War has conventionally been regarded as an activity falling within the prerogative of sovereign states in the international community.Footnote ³ As Clausewitz once famously remarked, “war is … the continuation of politics by other means”.Footnote ⁴ “The War of a community—of whole Nations, and particularly of civilized Nations”, he added, “always starts from a political condition, and is called forth by a political motive.”Footnote ⁵ War, Clausewitz deduced, is therefore “a political act”.Footnote ⁶

This tolerant attitude towards war has however taken a dramatic turn in the more recent history of mankind. Beginning in the twentieth century, the idea of untrammelled use or threat of war as an instrument of international politics began losing widespread popularity following the large-scale tragedies that unfolded during World War I and later World War II. This unpopularity eventually led to a worldwide movement and commitment to limit instances of war by the establishment of several multilateral international treaties condemning and prohibiting the use of force and aggression, for example the 1919 Covenant of the League of Nations,Footnote ⁷ the 1928 Kellogg-Briand Peace Pact,Footnote ⁸ and, most pertinently for present-day purposes, the Charter of the United NationsFootnote ⁹ (“the UN Charter”).Footnote ¹⁰ Peace (and diplomacy) thus seemed for the first time to be formally recognized under the international legal system as the preferred policy of international relations and politics, thereby rendering the use or threat of force and aggression legally permissible only in exceptional and narrow circumstances.Footnote ¹¹ In other words, peace as an ideal formally assumed legal prominence to an extent that is more preferential to belligerency in international law.

Yet, as history in the late twentieth century and the beginning of the twenty-first century would show,Footnote ¹² the legal framework under the UN Charter prohibiting the threat or use of force has never been free from controversy. The failure of the United Nations Security Council (“the UN Security Council”) to take any decisive action notwithstanding rampant reports of mass murder and genocide in Rwanda, for instance, has sparked international outrage. The UN Security Council’s inability years later to take effective security measures in Kosovo and Syria—where gross human rights violations have received intense media reportage—due to deadlocks occurring among the permanent members of the UN Security Council fuelled even greater discontentment and disillusionment among the international legal community over the United Nations’ stated role, viz. to “promot[e] and encourage[e] respect for human rights” internationally.Footnote ¹³ These unflattering episodes in the history of the United Nations directly brought to bear the question of whether there could ever be any situation in which the international community’s shared humanitarian sympathies towards the plight of persons oppressed by their own governments within national boundaries (otherwise also known as “internally displaced people” (IDPs)Footnote ¹⁴) can justify foreign military intervention beyond the ambit of Chapter VII of the UN Charter,Footnote ¹⁵ given conventionally that in order for any military intervention to be lawful, the UN Security Council, having been charged with the responsibility “[t]o maintain international peace and security, and … to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace”,Footnote ¹⁶ must first determine the “existence of any threat to the peace, breach of the peace, or act of aggression”;Footnote ¹⁷ and unless a state of affairs exists which gives rise to a threat to international peace and security, any resort to the threat or use of force pursuant to Chapter VII of the UN Charter would technically speaking be ultra vires, unlawful, and therefore in violation of Article 2(4) of the UN Charter.Footnote ¹⁸ At a more abstract level, questions have also been raised to challenge the wisdom of literalizing peace as something that should in no circumstance be permitted to materialize through the resort to force.Footnote ¹⁹

Peace and war can therefore be regarded as uncomfortable bedfellows insofar as international relations and international law are concerned.Footnote ²⁰ Notwithstanding the general prohibition against the threat or use of force under Article 2(4) of the UN Charter, in practice the utility of war in the realization of justice in international human rights,Footnote ²¹ on the one hand, and the ideal of peace and security, on the other hand, are still much in vigorous competition with each other whenever a human rights crisis of a domestic state government’s own doing demands that a judgment call be made by the rest of the international community as to whether corrective military intervention can and ought to legally be carried out to ameliorate the dire domestic situation in that state. In this regard, the North Atlantic Treaty Organization’s (NATO) military intervention against the Former Republic of Yugoslavia (FRY) in Kosovo in 1999, and the Obama administration’s threat of carrying out military intervention in Syria in 2013 are two prime examples that best exemplify this uneasy tension.

This thus brings forth the aim and purpose of this paper. Recognizing the difficult tension between war and peace outlined above, this paper does not pretend to be offering any “silver bullet” reasoning or argument that would settle once and for all the controversies surrounding past actual or threatened military interventions in our history since the establishment of the United Nations. What the paper seeks to do, however, is attempt to offer a fresh perspective to rationalize why, in any given future case, foreign military intervention genuinely on humanitarian grounds (hereafter generally referred to as “humanitarian intervention”) may legally be justifiable even in the absence of any UN Security Council sanction under Chapter VII of the UN Charter. In doing so, the paper will explore one as yet relatively underexplored formal source of international law which existing humanitarian intervention discourse has largely appeared to overlook—equitable principles as “general principles of law recognized by civilized nations” under Article 38(1)(c) of the Statute of the International Court of Justice (“the ICJ Statute”). Ultimately, the paper strives to enrich the ongoing debate on the highly contentious subject of humanitarian intervention in international law, so that the international legal community may in reference thereto hopefully find some renewed inspiration to re-rationalize how the international legal system should react when the world is met with another acute humanitarian crisis crying out for international remedial action in the future.

I. PEACE OR JUSTICE—A STRUGGLE BETWEEN ANALYTICAL FORMALISM, MORALITY, AND ETHICS

I begin my discussion with a brief overview of the literature that has amassed in relation to the possibility of justifying humanitarian interventions which do not qualify either as an act in the exercise of self-defence (Article 51 of the UN Charter) or an act formally sanctioned by the UN Security Council under Chapter VII of the UN Charter (hereafter specifically referred to as “unilateral humanitarian intervention”). Among the very first significant literatures on this subject were those that debated the legality of NATO’s 1999 air strike campaign in Kosovo that ended widespread gross human rights violation and “ethnic cleansing” committed in the then conflict-ridden FRY. Interpreting the UN Charter and commenting on the NATO strikes, Antonio CasseseFootnote ²² and Bruno SimmaFootnote ²³ agreed that the strikes were illegal under international law. Both writers, however, ostensibly shared some moral sympathy towards the fact that the NATO air strikes actually did bring the gross human rights violations and atrocities in the FRY to an end. Simma, for instance, saw the NATO air strikes in Kosovo as marginally separated by a “thin red line” from international illegality, although he dismisses in his final analysis the idea that Kosovo should have significant precedential value as a case-study for future application.Footnote ²⁴ Cassese, while disagreeing with Simma that NATO’s air strikes were merely marginally illegal, nevertheless commented that “any person deeply alert to and concerned with human rights must perforce see that important moral values militated for the NATO military action”.Footnote ²⁵ In his ultimate analysis, Cassese argued that NATO’s “moral action” in resorting to armed intervention in Kosovo was justified from “an ethical viewpoint”.Footnote ²⁶ Not surprisingly, such relatively modest lines of reasoning were to be expected in the face of legal formalist arguments that make the reading into the UN Charter of a third legal exception to Article 2(4) of the UN Charter virtually impossible.Footnote ²⁷ The choice then, understandably, was to adopt an apologist stance advocating instead an excuse for unilateral humanitarian intervention using moral or ethical reasoning that is exogenous to the UN Charter legal framework.

Yet the adoption of a moralist or ethical viewpoint in advancing such an exogenous excuse to Article 2(4) of the UN Charter has proven to be immensely challenging, for it inextricably required that the very concept of humanitarian intervention be effectively recognized as a valid exception to the principle of non-intervention enshrined in Article 2(4) of the UN Charter. This was a controversial position to adopt, given that the ICJ had held in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,Footnote ²⁸ (“the Nicaragua case (Merits)”) that while a state “might form its own appraisal of the situation as to respect for human rights in [another state], the use of force could not be the appropriate method to monitor or ensure such respect”.Footnote ²⁹ This judicial pronouncement by the ICJ could technically be interpreted as a categorical rejection of the idea that the protection of human rights, regarded by the ICJ as “strictly a humanitarian objective”,Footnote ³⁰ can constitute a justifiable derogation from Article 2(4) of the UN Charter.Footnote ³¹

But it is by no means beyond argument that the ICJ’s opinion in the Nicaragua case (Merits) is entirely free from difficulty. As can be gleaned from Article 1 of the UN Charter, the United Nations (and by extension the UN Security Council) is charged with the responsibility to achieve three “common ends”Footnote ³² internationally: peace, self-determination of peoples, and respect for human rights.Footnote ³³ This explicit recital of the United Nations’ responsibility in the UN Charter confutes the ICJ’s categorical dismissal of “humanitarian objectives” as a possible basis for military intervention and instead demands a nuanced approach involving a balancing exercise whenever the pursuit of one or more of these “common ends” clashes with another. As Thomas Franck once wrote, “history and practice support a more nuanced reconciling of the pursuit of peace (as evidenced by Charter Article 2(4)) and of justice through the protection of human and humanitarian rights”.Footnote ³⁴ Indeed, Franck also observed that despite the absence of any express provision in the UN Charter enabling the UN Security Council “to apply Chapter VII’s system of collective measures to prevent gross violations of humanitarian law and human rights, in practice it has done so occasionally”.Footnote ³⁵

II. OTHER BROAD CHARACTERIZATIONS OF THE DEBATE

So far we have seen that the debate on unilateral humanitarian intervention has been framed broadly in terms of competing ideals between the maintenance of peace, on the one hand, and the upholding of “justice through the protection of human and humanitarian rights”, on the other.Footnote ³⁶ To the extent of such characterization of the debate, it is fair to observe that discursive preferences for “justice” have been defended almost exclusively on moral and ethical imperatives in order to establish a case of legitimacy (or “near-legality”Footnote ³⁷), while at the same time conceding the illegality of unilateral humanitarian interventions under the law.

The account of how unilateral humanitarian intervention has been debated, however, does not simply end there. A more extensive examination of the international discourse following NATO’s air strike campaign in Kosovo reveals at least two other discursive camps pitted against a legal formalist insistence on the supremacy of “peace” under the UN Charter legal framework. The first camp attempts to situate its arguments strictly within the province of law by challenging the traditional legal understanding of sovereignty in international law. For example, in the same year that the NATO air strikes took place in Kosovo, then UN Secretary-General Kofi Annan wrote in The Economist:

Believing that the “developing international norm in favour of intervention” on humanitarian grounds should be welcomed, and identifying “traditional notions of sovereignty” as an “obstacle to effective action in humanitarian crises”,Footnote ³⁹ the then UN Secretary-General opined:

The then UN Secretary-General was not alone in advocating a redefinition of the notion of state sovereignty in international law. Michael Reisman, for instance, has similarly argued that “[modern] [i]nternational law … protects sovereignty, but—not surprisingly—it is the people’s sovereignty rather than the sovereign’s sovereignty”.Footnote ⁴¹ As such, this discursive camp tends to affirm a “modern human-rights-based conception of sovereignty”Footnote ⁴² by overcoming the tension between (i) a facial reading of Article 2(7) of the UN Charter, which enjoins the United Nations from “interven[ing] in matters which are essentially within the domestic jurisdiction of any state”, and (ii) Article 1(3), which stipulates that one of the purposes of the United Nations is “[t]o achieve international co-operation in solving international problems of … [a] humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.Footnote ⁴³

In fact, other viewpoints that challenge the notion of state sovereignty also include the International Commission on Intervention and State Sovereignty’s (ICISS) report on the “Responsibility to Protect” (R2P).Footnote ⁴⁴ With regard to the notion of state sovereignty, the doctrine of R2P as formulated by ICISS enjoined a shift from the idea of “sovereignty as control” to that of “sovereignty as responsibility”.Footnote ⁴⁵ Thus, as Thomas Weiss puts it, under the doctrine of R2P, “if a state is unwilling or unable to exercise its protective responsibilities for the rights of its own citizens, it forfeits the moral claim to be treated as legitimate. Its sovereignty … is suspended.”Footnote ⁴⁶

The second discernible discursive camp argues from a deontological standpoint. The most representative example under this category of arguments is perhaps the doctrine of R2P, where ICISS attempted to refashion the debate on unilateral humanitarian intervention by emphasizing a responsibility rather than the right of states to prevent and protect IDPs from ongoing human rights violations.Footnote ⁴⁷ As Weiss explains, the doctrine of R2P “embraces three temporal phases”: (i) the responsibility to prevent, (ii) the responsibility to react, and (iii) the responsibility to rebuild.Footnote ⁴⁸ In the context of humanitarian intervention, the responsibility to react is particularly germane, for it enjoins the international community “to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention”.Footnote ⁴⁹ For ICISS, the responsibility to react by way of military intervention arises as a last resort only in “exceptional circumstances”, which ICISS explained “must be cases of violence which so genuinely ‘shock the conscience of mankind’, or which present such a clear and present danger to international security”, provided also that the following six general criteria are satisfied: (i) right authority, (ii) just cause, (iii) right intention, (iv) last resort, (v) proportional means, and (vi) reasonable prospects.Footnote ⁵⁰

This deontological formulation of the doctrine of R2P as a justification for unilateral humanitarian intervention, however, received limited approbation internationally.Footnote ⁵¹ In fact, the doctrine of R2P has been criticized for, inter alia, indeterminacy with respect to its “just cause” threshold and the potential lack of political neutrality (and therefore the likelihood of potential abuse) in its invocation by nation-states.Footnote ⁵² Furthermore, the doctrine of R2P was seen as threatening to disrupt the UN Charter framework that imposes a general prohibition against the threat or use of force under Article 2(4) of the UN Charter, with only two formal exceptions recognized under Article 42 and Article 51 in Chapter VII of the UN Charter. It should also be mentioned that in the 2005 United Nations World Summit, the United Nations General Assembly (“the UN General Assembly”), after having considered and discussed the doctrine of R2P, appeared to have reached a consensus through a declaration which has since been interpreted by many commentators as “plac[ing] the international Responsibility to Protect squarely in the Security Council’s domain”Footnote ⁵³ (although it should also be noted that opinions still differ as to the full extent to which this interpretation may correctly be taken).Footnote ⁵⁴

III. SUMMING UP THE EXISTING DISCOURSE ON THE SUBJECT

From the general overview above, we find a myriad number of ways in which the discourse on unilateral humanitarian intervention has hitherto unfolded, drawing on different tensions and emphases rooted in the virtues of peace, justice, legal formalism, ethics and morality, the concept of sovereignty in international law, and deontology. Given the apparent dearth of cogent legal justifications for unilateral humanitarian intervention,Footnote ⁵⁵ it is little wonder that moral and ethical concerns were often resorted to by commentators in their effort to establish a case of legitimate as opposed to lawful unilateral humanitarian intervention.Footnote ⁵⁶ Under such an approach, moralists may sometimes even invoke the Dworkinian theory of “rights as trumps”Footnote ⁵⁷ as an argument purporting to establish a hierarchy of imperatives in which human rights protection ranks higher than the inviolability of a sovereign state’s peace and security. According to such a view, gross and large-scale violations of human rights within a state will never be met by inaction of the international community simply on the ground that humanitarian intervention would come at the cost of peace and security.

In the light of the difficulties that legal formalism poses for those convinced of the need to recognize unilateral humanitarian intervention in certain circumstances as at least excusable if not justified, it is therefore conceivable that one might feel constrained to consider the framing of the debate in terms of a tension between the ideal of peace and justice as the least worst choice of strategy to maintain in the discourse—by seeking to hold the position born out of legal formalism susceptible to counter-balancing arguments which are exogenous to the UN Charter itself, and clinging onto what is merely a faith that one day the international community might be persuaded to recognize the emergence of a new rule of customary international law to the desired moral effect in the future.Footnote ⁵⁸

With respect, and for reasons that will follow in this paper, the time has not yet arrived for such dampened sentiments to be held. Far from it, it is believed that a case can still be maintained within the realm of law to justify unilateral humanitarian intervention as a lawful derogation from Article 2(4) of the UN Charter.

IV. FINDING A JUSTIFICATION WITHIN THE REALM OF LAW—EQUITY AND EQUITABLE PRINCIPLES

As mentioned earlier, this paper seeks to explore and unravel a new possible justification for unilateral humanitarian intervention by examining the role that equity plays in international law. For the avoidance of doubt, the word “equity” is used in this paper to denote the body of principles having the status equivalent to law (i.e. it has binding legal effect), and should hence not be confused with earlier references to normative exhortations founded merely on morality and ethics. The following explains.

Popularly believed to have been developed under the English common-law system, principles of equity have received favourable treatment—even to the point of enjoying dispositive effect—by international tribunals such as the ICJ on numerous occasions, particularly in cases where issues of estoppel or the settlement of territorial and boundary disputes have arisen.Footnote ⁵⁹ That equity is to some extent of useful import in these internationally litigated cases should come as no surprise. Under Article 38(1)(a)–(d) of the ICJ Statute, four general sources of international law are formally recognized: (i) treaty law, (ii) customary international law, (iii) “general principles of law recognized by civilized nations”, and (iv) “judicial decisions and the teachings of the most highly qualified publicists of the various nations”. Of particular relevance in our discussion here is the third category, under which principles of equity have generally been regarded by prominent legal commentators to fall despite the lack of the express terminology “equity” within Article 38(1)(c) of the ICJ Statute itself.Footnote ⁶⁰ Indeed, Christopher Rossi has even argued that the jurisdiction of equity in international law is as intrinsic as the lex judicia of the international judicial organ which “flow by necessary implication from what it means to administer justice and settle disputes and not from statutes, treaties, or, constitutive documents”.Footnote ⁶¹

At this juncture, it is apposite to distinguish cases decided in accordance with equity as a source of international law from cases decided ex aequo et bono.Footnote ⁶² As mentioned earlier, equity finds entry into the corpus of international law through Article 38(1)(c) of the ICJ Statute. By contrast, ex aequo et bono determinations fall under Article 38(2) of the ICJ Statute, where the deciding judicial body is given the widest discretion to adjudicate legal disputes based on what it determines to be general notions of justice. This distinction is extremely crucial because, unlike Article 38(1)(c) sources of law which are of general import, Article 38(2) ex aequo et bono resolution of international disputes are contingent only upon the parties to the dispute agreeing to its application by the ICJ.Footnote ⁶³

That equitable principles, widely thought to be applied only in legal systems in the common-law world, qualify as “general principles of law recognized by civilized nations” under Article 38(1)(c) of the ICJ Statute is a subject of some interest that has been studied by international scholars. The studies undertaken in this regard demonstrate that equitable principles have as a matter of fact been applied in legal systems beyond the common-law world, although the appellation “equity” is not necessarily always referenced in their use and application.Footnote ⁶⁴ But before delving any further into this particular aspect of the incorporation of equitable principles into international law, it is helpful to first lay down some general observations regarding the role that equity plays in common-law legal systems around the world, particularly the English common-law system.

V. AEQUITAS AD BELLUM: AN EQUITABLE RATIONALIZATION OF HUMANITARIAN INTERVENTION

In advocating for an “equitable framework” for unilateral humanitarian intervention,Footnote ¹³² Burke argues what he refers to as a “third exception”Footnote ¹³³ to the general prohibition against the use of force under Article 2(4) of the UN Charter, relying on the following six qualifying criteria:

1. (1) A series of gross and systematic human rights violations is committed;

2. (2) By a State which has either signed human rights instruments or which has not consistently objected to the inclusion of human rights as part of customary international law.

3. (3) It must be determined beyond reasonable doubt that a peaceable means of putting an end to the violations at hand will not be achievable in a sufficiently proximate time frame to prevent (further) gross human rights abuses from occurring or continuing.

4. (4) There must be no means of immediate ending these violations via the machinery of the UN Charter, that is the Security Council.

5. (5) It must be reasonably determined that only armed military intervention will suffice as an immediate and effective means of ending the violations.

6. (6) Intervention is only permitted where it may be an effective solution and is not undertaken in vain.Footnote ¹³⁴

In Burke’s view, “equitable international intervention” may be carried out, provided that the following factors are also taken into consideration:

1. (1) No State which itself engages in gross and systematic human rights violations may intervene (“clean hands”).

2. (2) States must intervene with the principal purpose of ending such violations and may not profit unduly as a result of doing so. Above all, any right to intervene must not be used as a cloak for other ends; otherwise this will constitute mala fides.

3. (3) States must act equitably in enforcing equity and must refrain from unnecessary loss of civilian life and unnecessary suffering in attempting to accomplish the operation, the purpose of which is to protect life and end suffering.Footnote ¹³⁵

In developing an equitable framework for humanitarian intervention, Burke based his thesis on five key equitable principles which he found to be of quasi-universal import across all civilized nations in the world as well as in the World Court: (i) good faith, (ii) ubi ius ibi remedium, (iii) estoppel, (iv) substance over form, and (v) the “clean hands” doctrine.

With regard to the good faith principle, Burke argues that states which commit gross human rights violations against their own nationals within their territorial boundaries typically breach the normative principle of good faith by (i) reneging on their assurances to the rest of the international community that they would respect the human rights of their own nationals, and (ii) abusing the UN Charter in “seek[ing] to use the strictness of [the UN Charter] regime on the use of force as a cloak to shield themselves against any serious consequences arising from their own actions”.Footnote ¹³⁶ Associated with the breach of good faith by such state behaviour, the ubi ius ibi remedium doctrine exhorts “[t]he principle that for every wrong committed there must be an adequate remedy”, which in Burke’s evaluation is a principle “integral to the logic underlying equity” where equity fulfils its “gap-filling (praeter legem) function”.Footnote ¹³⁷ The principle of estoppel, Burke adds, works hand in hand with the good faith principle as a mechanism “ensur[ing] that transgressions of … bona fides such as the breaking of promises are not without normative consequences”.Footnote ¹³⁸ In the context of a humanitarian crisis where a state perpetuates gross and widespread human rights abuses within its own sovereign territory, the principle of estoppel would require that the transgressor state be “held to be estopped from denying its previous human rights assurances by other States, and where diplomatic remedies are clearly inadequate to engender compliance from the transgressor State, one must have recourse again to the principle ubi ius, ubi remedium”.Footnote ¹³⁹ To do otherwise, Burke warns, would be “to allow the fact that international law has a lacuna regarding enforcement measures to act as an effective permission for States to act in violation of international estoppel at will, effectively robbing the doctrine of any meaningful use”.Footnote ¹⁴⁰ The principle of “substance over form”, as exemplified in the Nicaragua case (Jurisdiction and Admissibility),Footnote ¹⁴¹ represents an “aversion towards formalist interpretations and the idea that form may never be used as a shield for an illicit activity or purpose”.Footnote ¹⁴² Finally the “clean hands” doctrine would serve to deter instances of opportunistic and hypocritical intervention by states under the pretext of humanitarianism.Footnote ¹⁴³

In Burke’s ultimate analysis, it is through “[c]ombining the weight of the[se] [five] principles … [that] one is left with a distinctly more flexible picture of the [UN] Charter prohibition upon the use of force, and of international law in general”.Footnote ¹⁴⁴ It is submitted that one cannot agree more with this proposition put forth by Burke.

As discussed earlier in reference to the manner in which equity operates, maxims of equity are pithy statements of general principles and guidelines illustrating the manner in which equitable jurisdiction has been and ought to be exercised.Footnote ¹⁴⁵ It is precisely through equity’s characteristic function in resolving legal problems particularly brought about by legal rigidity as they appear that one is able to obtain a better glimpse, bit by bit, precedent by precedent, of what the fuller and more coherent meaning of law really is writ wide and large. To put things in better perspective, adopting a Dworkinian mode of legal thinking may be of some useful assistance:Footnote ¹⁴⁶ international law, like domestic law, undergoes an ongoing jurisprudential evolution whereby its content—the “chain novel”Footnote ¹⁴⁷—is constantly being developed and written as the international legal community continues to grapple with new and emerging problems that challenge the conventional understanding of jus ad bellum under the UN Charter. From a “jurisgenetic” perspective, the impetus for pursuing the fuller and more coherent meaning of law grows not simply out of a “gap” that exists in the law, but out of too many norm propositions competing for recognition.Footnote ¹⁴⁸ Indeed, in the context of humanitarian intervention in international law, as with most other areas of international law, this “jurisgenetic” understanding of norm creating seems particularly apt.Footnote ¹⁴⁹

To the extent that the theory of international law is seen in this light, the potential role that equity plays in areas touching on unilateral humanitarian intervention could properly be classified as equity praetor legem.Footnote ¹⁵⁰ The corollary of this is that equity contra legem,Footnote ¹⁵¹ on the other hand, is not of existential concern in the context of unilateral humanitarian intervention because, strictly speaking, no explicit rule of international law is being derogated from when equity is invoked to permit unilateral humanitarian intervention.

Two explanations may be supplied in this regard. First, on one reading of the UN Charter, the wording of Article 2(4) of the UN Charter is amenable to an interpretation that permits the use or threat of force as long as such use or threat of force is not “inconsistent with the Purposes of the United Nations”. As highlighted earlier in this paper, the purpose of the UN is not limited to maintaining peace but encompasses other ideals such as self-determination of peoples and—more pertinently for present purposes—respect for human rights—all or some of which have to be balanced against one another in cases as contentious as those involving an ongoing humanitarian crisis.Footnote ¹⁵² This is certainly not the kind of predicate phenomenon in the law that we understand could give rise to an equity contra legem when equity intervenes. Second, and in any case, the scenario contemplated under the equitable framework for unilateral humanitarian intervention is precisely one where the law is for all intents and purposes silent—i.e. where the UN Charter’s Chapter VII collective enforcement framework has effectively become impotent due to a politically paralyzed UN Security Council.Footnote ¹⁵³ There is therefore no definable law that is being contradicted by the invocation of equity.

Based on the foregoing analysis, if international law can be seen as an open narrative where the legal frontiers of contemporary UN Charter-informed jus ad bellum is constantly being pushed and challenged, equity’s status as a subset of “general principles of law recognized by civilized nations” would be extremely helpful in shaping the development of humanitarian intervention law in ways that are coherent with the equitable temperament which civilized nations and the World Court have, as we have seen, often invoked, much to their jurisprudential benefit, in tackling legal problems in other areas of law. In this author’s opinion, the justice that could result from such use of equity in humanitarian intervention law, taking into account the multifaceted purposes which the United Nations is expressly committed to realizing, would best serve to meet the agonizing concern that “the world cannot stand aside when gross and systematic violations of human rights are taking place”.Footnote ¹⁵⁴

To summarize the foregoing discussion, equity is a legitimate source of international law under Article 38(1)(c) of the ICJ Statute, and it is precisely because equity is in the character of “general principles of law recognized by civilized nations” that equity has the ability to fulfil a much needed function at international law’s frontiers, in that equity can supply the necessary guidance for the international community to tackle new and emerging legal difficulties when clear and satisfactory treaty law or customary norms are lacking. This vision of how equity may assist the international community in times of formal legal drought is not simply an appeal to the use of morality in determining what the law ought to be in situations where, for instance, a domestic humanitarian crisis situation is met by a deadlocked UN Security Council—an approach typified by the moralist and the R2P camps of arguments discussed in the earlier parts of this paper. Rather, the approach advanced here is a pragmatic one whereby an assessment is made with regard to how, as a matter of social fact, the international community as represented by civilized nations and the World Court, having manifested a deep-seated equitable “psychology” in the jurisprudence which occupies their respective normative spheres, are likewise expected in good faith to react similarly to situations of ostensible non liquets in other areas of law—such as where there is a deadlocked UN Security Council in the face of an ongoing serious domestic humanitarian crisis within a state.Footnote ¹⁵⁵

Indeed, it is difficult to see how a categorical denial of the existence of any equitable solutionFootnote ¹⁵⁶ in such situations would not tend to betray a flippant—perhaps even captious—attitude such a denying civilized nation or World Court would have towards equity, given our earlier findings on the high level of jurisprudential ubiquity that equity enjoys across the world. The institutional repercussions of such a flippant attitude (if true) would be disastrously profound. For it is feared that the legitimacy of the international legal system and the integrity of international law as a whole might take an even more sorry turn for the worse if members of the international community and the World Court could not be counted on to maintain their fidelity towards the types of “general principles of law recognized by civilized nations” that, as demonstrated in Section IV of this paper, run within their very own jurisprudential “DNA”. Strong reasons in this regard therefore militate against the denial of an equitable solution in the debate on unilateral humanitarian intervention—i.e. an aequitas ad bellum in humanitarian intervention law.

VI. THE WORKINGS OF AEQUITAS AD BELLUM

Given the foregoing analysis, it is appropriate for this author to now go beyond Burke’s thesis and attempt to rationalize how the lawfulness of unilateral humanitarian intervention may be doctrinally constituted through the workings of aequitas ad bellum once the six criteria propounded by BurkeFootnote ¹⁵⁷ are met.Footnote ¹⁵⁸

In rationalizing the workings of aequitas ad bellum, two scenarios which may give rise to UN Security Council inaction vis-à-vis a humanitarian crisis situation should be considered: (i) a situation of impasse where the permanent members of the UN Security Council are unable to achieve any progress on passing a resolution authorizing military intervention pursuant to Chapter VII of the UN Charter (i.e. a deadlock simpliciter), and (ii) a situation where a proposed UN Security Council resolution purporting to authorize military intervention is formally met by a veto from one or more of the permanent members of the UN Security Council (i.e. a deadlock by virtue of veto).

To address these two possible scenarios in the light of aequitas ad bellum, it is apposite to recall that there are the five key equitable principles which Burke has highlighted to be of quasi-universal import internationally: (i) good faith, (ii) ubi ius ibi remedium, (iii) estoppel, (iv) substance over form, and (v) the “clean hands” doctrine. Under the workings of aequitas ad bellum in respect of the two scenarios envisaged above, the principles of “substance over form” and good faith are most germane in the following ways. With regard to the situation involving a deadlock simpliciter, just as how the ICJ in the Nicaragua case (Jurisdiction and Admissibility) Footnote ¹⁵⁹ was prepared to conclude that Nicaragua should be treated as if it had fulfilled the formal requirements under Article 36 of the ICJ Statute, despite having yet to formally complete the process of ratifying its adherence to compulsory jurisdiction under the Statute of the Permanent Court of International Justice, the principle of substance over form ought mutatis mutandis in an appropriate case to likewise permit humanitarian intervention to be treated as if it has been formally sanctioned by an otherwise incapable UN Security Council. In other words, equity would regard as done that which ought to be doneFootnote ¹⁶⁰ in order for the victims of domestic human rights abuses to avoid the externalities of a failed UN Security Council.

With respect to situations giving rise to a deadlock by virtue of veto, the analysis may be taken in two stages. First, consonant with the principle of good faith, it would in theory be conceivable that equity would require any vote of veto found to be exercised in the absence of good faith to be disregarded at law. Second, even in the event that the veto could not affirmatively be nullified based on questions of good faith, which admittedly is likely to be the case in practice due to difficulties of proof, unilateral humanitarian intervention by a state or group of states may nevertheless in principle be regarded by equity as if it had been formally sanctioned by the UN Security Council if—following Burke’s six criteria for equitable humanitarian intervention—concrete circumstances establish that a substantive need for the international community to put a stop to a humanitarian crisis exists. In both cases, the vote of veto would, under equity’s intervention, lose its legal efficacy—by way of nullification or an override—in blocking a UN Security Council resolution authorizing humanitarian intervention.

It must, however, be emphasized that it is only in the clearest of cases that aequitas ad bellum may be invoked to justify unilateral humanitarian intervention, and in this regard it is possible that aequitas ad bellum may in practice find limited success in its application due to difficulties in the evidential proof of certain relevant alleged facts. But this in itself is no good reason to sully the theoretical integrity of aequitas ad bellum explained above; if anything, it reinforces the thesis in this paper that a right case for unilateral humanitarian intervention must be one where the facts and evidence crucial to the invocation of aequitas ad bellum are fairly uncontroversial.

For completeness, one other possible challenge against the above rationalization of the possible mechanisms by which aequitas ad bellum operates is also considered here, namely that the mechanisms by which aequitas ad bellum operates appear to run counter to the voluntarist theory of international law, which posits that sovereign states can only be bound by international norms to which they consent.Footnote ¹⁶¹ How—so the argument would run—can the international community, comprising sovereign states who, by acceding to the UN Charter have bestowed the UN Security Council with the mandate to monopolize the regulation of the use of force, now find itself obliged to recognize that some other forcible interventions of a humanitarian character falling outside Chapter VII of the UN Charter may nonetheless still be legally permissible?

Several responses may be given to address this challenge, the first of which is that the voluntarist theory of international law is increasingly proving inept at providing an accurate account of how the international legal system actually operates in modern times, thereby signalling that the Westphalian conception of sovereignty and international law are fast becoming obsolete.Footnote ¹⁶² Second, the challenge assumes that aequitas ad bellum acts contra legem. As explained earlier, this is not the case.Footnote ¹⁶³ In fact, it may further even be argued that it is precisely the fact that the international community has never positively arrived at any consensus on how to meet the challenges of an ongoing humanitarian crisis in the event of a UN Security Council deadlock that makes the voluntarist theory of international law a false concern, since the problem presented is for all intents and purposes a non liquet in the legal regulation of the use of force under the UN Charter. In any case, the international community cannot simply disabuse itself of its own practice of referring to “general principles of law recognized by civilized nations”Footnote ¹⁶⁴ (of which, as demonstrated earlier, equitable principles form a subset) to determine international law norms in novel cases; and, as argued earlier, the need to resort to general principles of law is even more compelling where the limits of treaty and customary law are reached.Footnote ¹⁶⁵ General principles have had, and should continue to have, a viable role in international law if the strictures of the ICJ Statute are to be respected.

At this point, it is necessary to highlight that, in contrast to aequitas ad bellum, the doctrine of R2P as articulated by ICISS lacks the requisite proof undertaken in this paper to situate it within “general principles of law recognized by civilized nations” under Article 38(1)(c) of the ICJ Statute. Under the doctrine of R2P as originally conceived in 2001, if the UN Security Council is unwilling or unable to deal with a humanitarian crisis within a reasonable time, humanitarian intervention may legally be carried out by other international actors, such as regional organizations (e.g. NATO in the case of KosovoFootnote ¹⁶⁶) or even individual states (e.g. the US in respect of the Obama administration’s threat to take military action in Syria against Bashar al-Assad’s regime in 2013Footnote ¹⁶⁷). These “interveners”, according to ICISS’s report on the doctrine of R2P,Footnote ¹⁶⁸ would have derived their basis for intervention from some vague overarching notion of an international responsibility to act, which begs to be empirically proven in the same manner that has been attempted in respect of equitable principles in this paper.Footnote ¹⁶⁹ In other words, the fallacy of the doctrine of R2P lies not necessarily in its substance, but in its proof. This probably best explains why the doctrine of R2P as a justification for unilateral humanitarian intervention has never gained much real traction internationally, and has since effectively become obsolete after the conclusion of the 2005 United Nations World Summit,Footnote ¹⁷⁰ where the General Assembly was widely regarded as having “placed the international Responsibility to Protect squarely in the Security Council’s domain”.Footnote ¹⁷¹

Finally, it may also be added that aequitas ad bellum avoids the danger of transforming international protection of human rights into a rivalling enterprise among nations and international organizations around the world. As then UN Secretary-General Kofi Annan once cautioned in regard to the NATO air strikes in Kosovo, “peacekeeping is not, and must not become, an arena of rivalry between the United Nations and NATO”.Footnote ¹⁷² By regarding UN Security Council sanction as having been obtained when it equitably ought to have been granted, the intervening state or group of states are, in the eyes of equity, acting under the mandate of the United Nations, not in rivalry to it. In this regard, two extremely important points flow from this paradigm of thinking. The first is that the unilateral humanitarian intervention that we have so far been discussing in the context of aequitas ad bellum is in truth not “unilateral” in the literal sense. The second is that the intervening state’s or group of states’ constructive mandate in carrying out humanitarian intervention must necessarily require a constructive assumption of all responsibilities pertaining to an otherwise UN Security Council approved military intervention, with the result that every intervening state is liable to be held accountable to the United Nations on exactly those same terms should there be any breach of those responsibilities in the course of carrying out the humanitarian military operation. In short, aequitas ad bellum demands that any state’s constructive mandate to intervene must be correspondingly accompanied by constructive responsibilities that are consistent with those regularly underlying the operational aspects of the collective security measures regime under the UN Charter.

VII. BIGGER QUESTIONS RELEVANT TO THE IDEA OF AEQUITAS AD BELLUM

It has been shown that the notion of equity does as a matter of social fact run within the international legal community’s “DNA” that accounts for the manifestation of an equitable temperament (or “psychology”) in the legal systems of civilized nations in the world, as well as in the judicial decisions of the World Court. Granted, there has been no specific domestic law or World Court decision explicitly endorsing the proposition that unilateral humanitarian intervention may be lawfully carried out on grounds of equity. But this is quite different from saying that the idea of aequitas ad bellum is necessarily a moribund concept, given that the specific proposition might not even have been properly canvassed in the relevant fora for serious consideration in the first place. Indeed, to the author’s best knowledge, no such opportunity appears to have ever arisen, and accordingly the question is still begging to be answered.

Consequently, it is only logically reasonable that any person inclined to deny equity its role as a dispositive source of international law in matters concerning the legality of unilateral humanitarian intervention must offer positive cogent reasons to explain why the equitable “psychology” that the international community has adopted in shaping so many other areas of domestic and international law should not likewise be espoused for the purposes of moulding humanitarian intervention law as well. Put in this better perspective, the bigger question to be answered in respect of aequitas ad bellum is, accordingly, not a “Why?” but instead a “Why not?”

Perhaps one reservation one might have in respect of aequitas ad bellum is to question whether the 2005 United Nations World Summit Outcome Document on the doctrine of R2PFootnote ¹⁷³ can be considered to have written off equity as a viable justification for unilateral humanitarian intervention, given that more than 170 members of the UN General Assembly have adopted the declaration set forth in the Outcome Document as follows:

In this author’s view, there was no writing off of equity in this regard. The declaration in the 2005 World Summit Outcome Document was a specific response to the doctrine of R2P, where no explicit rejection of the role of equity in humanitarian intervention law could be detected; in fact, it is doubted that arguments touching on equity were even ventilated during the World Summit in the first place. Neither could a conclusion be read into the 2005 World Summit Outcome Document that equity had effectively been rejected as a possible justification for unilateral humanitarian intervention, the obvious reason being that equity (or aequitas ad bellum), as explained in Section VI above, is conceptually separate from and independent of the doctrine of R2P. The rejection of one as a basis for unilateral humanitarian intervention does not as a matter of course bury the other into obscuration. In any case, as Alice Bannon has noted, the 2005 World Summit Outcome Document still remains unclear as to “whether the United Nations is the only international actor that can exercise the responsibility to protect, or merely the preferred actor”.Footnote ¹⁷⁵

Indeed, other prominent jurists, such as the late Ronald Dworkin, have raised similar doubts as to whether the 2005 World Summit Outcome Document could be read to foreclose all conceivable avenues of humanitarian intervention falling outside Chapter VII of the UN Charter.Footnote ¹⁷⁶ Thus, even if the 2005 World Summit Outcome Document were to be accorded the most generous interpretation possible, it does not lend any absolutist construction to the limitations on the use of force under Article 2(4) of the UN Charter, any more than it re-characterized R2P from a doctrine originally designed to justify unilateral intervention to one now permitting collective intervention under the UN Charter. The result is that the question of whether and how a UN Security Council deadlock in a humanitarian crisis situation should be legally treated remains an open and unresolved one after the 2005 World Summit.

One might then be curious enough to ask: Might it in theory be possible that limitative absolutism in the construction of Article 2(4), read with Chapter VII of the UN Charter, could be achieved by the UN General Assembly’s adoption of an appropriate resolution or a consensus document in the future? A voluntarist perspective towards international legal theoryFootnote ¹⁷⁷ would suggest an affirmative response. On this view, the international community can, technically speaking, agree by consensus to be bound by an explicit rule stating that no amount of UN Security Council failure or inactivity, however egregious the resulting externalities might potentially be, is remediable to justify any humanitarian intervention falling outside the ambit of Chapter VII of the UN Charter. But is this a rule that the international community is prepared to accept? Supposing the UN Charter’s collective security regime to be an analogue of the Hobbesian Leviathan,Footnote ¹⁷⁸ it is worth being reminded of Hobbes’s qualification to his social contract theory that, under the Leviathan, although “every man … ought to endeavour peace, as far as he has hope of obtaining it; … when he cannot obtain it, … he may seek, and use, all helps, and advantages of war”.Footnote ¹⁷⁹ Similarly, in the words of Larry May, “[a] Hobbesian position on international law could support a system of laws of nature that can be derived from the two-pronged principle: Seek peace where you can, and otherwise be ready to resort to war.”Footnote ¹⁸⁰

Adopting a Dworkinian perspective of international law would yield another critical argument on why the international community should refrain from giving the limitation on the use of force under Article 2(4) read with Chapter VII of the UN Charter an absolutist interpretation. Relying on what he called the moral “principle of salience” underpinning the “true moral basis of international law”, Dworkin argued:

It is here that one finds the discussion coming close to full circle on this paper’s opening remarks regarding the tension between peace and justice in humanitarian intervention law; and that the theory justifying aequitas ad bellum appears to gravitate paradoxically close to the moralist camp of arguments that was identified and criticized in the earlier parts of this paper. To dispel this concern, it is necessary to point out one problem that this author sees in Dworkin’s characterization of his principle of salience, in that it is difficult to appreciate why the principle of salience is necessarily of moral provenance. Dworkin described the obligation that supposedly guides state action in improving “the legitimacy of the subscribing state and the international order as a whole” as a “political obligation”. So far so good. However, no explanation was offered on his further view that such “political obligation” is an obligation of a moral nature. As seen in other academic writings where considerations of institutional legitimacy have been recognized as having a law-shaping function in society, there has been little or no suggestion that institutional legitimacy as an ideal is a form of moral suasion on how law ought to be shaped and determined.Footnote ¹⁸²

The last question that may be asked in respect of aequitas ad bellum is as follows: How will the idea of equity in international law affect our understanding in respect of who has the right to determine the content of law under the international legal system? Under Westphalian legal thought, states are the fundamental units which collectively make international law through treaty-making, practice, and custom. That conception, however, has been challenged following the advent of other international and transnational actors who play a much more prominent role today as norm entrepreneurs in global governance—e.g. international organizations, civil society, corporations, etc.Footnote ¹⁸³ To be fair, it would appear that in the area of humanitarian intervention law, aequitas ad bellum is likely to remain capable of being invoked only by those who conceivably have the military might and power to carry out humanitarian intervention. For all intents and purposes, such actors would be nation-states (especially the superpowers of the world), and to this extent it is foreseeable that some superpowers will in the future continue to be seen as using international law from time to time as an instrument to meet certain questionable political ends. Humanitarian intervention law may, of course, also be shaped by the judicial pronouncements of the ICJ, but the very limited circumstances under which the ICJ’s jurisdiction is properly invoked does not realistically inspire in this regard.

Does this therefore lend great concern to the potential abuse of aequitas ad bellum by powerful states in the international community? The response, in all earnestness, is that no law is totally free from the risks of abuse. The rational decision to accord more toleration to the risk that a hypothetical pernicious state may some day undermine the sovereign integrity of another state under the guise of humanitarian grounds—so that unilateral international humanitarian measures necessary to stop serious existing and ongoing affronts on humanity may now be available in the event of a failed UN Security Council—may have unfortunately become more dicey given the long shadow the recent Crimea incident has cast over people’s faith in international affairs and relations worldwide.Footnote ¹⁸⁴ But it is submitted that this does not chip off the promising virtues of aequitas ad bellum any more than our memories of Rwanda, Kosovo, and Syria have undermined the legitimacy of the collective security regime that the UN Security Council has ineptly managed in the history of the United Nations.

VIII. CONCLUSION

The main drawback in subscribing to moralist and ethical justifications in building a case for unilateral humanitarian intervention lies in the fact that such arguments situate the discourse on the legitimacy of unilateral humanitarian interventions outside the realm of law. As alluded to earlier, moralists and ethicists concede the formal illegality of humanitarian interventions which are neither formally authorized by the UN Security Council under Chapter VII of the UN Charter nor justified as a lawful exercise of self-defence under Article 51 of the UN Charter. Instead, they argue that such interventions, if indeed carried out on genuine humanitarian grounds, are legitimate or, at the very least, excusable.Footnote ¹⁸⁵ Very often, it appears that such arguments are made in concession to the idea that there is no legal basis left to be drawn from the UN Charter and (more generally) the international legal system to justify military intervention on humanitarian grounds outside the ambit of Chapter VII of the UN Charter. This paper, as seen above, takes the contrary view. Indeed, it has been demonstrated in the course of this paper that it is possible to bridge the chasm between the legality and the legitimacy of unilateral humanitarian interventions by coming to the realization that equitable principles exist as part of “the general principles of law recognized by civilized nations” under Article 38(1)(c) of the ICJ Statute.

It might be thought that the use of equity is an artifice borne out by preconceived value judgments appealing to the moral and ethical desirability of humanitarian intervention. Put another way, it might be contended that equity is but a legalistic feat embarked on to disguise moral and ethical justifications for unilateral humanitarian intervention. Such a criticism is both understandable and unfair at the same time. It is understandable to the extent that the sympathies underlying the invocation of equity for humanitarian intervention appear to overlap to some extent with the same sympathies fuelling the moralist arguments in favour of unilateral humanitarian intervention that we have already seen. After all, equity acts according to what good conscience requires the justice of the matter to be.Footnote ¹⁸⁶ However, this is where the criticism becomes an unfair one, because, unlike mere moral and ethical reasoning, the employment of equitable reasoning in international law passes a much more rigorous and robust method of empirical proof under the established scheme of legitimate sources of international law provided in Article 38 of the ICJ Statute.Footnote ¹⁸⁷

Finally, it is worth mentioning that the approach advocated in this paper is not necessarily limited in its application to UN Security Council deadlock situations preventing an approval of the threat or use of military force for humanitarian purposes. It equally applies in situations where other alternative framework regimes could properly be invoked in a humanitarian crisis. Thus, for example, in the case of UN Security Council Resolution 1973,Footnote ¹⁸⁸ some writers have argued that the military action led by the US, France, the UK, and NATO against the Gaddafi regime in Libya in 2011 was, technically speaking, unlawful, given that the situation in Libya at the time was not thought to have constituted a threat to, or breach of, international peace and security.Footnote ¹⁸⁹ Under such circumstances, the proper authority for the sanctioning of the use of force has been argued to vest in the UN General Assembly.Footnote ¹⁹⁰ It is beyond the scope of this paper to evaluate the correctness of this view, but, assuming that this view were indeed correct, there may be reason to believe that equity should equally be capable of coming to aid if authorization for humanitarian intervention was similarly not forthcoming from the UN General Assembly when actual substantive circumstances dictated otherwise.