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Part IV Action on Behalf of Peoples and Populations, Ch.35 ‘Humanitarian Intervention’

Nigel Rodley

From: The Oxford Handbook of the Use of Force in International Law

Edited By: Marc Weller

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2023

UN Charter — Treaties, interpretation — Specific treaties — Genocide — War crimes — Ethnic cleansing — Crimes against humanity — Murder — Freedom from torture and cruel, inhuman, or degrading treatment — Torture — Gravity of offences — Customary international law — Peremptory norms / ius cogens — State practice — Opinio juris — Humanitarian intervention — Self-defence — International peace and security — Necessity — Military necessity — Armed forces

This chapter examines whether so-called humanitarian intervention is a lawful exception to the international law prohibiting use of force when rescuing populations from widespread grave human rights violations, without UN Security Council authorization under Chapter VII. It considers what type or level of human rights violation or abuse justifies ‘humanitarian intervention’ if it were permitted, with reference to the R2P categories of genocide, ethnic cleansing, war crimes, and crimes against humanity. It discusses the UN Charter provisions and state practice on the prohibition on use of force, and criteria used to determine the legality of action deemed humanitarian intervention. The chapter describes tests that an intervention would have to pass and would be applicable to mitigate culpability, including gravity of the situation, political neutrality, the circumstances of the Security Council’s inability to act, and principles of necessity and proportionality. It argues that there is no humanitarian exception to the prohibition of the use of force in international law.

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