; Maley 2002 ; Terry 2002 ; Kuperman 2005 ). Governments and aid organizations can begin to address these problems by recognizing that humanitarian intervention is a political activity. This recognition is only part of the solution, for it is deceptively difficult to understand the political context of these complex conflicts (Lischer 2005 ).

Writers in this category tend to let others debate the normative and legal questions, but they do not entirely ignore the issues. Some scholars argue that international law provides no ground for initiating military action to protect human rights, as noted in the preceding section. The two documents that are the basis for international humanitarian law protect individuals during war but do not allow war for the purpose of protection. The Geneva Conventions of 1949 provide for protection and care of wounded, sick, and imprisoned soldiers during war. The Additional Protocols of 1977 extend similar legal protection to civilians (ICRC 2005 ). It can be argued that the Convention on the Prevention and Punishment of the Crime of Genocide and the International Covenant on Civil and Political Rights allow for humanitarian intervention, but they exist in the context of prohibitions on the use of force contained in the UN Charter (Heinze 2004 ).

To resolve this problem, skeptics take a natural law approach and turn to normative and moral arguments in addition to legal analysis. In doing so, some scholars find room for intervention in a contextual reading of the UN Charter. They argue that international law is constantly changing in response to the behavior of states and nonstate actors. Existing law, therefore, is not a decisive barrier to illegal actions, if those actions are aimed at reforming international law in such a way that it rectifies serious injustice supported by the current legal system (Buchanan 2003 ; Franck 2003 ; Stromseth 2003 ; Heinze 2004 ; Farrell 2005 ). Other scholars contend that making unilateral humanitarian intervention legal would do more harm than good, although using force “to end grave humanitarian crises can hardly be disapproved of morally” (Hilpold 2001 :467).

Most skeptics are concerned about legality and legitimacy for their instrumental role in making humanitarian intervention effective (or ineffective). They contend that intervention must be seen to be legitimate if it is to succeed over the long term (Lahneman 2004 ). In this regard, the UN plays an irreplaceable role. It is the centerpiece of a rules-based system of international relations. For weak countries, the most important rule is the prohibition on intervention, yet many developing countries are not absolutely opposed to intervention in all situations. Rather, they are concerned with double standards and selective intervention by powerful states against weak ones. Collective action through the UN – the only entity that can authorize the use of force on behalf of the collective of states – constrains the use and possible abuse of humanitarian intervention (Hoffman 1995/6 ; Thakur 2006 ).

While authorization by the UN Security Council is widely agreed to be important, if not essential, there are different views among skeptics about which actors in the international system ought to carry out the intervention. Disagreement centers on whether the UN has the ability to conduct military operations in countries where foreign troops are not welcome, or whether it should authorize intervention by coalitions of states.

In the wake of several disastrous experiences in the 1990s, the UN Secretariat itself recognized the many shortcomings of UN peace operations in the Report of the Panel on United Nations Peace Operations. The “Brahimi Report,” as it is known, posited “the key conditions for the success of future complex operations are political support, rapid deployment with a robust force posture and a sound peace-building strategy” (United Nations 2000a :1). It went on to observe that UN operations had rarely achieved the first condition and had virtually never achieved the second and third conditions. The report recommended that the UN radically overhaul its peace operations, from developing coherent strategies, to authorizing realistic mandates, drawing up robust military doctrine, and creating headquarters support for its ad hoc deployments (United Nations 2000a ). A follow-up study by the primary authors of the UN document found “clear progress in implementing a majority of reforms recommended by the Panel” (Durch et al. 2003 :xv). The UN has fielded a number of new operations since the publication of the Brahimi Report. Most of them have been fairly successful, but the few that have been deployed in challenging environments, such as the Democratic Republic of the Congo and Darfur, Sudan, have had mixed records at best.

Optimism in some quarters notwithstanding, a number of authors have argued that states should take the lead in situations where there is not broad consent because military coalitions under the command of a lead country are inherently more capable than UN-led operations (O’Hanlon 1997 ; Oudraat 2000 ; Lahneman 2004 ). They contend that the UN ought to lead operations in permissive environments, but that states remain the interveners of choice in nonpermissive environments, where not all armed actors have consented to intervention. To succeed in a hostile environment an intervener must act quickly, devote considerable military strength to the effort, and be willing to risk soldiers’ lives. The UN has trouble meeting these requirements. They are best met when humanitarian and political interests are at stake, as they usually are in state-led operations. The pragmatic perspective holds that political motives for intervention are to be sought, not avoided, as long as they are compatible with humanitarian objectives (Seybolt 2007 ).

Critics of UN-led military operations recognize that state-led interventions are not a panacea; they operate under a number of constraints. The leaders of industrialized countries – which have the capabilities to lead coalition military operations – strongly desire to avoid having their soldiers killed. They believe that their constituents will not support a military adventure to save the lives of strangers at the cost of the lives of fellow citizens. The US decision to leave Somalia in 1993 after losing 18 soldiers supports this belief. Research indicates, however, that leaders can build support for humanitarian action when they persuade the public of its merit (Kull and Destler 1999 ). The Australian government continued to see popular support for action after it warned of the likelihood of losing military personnel when it led the 1999 intervention in East Timor. No Australian troops were killed so the strength of the support was not tested.

At a deeper level, caution comes from an implicit moral contract between democratic governments and their military personnel that rests on shared assumptions about the ends to which national militaries will be used, namely the protection and advancement of vital national interests (Cook 2000 ). While Western governments occasionally are willing to put their soldiers in harm’s way, their overriding concern is force protection rather than civilian protection. This puts them at a disadvantage against adversaries who are not as risk averse. The effectiveness of humanitarian intervention is limited as a result (Gray 2002 ).

Military operations to protect civilians and aid organizations are different enough from standard military operations that they require specialized doctrine and skills. Skeptics increasingly are paying attention to the problem that neither national militaries nor the UN have appropriate doctrine for how to protect people during conflicts, particularly when the people are the intended targets of violence. No matter how legitimate an intervention is deemed to be, or how willing political leaders are to pay the costs of military engagement, no operation is likely to succeed if the military units on the ground do not have the appropriate doctrine, training, and equipment to do the job. Readiness can be improved through preparation, planning, and training, but it requires overcoming institutional inertia (Chayes and Chayes 1999 ; Holt and Berkman 2006 ).

Skeptics point out equally challenging considerations on the humanitarian side. During the post–Cold War period, peace operations – both UN- and state-led – have evolved into ever more complex efforts to rebuild social, economic, and political systems. Humanitarian intervention increasingly is not just about stopping the dying. It is also about addressing the causes of violence and attempting to create the conditions for stable peace. As part of this effort, international organizations and NGOs have taken on functions that would be done by the government in a well-functioning state, such as providing health care and policing. These efforts often founder because external actors have a poor understanding of the complex situations in which they work; they have insufficient capabilities to address the myriad needs; and they lack patience to complete long-term processes of institutional development (Farer 1996 ; Maley 2002 ; Donini et al. 2004 ).

The current stage of development of the responsibility to protect concept can be seen as a summary of the skeptical position on humanitarian intervention. Military intervention to prevent or end mass atrocities is legitimate. It should be limited to extreme cases and should be the last resort after all nonmilitary means have been considered and rejected as inadequate. The UN must authorize intervention to prevent individual states from abusing the rhetoric of humanity to promote selfish national interests. Within this basic framework, each particular case will pose difficult questions about how to intervene successfully, avoid unintended consequences, and create the conditions for reconstruction and social rehabilitation.

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Links to Digital Materials

Global Centre for the Responsibility to Protect. At http:/globalr2p.org/ , accessed May 2009. The mission of the Global Centre for the Responsibility to Protect is to promote and catalyze international action to help countries prevent or halt mass atrocities. In collaboration with associated centers throughout the world, the Global Centre conducts, coordinates, and publishes research on refining and applying the R2P concept.

International Committee of the Red Cross (ICRC). At www.icrc.org/ , accessed May 2009. Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement. It directs and coordinates the international activities conducted by the Movement in armed conflicts and other situations of violence.

Journal of Humanitarian Assistance . At http:/jha.ac/ , accessed May 2009. The journal promotes the exchange of new ideas, previously unpublished research, and the critical write-up of field experience by field workers and researchers in humanitarian assistance. It offers the humanitarian assistance community the opportunity to receive and provide rapid public feedback on cutting-edge ideas.

Overseas Development Institute, Humanitarian Policy Group. At www.odi.org.uk/programmes/humanitarian-policy-group/default.asp , accessed May 2009. The Humanitarian Policy Group is one of the world’s leading teams of independent researchers and information professionals working on humanitarian issues. It is dedicated to improving humanitarian policy and practice through a combination of high quality analysis, dialogue, and debate.

Peacekeeping and Stability Operations Institute (PKSOI). At https:/pksoi.army.mil/ , accessed May 2009. PKSOI is the US military’s center of excellence for improving military, civilian agency, international, and multinational capabilities and execution at the strategic and operational levels. The Stability Operations Lessons Learned Management System (SOLLIMS) allows military and civilian organizations to engage in a collaborative process for the collection, analysis, dissemination, and integration of lessons learned.

ReliefWeb. At www.reliefweb.int/rw/dbc.nsf/doc100?OpenForm , accessed May 2009. ReliefWeb is the world’s leading online gateway to information on humanitarian emergencies and disasters. Designed specifically to assist the international humanitarian community in effective delivery of emergency assistance, it provides timely, reliable, and relevant information as events unfold, while emphasizing the coverage of “forgotten emergencies” at the same time.

The Sphere Project. At www.sphereproject.org/ , accessed May 2009. The Sphere Project is three things: a handbook containing the humanitarian code of conduct, a broad process of collaboration, and an expression of commitment to quality and accountability. The project’s goal is to improve the quality of assistance to people affected by disaster and to improve the accountability of states and humanitarian agencies to their constituents, donors, and the affected populations.

UN Department of Peacekeeping Operations Best Practices Section. At www.un.org/Depts/dpko/lessons/ , accessed May 2009. The goal of the Best Practices Section is to develop and support a culture of best practices in UN peacekeeping. It assists in the planning, conduct, management, and support of peacekeeping operations by learning from experience, problem solving, and transferring best practices in UN peacekeeping.

UN High Commissioner for Refugees (UNHCR). At www.unhcr.org/ , accessed May 2009. The UNHCR is mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide. As the premier refugee agency, it provides material aid for civilians, does technical legal work assisting asylum seekers, and helps to shape international humanitarian law. The UNHCR also provides resources for refugee policy research and evaluation.

Acknowledgments

Daniel Carik , Megan Carniewski , Pam Daley , Peace Medie , and Corey Sczechowicz provided valuable assistance by summarizing numerous books and articles. Their hard work made this essay possible.

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Immunity for International Crimes: Where Do States Really Stand?

by Adil Ahmad Haque

April 17, 2018

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Immunity , International Law Commission , United Nations General Assembly

Under customary international law, government officials, intelligence officers, military personnel, and other state agents generally enjoy immunity from criminal prosecution by other states with respect to acts performed in their official capacity. Does this ‘functional’ immunity—or immunity ratione materiae —extend to international crimes, such as genocide, crimes against humanity, and war crimes? This may be the most important question facing international criminal law today.

According to the International Law Commission (ILC), established by and responsible to the United Nations General Assembly, the answer to this question is ‘no’. Last year, the Commission provisionally adopted a Draft Article stating that “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law,” listing genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance. The Draft Article proved controversial within the Commission. The Chairman, who opposed the Draft Article, called for a recorded vote after “informal consultations” with other members, a rare event in a body that typically operates by consensus. 21 members voted in favor, 8 voted against, and 1 abstained.

Two weeks ago, AJIL Unbound , an online companion to the prestigious American Journal of International Law , published an important Symposium on the topic. Five of the essays focused on the ILC’s Draft Article, and all five were mostly critical of the ILC’s work. Sean Murphy , a member of the Commission who voted against the Draft Article, seemed to repeat objections which he offered during the debates without, in my view, fully engaging with the responses to those objections offered by members of the majority. Strangely, no member of the majority contributed to the Symposium. Perhaps all 21 were invited to do so but all 21 declined. Whatever the explanation, it is a pity that the Symposium does not reflect the majority view.

In any event, one essay contains a highly misleading passage that warrants a separate response. In his contribution, Mathias Forteau writes that the Draft Article “did not meet states’ approval.” According to Forteau,

Twelve states supported Draft Article 7 (Austria, Chile, Czech Republic, El Salvador, Greece, Italy, Mexico, Netherlands, Norway, Poland, Portugal, South Africa); ten states observed that the ILC should have tried to reach consensus before adopting any provision (Australia, China, France, Italy, Portugal, Romania, Slovakia, Slovenia, Spain, Sri Lanka); twenty-two states expressed concerns or disagreement with Draft Article 7 (Australia, China, France, Germany, India, Indonesia, Iran, Ireland, Israel, Japan, Korea, Malawi, Malaysia, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Switzerland, Thailand, United Kingdom, United States). All the relevant statements are available at Sixth Committee, 72nd Session , UNMeetings (Item 81 of the Agenda, Oct. 23 to 27 and 31, 2017).

No doubt, country statements are often written in guarded or circuitous language. As a result, classifying a statement as ‘pro’ or ‘con’ requires judgments about which reasonable people can disagree. Nevertheless, in my view, Forteau’s lists seem both incorrect and incomplete.

First, Norway supported Draft Article 7 on behalf of the Nordic states , which include Denmark, Finland, Iceland, and Sweden.

Second, Slovakia and Slovenia are listed as expressing concerns or disagreement, when in my view they expressed support. For its part, “ Slovakia supports the concept of immunity ratione materiae of State officials from foreign criminal jurisdiction, as well as the existence in current general international law of limitation and exception to this immunity. We therefore support inclusion of draft article 7 on the limitation and exceptions , which in our view shall not go beyond core crimes under international law.” Slovenia stated that it “ share[s] the views expressed within the Commission that , while today the status of customary international law does not allow for limitations and exceptions to immunity ratione personae in the context of inter-state relations, the opposite trend exists with respect to immunity ratione materiae and the most serious international crimes. ” Indeed, Slovenia’s chief complaint seems to have been that Draft Article 7 did not go far enough , since the crime of aggression was not listed as one in respect of which functional immunity shall not apply.

Third, as I read their statements, Estonia , Hungary , New Zealand , Peru , Romania , and Vietnam expressed support for Draft Article 7, but are not included on Forteau’s list.

So, in my view, the number of supportive states is not 12 but 24.

Turning to Forteau’s list of states expressing concerns or disagreement with Draft Article 7, I have already mentioned that Slovakia and Slovenia expressed support and should not have been included in this list. On the other hand, Russia expressed disagreement and should have been included. Finally, in my view, Indonesia , Korea , and Malawi expressed no view on the merits, though these statements are more difficult to classify.

So, in my view, the number of opposing states is not 22 but 18.

Again, there is some room for reasonable disagreement, and I invite readers to study the country statements for themselves and make their own judgments.

Of course, even if 24 states supported Draft Article 7 and only 18 opposed it, this would not itself show that Draft Article 7 is sound, or unsound, either as a codification of existing law or as progressive development of the law. For one thing, most of the UN’s 193 member states did not comment at all. For another, it is not entirely clear how country statements in the General Assembly bear on the existence and content of customary international law, for example, as ‘verbal’ state practice or as expressions of legal opinion ( opinio juri s).

Finally, there is the fundamental question: Does functional immunity apply in respect of international crimes unless an exception or limitation can be found in general state practice accepted as law or, instead, may states exercise jurisdiction over international crimes on the usual legal bases—territory, nationality, and the like— unless functional immunity in respect of such crimes can be found in general state practice accepted as law? If state practice is sparse and state opinion is divided, which rule applies until consensus is reached? I hope to say more about the merits in a future post.

(Many thanks to my friends Alonso Gurmendi Dunkelberg and Elvina Pothelet for compensating for my linguistic deficiencies and helping me to evaluate several country statements.)

Image: A wide-view of the special commemorative event entitled “The International Law Commission: Sixty Years: And Now.” UN Photo by Patrick Bertschman

About the author(s), adil ahmad haque.

Adil Ahmad Haque ( @AdHaque110 ) is Executive Editor at Just Security. He is also Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, Author of Law and Morality at War .

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Crimes Against Humanity

Crimes against humanity - essay example.

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Extract of sample "Crimes Against Humanity"

at this term first appeared in the preamble of the 1907 Hague Convention, the meaning of this term have evolved to take on a much broader meaning to include “anything atrocious committed on a large scale.”(Cherif Bassiouni (1998). Killing is morally evil and wars bring so many deaths that even though “decisions relating to war are not made in a moral vacuum” (Coates 1997) one can never claim that the death of innocent people are but the collateral damages of war. The term “crimes against humanity” has become so broad that it encompasses just all other types of violence against certain groups of people, sector or race in the past years.

To help us understand the term “crimes against humanity better” let us look into some specific events in the history of humankind where war has created such atrocities that dehumanize a person. It is interesting to note at this point that when we say crimes against humanities, we do not only mean deaths of thousands of people but also those events that reduce a person into a mean object of hate or experimentation. There have been many events in the past involving great loss of human lives, but throughout the recorded history of mankind nothing could ever surpass the holocaust when it comes to violations of the human dignity.

In the generic sense of the word, a holocaust is any event where there is great loss of human life as is near total destruction by fire (American Heritage Encyclopedia 2005). However, the meaning of this word somewhat changed with the event that led to the death of some 11 million people. The holocaust is one of the best examples of “crimes against humanity”. Between 1933-1945, around 6 million Jews and 5 million non-Jewish people were systematically killed when the Nazi movement and its supporter ruled the most part of Europe1.

Although most of Hitler’s target was the Jews, there are also other people who suffered and died on the process under the brutality of the military, the

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The Harvey Weinstein Appeal Ruling, Annotated

By The New York Times

The 2020 conviction of Harvey Weinstein on felony sex crime charges in Manhattan was overturned on Thursday by New York’s top court. The ruling by the New York Court of Appeals said the trial judge in Mr. Weinstein’s case, Justice James M. Burke, erred in letting prosecutors call some women as witnesses who said Mr. Weinstein had assaulted them, but whose accusations were not included as charges .

The appeals court found that Mr. Weinstein, the disgraced Hollywood producer whose case ignited the #MeToo movement , had not received a fair trial. In a statement, a spokeswoman for the Manhattan district attorney’s office said, “We will do everything in our power to retry this case and remain steadfast in our commitment to survivors of sexual assault.” Donna Rotunno, Mr. Weinstein's lead trial lawyer in New York, praised the ruling, saying, “They were prosecuting him for sins, not crimes.”

Mr. Weinstein, who was also sentenced to 16 years in prison in a California conviction , could be sent to that state to continue his sentence there, according to his spokesman.

The New York Times is annotating the ruling.

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New York Times Analysis

The overturning of Harvey Weinstein’s New York sex crimes conviction, and the ordering of a new trial, may feel like a sudden, shocking turn. In the public mind, he is a fully disgraced figure: sentenced to long prison terms in two cities, defined by the public testimonies of nearly 100 alleged victims whose stories formed the cornerstone of the #MeToo movement. But in legal terms, his New York conviction was always controversial , and his appeals always stood a chance.

— Jodi Kantor

Central to the decision to overturn the conviction was something called “Molineux witnesses,” which refers to witnesses in a trial who are allowed to testify about criminal acts that the defendant has not been charged with committing.

— Maria Cramer

During the Weinstein trial, prosecutors sought to persuade jurors that he had a long history of using his prominence as a Hollywood producer to lure young women to hotel rooms and sexually assault them. They did this by calling other women to the stand who said Mr. Weinstein had assaulted them, including Dawn Dunning, Tarale Wulff and Lauren Young. Mr. Weinstein was not charged with assaulting those women, but Justice James Burke allowed them to appear for the prosecution as Molineux witnesses, also known as “prior bad act” witnesses.

On Feb. 24, 2020, the jury, which consisted of five men and seven women, found Mr. Weinstein guilty of rape and criminal sexual act but acquitted him on three other counts, including the two most serious charges against him: being a sexual predator.

— Jan Ransom

The appeals court agreed with Mr. Weinstein that the trial judge violated his right to testify in his own defense. The trial judge had ruled that if Mr. Weinstein took the stand, prosecutors would be allowed to question him about a long history of bad behavior, including allegations that he threw food at an employee and punched his brother at a business meeting. The appeals ruling said this “impermissibly” affected Mr. Weinstein’s decision not to testify at trial.

— Nicole Hong

The reversal of the conviction was determined by a single vote, by a majority female panel of judges, who in February held a searching public debate about the fairness of the trial.

Judge Madeline Singas wrote in a dissent that the witness testimony of the additional women, who described their disgust and horror at Mr. Weinstein’s advances, had made it clearer to the jury that the former producer had to have known that he did not have the women’s consent.

Judge Singas's fiery dissent accused the court of making it more difficult for victims to seek justice against their assailants in future cases.

Judge Anthony Cannataro, who also dissented, wrote that the additional witnesses the prosecution presented were vital to show Mr. Weinstein’s pattern of manipulation and coercion.

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