Can a human rights violation be justified?

Human rights

Martina Haedrich

Prof. retired Dr. Martina Haedrich, Professor of Public Law and International Law at the Friedrich Schiller University Jena. Focal points in research and policy advice: human rights and human rights protection, peacekeeping through the United Nations and international humanitarian law.

With the end of the Cold War, the discussion about military interventions to protect human rights was revived. Current conflicts in Syria, Iraq and Libya again raise the question of whether and to what extent military interventions are justified in accordance with international law? Are they the right answer to serious human rights violations? This discussion is shaped by the question of legality and legitimacy. .

Children play on a street in front of a ruin in the destroyed Dahaniya district in Damascus, Syria in October 2015. (& copy picture-alliance / dpa)

The idea of ​​intervention to protect human rights is not new. It was introduced into international law by the international lawyers of the 17th century, in particular by Hugo Grotius, and is now considered to be the forerunner of modern human rights protection [1]. According to present-day international law, intervention, i.e. intervening in the internal affairs of a state, is prohibited by the UN charter of the United Nations - and thus by all states (Art. 2 No. 7). The prohibition of intervention is to be seen in close connection with the principle of the sovereign equality of states (according to Art. 2 No. 1 of the UN Charter). Sovereignty means legal independence in exercising state power, including independence of internal order. Independence precludes intervention, that is, interference in internal affairs. But exercising sovereignty also means taking responsibility for internal affairs. This corresponds to the basic understanding of international law today. What is new is the increasing importance of the state's responsibility towards its citizens and for their protection of human rights. It is also new that this responsibility is understood as a shared responsibility. The states are not only responsible for their own affairs, but also for other states if they cannot or cannot exercise their responsibility [2].

The tension between legality and legitimacy

In total there are three different scenarios of military intervention. On the one hand, there is military intervention to protect human rights in international conflicts, which is automatically covered by Chapter VII of the UN Charter as a result of the actions of states following a resolution by the Security Council. On the other hand, there is military intervention to protect human rights in internal conflicts that are authorized by the Security Council - provided that here, too, peace and international security are threatened. Furthermore, there is talk of humanitarian intervention when military intervention to protect human rights in a state is not mandated by the Security Council.

With a military intervention without a Security Council mandate, however, the existing international legal order will be shaken; because this intervenes in the basic principles of this order, such as the prohibition of violence, the prohibition of intervention and sovereign equality to protect against violations of elementary human rights. The discussion is shaped by the question under which conditions interventions to protect human rights are permitted. It is a matter of the tension between legality and legitimacy, i.e. the legality and justification of such operations. While encroachments on existing basic rules of international law are fundamentally unlawful, they can be justified in the interests of protecting human rights, namely in the case of protection against mass crimes such as genocide, war crimes, crimes against humanity and ethnic cleansing. There is a dilemma here. On the one hand, there are the principles of the prohibition of force and state sovereignty as fundamental legal interests of international law. On the other hand, there is human rights protection, which has grown into a generally recognized legal asset. Based on the practice of the United Nations and existing and emerging international law regulations, it should be shown how this tension between legality and justification can be gradually resolved.

The Change in Security Council Practice

Since the beginning of the 1990s, the Security Council of the United Nations has made it clear in several resolutions on internal conflicts in which elementary human rights were massively and systematically violated that such situations pose a threat to world peace and international security (pursuant to Art. 39 UN Charter). With the resolution on Somalia in 1992, the Security Council for the first time recognized serious human rights violations in an internal conflict as a threat to peace [3] and thus initiated a change in the practice of the UN body. The subsequent resolutions of the Security Council on Angola, Rwanda and Haiti, among others, which identified a threat to peace and international security from internal conflict situations with serious human rights violations, also contributed to the change in the Security Council's concept.

In the Darfur conflict, the Security Council went one step further and, after initial hesitation, responded expressly to the mass and systematic crimes against humanity and genocide-like crimes committed in Sudan. He stated that Sudan was not fulfilling its obligations under international law and that the international community was therefore obliged to react [4]. The implementation of the expanded Security Council concept has come a step further: For the first time, the Security Council has made use of the possibility of entrusting the criminal prosecution of suspected genocide, crimes against humanity and war crimes to the International Criminal Court [5].

With the adoption of these resolutions on internal conflicts, the international community recognizes that measures within the framework of Chapter VII of the UN Charter, which were previously only applicable to international conflicts, now also apply to the protection of elementary human rights in internal conflicts - provided that they promote world peace or international security threaten. Such an encroachment on the sovereignty of a state which commits serious human rights violations or which cannot or cannot prevent them is a legal act by resolution of the Security Council. The most important criterion for legality is Article 2, Paragraph 4 of the UN Charter only prohibits the threat or use of force inconsistent with the purposes of the United Nations. Forcible protection against serious human rights violations is therefore lawful if it is in accordance with the basic rules of the UN Charter and is carried out in compliance with the conditions specified in the UN Charter.