part of natural law [20, 9]. According to the natural law view, individuals have inherent liberties including the right to sue against the State and their government. With these rights, international law has the right to place individuals in its care. Therefore, although recognizing the sovereignty of states, Grotius and Vattel set out moral standards for national governments in the treatment of their citizens. When the behavior of any government exceeds the above moral standards, that government loses its legitimacy in international law and becomes the subject of armed attack by other states. Grotius also argued that when a government “subjects its citizens to unacceptable treatment, the right to act belongs to the international community” [9, 22].
The important reason why the doctrine of humanitarian intervention in the 19th century received strong support from scholars was that there were no regulations prohibiting the use of force in international relations. Before the United Nations Charter, the use of force to resolve international disputes, under certain conditions, was still considered legal, at which time the legality of humanitarian intervention was naturally recognized. During this period, a series of interventions by countries under the name of humanitarianism appeared. Humanitarian reasons can be considered one of the reasons that received the strongest support from the community for a country to intervene in another country.
BOX 1
SOME TYPICAL HUMANITARIAN INTERVENTION ACTIVITIES BEFORE THE UNITED NATIONS CHARTER
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- British, French, and Russian intervention in Greece from 1827 to 1830;
- French intervention in Syria from 1860 to 1861;
- Russian intervention in Bosnia-Herzegovina and Bulgaria from 1877 to 1878;
- US intervention in Cuba in 1898;
- Greek, Bulgarian and Serbian interventions in Macedonia from 1903 to 1908, and from 1912 to 1913.
The United Nations Charter was born in the context of the world having just experienced two war disasters 2 . The recognition of the principles of Prohibition of the use or threat of use of force in international relations; the principle of Non-interference in the internal affairs of countries... has created the biggest obstacle to intervention activities even for humanitarian purposes. And obviously, humanitarian intervention activities must find new legal bases so that they can both achieve humanitarian purposes and not violate the basic principles and norms of modern international law3 .
To have a comprehensive and profound view of humanitarian intervention, the thesis will first study the definition of humanitarian intervention, analyze the basic characteristics of this activity, and from there determine the international legal basis to answer the question.
2 World War I from 1914 to 1919 and World War II from 1939 to 1945.
3 Modern international law has been recognized since the birth of the United Nations Charter in 1945.
Question: Is there humanitarian intervention under modern international law?
Up to now, there has been no definition of humanitarian intervention in international law, although there have been many different definitions of humanitarian intervention in the doctrines. Therefore, the understanding of what is humanitarian intervention as well as the characteristics and classification of humanitarian intervention are still controversial and currently there is no consensus in the international community.
BOX 2
SOME DEFINITIONS OF HUMANITARIAN INTERVENTION
* Humanitarian intervention is the international community's intervention to limit violations of human rights in a country, even if the intervention violates the principle of national sovereignty [6, 337].
- Black's Law Dictionary, 7th edition, ST.PAUL, MINN,1999) -
* Humanitarian intervention is the action of a state against a foreign government with the aim of ending the treatment that the government has applied to its own citizens that is contrary to humanitarian law [9,3] .
- Fernando Teson-
* Humanitarian intervention is the threat or use of force by a country, a group of countries or an international organization for the purpose of protecting citizens of another country from violations of human rights regulations recognized by the international community [26, 11].
- Sean Murphy-
* Humanitarian intervention is the military intervention in another country without that country's consent to prevent a humanitarian disaster, specifically widespread violations of basic human rights [14, 2].
- NATO definition at the Conference on Humanitarian Intervention, in Scheveningen, November 1999 -
* Humanitarian intervention is defined as the use of force or the threat of force by states involving the use of armed forces in another state without the consent of that state's government, with or without the authorization of the Security Council, for the purpose of preventing or repelling gross violations of international humanitarian law and human rights law [15, 2] .
-ICISS Report,1999-
Although there are different approaches and perspectives, the above definitions all refer to the following issues:
- Humanitarian purposes are given top priority to protect people;
- There are serious violations of human rights, specifically violations of international humanitarian law and human rights law;
- Where the violation occurs, the State is unwilling or unable to suppress the violations;
- Humanitarian intervention is carried out by armed means;
- Humanitarian intervention can be unilateral without the approval of the Security Council, or multilateral with the approval of the Security Council;
- Humanitarian intervention is carried out without the consent or authorization of the state where serious violations of human rights are taking place.
Most definitions of humanitarian intervention associate this intervention with the use of force. In addition, there are also some views that define humanitarian intervention in a broader sense when referring to humanitarian intervention, including the threat of using force or economic, diplomatic measures...
The International Committee of the Red Cross has also provided a broader definition of humanitarian intervention, including economic and diplomatic means to prevent human rights violations [5, 393]. The International Committee of the Red Cross's definition includes two types of humanitarian intervention. First, interventions related to natural disasters such as famine, epidemics, etc. In this category, humanitarian interventions usually do not involve the threat or use of force. Second, interventions related to complex political emergencies, directly linked to the threat or use of force against a country when the use of non-violent measures is ineffective.
Within the scope of this research, humanitarian intervention is defined as follows:
Humanitarian intervention is the use of force against another State without that State's consent, with or without the authorization of the Security Council, for humanitarian purposes to prevent or repel gross violations of international humanitarian law or human rights law.
According to the above definition, humanitarian intervention is limited to the use of force, not referring to humanitarian activities carried out by economic, diplomatic, political measures... Besides, the purpose of humanitarian intervention is to protect human rights, repel humanitarian disasters caused by armed conflicts, the above definition also
not to mention humanitarian activities for natural disasters such as: storms, floods, volcanoes, tsunamis...
1.1.2. Characteristics
The characteristics of humanitarian intervention are the basis for determining the nature of humanitarian intervention. The study of the characteristics of humanitarian intervention is meaningful in determining which cases of humanitarian intervention are acceptable in modern international law and which cases of humanitarian intervention are violations of modern international law. In addition, determining the characteristics of humanitarian intervention also aims to distinguish humanitarian intervention from other uses of force in modern international law.
Scholars around the world have also proposed many different characteristics of humanitarian intervention. However, based on the definition of humanitarian intervention as mentioned above, humanitarian intervention includes the following characteristics:
1.1.2.1. Humanitarian purposes
Humanitarian purposes are considered the primary condition of all humanitarian interventions, regardless of whether such humanitarian interventions are recognized by international law or not. Only when there is a humanitarian purpose does the issue of humanitarian intervention arise.
Therefore, the purpose condition of humanitarian intervention is not to determine the legality of humanitarian intervention but to determine the existence of humanitarian intervention.
Humanitarian purposes are set to protect the human rights of citizens of another country. When conducting humanitarian intervention, in addition to humanitarian purposes, purposes that are beneficial to countries such as: economic, political, etc. will not be taken into account.
According to scholars who support humanitarian intervention, the purpose is the most important. Scholar Charles Rousseau, in his work Public International Law,
defines humanitarian intervention as the action of a state against a foreign government “ with the aim of bringing an end to treatment by that government against its own citizens contrary to international humanitarian law” [24, 49].
Similarly, scholar Perez-Vera argues that humanitarian intervention must comply with the ultimate condition of pursuing only humanitarian goals [21, 417].
Scholar Antoine Rougier argues that the term humanitarian intervention itself represents disinterestedness, and “ Humanitarian intervention is no longer considered disinterested when the intervening subject has an interest in exceeding the limits that the subject must respect ” [2, 503].
F. Teson was the first scholar to establish a hierarchy of criteria to promote humanitarian purposes. According to Teson, an intervention is only considered legitimate when it is truly for humanitarian purposes. He admitted that it is very difficult to establish a limit to determine the humanitarian purpose of military intervention. First, he argued that the intervening country needs to limit its military actions enough to end the human rights violations of the relevant government. Next, according to him, even if the intervention is carried out for other purposes, they must not affect the ultimate purpose of ending human rights violations [9, 25].
The author also posed a series of questions to objectively determine whether any humanitarian intervention has humanitarian objectives as its top priority. He suggested considering whether the duration of the military intervention was reasonable, or whether the intervention force had special or preferential demands on the new government established through the intervention. Finally, he also suggested considering whether the intervening state had any manifestations of influencing or colonizing the intervened state.
The feature of “humanitarian purpose” has also been mentioned in NATO's definition of humanitarian intervention [14, 5]:
- The purpose is limited to preventing violations of human rights;
- Humanitarian purposes must be clearly explained to the public and the international community.
Thus, it is very difficult to clearly define the „humanitarian purpose‟ of interventions. However, this is an indispensable requirement of humanitarian intervention. Clearly defining the „humanitarian purpose‟ is meaningful in order to exclude other interventions that are not based on humanitarian purposes or that seem to use humanitarian purposes to justify their use of force.
It is easy to see that in most military interventions that have been carried out to date, humanitarian reasons have been only one of the reasons for their legitimacy. On the other hand, it must also be noted that there have been serious violations of fundamental human rights that have been ignored and neglected by the very States that have called themselves human rights defenders. Furthermore, it must not be forgotten that many humanitarian interventions have caused far more victims than they were supposed to prevent.
Therefore, it is very important to clearly, tightly and consistently define such “humanitarian purposes” , which will prevent the implementation of other purposes such as: opposing the political regime of a country, other political purposes... Besides, it also demonstrates the non-profit nature of humanitarian intervention activities.
“Humanitarian purpose” is only one of the basic characteristics when defining humanitarian intervention. Other important characteristics will be discussed below.