Roundtable #13 | Humanitarian Intervention

Τhe views in these articles are those of the individual authors and not of the Columbia Undergraduate Law Review

Section 1 - Legal Basis for Intervention

The perception of humanitarian intervention has recently shifted from a mere subset of international law governing the use of force to a legitimate, legal reason for war. Using humanitarian intervention as a justification for foreign interference has become increasingly commonplace in the international arena. However, despite its widespread application, the use of this justification remains highly controversial; critics point out that the humanitarian label runs the risk of masking the hidden geo-political motivations of nations. This section considers the legality of humanitarian intervention under an international law framework by examining relevant legal documents and case studies through various regions of the world.

Generally, there are three defining characteristics of humanitarian intervention. First, humanitarian intervention involves the threat and use of military force. Second, it entails the dispatch of military forces into the territory or airspace of a sovereign state that has not committed an act of aggression against another state. Third, it is incentivized by humanitarian objectives, such as preventing genocide, mass atrocities, ethnic cleansing or another crime against humanity. [1] Humanitarian intervention is constructed on a central principle: Should a state gravely and systematically violate the inalienable rights of its citizens, the right to self-determination can be compromised for the greater good of protecting common humanity. In other words, states with a record of serious human rights violations cannot use sovereignty as an excuse to resist international interference in order to perpetrate their wide-scale wrongdoings.

The justification of the use of force is drawn from sources within existing international law. Ethically justified interventions are authorized in Article 24 of the United Nations Charter to promote the “maintenance of international peace and security.” [2] Article 24’s idea of a humanitarian intervention is motivated by the obligations of a state to uphold the principles and rules that govern inalienable human rights. Article 42 permits the Security Council to take what measures it deems necessary in the pursuit of protecting such rights, including military action against states or any "threat to the peace, breach of the peace or act of aggression." [3] Among the measures allowed, Article 39 subjects the collective use of force to the absolute control of the UN Security Council. However, any resolution to that effect must be supported by all five permanent members. [4] Intervention authorized by the UN Security Council is unambiguously legal in order to centralize the enforcement of international order and to prevent armed conflicts between states by “depriving them of independent legal channels to war.” [5] The clearly defined legality of intervention is particularly important due to its relevance in the international peacekeeping effort. Together, these documents help define the permitted conditions under international law whereby states may use force against one another.

However, a significant controversy remains: Does  the obligation to prevent mass atrocities and punish abusive regimes necessitate an authorization to use force across state boundaries? Or, does it mandate a more limited set of measures, such as prosecuting, punishing, or extraditing suspects? Concerning the crime of genocide, the Genocide Convention contains a duty "to prevent and punish." [6] However, Article 8 of the Genocide Convention finds that only a "Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate." [7] Therefore, the Genocide Convention itself neither establishes the legitimacy nor the illegitimacy of humanitarian intervention. The main concerns with humanitarian intervention are that it could make the victims of the allegedly abusive regime even worse off, undermine political independence, and infringe upon national sovereignty.

Expanding more upon the first concern, historical examples may support worries that humanitarian interventions without Security Council authorization could potentially lead to an upsurge in violence that would raise civilian casualties that could be saved. The North Atlantic Treaty Organization’s (NATO's) intervention in Kosovo following the government’s ethnic cleansing of Albanians in the 1990’s caused great controversy on this matter, as the organization intervened even after being denied authorization from the UN Security Council. The UN Charter prohibits the use of force except in cases of self-defense against an armed attack or when given authorization by the Security Council. [8] Neither conditions were satisfied in this case.

Supporters of the NATO bombing of Yugoslavia argued that the bombing brought the humanitarian crisis caused by Yugoslav forces to an end; the development of this humanitarian crisis and the subsequent accusations of genocide were used by policy-makers in the United States and Europe to legally justify the campaign on the basis of "humanitarian law," which in turn served as justification for military intervention. [9] On the other hand, one might also argue that the campaign violated international humanitarian law both by using armed force against a sovereign state without the Security Council’s authorization and by exceeding the limits of the law of war through attacks on civilian utilities and military targets. Moreover, some expressed doubts about whether bombs were dropped for humanitarian reasons, given that it may have worsened the violence against Kosovar Albanians. [10] Controversy around NATO’s intervention in Kosovo raises questions  about the justification of intervention—whether foreign intervention for external political gains or perpetrating humanitarian exigencies would cost more lives. 

Furthermore, the second concern is that political autonomy is subverted during these kinds of interventions due to the incompatibility of it with the UN Charter and other documents of the international law framework. Customary international law arising from Nicaragua v. U.S. (1984) strictly restricts the use of armed force unilaterally on humanitarian grounds. [11] In addition to this, Article 24 of the UN Charter, which provides for the Security Council's "primary responsibility for the maintenance of international peace and security," further suggests that unilateral humanitarian intervention is incompatible with the Charter. [12]  Given all this, it is clear that the Security Council is  the sole institution with the power to authorize the use of force. However, despite the lack of legal basis based on established international law, states continue to resort to unilateral intervention.

Finally, the third major concern about unilateral humanitarian intervention involves the “Responsibility to Protect” (R2P) which refers to a moral rationale for humanitarian intervention which contradicts the inviolability of the territorial sovereignty of states enshrined in Article 2(4) of the UN Charter. R2P entails three pillars: 

1.     Pillar I: States are responsible for protecting their respective populations from mass atrocities and ethnic cleansing

2.     Pillar II: The international community is responsible for helping states fulfill their responsibilities

3.     Pillar III: The Security Council is responsible for authorizing “timely and decisive” military interventions when states fail to protect their populations [13]

The moral rationale behind R2P is similar to the principle underpinning Article 24 of the UN Charter: the reluctance to intervene would give rise to widespread atrocities behind the veil of national sovereignty. Pillar II of the commitment to protect gives states with the authorization of the Security Council the right to apply force as a last resort, as established in the 2005 World Summit. [15] However, it has received heavy backlash from detractors for violating territorial sovereignty and political integrity. The U.S. government made several attempts from 2011 to 2013 to invoke R2P on the basis of protecting civilians against violent Islamic extremist groups so that the Security Council would authorize forms of military intervention in the Syrian Civil War, but this was ultimately not proceeded with. Most of the controversy with R2P revolves around disagreements over to what extent the international community can interfere in states’ domestic affairs to help them “fulfill their responsibilities,” as noted in Pillar II, as well as disagreements in Pillar III over  whether the Security Council acts in the interest of powerful states instead of that of civilians in abusive regime.  

Warfighting and humanitarian intervention both involve the use of military force to either act in self-defense or bring an end to human rights abuses in another state. Because of the sensitive nature of intervention towards the sovereignty of states, the laws are limited to a broad level and are subject to tight constraints.

By: Mai Nguyen, Roundtable Contributor from the University of Pennsylvania

Section 2 - War Crimes: What They Are and What They Aren’t

International law regulates when force can be used, who it is used by, and whom it is used toward. It is designed to create a standard to differentiate between legitimate and illegitimate intervention and to justify the sanctioning of entities whose interventions fall into the latter category. Yet, international law is generally limited to the macro level: It merely delineates the guidelines nations must follow before staging an intervention. There are a separate set of laws that govern nations’ conduct in the interventions themselves, most notably laws governing the military force that interventions often entail. These laws against “war crimes” are a critical part of international law concerning interventions; to understand this area of law, it is important to determine why laws governing war exist, what they entail, and how to avoid common misconceptions about them.

War’s high-stakes and inherently chaotic nature necessitate legal restrictions on nations’ conduct. Laws governing war exist because of humanity’s need to limit the damage war causes. This legal and moral imperative has long been recognized. Indeed, the first example of an international trial for war crimes was as early as 1474, when the Holy Roman Empire tried the knight Peter von Hagenbach for crimes he “was deemed to have a duty to prevent.” [1] Since then, there have been numerous examples of attempts to establish international laws governing military conduct. 

The first of such attempts came at the Hague Conventions of 1899 and 1907. In the first of these, during a meeting proposed by Russian Tsar Nicholas II, the nations involved agreed to a treaty establishing rules of war including: banning the killing of enemy combatants who had surrendered;  prohibiting attacks on undefended cities; and  implementing collective punishment, among numerous other war crimes. The convention also established the Permanent Court of Arbitration, a body which still arbitrates modern disputes which arise from international agreements. [2] Notably, this treaty was signed by all the major powers at the time , indicating popular, international support for legal penalties in war. [3] 

The Geneva Conventions built upon many of the widely accepted tenants of the Hague Conventions. Four Geneva conventions were held, with the first in 1864 and the last in 1949. The conventions dealt chronologically with the treatment of the following groups: the wounded in battle, the wounded in naval warfare, prisoners of war, and civilians. The two most controversial protocols were added in 1977, and sought to protect the victims of international conflicts and update the treaty to include military developments since World War II. The United States still has not ratified these protocols, largely out of concern they grant non-state groups equal combatant privileges to state armed forces in international armed conflict. [4]

The Rome Statute, which was signed in 1998, marks the most recent development in humanitarian law. This statute, which took effect in 2002, established the International Criminal Court, a body charged with jurisdiction over war crimes, particularly large-scale offenses. [5] Beyond merely establishing the ICC, the Rome Statute also established four categories of international crimes: crimes against humanity, genocide, crimes of aggression, and war crimes. [6] 

Article 8 of the Rome Statute directly articulates the modern world’s conception of war crimes.  Such crimes include “grave breaches of the Geneva Conventions” ranging from “compelling a prisoner of war… to serve in the forces of the hostile power” to the “extensive destruction of property… not justified by military necessity and carried out unlawfully and wantonly.” [7] Notably, in the latter provision, the tension between the law and military necessity that is so characteristic of wartime law is again apparent: the inclusion of the phrase “military necessity” serves as legal cover for property damage that would otherwise be illegal. 

Furthermore, per the wording of the statute, the court’s role is not to prosecute any war crime, but specifically war crimes that are pursuant to a larger plan. [8] According to Human Rights Watch, this means that the court’s jurisdiction is “substantially narrower” than one would expect given “definitions of grave breaches of the Geneva Conventions.” [9] Clearly, the court’s remit is limited: not every war crime falls within its jurisdiction. This is a feature of the court that has drawn some criticism; its jurisdiction seems to fall short of covering the entirety of the Geneva Conventions [10]. Thus, in some sense, the Rome Statute can be considered a de facto revision of the Geneva Convention.

This tension is perhaps the primary reason behind the confusion over what is—and what isn’t— a war crime. It is important to address this, particularly because this enables the politicization of the term “war crime.” Here, it becomes important to consider two common misuses of the charge of “war crimes.” The first involves a failure to consider intent, while the second involves the misconception that any military action that causes harm to civilians is ipso facto illegal.

In the case of the former, Article 30 of the Rome Statute requires  proof both that the crime occurred and that the crime was carried out intentionally for a war crime conviction. [11] Thus, proving a war crime is inevitably a tall order.

The subjectivity of laws governing combat also make war crimes difficult to provide. For example, section 8(b)(iv) of the Rome Statute establishes that attacks which will knowingly cause civilian casualties are not  war crimes insofar as those casualties are not “excessive in relation to… the military advantage anticipated.” [12] Meaning, civilian casualties are permissible as long as they are not wantonly inflicted, and are incidental to some greater military purpose. 

This provision reflects the principle of proportionality. This principle  recognizes “the laws of warfare could not categorically prohibit [attacks that involved legitimate military objectives but lead to civilian casualties] without treating war as illegal per se.” [13] To avoid making a categorical prohibition of war, section 8(b)(iv) of the Rome Statute narrowly defines impermissible civilian casualties.

When applying this statute, the ICC must weigh military advantage against probable civilian damage. The Court must exercise a  “case-by-case” evaluation of military combat in making this determination. [14] The proportionality principle and Section 8(b)(iv) of the Rome Statute are perhaps the greatest example of the difficulties involved in trying to create a comprehensive set of legal standards for war; by its very nature, war eludes one-size-fits-all standards and leads to the legal quagmire that is case-by-case judgment. 

This is one of the reasons the Law of Armed Conflict is largely misunderstood. There is a fundamental disconnect between what some think should be a war crime and the international, legal definition of a war crime. Despite humanitarian law’s imperfections, it still prevents military conflicts from reaching pre-World War II scale and brutality. 

A viable, alternative approach to interpreting humanitarian law is to avoid exclusively analyzing the corpus through an international, legal lens. Current international law does not adequately enforce the proportionality provisions; breaches are often difficult to observe, and even when observed, they are not treated as “grave breaches” as defined by the 1949 Geneva Conventions. [15] Choosing to treat violations of proportionality as a “grave breach” of the Geneva Convention is an effective solution to make war more just and more humane. Clearly, international law is a perennially imperfect legal doctrine subject to constant evolution. However, in this era of sectarian violence, in which distinguishing international and non-international conflicts is increasingly difficult, interpretive innovation is essential. 

By: Artem Ilyanok, Roundtable Contributor from Columbia University

Section 3 -  Respect for and Violations of International Humanitarian Law in Non-international Armed Conflicts

Proving both the actus reus (conduct) and mens rea (intention) for war crimes is not the only difficulty prosecutors face during criminal tribunals for crimes against humanity. Non-international armed conflicts (NIACs) typify modern warfare, augmenting throughout the 20th century. Despite the surge in NIACs, there is no robust corresponding movement for treaty law to regulate these conflicts. Prosecutors must, therefore, rely on alternative regulatory measures for indictments. Given the weak legal foundation, it is unsurprising war crime  convictions are rare; this undermines the objectives of and respect for international humanitarian law. With state cooperation, developing regulations of NIACs in treaty law could promote respect and adherence to the law in NIACs. 

The definition of NIACs has evolved significantly from their original definition in Common Article 3 of the 1949 Geneva Convention. Common Article 3 distinguishes NIACS from international armed conflicts and defines non-international conflicts as “armed conflict(s) not of an international character occurring in one of the high contracting parties.” [1] This definition was clarified in Article 1 of the Additional Protocol II of the Geneva Conventions. Article 1 (2) adds that the classification of NIAC “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” [2] Despite clarifying the original definition, Article 1 does not provide effective parameters for determining when a NIAC has materialised. 

In the International Criminal Tribunal for the Former Yugoslavia (ICTY), specific indicators for the occurrence of a NIAC were enumerated in case law. The tribunal’s decisions  defined NIACs as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” [3] The intensity of the violence and the organisation of belligerent groups were also established as parameters for defining a conflict as an NIAC. [4] Intensity of violence is defined by  collective fighting; frequency and protraction of violence; type of weapons in use; the number of casualties and wounded individuals;and territorial control. [5] The organisation of non-governmental actors, or belligerent groups, is indicated by the presence of a hierarchy of command, ability to recruit and train, and capacity to launch large-scale military operations. [6] NIACs are still categorised on an ad-hoc basis, but this clarification is helpful in classifying future conflicts.

Historically, it has been noted that the development of international humanitarian law concerning NIACs has not kept pace with the development of the law regarding international armed conflicts. [7] States often reject international law they perceive to undermine their sovereignty, particularly regulations surrounding their internal affairs; this has delayed the development of law surrounding NIACs. However, the development of modern warfare and increasing frequency of NIACs necessitate further legal constraints.[8] 

There has indeed been a movement towards increased regulation of NIACs. However, this can largely be attributed to case law produced by criminal tribunals including the International Criminal Tribunal for the former Yugoslavia (ICTY). [9] [10] In Prosecutor v. Tadic, a decision in the ICTY regarding war crimes at Serbian concentration camps, the tribunal recognised, “what is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.” [11]  Meaning, laws, including customary law principles, which govern international armed conflict are transferable and can be applied to NIACs. Developments in international criminal law and human rights law have thus indirectly engendered the maturation of the law regarding NIACs. Treaty law does, however, remain scarce for NIACs, and is almost entirely contained within Common Article 3, Additional Protocol II and Article 8 of the International Criminal Court Statute. 

Despite some progress toward the regulation of NIACs, existing treaty law is often violated. In the Afghanistan conflict, all parties are bound by Common Article 3 to the 1949 Geneva Conventions, which establishes minimum standards of humane treatment. [12] Afghanistan is also a signatory for the 1997 Additional Protocol II, Article I. [13]  The Taliban’s military-style activities, organisation and command structure,  and control of large swathes of Afghan territory, indicate the Afghanistan conflict is an NIAC under Additional Protocol. Despite the regulation which comes with classification as an NAIC, instances of inhumane treatment and civilian attacks continue in Afghanistan.

Civilian attacks have been perpetrated by both state and non-state actors in Afghanistan. Taliban forces often use explosive devices aimed at rival soldiers which result in civilian casualties and property damage. [13] These attacks violate Common Article 3 of the Geneva Conference which protects civilians by requiring humane treatment of civilians and their property. [14] The disregard for humanitarian law in NIACs is not unique to Afghanistan.  

The crux of the issue is a lack of respect for international humanitarian law. The 1995 26th International Conference deplored the increasing violence and disrespect of the law in armed conflicts across the globe and resolved to educate, ingrain respect, and prosecute for violations of international humanitarian law. [15]  Over twenty-five years later, NIACs are still characterised by a lack of respect for international humanitarian law. The root of the issue lies in state aversion to perceived threats to their sovereignty.  International cooperation is paramount to the success of humanitarian law. Therein lies the solution: Nations must cooperate and actively commit to enforcing respect for international humanitarian law in conflict situations by promoting and securing legal accountability. 

By: Grace Haynes, Roundtable Contributor from Cambridge University

Annie - Section 4 - Reforms to International Law & Judicial Institutions

Although humanitarian interventions are intended to protect civilians from war crimes and crimes against humanity, in many cases they fail to promote peace and security. Past military interventions by Western powers in Iraq and Afghanistan likely resulted in more violence, instability, and even war crimes in the targeted regions. These tragic examples challenge the arguments surrounding both the efficacy and morality of humanitarian interventions. 

Numerous reforms have been suggested to address the intervention dilemma, including codifying the doctrine of R2P and restructuring international judicial institutions prosecuting human rights violations and crimes against humanity. An analysis of the ongoing crises in Myanmar, however, reveals that legal reform to both the existing framework of international law, as well as the enforcement of international judicial rulings, may not be possible due to politics between various involved actors.

The recent coup and Rohingya crisis in Myanmar could make Myanmar become the next target for UN-sanctioned humanitarian intervention. On February 1 of this year, Myanmar’s military, known as the Tatmadaw, deposed the democratically elected government of Myanmar, including the de facto leader Aung San Suu Kyi and seized control. Civilian protesters have faced extreme brutality from Myanmar’s military; at least 790 civilians have been killed and more than 3,900 individuals have been detained. [1] Concurrently, Tatmadaw officials have been accused of “genocidal intent” and committing “crimes against humanity” and “war crimes” for their actions towards the Rohingya, a predominantly Muslim community in Buddhist-majority Myanmar that has faced extreme discrimination, violence, and forced displacement since the 1970s. [2] The international community’s reactions to these twin crises have been mixed. The United Nations Security Council issued a statement condemning the use of violence against the “peaceful protestors” and warned the military to “fully respect human rights and fundamental freedoms and uphold the rule of law.” [3] The United States went further by imposing sanctions on leaders of the Myanmar military and export controls on the Burmese government, with the European Union following suit. [4] [5] China, on the other hand, urged the Myanmar government to “keep calm, exercise restraint, and take actions with a constructive attitude to de-escalate and cool down the situation.” [6]

Many activists in the region are urging the international community to take more drastic actions to stop the violent coup, including military intervention through R2P. However, R2P has no real legal authority and  is merely a commonly practiced doctrine. However, it is one that has, over the past few years, become so normalized that many countries invoke its principles in justifying interventions, particularly in the examples of Darfur, Somalia, Libya, and Kosovo. Some scholars argue that these changes in international norms and state practices effectively turn norms into law, thus giving legal credence to the R2P doctrine. [7] Opponents to the “norms-to-law” theory argue that Article 2(4) of the UN Charter, which prohibits any use of force that threatens the sovereignty of a state, challenges the legitimacy of R2P. [8] However, Article 2(4) has long been disregarded by international actors, from NATO’s intervention in Kosovo in 1999 to the U.S. invasion of Iraq in 2003. [9] Therefore, by the doctrine of desuetude—the notion that consistent violations of laws render them obsolete—Article 2(4) is not legally binding. [10] The rejection of Article 2(4) and increasing acceptance of R2P, at least among liberal democracies, could potentially signal a shift in international law towards the codification of laws permitting humanitarian intervention. 

Instituting reforms to the UN Charter regarding humanitarian interventions, however, is unlikely. Under Article 108, the Charter may only be amended with the support of two-thirds of the General Assembly, and all permanent members of the Security Council: the United States, China, Russia, France, and the United Kingdom. China and Russia, in particular, have long opposed humanitarian interventions for various reasons. Both countries are strong advocates for respecting national sovereignty, and invasion into a sovereign territory under R2P, they argue, challenges Articles 2(1) and 2(4) of the Charter. The regions targeted by humanitarian intervention are also often crucial to China and Russia’s political and economic interests. In the resource-rich Middle East and Southeast Asia, both countries have significant foreign investments and strategic interests which are often supported by the corrupt regime in question. Therefore, given China and Russia’s historical stances against humanitarian interventions, attempts to reform the UN Charter’s current, rigid stance on interventions would almost certainly fail.

In the case of Myanmar, from a purely humanitarian perspective, the invocation of R2P is warranted: the Rohingya population suffers from genocide and forced displacement, and the civilian protestors face extreme violence from the junta. The probability, however, of all members of the Security Council (as required by the R2P doctrine), particularly China, approving humanitarian intervention is incredibly limited. China has significant investments in Myanmar, including the Sino-Myanmar pipelines, and has been reluctant to criticize the military government. [11] China defended leaders of the Myanmar government during the Rohingya crisis and even blocked a UN Security Council statement denouncing the coup. [12] Additionally, China has an extensive history of vetoing R2P resolutions, criticizing them for violating states’ sovereignties. Thus, China's political interests create substantial obstacles in both the implementation and codification of R2P.

Some believe that international judicial systems such as the International Criminal Court (“ICC”) and International Court of Justice (“ICJ”) should step up and hold human rights violators accountable when international actors are unable to escape the UN deadlock. As discussed in Section II, the ICC, established by the 1998 Rome Statute, has jurisdiction over international crimes, from genocide and war crimes to other crimes against humanity. The Court, however, is still flawed: its restrictive jurisdiction, inefficient court proceedings, and limited international enforcement of rulings hinder and even prevent the swift, much-needed delivery of justice. 

The ICC only has jurisdiction to try individuals if: 1) the state in which the individual commits the crime accepts the jurisdiction of the ICC, or  2)  in a referral by the ICC prosecutor or a state, the state where the crime occurred accepts the jurisdiction of the ICC. [13] Myanmar is not a state party to the ICC; thus, the Court lacks immediate jurisdiction over the state. [14] Myanmar could, under Article 12.3 of the Rome Statute, “accept the exercise of jurisdiction by the Court with respect to the crime in question” through a declaration with the Registrar. However, this action would raise yet another contentious question. Which Myanmar government would the international community recognize: the current junta regime—which would never accept the jurisdiction of the ICC—or the ousted civilian government proposing the action? The changes in Myanmar’s government also affect the ICC’s ongoing investigation in Bangladesh regarding the Rohingya genocide. With Aung San Suu Kyi, the ousted leader of Myanmar’s civilian government, no longer appearing as the defense against Bangladesh’s accusations and the junta regime’s refusal to even engage with international institutions, securing justice for the Rohingya people and other active civilian protestors will be seriously delayed and potentially impossible. [15]

Furthermore, convictions are difficult to achieve and enforce. Preliminary investigations can last months, if not years, and in its two decades of operations, the ICC has only secured five convictions. [16] The lengthiness of procedures also diminish the negative impacts that prosecutions would ordinarily produce. [17] Furthermore, the ICC lacks the power to enforce its decisions. A famous example is Omar al-Bashir, the former Sudanese president convicted of war crimes and crimes against humanity in Darfur, who, despite an arrest warrant in 2009, continues to dodge the ICC’s warrants. [18] Therefore, even if Myanmar’s civilian democratic movement is successful in extending the ICC’s jurisdiction, and the Court finds the junta leaders guilty after lengthy investigations, which will undoubtedly be exacerbated by limited cooperation and transparency from the junta and civilian government, the arrest warrants for the accused leaders may not necessarily be enforced by the state. Thus, the organization and structure of the ICC do not provide the institution much power in preventing or prosecuting international crimes.

The International Court of Justice also plays a significant role in enforcing accountability for violations of human rights. In theory, the ICJ could provide more comprehensive restitution to victims of human rights crimes. While the ICC may only impose criminal sanctions on specific individuals found guilty of violating existing human rights laws, the ICJ may offer financial damage awards to victims. Many believe that financial compensation would enable victims, often facing displacement and detention, to rebuild and sustain their lives and communities after tragedies. 

The ICJ also has the power to issue provisional measures and preliminary injunctions, which authorize the UN to legally take action against states to prevent genocides, crimes against humanity, and human rights violations. [19] These measures could hypothetically allow states or international institutions such as the UN to intervene in a timely manner to stop further violence in the state, without the long investigations and proceedings required for a formal case. These measures, however, are limited by the ICJ’s jurisdiction. Applicants for provisional measures must demonstrate prima facie that the Court has jurisdiction over the case: for example, in The Gambia v. Myanmar, The Gambia sought provisional measures from the ICJ to prevent the genocide of the Rohingya in Myanmar, as both states’ ratification of the 1948 Genocide Convention mandated they settle disputes over the Convention through the ICJ. [20] However, all ICJ rulings must be enforced by the UN Security Council, and as discussed above, the UN deadlock created by China would render any preliminary injunctions against Myanmar’sactions towards the Rohingya impossible to enforce. Likewise, any attempts to hold the junta regime accountable for its violence against civilians through the ICJ would fail.

The influence of politics, particularly from members of the Security Council, renders military intervention in the humanitarian crisis in Myanmar almost impossible, despite international laws. Although judicial systems such as the ICC and ICJ could potentially also play a significant role in permitting military intervention and preventing future violations of human rights, these Courts, too, depend on a politically deadlocked Security Council. Therefore, multilateral military intervention is virtually impossible. And, as seen in the previous sections, even unilateral interventions most often fail. Military intervention should only be seen as a last resort: historically, it has been unable to create long-term peace in the targeted regions, and legally, it holds almost no legitimacy.

International law, and military intervention are inadequate to deliver the justice the people of Myanmar, and the countless other regions and populations devastated by violence and other human rights violations,  deserve. And, unfortunately, without highly improbable changes to decision-making processes in the UN, international law and judicial systems are unlikely to reform. 

By: Annie Tan, Roundtable Contributor from Columbia University

Roundtable Edited by David Jung

Sources for Section 1

[1] Frye, Alton , ed., 2000. Humanitarian Intervention: Crafting a Workable Doctrine. New York: Council on Foreign Relations. 

[2] United Nations General Assembly, Charter Of The United Nations, United Nations Treaty Collection (1945), online at https://treaties.un.org/doc/publication/ctc/uncharter.pdf (visited August 9, 2021).

[3] id at 9

[4] id at 9

[5] Hurd, Ian. "Is Humanitarian Intervention Legal? The Rule Of Law In An Incoherent World". Ethics & International Affairs 25, no. 3 (2011): 293-313. doi:10.1017/s089267941100027x.

[6] United Nations General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations (December 9, 1948), online at https://www.un.org/en/genocideprevention/genocide-convention.shtml (visited August 9, 2021).

[7] id

[8] United Nations General Assembly, United Nations Charter (full text), United Nations (1945), online at https://www.un.org/en/about-us/un-charter/full-text (visited August 9, 2021).

[9]  Lewis, Neil. "The Rationale: A Word Bolsters Case For Allied Intervention". Archive.Nytimes.Com, 1999. https://archive.nytimes.com/www.nytimes.com/library/world/europe/040499kosovo-legal.html.

[10] Macivor, Carol. "Yugoslavia: Canadian Officials Disagree Over Role In Kosovo". Radiofreeeurope/Radioliberty, 2000. https://www.rferl.org/a/1093319.html

[11] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, online at https://www.icj-cij.org/public/files/case-related/70/070-19841126-JUD-01-00-EN.pdf. 

[12] United Nations General Assembly, Charter Of The United Nations, United Nations Treaty Collection (1945), online at https://treaties.un.org/doc/publication/ctc/uncharter.pdf (visited August 9, 2021).

[13] "United Nations Official Document". Un.Org, 2009. https://www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677

[15] "2005 World Summit Outcome". Un.Org, 2005. https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf.

Sources for Section 2

[1]  Edoardo Greppi, “The Evolution of Criminal Responsibility under International Law,” No. 835, International Review of the Red Cross, 531 (1999).

[2] History, Permanent Court of Arbitration, n.d., online at https://pca-cpa.org/en/about/introduction/history/, (5/3/21).

[3] “Convention for the pacific settlement of international disputes,” conclusion date: July 29,1899, Library of Congress, 1.

[4] Tracey Begley, Is It Time to Ratify Additional Protocol I? International Committee of the Red Cross(2015), online at https://intercrossblog.icrc.org/blog/d9r104eqyjzqgma49vlapmk6a9l67i (visited August 15, 2021).

[5] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at https://www.refworld.org/docid/3ae6b3a84.html (accessed 16 August 2021).

[6] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at https://www.refworld.org/docid/3ae6b3a84.html (accessed 16 August 2021).

[7] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at https://www.refworld.org/docid/3ae6b3a84.html (accessed 16 August 2021).

[8] id

[9] Human Rights Watch (Organization), Justice in the Balance: Recommendations for an Independent and Effective International Criminal Court. New York: Human Rights Watch, 1998 (5).

[10] id at 45.

[11] Brown, Bernard L. (1976) "The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification," Cornell International Law Journal: Vol. 10: Iss. 1, Article 5.

[12] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at https://www.refworld.org/docid/3ae6b3a84.html (accessed 16 August 2021).

[13] Bernard L. Brown, "The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification," 10 Cornell International Law Journal 134, [X] (1976).

[14]  Id at 142

[15] Id at 148

Sources for Section 3

[1] Geneva Conventions, Common Article III, Relative to the Treatment of Prisoners of War, Conflicts Not of an International Character, 1949.

[2] Geneva Conventions, Article 1(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1977.

[3] ICTY, Prosecutor v Dusko Tadic, Judgment (Trial Chamber) Case No. IT-94-1-T, 1977, §562.

[4] See Prosecutor v Dusko Tadic, above; ICTY, Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (Trial Chamber), 2005, §84; ICTY, Prosecutor v. Boskoski, Case No. IT04-82, Judgment (Trial Chamber), 2008, §175.

[5] ICTY, Prosecutor v. Boskoski, Case No. IT04-82, Judgment (Trial Chamber), 2008, § 177; ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 2008, §49; Prosecutor v. Limaj, above, §168

[6] Prosecutor v. Limaj, above, § 94-134; Prosecutor v. Boskoski, above §199-203; Prosecutor v. Haradinaj, above, §60

[7] Vité, S., 2009. Typology of armed conflicts in international humanitarian law: legal concepts and actual situations. International Review of the Red Cross, 91(873), pp.69-94.

[8] Treaties, States Parties, and Commentaries - Additional Protocol (II) to the Geneva Conventions, 1977 - 19 - Dissemination - Commentary of 1987. 

[9] Customary international humanitarian law is a species of law based on state practise and opinio Juris; the belief that one is legally obligated to perform an act. It is rooted in the idea of consent and is binding on states who have not submitted an objection to the law. This specific type (humanitarian) focuses on the regulation of armed conflicts. 

[10] Sandesh Sivakumaran (2011), Re-envisaging the International Law of Internal Armed Conflicts European Journal of International Law, 22 (1) 228

[11] Prosecutor v Dusko Tadic, above, § 230

[12]  Geneva Conventions, Common Article III, Relative to the Treatment of Prisoners of War, Conflicts Not of an International Character, 1949.

[13] Treaties, States Parties and Commentaries: Afghanistan, International Committee of the Red Cross (1977), online at https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=AF (visited August 15, 2021).

[14] Violations of International Humanitarian Law in Afghanistan Practices of Concern and Example Cases, Afghanistan Independent Human Rights Commission Report 2008

[15] Final Resolutions, Annex I, International Humanitarian Law: From Law to Action Report on the Follow-up to the International Conference for the Protection of War Victims. Available at: https://www.icrc.org/en/doc/resources/documents/resolution/26-international-conference-resolution-1-1995.htm [Accessed: 03.04.2021] 

Sources for Section 4

[1] Feliz Solomon, Myanmar's Military Detained a Poet. He Was Soon Dead and Disfigured, The Wall Street Journal (May 16, 2021), online at  https://www.wsj.com/articles/myanmars-military-detained-a-poet-he-was-soon-dead-and-disfigured-11621175948 (visited May 17, 2021).

[2] Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar, Human Rights Council (September 12, 2018), online at https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf (visited May 17, 2021).

[3] United States Mission to the United Nations, Statement by the President of the Security Council on Myanmar, United States Mission to the United Nations (March 10, 2021), online at  https://usun.usmission.gov/statement-by-the-president-of-the-security-council-on-myanmar-march-10-2021/ (visited May 17, 2021).

[4] Jennifer Hansler, Biden Announces US Will Sanction Myanmar's Military following Coup, CNN (February 11, 2021), online at  https://www.cnn.com/2021/02/10/politics/biden-myanmar-coup-sanctions/index.html (visited May 17, 2021).

[5] Reuters Staff, EU Slaps Sanctions on Military Chiefs Involved in Myanmar Coup, Reuters (March 22, 2021), online at  https://www.reuters.com/article/us-myanmar-politics-eu-idUSKBN2BE0RN (visited May 17, 2021). 

[6] Nikkei Staff Writers, Myanmar Coup: Week from March 30 to April 17, Opponents of Junta Unveil Suu Kyi-led Unity Cabinet, Nikkei Asia (March 31, 2021), online at  https://asia.nikkei.com/Spotlight/Myanmar-Coup/Myanmar-coup-Week-from-March-30-to-April-17-Opponents-of-junta-unveil-Suu-Kyi-led-unity-cabinet (visited May 17, 2021).  

[7] Ian Hurd, "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World," 25 Ethics and International Affairs 3,  304 (2011).

[8] id

[9] Thomas M. Franck, "What Happens Now? The United Nations after Iraq." 97 American Journal of International Law 3, 607 (July 2003);Lee J.F. Deppermann, "Increasing the ICJ's Influence as a Court of Human Rights: The Muslim Rohingya as a Case Study," 14 Chicago Journal of International Law 1, Article 9, 300 (2013).

[10] Ian Hurd, "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World," 25 Ethics and International Affairs 3, 303 (2011).

[11] Michael Sullivan, China's Relationship with Myanmar's Military: It's Complicated, NPR (March 29, 2021), online at https://www.npr.org/2021/03/29/982417602/protestors-in-myanmar-have-torched-several-chinese-owned-or-operated-factories (visited May 17, 2021).  

[12] BBC, Myanmar Coup: China Blocks UN Condemnation as Protest Grows, BBC (February 3, 2021), online at https://www.bbc.com/news/world-asia-55913947 (visited May 17, 2021). 

[13] Lee J.F. Deppermann, "Increasing the ICJ's Influence as a Court of Human Rights: The Muslim Rohingya as a Case Study," 14 Chicago Journal of International Law 1, Article 9, 299 (2013).

[14] Michelle Nichols, Ousted Myanmar Lawmakers Consider International Criminal Court, Says U.N. Envoy, Reuters (March 18, 2021), online at  https://www.reuters.com/article/us-myanmar-politics-un/ousted-myanmar-lawmakers-consider-international-criminal-court-says-u-n-envoy-idUSKBN2BA2PQ (visited May 17, 2021). 

[15] Ashley Westerman, What Myanmar's Coup Means For The Rohingya, NPR (February 11, 2021), online at  https://www.npr.org/2021/02/11/966923582/what-myanmars-coup-means-for-the-rohingya (visited May 17, 2021). 

[16] Marlise Simons, International Court, Battered by Critics, Elects Briton as New Prosecutor, New York Times (February 12, 2021), online at https://www.nytimes.com/2021/02/12/world/europe/international-criminal-court-karim-khan.html (visited May 17, 2021).  

[17] Lee J.F. Deppermann, "Increasing the ICJ's Influence as a Court of Human Rights: The Muslim Rohingya as a Case Study," 14 Chicago Journal of International Law 1, Article 9, 300 (2013).

[18] BBC, Omar Bashir: ICC Delegation Begins Talks in Sudan over Former Leader, BBC (October 17, 2020), online at https://www.bbc.com/news/world-africa-54548629 (visited May 17, 2021). 

[19] Lee J.F. Deppermann, "Increasing the ICJ's Influence as a Court of Human Rights: The Muslim Rohingya as a Case Study," 14 Chicago Journal of International Law 1, Article 9, 301 (2013).

[20] id at 302; International Commission of Jurists, The 'Provisional Measures' Hearing: The Gambia v Myanmar at the International Court of Justice, International Commission of Jurists (December 5, 2019), online at  https://www.icj.org/wp-content/uploads/2019/12/Myanmar-Provisional-Measures-Briefing-Advocacy-Analysis-Brief-2019-ENG.pdf (visited May 17, 2021).