The context for this work is set by the proliferation of intrastate conflicts and the international legal debate of humanitarian intervention. The thesis specifically addresses the concept of the “Responsibility to Protect” (R2P) as formulated by the International Commission on Intervention and State Sovereignty (ICISS). The objective is to assess the present quality of R2P as a concept of international law. Five components of the R2P framework are discussed: the primary responsibility of every state to protect its population from large-scale killings and large-scale ethnic cleansing; the right of other states to collective humanitarian intervention through the United Nations; a right of unilateral humanitarian intervention without prior Security Council authorization; the responsibility of the international community to take military action; and the criteria for external military involvement. Methodologically, the analysis is grounded in the dominant theory of legal positivism and its doctrine of sources, which requires notably an analysis of treaties and customary international law. An ethical theory is devised and applied, however, to remedy inadequacies of a strictly positivist method that sets out to determine international law solely on the basis of hard facts. These ethical considerations serve as a background theory to provide guidance in difficult cases of treaty or customary law analysis, and they fill gaps in positive international law as legally binding “principles of ethical law”. In conclusion, the individual components of R2P differ in terms of their legal status and the degree to which it can be explained by the traditional posivist approach to international law. The primary responsibility of every state has become accepted as a hard norm of international customary law; the right of collective humanitarian intervention is provided for in Chapter VII of the UN Charter; a right of unilateral humanitarian intervention has become part of the international legal system as a “principle of ethical law”; the residual responsibility of the international community is a principle of “legal soft law”; finally, positive international law defines no criteria delineating the permissible and required use of force for the protection of foreign populations. / Law, Faculty of / Graduate

Please read the abstract in the section 00front of this document. / Thesis (LLD)--University of Pretoria, 2006. / Jurisprudence / LLD / Unrestricted

Submitted in fullfilment of the requirements for the degree of Master of Arts (Research) Macquarie University, Division of Humanities, Dept. of Modern History. 2005. / Thesis (MA)--Macquarie University, Division of Humanities and Social Sciences, Dept. of Modern History, 2005. / Bibliography: p. 268-290. / Introduction -- 1. Norms, interests and humanitarian intervention -- 2. Bosnia and Somalia -- 3. Rwanda -- 4. The Clinton Administration and the Balkan Wars -- Conclusion. / A number of Constructivist and English school scholars have investigated the degree to which humanitarian intervention is allowed and legitimised by international society. In other words, they have examined the nature and strength of a norm permitting humanitarian intervention. It is the contention of this dissertation that another norm of humanitarian intervention - parallel but discrete - has been neglected. It is argued that ideas and beliefs shared by members of international society not only permit intervention but prescribe it in certain circumstances and this has been largely ignored in the literature. / Mode of access: World Wide Web. / 290 p

In spite of the general prohibition of the use of force in international relations contained in the UN Charter, some jurists maintain that humanitarian intervention is valid under comtemporary international law. Too make their case, they put forward a series of arguments which can be divided into two categories. The first holds that humanitarian intervention is compatible with the UN Charter, and the second, which is used more often, that a right of humanitarian intervention has arise out of state's practice. The present thesis surveys these arguments and comes to the conclusion that humanitarian intervention remains illegal under international law. Notwithstanding the formidable progression of human rights in international society, the rule prohibiting recourse to force still enjoys great currency among states at the beginning of this new millenium.

The study which follows considers the current approach to State sovereignty, use of force, and human rights, in order to determine the balance which exists between these concepts. A shift in this balance determines the direction of development of the concept of ‘humanitarian intervention.’ The investigation establishes that State sovereignty and certain human rights are at a point where they are viewed as equal and competing interests in the international arena. This leads to the question of whether or not the concept of humanitarian intervention has found any acceptance in international law. It is determined that the right to intervention rests exclusively with the United Nations Security Council. There are, however, obstacles to United Nations action, which necessitate either taking action to remove the obstacles, or finding an alternative to United Nations authorized action. The alternatives provided are unilateral interventions by regional organizations, groups of States or individual States, with interventions by regional organizations being favoured. The study further discusses the requirements which would make unilateral action more acceptable. These same requirements provide a standard against which the United Nations can measure its duty to intervene. Such an investigation was done by the International Commission on Intervention and State Sovereignty, and a synopsis of its Report and Recommendations are included. Finally, the question of responsibility is addressed. State and individual responsibility for two separate types of action are considered. The responsibility of States and individuals for initiating an intervention is considered under the topic of the crime of aggression. The responsibility of States and individual for exceeding the mandate of a legitimate intervention is considered under the heading of war crimes.

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The development of human civilization has not caused the world to be stable under the anarchy, and there are still many states jeopardize humanity safety seriously. If the states still just go there own way, it will certainly cause the risks in human¡¦s development and the damage to the human¡¦s survival right. Since peace will not arrive naturally, we should seek the construction of norms which will keep the human historical development on the track. In March 1999, the humanitarian intervention event in Kosovo has shown the universal human rights value, and challenged the existent paradigm of world order. Humanitarian intervention showed that states without supreme authority can do things along with justice principle and the moral reason, more than just chasing the interest and power. It also emphasized the universal identity of sovereign states under the human rights totem, as well as promoted the will and the right of individuals. It was a significant progress when humanitarian intervention accentuate universal human rights value and put it into effect, nevertheless, it is still challenged and criticized in the real world. The conflicts of interest among sovereign states must be reconciled gradually. Besides, whether the individuals or the political communities (sovereign states) should be the subject of rights and obligations in the world, as well as how should we define the hegemony are still the controversial issues. This article will takes the dialogs among parties that hold different opinions to humanitarian intervention, and try to reach the mutual recognition. It will also point out the differences of human being will be assimilated eventually in consideration of the globalization tendency. Global community which take root on the universal human rights value will be the foundation of norms which lead the world to ideal.

This essay is a type of case study, it examines if intervention in Kosovo were in accordance with humanitarian intervention criteria. This study gives an understanding that intervention may sometime worsen condition for the people it wants to rescue, and that inability to address humanitarian intervention prevails in diffuse victory. The purpose of this essay is to examine the Kosovo conflict and the approach of humanitarian intervention in 24 March, 1999.  The approach made by NATO was seen as a new international phenomenon that sought to protect values of human rights. The results of this study pose doubt to this notion; it reflects that the intervention rested not only on humanitarian grounds. The most important aspect of humanitarian intervention is promoting security for the people it wants to rescue. The results shows that NATO’s intervention in short term failed to provide security; it is shown that the air campaign had little impact at the beginning prevailing only after much damage and suffering has been done. The result also shows that failure to adopt the issue of Kosovo more adequately at an earlier stage on the international agenda resulted in the ''welfare'' of NATO's intervention. Despite the consequences of NATO’s action, situation prevailed for the better outcome for the Kosovar-Albanian people than what might have been has intervention been absent. FRY: s deliberative plan of expelling the Kosovo-Albanian to the last one would have been finalized if intervention would have been absent.

This thesis examines the legal and political dilemmas in the implementation of the African Union’s (AU) ‘right’ of forceful intervention through a systemic method of analysis. It first addresses the question of whether the AU’s intervention system represents a paradigm shift in international law on intervention and the authorization role of the United Nations. It examines whether there is a justifiable basis for the implementation of the AU’s intervention mandate outside the UN system, while taking into account the necessity of the international rule of law. It then analyzes the manner in which the failure to institutionalize the concept of sovereignty as responsibility within the AU system has contributed to the Union’s failure to implement its intervention mandate even within the UN system. The AU’s legal framework expressly grants the Union the mandate to forcefully intervene in a member state in situations of genocide, crimes against humanity and war crimes. However, the failure of the AU’s legal framework to explicitly require authorization by the Security Council for intervention (as required by the UN Charter) has led to uncertainty on the envisaged implementation mechanism, including allegations of its inconsistency with the UN Charter and international law. The Security Council may, however, be ineffective in granting authorization due to the use of the veto. There is, therefore, the question of whether the AU’s legal framework exemplifies the crystallization of a customary law permitting humanitarian intervention, or is consensual (since African states have agreed by treaty to such intervention) and consequently, Security Council authorization is not mandatory. The core argument of this thesis is that although the necessity for the international rule of law restricts African Union’s forceful interventions to United Nations authorized enforcement action, robust intervention by the Union within that framework is compromised by a systemic failure of institutionalization of the concept of sovereignty as responsibility. This thesis recommends that for robust implementation of the African Union’s intervention mandate within the UN system, alternative authorization from the General Assembly be sought where the Security Council is ineffective. However, implementation of the AU’s intervention mandate within the UN framework is compromised by continued concerns of protecting traditional concepts of unfettered sovereignty. This is evident in non-intervention oriented clauses within the AU’s legal framework (which negate the intervention mandate) and the Union’s practice of opposing forceful interventions like in the case of Libya. Possible solutions to that predicament are examined. A systemic method of analysis is utilized in this thesis since there is an interaction of various legal norms within the AU system, in addition to the system’s interaction with environmental factors such as politics and increasing global interdependence, while it is also subject to the UN and international law systems. The significance of the research is in identifying legal, policy and contextual factors that can transform the AU into an effective regional mechanism for institutionalization of the rule of law within the African region (by deterring gross human rights violations) while safeguarding the values of the international rule of law. / published_or_final_version / Law / Doctoral / Doctor of Philosophy

The concept of compliance in international law remains amongst the most significant and, at the same time, the most perplexing of questions. The significance of compliance is highlighted in certain spheres of international law that deal with specific extraordinary circumstances. This is particularly true with respect to international humanitarian law, which is applicable during periods of armed conflict. The importance of ensuring and improving compliance with international humanitarian law is clearly expressed in the opening Article of the four Geneva Conventions of 1949 and their Additional Protocol I of 1977, in which the High Contracting Parties undertake to both "respect" and "ensure respect" for these instruments. This thesis is derived from a conviction that compliance with international humanitarian norms is more efficiently ensured through implementation, rather than enforcement mechanisms. However, it only ventures a critique of the appropriateness of military intervention as one of the mechanisms most frequently used to enforce humanitarian rules in the past decade of armed conflicts. The hypothesis this thesis postulates is that the recourse to armed force to ensure respect for international humanitarian law is at cross-purposes with the body of these rules. This statement is assessed against the Security Council's military humanitarian intervention in civil conflicts. It is suggested that the validity of the Council's decisions on humanitarian intervention hinges upon two equally determinative criteria: legality and legitimacy. The hypothesis of the thesis questions both the legality and legitimacy of the Security Council's authorized military humanitarian intervention in armed conflicts. The underlying purpose of the thesis is thus to expand the parameters of theoretical discussions about compliance in the context of international humanitarian law from a jurisprudential perspective.