Illegal but Legitimate? The UK’s Doctrine of Humanitarian Intervention
ECR2P and POLIS staff member, Edward Newman, explores the UK’s controversial support for the practice of ‘humanitarian intervention’.
Successive UK governments have claimed that military force across state borders aimed at ending terrible suffering – without the consent of the target state and if necessary without express UN Security Council authorization – is legally permissible in exceptional circumstances. In 2018 the UK Government asserted that humanitarian intervention is “consistent with international law” if the following three conditions are met: “There is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief; it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).”
While other countries occasionally support or have sympathy towards this practice when it is aimed at relieving extreme and widespread abuse, the UK has been effectively alone amongst states in presenting an explicit legal justification for military intervention aimed at human protection as a legal norm, outside the auspices of the UN Charter.
This position is at odds with prevailing international legal doctrine and practice, which is puzzling for a country that is generally committed to international law and the UN framework. This is, moreover, an unnecessarily controversial position. Alternative justifications could have been offered for military action in cases such as Kosovo, Iraq and Syria – based upon an expanded conception of threats to international peace and security, for example – and yet the UK has chosen the more problematic ‘humanitarian intervention’ stance. The UK’s position is also in tension with recent normative developments related to international human protection. The Responsibility to Protect (R2P) principle explicitly established that any coercive response to suffering must be authorized by the UN Security Council, and it is widely assumed that this implied the end of humanitarian intervention outside the UN framework as a defensible idea.
The UK claims that the Security Council’s failure to respond to terrible suffering in line with the R2P principle justifies humanitarian action without Security Council authorization, but this is against almost all political and legal consensus on the subject. The UK’s position is potentially problematic for its own interests in a transitional international order, given that powerful rising or resurgent states – such as China and India – are known to be hostile to the humanitarian intervention norm. Given the UK’s mission to engage more broadly with global powers, and its investment in a rules-based international order, courting controversy in this way requires an explanation.
The UK’s counterintuitive commitment to humanitarian intervention can be explained in a number of ways. Primarily, this reflects a theme of continuity in the UK’s foreign policy in long historical perspective. The responsibility to prevent or end atrocities has been embedded in British political culture for two centuries, as a legacy of global engagement (including colonialism), a sense of moral righteousness and duty, and an expression of military prowess. Britain’s military challenge to the slave trade in the 19th Century, following the Abolition Act, provides an illustration of this sense of humanitarian duty and Christian values. This mindset was also reflected in debates regarding Britain’s responsibilities in relation to abuses occurring in the Ottoman Empire. Even with the relative decline of the UK’s hard power in the post-Second World War era, assertive righteousness in foreign policy has remained a part of the UK mindset, and a commitment to humanitarian intervention is one expression of that. The fact that the UK may not have a pristine record in terms of upholding human rights in its foreign policy, and double standards are sometimes at play, does not alter its own self-image as a state which has a moral responsibility to respond to egregious human rights abuses.
An important question to consider is whether the UK may be consciously or unintentionally promoting a shift in customary international law contra the UN Charter in relation to the use of force for human protection. Alongside a limited number of other states – such as, at times, France and the US – the UK has called into question the UN Security Council’s authority as the ultimate arbiter in responding to situations of egregious suffering. This possible normative shift – although not recognized by most international lawyers – has occurred against a broader strengthening of international human protection mechanisms and norms, which makes the Security Council’s inability to respond to atrocities conspicuously problematic.
Syria has been a defining case in this debate, where a series of vetoes have blocked decisive action, despite the scale of atrocities being perpetrated. This has arguably undermined the credibility of the Security Council as the guardian of R2P, and opens the way to arguments in favour of humanitarian intervention without direct UN authorization. However, this has serious implications for the rules governing the use of force internationally, which is problematic for a country such as the UK which is so invested in a rules-based international order and collective action.
In a UK parliamentary debate on Syria in 2018 a member of parliament, Mike Gapes, observed “a long-standing and noble tradition” of humanitarian intervention by Britain, and this was reflected in all of the recent relevant parliamentary debates on this subject. This has a number of implications. Firstly, this stance might be seen as a positive move in support of humanitarianism against an occasionally dysfunctional Security Council. Although many or most countries are explicitly opposed to action outside the UN framework, a significant number of other countries are quietly sympathetic to humanitarian intervention in extreme circumstances. By presenting a doctrine of humanitarian intervention the UK is provoking an important legal and political debate on how to respond to egregious human rights abuse in the absence of UN action. Even if a new customary norm of humanitarian intervention is unlikely, the UK’s position is laying bare the inadequacies of the Security Council in cases such as Syria, and this supports initiatives such as the attempt to have a moratorium on vetoes in Security Council deliberations on atrocities.
Secondly, humanitarian intervention has implications for the rules regulating the use of force in international relations, and arguably for the rules-based order in general. Humanitarian intervention undermines the credibility of the UN Security Council and provides a pretext for unilateral action by other states. Russia’s references to ‘humanitarian intervention’ and the precedent of Kosovo in connection with its military operations in its sphere of influence provides the most obvious illustration of this.
Third, the doctrine of humanitarian intervention is problematic for R2P. This principle was agreed to resolve the controversies of humanitarian intervention and to establish a framework through which the international community can legitimately prevent or stop grave human rights abuses. If the Security Council is circumvented, even in exceptional circumstances, it raises broader doubts about the role of the Security Council as the primary authority to address such abuses. This risks a reversion to the unregulated and selective practices of humanitarian intervention tainted by geopolitical rivalry, double standards and national interest, exactly the situation that R2P was meant to supplant.
Edward Newman is Professor of International Security in the School of Politics and International Studies at the University of Leeds. This comment draws directly upon the author’s article, ‘Exploring the UK’s Doctrine of Humanitarian Intervention’, International Peacekeeping, 2021. https://doi.org/10.1080/13533312.2021.1878689
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