Unauthorized Humanitarian Intervention in International Law

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Abdul Salam Afghan


Humanitarian intervention (HI) is not a new idea and has been a contested issue throughout its history. The concept was formally introduced in 17th century by the so-called father of International Law, though, the Just War theory has been claimed its start point, which dates back to the writings of the Greek Philosophers, and at least, to the lifetime of Augustine (354-430 AD). The Treaty of Westphalia (1648), inter alia, led to the rise of Legal Positivism and nation-State system, which in turn strengthened the norm of State sovereignty and non-intervention. The sufferings of 30 Years Religious Wars had made Europeans cautious about interference in the affairs of each other, and therefore, human rights violations of citizens by a State's authority after the treaty of Westphalia was not a satisfactory justification for intervention. After the end of the Cold War, the situation changed, and the UN Security Council authorized many interventions on humanitarian basis. The Security Council considered internal conflict and violation of human rights as a threat to international peace and security invoking collective use of force rules of the Charter. The discussion of Just War may be attractive in legal and intellectual circles and not in practical ones. As without an authentic superior authority to judge the justice or otherwise of war, there seems no fruit in basing HI on Just War. Although Just War might have helped in the development of the laws of war, nevertheless, its impact on the behavior of States is a contested issue. Therefore, it cannot go parallel with the debate of HI in the contemporary world. Thus, it seems plausible not to base the use of force in general and HI in particular on pure moral grounds.

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