Legitimate use of military force against state-sponsored - Air University

intervention—for example, the 1903 US note to the signatory powers of the Treaty of Berlin
threatening US intervention in Rumania in behalf of Jews there and the US note of 1903
addressed to the Russian Foreign Office regarding the massacre of Jews at Kishinev. However,
the assertions of Japan in support of its invasion of Manchuria and the 1938 claim of Adolf
Hitler concerning ethnic minorities in Czechoslovakia were clear abuses of this doctrine. 66
After a careful study of these pre-1945 instances of humanitarian intervention, law
professors Thomas M. Franck and Nigel S. Rodley, both of New York University, conclude,
In sum, these cases do not sustain the contention of the authorities who assert a
long, credible, and creditable history of humanitarian intervention by force of
arms,… On the other hand, the records of that period arc replete with State
Department and Foreign Office communications designed to prevent unilateral
humanitarian intervention by other States. 67
In contrast, Sir Hartley (later Lord) Shawcross, British solicitor-general at the Nuremberg
trials, viewing the issue from the perspective of those trials, argues that “the right of
humanitarian Intervention on behalf of the rights of man trampled upon by the state in a manner
shocking the sense of mankind has long been considered to form part of the recognized law of
nations.” 68
However, if the issue of whether such a right were recognized in international law was in
doubt, then the UN Charter should have put it to rest. The overwhelmingly accepted view is that
the doctrine did not survive the Charter. 69 Those few who assert that it has survived reason that
human rights is a fundamental purpose of the United Nations and, therefore, force is permitted to
achieve human rights. This argument presents several problems. First, the Charter contains other
fundamental purposes of an economic, social, and cultural nature. Can force he used to achieve
these ends as well? Second, articles 2(4), 2(7), 51, and chapter VIII recognize only certain
accepted uses of force (self-defense, regional enforcement action, regional peacekeeping, and
UN Security Council authorized actions) and does not recognize humanitarian intervention.
Unless undertaken at the invitation of a recognized government or in accordance with a
recognized mode for employing force under the Charter, humanitarian intervention cannot be
justified. Humanitarian intervention is not an in dependent legal doctrine that can legitimate the
use of armed force. 70
The post-Charter history of humanitarian intervention supports this view. Soviet
interventions in Hungary in 1956 and in Czechoslovakia in 1968 relied upon it but such claims
were rejected by the international community. In 1965 the United States originally relied upon
this doctrine to support actions in the Dominican Republic; but two days later President Lyndon
Johnson recharacterized it as a self-defense action and another two days after that called the
action a stopgap measure until the Organization of American States (OAS) could act. 71 The
doctrine was used to support the 1964 Congo action but was widely criticized by African states,
and Indonesia relied upon it for its actions in East Timor in 1975 where “humanitarian
intervention was a thin smoke screen for aggression and annexation.” 72