THE LEGAL STATUS OF HUMANITARIAN INTERVENTION UNDER CURRENT INTERNATIONAL LAW

This article surveys the legal debate over humanitarian intervention that intensified in the 1990s and matured by the mid-2000s. It distinguishes the narrow UN Charter framework, which prohibits the use of force except in self-defence or with Security Council authorization, from arguments that extreme atrocities can justify limited force absent Council approval. The paper reviews key precedents—from northern Iraq and Somalia to Kosovo—and maps the doctrinal positions of leading states and jurists. It also introduces the Responsibility to Protect (R2P) as an attempt to reconcile sovereignty with human protection. Taking stock of practice and opinio juris, the article argues that, while no clear customary exception emerged by 2005, the legality–legitimacy gap narrowed as states articulated criteria aimed at constraining abuse and ensuring last-resort, proportionate action focused on civilians.

The body develops four lines of analysis. First, it sets the Charter baseline: Articles 2(4), 39–42 and the primacy of the Security Council, noting how Chapter VII authorizations in the 1990s created expectations of collective action against mass atrocities. Second, it evaluates state practice when the Council was deadlocked, with special attention to Kosovo 1999 and the “illegal but legitimate” characterization advanced by the Independent International Commission. It dissects procedural deficits, proportionality assessments, and post-conflict accountability. Third, it examines the emergence of R2P through the ICISS report (2001) and subsequent World Summit Outcome (2005), highlighting thresholds of just cause, right intention, last resort, reasonable prospects and right authority. The discussion explains how R2P re-centred prevention, placed primary duties on the territorial state, and endorsed collective action where national authorities manifestly failed to protect. Fourth, it tests whether a customary exception crystallized by reviewing opinio juris expressed by NATO members and non-aligned states, concluding that persistent objection and inconsistent practice precluded a new rule. The article closes by proposing a prudential framework—public justification, multilateral endorsement, narrow aims, time limits and robust post-conflict relief—to reduce the legality–legitimacy gap while preserving the Charter’s core constraints.