Intervention to Protect Human Rights’
Richard B. Lillich **
During 1968, which the United Nations designated as International
Year for Human Rights, numerous meetings, including the World
Assembly for Human Rights held in March in Montreal and the
International Conference on Human Rights which took place during
April and May in Teheran, called attention to the substantial progress
that has been made in the field of human rights since World War II.
Most of this progress, of course, has been in the direction of clarifying
or codifying the substantive law norms governing human rights.
Comparatively little forward movement has been achieved in the
direction of creating machinery to protect the rights of individuals
throughout the world. The International Conference on Human
Rights recognized this fact when, in its Proclamation of Teheran,
it stated that “during this period [1945-1968] many important inter-
national instruments were adopted, but much remains to be done
in regard to the implementation of those rights and freedoms…”‘
Responding to the demands of several Canadian members for a
procedural approach to the law of human rights, the International
Law Association as far back as 1965 established a Committee on
Human Rights to consider, inter alia, whether there should be a shift
in “emphasis from the Definition of Human Rights to Remedies
for infringement of Human Rights.”‘ 2 The Committee’s Rapporteur,
Professor Humphrey of Canada, stated in his Interim Report to the
Helsinki Conference in 1966 that “the trend is now towards the
for
establishment of
international machinery and
techniques
This paper was originally prepared for the research project on International
Procedures to Protect Private Rights, established under the terms of a grant from
the Ford Foundation to the Procedural Aspects of International Law Institute.
All rights in the article are reserved by the research project, with whose per-
mission it is published here. (c) The Procedural Aspects of International Law
Institute, Inc., 1969.
** Charles H. Stockton Chair of International Law, United States Naval War
College (19684.969). Professor of Law, University of Virginia School of Law,
and Director, Procedural Aspects of International Law Institute. Member of the
New York Bar.
‘J. Carey, International Protection of Human Rights, (1968), XIIth Ham-
marskj~ld Forum, p. 105.
2 Int. L. Ass., Report of the Fifty-Second Conference, (Helsinki, 1966), p. 754.
McGILL LAW JOURNAL
[Vol. 15
implementation, machinery and techniques, that is to say, which
will provide for some kind of supervision and control of the conduct
of States in the observance of the standards now established.” 3 The
writer has been associated with this Committee, first as a member of
its Advisory Group and later as a formal member, for the past three
years, and it is a pleasure to record that the Committee has fulfilled
the ILA’s mandate “to see the emphasis in this field shifted from
definition to implementation.” 4
For last year’s Buenos Aires Conference of the ILA, the Rappor-
teur submitted a detailed report on the procedural aspects of the
international protection of human rights. Pointing out that “human
rights without effective implementation are shadows without sub-
stance,”, he set forth in his report various possibilities for the
implementation of the numerous human rights conventions and the
norms of customary international law. Moreover, the Committee’s
Chairman, Mr. Justice Batshaw of Canada, asked the ILA to “record
its continuing interest in the efforts to promote the cause of Human
Rights and to improve the international machinery available for
their implementation.” 6 His suggestion was adopted by the Buenos
Aires Conference and the ILA intends to continue its work in this
area during 1969 and 1970.
At the same time that the ILA took an interest in this field,
the Procedural Aspects of International Law Institute began a four-
year research project on international procedures to protect human
rights. 7 Noting Professor McDougal’s observation that “the most
difficult problem still confronting the framers of the United Nations’
Human Rights Program is that of devising effective procedures for
enforcement,” 8 it undertook to examine from a procedural perspective
both the United Nation’s recent efforts in the field and also past
procedures which, in the absence of United Nations implementation
3 Ibid., at p. 758.
4 Ibid., at p. xviii.
5 Int. L. Ass., Report of the Rapporteur of the Committee on Human Rights
to the Fifty-Third Conference, (Buenos Aires, 1968), p. 24.
6 Int. L. Ass., Addendum to the Report of the Chairman of the Committee on
Human Rights to the Fifty-Third Conference, (Buenos Aires, 1968), p. 2.
7 The Institute, with headquarters at 200 Park Avenue, New York, New York
1001q, sponsors and conducts research into various areas of procedural inter-
national law, disseminating the results of such research through monographs,
articles, meetings, conferences and exchanges. Membership is open to all persons
in the United States and abroad who are concerned with this area of inter-
national law. Persons interested in becoming Associate Members should apply
to this writer, its Director, at the above address. See Note, Procedural Aspects
of International Law Institute, (1966), 60 Am. J. Int. L. 816.
S McDougall & Behr, Human Rights in the United Nations, (.1964), 58 Am.
J. Int. L. 603, at p. 629.
No. 2]
INTERVENTION TO PROTECT HUMAN RIGHTS
207
action, may constitute the only methods for preventing human rights
violations today. In particular, this writer’s work, following the sug-
gestion of the ILA’s Rapporteur that the first chapter of any
definitive work on the procedure of human rights should be an histori-
cal introduction emphazing the doctrine of humanitarian intervention
and the law of state responsibility, has been to examine those two
topics which historically are interrelated with the doctrine of forcible
self-help. 9 This article will discuss them in some detail and then
consider briefly how the world community may expand its role as a
protector of individuals from governmental oppression.
I. Customary International Law
As Dean Huston has demonstrated in an exhaustive article on
the United Nations Conference on International Organization, the
framers of the United Nations devoted ample time in 1945 to debating
the insertion into the Charter of numerous provisions concerning
human rights, but left to a later day the methods by which those
same Charter provisions might be made effective. 10 The result has
been that whatever hopes the framers of the Charter had for progress
in this area, at least on the procedural side, have not been realized.
Doctor Korey, in a recent article, has observed that “if the United
Nations has been extraordinarily successful during the past twenty
years in formulating standards of conduct, it has been sadly negligent
in creating institutions and procedures for translating these standards
into actual observance.”‘. As this writer’s examination of the area
progressed, it became apparent to him that the traditional concepts
governing both intervention to protect nationals and humanitarian
intervention, at least in the absence of United Nations action on
the problems of enforcement, have considerable contemporary
relevance. Indeed, in view of the present state of the international
legal order, he is prepared to argue the legitimacy of a limited right
of forcible self-help by states, collectively or individually, as a
minimum enforcement measure to protect human rights.
Under the traditional rules governing the protection of nationals
abroad, aliens, in contrast to nationals of a country, were accorded
somewhat more extensive protection. Judge Lauterpacht, in his
excellent book entitled International Law and Human Rights, noted
9 Int. L. Ass., supra, n. 2, at p. 759. See Lillich, Forcible Self-Help by States
to Protect Human Rights, (1967), 53 Iowa L. Rev. 325, relied upon heavily in
this article.
10 See generally Huston, Human Rights Enforcement Issues of the United
Nations Conference on International Organization, (1967), 53 Iowa L. Rev. 272.
“Korey, “A Global Ombudsman”, Saturday Review, Aug. 12, 1967, at p. 20.
McGILL LAW JOURNAL
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the paradox that “the individual in his capacity as an alien enjoys a
larger measure of protection by international law than in his character
as a citizen of his own State.”‘ 12 In short, by requiring a state to
accord a minimum standard of treatment to aliens, traditional inter-
national law provided some protection for the human rights of
individuals when abroad. The power to enforce compliance with
these standards rested in the state to which the alien owed allegiance,
with the measures available to the sanctioning state ranging from
diplomatic notes through forcible self-help to actual war. 13 Of course,
this traditional method of protecting nationals was a very crude
one, but in the words of the ILA it “has nevertheless been an
important means of protecting human rights,”‘
4 and numerous
authorities evidence the fact that international law conclusively
sanctioned the use of forcible self-help by states to protect the
lives and property of their nationals abroad. 15
1
Opposed to the doctrine of forcible self-help during its formative
period and even today is the principle prohibiting intervention by
states in the internal affairs of other states.’ Since this principle
has caused some confusion, to say the least, it is important to define
it as particularly as possible, if only to exclude permissible techniques
of coercion short of actual force. 17 For purposes of this article, it is
convenient to adopt Lauterpacht’s definition of intervention, namely,
“dictatorial interference in the sense of action amounting to a denial
12H. Lauterpacht, International Law and Human Rights, (London, 1950),
p. 121.
13 See generally E. Borchard, The Diplomatic Protection of Citizens Abroad,
(New York, 1915), pp. 448-53.
14 Int. L. Ass., supra, n. 2, at p. 759.
‘5,”The right of the state to intervene by the use or threat of force for the
protection of its nationals suffering injuries within the territory of another
state is generally admited, both in the writings of jurists and in the practice
of states.” D. Bowett, Self-Defence in International Law, (1958), p. 87. See
also Dunn, The Protection of Nationals, (1932), p. 19; C. Hyde, International
Law, vol. 1, 2nd rev. ed., (Boston, 1945), 202, p. 647; P. Jessup, A Modern
Law of Nations, (New York, 1048), p. 169; L. Oppenheimer, International
Law, vol. 1, 8th ed., H. Lauterpacht ed., (London, 1955), 105, p. 309.
16 “It may be laid down at the outset that, as state-independence is the founda-
tion of modern international law, non-intervention is the rule, intervention the
exception.” Winfield, The History of Intervention in International Law, (1922-
1923), 3 Brit. Y.B. Int. L. 1,30, at p. 139. For an excellent description of the
development of the “American international law” on the subject, see Cabranes,
Human Rights and Non-Intervention in
(1967),
65 Mich. L. Rev. 1147.
the Inter-American System,
17 F. Dunn, supra, n. 15, at pp. 18-20 passim. Otherwise “the subject of inter-
vention becomes so vague that it slips outside the framework within which legal
technique can operate usefully”. R. Falk, Legal Order in a Violent World,
(Princeton, 1968), p. 160.
No. 2]
INTERVENTION TO PROTECT HUMAN RIGHTS
of the independence of the State.”‘ s Thus, while all measures of
forcible self-help may constitute intervention in the ordinary sense,
when used as a term of art the word denotes and condemns only
those coercive measures designed to maintain or alter the political
situation in another state. The use of force primarily to proctect the
lives and property of nationals of the intervening state, 19 depending
upon one’s conceptualistic preference, either is not intervention at
all2 0 or, if it is, becomes a legally justifiable one.21
A second traditional doctrine, that of humanitarian intervention,
developed during the nineteenth century as the great powers sought
occasionally to protect individuals and groups of individuals against
their own states. Going well beyond the institution of the protection
of nationals in that its invocation did not depend upon a link
between the injured individuals and the protecting state or states,
humanitarian intervention, in the words of Lauterpacht, sanctioned
the use of forcible self-help “in cases in which a State maltreats
its subjects in a manner which shocks the conscience of mankind. ‘ 22
Examples frequently cited of permissible intervention during the
past century include the assistance furnished by Great Britain,
France and Russia to the Greek revolutionaries in 1827, the numerous
remonstrances in the late 1800s condemning Turkish treatment of
Christians, and the protests by the United States in 1891 and 1905
against the treatment of- Jews in Russia. 23 Although single states
occasionally invoked this doctrine, in most instances several of the
major powers acted collectively, unlike the typical protection of
nationals situation. While, as Professor Wright has observed, “inter-
Is H. Lauterpacht, supra, n. 12, at p. 167.
19 Note the italicized word. “The landing of American forces has, however,
oftentimes been productive of intervention, as where the effort to protect Ameri-
can life and property has assumed a form that has been identified with and
difficult to distinguish from, direct participation in a domestic conflict being
waged for the control of the reins of government.” Hyde, supra, n. 15, 202A,
at p. 649. See text at and accompanying, nn. 48-49 infra.
20 “Traditionally international law allowed individual States or groups of
States to take appropriate measures in the territories of other States for pro-
tection and enforcement of their rights. Such action was not technically inter-
vention.” D. O’Connell, International Law, vol. 1, (Dobbs Ferry, N.Y., 1955),
p. 326.
21 “The landing of forces without consent, being unmistakably a usurpation of
political authority, is prima facie intervention. The question is whether it
is
an intervention which is justifiable as an exceptional measure of self-protection.”
Waldock, The Regulation of the Use of Force by Individual States in International
Law, (11-1952), 81 Recueil des Cours (Hague Academy of International Law)
455, at p. 467.
22 H. Lauterpacht, supra, n. 12, at p. 32. See also E. Stowell, Intervention in
International Law, (Washington, 1921), p. 53.
23 See M. Moskowitz, Human Rights and World Order, (New York, 1958), p. 16.
McGILL LAW JOURNAL
[Vol. 15
vention does not gain in legality under customary international law
by being collective rather than individual,”‘ 4 the fact that more
than one state has participated in a decision to intervene for
humanitarian reasons lessens the chance that the doctrine will be
invoked exclusively for reasons of self-interest. 25
Attempts to justify humanitarian
intervention on theoretical
grounds under customary international law caused some problems.
If nationals of the intervening state were involved, the same
approach used to rationalize the application of forcible self-help to
protect nationals abroad was available. However, when the situation
involved only nationals of the offending state, a different theoretical
justification was required. Generally, it was found in the forthright
assertion that the doctrine of absolute sovereignty did not insulate
states from interference by the international community when human
rights violations reached shocking proportions. ‘TWhen a state abuses
its right of sovereignty by permitting within its territory the
treatment of its own nationals or foreigners in a manner violative
of all universal standards of humanity,” conclude the Thomases,
“any nation may step in and exercise the right of humanitarian
intervention.1 2 6 Hence, the doctrine appears to have been so clearly
established under customary international law that only its limits
and not its existence is subject to debate.
II. The Effect of the United Nations Charter
The effect of the United Nations Charter on the two doctrines
just discussed has been given relatively little attention in the
literature on human rights. The drafters of the Charter, as Dean
Huston’s study shows, paid no attention to whether these doctrines
were to survive the Charter, aind its signers, while obligating them-
selves to promote the protection of human rights, apparently were
not bothered by the obvious fact that the Charter contains no
enforcement provisions to compel compliance with its obligations.
Furthermore, two provisions make it “very doubtful,” in the words
of Doctor Brownlie,2 7 whether forcible self-help to protect human
24Wright, The Legality of Intervention Under the United Nations Charter,
(1957), 51 Am. Soc. Int. L. Proceedings 79, at p. 86.
25 On the question of self-interest, see the discussion at nn. 60-65 infra and
accompanying n. 67 infra.
26A. Thomas & A. Thomas, The Dominican Republic Crisis 1965, (1967), IXth
Hammarskjld Forum, p.-13. The latest discussion of humanitarian intervention
may be found in McDougal & Reisman, Comment, (1.969), 3 Int. Lawyer 438.
271. Brownlie, International Law and the Use of Force by States, (Oxford,
1963), p. 433.
No. 2]
INTERVENTION TO PROTECT HUMAN RIGHTS
ights is still permissible under international law. In the first place,
all states by Article 2(4) renounce “the threat or use of force
against the territorial integrity or political independence of any
state,” subject of course to the self-defense provision contained in
Article 51. Secondly, Article 2(7) prevents intervention by the
United Nations “in matters which are essentially within the domestic
jurisdiction of any state,” except for the application of enforcement
measures under Chapter VII. Until recently, there has been little
discussion of whether these provisions prohibit the right to intervene
with force to protect one’s nationals or to protect nationals of a
third state or the state against which the intervention is directed. 28
Shortly after the establishment of the United Nations, Judge
Jessup concluded that forcible self-help was no longer permitted
because the Charter supplanted the individual measures approved
by traditional international law.2 9 However, he carefully entered the
caveat that if the Security Council, “with its Military Staff Com-
mittee,” was unable to act with the speed requisite to preserve life,
then forcible self-help might be allowable. 30 The Thomases, in their
study of the Charter, apparently come to the conclusion that only
nonforceful measures may be used now by an individual state to
protect its nationals in other states. 31 Thus, they comment ironically
that “from a practical ipoint of view it would seem that the Charter
encumbers rather than advances the human rights and fundamental
freedoms involved in the protection of aliens abroad.” 32 They suggest
two arguments which might be used to justify such action. First,
that it does not impair the territorial integrity or political inde-
2 8 A recent graduate law thesis at the Institute of Comparative and Foreign
Law, McGill University, is the first extended examination of the subject. See
D. Thapa, Humanitarian Intervention (unpublished thesis, 1968). The writer
concludes that “an absolutist view, that the Charter has abolished the customary
principle of humanitarian intervention, is not defensible –
this principle con-
tinues to exist as an exception to all rules, whether set forth by customary or
conventional international law, which bans [sic] forceful intervention for such
purpose”. Id., at p. 10.
29 P. Jessup, supra, n. 15, at pp. 169-70. See also Wright, supra, n. 24, at p. 88:
“I conclude that military intervention by states is restricted by the Charter to
necessities of individual or collective self-defense, explicit treaty permissions or
requests, or United Nations authorizations.”
30 P. Jessup, supra, n. 15, at pp. 170-71.
31 A. Thomas & A. Thomas, Non-Intervention, (1956), p. 312.
32 Id. The authors reach the same conclusion regarding humanitarian interven-
tion. Id., at p. 384. Parenthetically, they also observe that since the Charter of
Bogota “establishes no clear-cut right for the OAS to intervene for humanitarian
purposes, it can be said that as far as the inter-American system is concerned,
human rights are now less protected than they were under general international
law.” Id., at p. 390. See, Cabranes, supra, n. 16, at pp. 1159-61.
McGILL LAW JOURNAL
[Vol. 15
pendence of a state,3 3 and secondly that, in any event, when it comes
to the protection of nationals abroad intervention is permissible as
an extension of the concept of self-defense. 34 For reasons stated
elsewhere, this writer cannot accept the latter argument,31 but it
does not seem impossible to reconcile a limited right to intervene for
humanitarian purposes with the strictures or Article 2(4). 80
When it comes to Article 2(7), the United Nations definitely has
the legal right to use force for humanitarian purposes if the state
violating basic human rights causes an actual threat to the peace. 37
As the United Nations has learned from the Rhodesian and South
African cases, and as it would have learned with respect to Biafra
if it had had the courage to take up the matter, it is not always
easy to devise procedures to implement resolutions in human rights
matters. 3 Nevertheless, the United Nations has the power to take
collective action, and perhaps someday, as Professor Falk hopes,
we shall see “supranational interventions to overcome the intolerable
injustices that are found today in Angola, Rhodesia, and the Republic
of South Africa.” 39
33 A. Thomas & A. Thomas, supra, n. 26, at p. 15.
34 Id., at p. 13.
35 Lillich, supra, n. 9, at p. 337.
36 Doctor Reisman, in an excellent study of the Article 2(4) problem, agrees
with this writer that a close reading of it indicates no prohibition of coercion
per se, but rather the prohibition of the use of force for specified unlawful ends.
“Since a humanitarian intervention seeks neither a territorial change nor a
challange to the political independence of the state involved and is not only not
inconsistent with the Purposes of the United Nations but is rather in conformity
with the most fundamental preemptory norms of the Charter, it is distortion to
argue that it is precluded by Article 2(4).” Reisman, Memorandum Upon Humani-
tarian Intervention to Protect the Tbos, (unpublished paper written with the
collaboration of Professor McDougal, 1968), pp. 15-16. Accord, Harlow, The Legal
Use of Force… Short of War, (1966), 92 U.S. Naval Institute Proceedings 88,
at p. 97.
37 See, e.g., A. Thomas & A. Thomas, supra, n. 31, at p. 384. The domestic
jurisdiction clause no longer shields states where grave breaches of human rights
have occurred. McDougal & Behr, supra, n. 8, at p. 612. See generally Gilmour,
The Meaning of “Intervene” Within Article 2(7) of the United Nations Charter –
An Historical Perspective, (1967), 16 Int. & Comp. L.Q. 330.
3
8 Yet, as McDougal and Reisman have stated with respect to Rhodesia, the
quest must continue. “Failure to act there might not merely fail to fulfill con-
temporary policies in the inclusive promotion of human rights; it might, further,
set back or undermine the whole United Nations program. In the most realistic
sense, the impossibility of achieving perfection is scant justification for total
inaction.” McDougal & Reisman, Rhodesia and the United Nations: The Law-
fulness of International Concern, (1968), 62 Am. J. Int. L. 1.
39 Falk, Historical Tendencies, Modernizing and Revolutionary Nations, and
the International Legal Order, (1962), 8 How. L.J. 128, at p. 150.
No. 2]
INTERVENTION TO PROTECT HUMAN RIGHTS
213
Assuming, however, that the United Nations generally will not
act in situations where states might have acted individually in
pre-Charter days, it might be useful to examine two recent situations
and a pending one where forcible self-help was or could have been
used by a single state or a group of states to mitigate outrageous
violations of human rights. These situations are the Congo in 1964,
the Dominican Republic in 1965, and Biafra at present.
With respect to the Congo, it will be recalled that in the fall
of 1964, the rebel movement there had seized several thousand
innocent persons and held them as hostages in violation of the Geneva
Conventio s. 40 Unable to obtain concessions from the Congo’s recog-
nized government, the rebels stated that “‘we will make our fetishes
with the hearts of the Americans and Belgians, and we will dress
ourselves with the skins of the Americans and Belgians.’ -41 Several
dozen foreigners actually were slaughtered by their rebel captors
during this period, and a captured telegram indicated that the rebel
officer in charge of the hostages was under orders to exterminate
them all should hostilities recommence in the region.42
Using United States planes and a British island for staging
purposes, Belgian paratroopers mounted an airdrop which landed
at Stanleyville and undertook an emergency
rescue operation,
evacuating 2,000 people of over eighteen nationalities within a four-
day period. 43 The United States justified its participation on both
the above grounds, pointing out that the operation was a humani-
tarian and not a military one, that it was designed to avoid bloodshed
and not interfere with the outcome of the internal civil war then
going on, and that it was limited in scope. 44 Certainly all these
40 ” ‘The rebels’ action in holding and threatening hostages is in direct violation
of the Geneva Conventions and accepted humanitarian principles. Moreover, the
harassment and mistreatment of civilians have continued in rebel-held areas
despite repeated protests and appeals from international organizations and in-
terested governments.” (1964), 51 Dep’t State Bull., p. 841, reprinted in U.S.
Dep’t of State, American Foreign Policy: Current Documents 1964, (1967), at
p. 770.
41 (1965), 52 Dep’t State Bull., p. 18.
42 The foreigners killed included nineteen Belgians and four Dutchmen, two
Americans, two Greeks, two Indians, two Portuguese, two Togolese, one English-
man and one Italian. Id., partially reprinted in U.S. Dep’t of State, American
Foreign Policy: Current Documents 1964, (1967), at p. 777.
43 (1964), 51 Dep’t State Bull. 840, reprinted in U.S. Dep’t of State, American
Foreign Policy: Current Documents 1964, (1,967), at p. 767; (1965), 52 Dep’t
State Bull. 16, reprinted in U.S. Dep’t of State, American Foreign Policy: Cur-
rent Documents 1964, (1967), at p. 776. Other estimates range even higher,
(1965), 52 Dep’t State Bull. 222.
44 In the UN, Ambassador Stevenson stated that “while our primary obligation
was to protect the lives of American citizens, we are proud that the mission
McGILL LAW JOURNAL
[Vol. 15
points are borne out by the facts, and, in view of the complete lack
of action by the United Nations and the Organization of African
Unity, the criticism heaped upon the United States for its role in
this humanitarian venture comes as something of a surprise. 4″ If
ever there was a case for the use of forcible self-help to protect lives,
in this writer’s opinion the Congo rescue operation was it. 4″
With respect to the Dominican Republic intervention in April
1965, the facts are more complex and space precludes discussing them
in detail here. 47 Suffice to say that by the end of the month the
civil war going on in Santo Domingo had reached a balance and law
and order had broken down completely. The United States, faced
with the apparent alternatives of doing nothing or coming to the
aid of one side or the other, rejected both approaches. Instead,
it landed a small contingent of Marines to protect the lives of United
Stated citizens in the country and to secure their immediate evacu-
ation. According to critics such as Senator Fulbright, the true motive
for this action was not humanitarian but anti-Communist. 48 While
undoubtedly the Johnson Administration had no great desire to see
rescued so many innocent people.., from their dreadful predicament.”
52 Dep’t State Bull. 17, reprinted in U.S. Dep’t of State, American Foreign
Policy: Current Documents 1964, (1967), at p. 777.
(1965),
45Replying to allegations bordering on the slanderous, Ambassador Stevenson
told the UN flatly that he had no “apologies to make” about the operation. “We
are proud of our part in saving human lives imperiled by the civil war in the
Congo.” Id. In one of the surprisingly few legal treatments of the Stanleyville
operation, Falk concludes that “Stevenson’s
response was justified in most
respects, although his heroic attempt to disentangle the rescue mission from the
colonial past and the rebellious present is not altogether convincing. The fact
remains that the United States cannot use military force in the Congo, unless
authorized to do so by either the OAU or the UN, without engendering fury
on the part of the more radical African governments.” R. Falk, supra, n. 17,
at p. 334. Yet earlier in his perceptive essay he specifically limits his criticism
to the appearances and not to the legality of the operation. Id., at pp. &29-31
passim. For a less balanced discussion failing to make this important distinction,
see R. Barnet, Intervention and Revolution, (1968), pp. 249-51.
46It also is worth noting that the three powers acted with the express
authorization of the Congo’s recognized government, that they used only the
reasonable amount of force necessary to accomplish the rescue, and that once
they had completed their mission they immediately withdrew. See R. Falk, supra,
n. 17, at p. 329.
47 In addition to A. Thomas & A. Thomas, n. 26, supra, factual accounts may
be found in the following studies: R. Barnet, supra, n. 45, at pp. 153-80; L.
Miller, World Order and Local Disorder, (1967), pp. 149-65; and Nanda, The
United States’ Action in the 1965 Dominican Crisis: Impact on World Order –
Part 1, (1,966), 43 Denver L.J. 439.
4 SFulbright’s famous speech to the Senate on the Dominican Crisis may be
found in (1965), 111 Cong. Rec. 23855.
No. 2]
INTERVENTION TO PROTECT HUMAN RIGHTS
215
ex-President Bosch restored to power by a violent revolution, there
appears to be sufficient evidence that the original motive of the
United States in acting was dictated by humanitarian grounds, and
that criticism of our operation in the Dominican Republic, which
eventually culminated in the stationing of over 20,000 military
personnel in the capital, should be directed towards the subsequent
buildup and not the initial response. 49
The use of forcible self-help in the Dominican Crisis involved
one problem not present in the Congo situation, namely, the impact
of Articles 15 and 17 of the OAS Charter which appear to contain
an absolute ban against any type of intervention whatsoever. 50 The
Thomases, who once interpreted these articles to prohibit the use
of force in all situations, still acknowledge that they represent “a
troublesome impediment to collective humanitarian intervention.” 51
To the extent that the collective action that the OAS eventually took
does not relate back and justify the continued presence of American
troops in the Dominican Republic, the United States may have
violated the OAS Charter.52 If so, surely a gap exists in the western
hemispheric system, a gap which can be remedied only by establishing
49 The Johnson Administration, for instance, rejected as “demonstrably in-
correct’ the contention “that danger to American lives was more a pretext than
a reason for United States action.” Mann, The Dominican Crisis: Correcting
Some Misconceptions, (1965), 53 Dep’t State Bull. 730, at p. 783, reprinted in
U.S. Dep’t of State, American Foreign Policy: Current Documents 1965, (1968),
1002, at p. 1005. “The facts show that Americans in Santo Domingo were in
imminent danger of life and limb from rioting mobs.” Meeker, The Dominican
Situation in the Perspective of International Law, (1965), 53 Dep’t State Bull.
60, at p. 64. Assuming the accuracy of “the facts”, this writer agrees with
Nanda that “the initial landing of four hundred Marines should be considered
a permissible self-defense measure to protect the United States nationals.’
Nanda, supra, n. 47, at p. 471. But see R. Barnet, supra, n. 45, at p. 172.
50 OAS Charter, art. 15: “No State or group of States has the right to inter-
vene, directly or indirectly, for any reason whatever, in the internal or external
affairs of any other State.’
OAS Charter, art. l: “The territory of a State is inviolable; it may not be
the object, even temporarily, of military occupation or of other measures of
force taken by another State, directly or indirectly, on any grounds whatever.”
51 A. Thomas & A. Thomas, supra, n. 26, at p. 22. See text accompanying
n. 32, supra. Nevertheless, they have made a convincing case for the right to
use forcible self-help in human rights situations. Id., at p. 23. But see MeLaren,
The Dominican Crisis: An Inter-Americau Dilemma, (1966), 4 Cnd. Y.B. Int. L.
178, at p. 181.
52 Id. See also Bohan, The Dominican Case: Unilateral Intervention, (1966),
60 Am. J. Int. L. 809, at p. 810: “If the absolute language of these acts [Articles
15 & 17 of the OAS Charter] must bend before the state’s right of self-defense
from real and immediate dangers, certainly the acts are not to be disregarded
on the basis of protection of nationals.”
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OAS machinery to handle crises of the Dominican type or, even less
likely, by amending the OAS Charter to permit limited self-help
measures by individual states.53
Finally, the situation in Biafra is one that would have been
intervention of the nineteenth
ideal for collective humanitarian
century type. However, as is well known, the United Nations has
done nothing in the way of mounting a political or economic, much
less military, campaign to prevent the widespread devastation and
starvation which has taken place recently in the eastern part of
Nigeria. U Thant, so free with his advice in other matters, has
been studiously silent on the topic. Moreover, the OAU, with the
exception of occasional utterances, has made no real effort to
alleviate the situation of the Ibos. Apparently, Articles 2(4) and
2 (7) are being used as handy excuses by all states, including Canada
and the United States, who wish to avoid becoming involved. The
Biafran tragedy differs from the Congo and Dominican situations
only in the fact that nationals of the offending state alone are
involved and not foreigners. Nevertheless, as pointed out above, 4
the doctrine of humanitarian intervention seems to be designed
perfectly for this situation, and it should have been invoked long
before now. 5r
II. Future Developments
Over two years ago this writer advanced the thesis that, pending
the establishment of effective machinery on the international level
to govern the minimum use of force in human rights situations,
a limited right of forcible self-help existed despite the provisions
in Articles 2(4) and 2(7) of the United Nations Charter.50 This
position certainly was a minority one then and still may be so today,
but it continues to gain adherents annually. Initially, Professor Nanda,
in an excellent survey of the impact of the Dominican Crisis on
world order, concluded that a state’s claim to intervene for the
protection of its nationals should be considered permissible in appro-
priate situations.57 Then Professor McDougal, reassessing his earlier
5 Both prospects seems unlikely at present. See generally Cabranes, The
Protection of Human Rights by the Organization of American States, (1968),
62 Am. J. Int. L. 889.
54 See text at nn. 22-26, supra.
Gr “We have waited too long and have already lost our innocence; if we cannot
perfect, as a minimum, a system of humanitarian intervention, we have lost our
humanity. If we sit passively by while the Ibos suffer genocide, we have for-
feited our right to regain it.” Reisman, supra, n. 36, at p. 47.
GO See, n. 9, supra.
57 Nanda, supra, n. 47, at p. 458.
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INTERVENTION TO PROTECT HUMAN RIGHTS
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view that the United Nations Charter precluded the use of forcible
self-help, acknowledged that “if I had the opportunity to rewrite
the book with Mr. Feliciano in which we mildly questioned the
lawfulness of self-help less than self-defense, I think I would come
out with a different conclusion, as many people have.” 58 Finally,
Doctor Reisman, in his study of the plight of the Ibos, has adopted
the thesis that “individual or coordinated corrective non-UN hu-
manitarian intervention is permitted as a substitute for functional
enforcement of international human rights.” 59
Obviously, any procedure that allows a single state, or a small
group of states, to use force without the prior authorization of a
supranational body is a doctrine productive of possible abuse. Both
Doctor Bowett and Professor Falk have warned us of this fact. 60
Moreover, Doctor Brownlie, who thinks that “any legal basis of
the right of intervention is now extremely tenuous,” actually takes
the position that “as a matter of legal and international policy
this is a beneficial development.”‘ 61 Balancing the need to protect
human rights against the realization that non-humanitarian motives
often may be at work, he apparently believes that world community
policy requires an across-the-board prohibition of forcible self-help
measures. This recommendation to forego the use of coercion, in the
opinion of this writer, constitutes a classic example of throwing
the baby out with the bath water. 62 Granted the dangers inherent
in accepting a decentralized determination of when it is appropriate
58 McDougal, Authority to Use Force on the High Seas, (1,967), 20 Naval War
College Review, No. 5, 19, at p. 29. The work in need of revision is M. McDougal
& F. Feliciano, Law and Minimum World Public Order, (New Haven, 1961).
McDougal explains that “I’m ashamed to confess that at one time I lent my
support to the suggestion that article 2(4) and the related articles did preclude
the use of self-help less than self-defense. On reflection, I think that this was
a very grave mistake, that article 2(4) and article 51 must be interpreted
differently… In the absence of collective machinery to protect against attack
and deprivation, I would suggest that the principle of major purposes requires
an interpretation which would honor self-help against prior unlawfulness. The
principle of subsequent conduct certainly confirms this. Many states of the world
have used force in situations short of the requirements of self-defense to protect
their national interests.” McDougal, supra, at pp. 28-29. Compare text at n. 30,
supra.
69 Reisman, supra, n. 36, at p. 17.
GOD. Bowett, supra, n. 15, at pp. 104-05; Falk, supra, n. 17, at p. 161. “One
need only recall that Hitler explained his invasions of Czechoslovakia and Poland
by the need to rescue German minorities from oppression.” Id.
61 .Brownlie, supra, n. 27, at pp. 298, 340.
02 Professor Goldie uses the same clichg to arrive at the same conclusion.
Goldie, The Transvaluation of Values in Contemporary International Law, (1967),
53 Iowa L. Rev. 358, at p. 362.
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to embark upon a humanitarian mission,13 the fact that a state’s
action in such a situation remains subject to review and revision
by the world community offers some safeguard against the use
of force for non-humanitarian purposes. 64 As McDougal and Feliciano
observe:
The characterization is of course made by an individual state at its own
peril. It partakes, in other words, of the nature of a provisional determination
in precisely the same way that a claim of self-defense does, and remains
subject both to the contemporaneous appraisal of other individual states
and to the subsequent review the organized community may eventually
exercise… A policy of permitting individual initiative is, of course, again
like the policy of allowing self-defense, susceptible to perverting abuse;
but this susceptibility is an attribute common to all legal policy, doctrine,
or rule. 65
If one accepts this reasoning, then the first important task today
is to clarify the various criteria by which the legitimacy of a state’s
use of forcible self-help in human rights situations can be judged.
Writers examining past practice have constructed a number of
standards for evaluating the legitimacy of a claimed humanitarian
intervention. Thus Professor Nanda, paraphrasing the legal arguments
of the United States in the Congo operation, lists five criteria:
1) a specific limited purpose; 2) an invitation by the recognized
government; 3) a limited duration of the mission; 4) a limited use
of coercive measures; and 5) a lack of any other recourse. 60
Occasionally overlapping these criteria but also including several new
ones, this writer has recommended elsewhere his own five tests
by which a unilateral or near-unilateral use of forcible self-help
should be judged: 1)
the immediacy of the violation of human
rights; 2) the extent of the violation of human rights; 3)
the
existence of an invitation by appropriate authorities; 4) the degree
of coercive measures employed; and 5) the relative disinterestedness
of the state invoking the coercive measures. 7
63 “Part of the problem arises from the unreliability of any decentralized
determination of when it is appropriate to intervene and the absence of any
reliable centralized procedures. The risk of manipulation of verbal symbols would
be reduced, though not eliminated, by entrusting the interventionary decision
to an entity more embracing than the intervening state itself.” R. Falk, supra,
n. 17, at pp. 161-62.
64 “Where circumstances require a unilateral humanitarian intervention, the
operation should be submitted to inclusive authoritative appraisal as soon as
possible.” Reisman, supra, n. 36, at pp. 33-34.
65 M. McDougal & F. Feliciano, supra, n. 58, at p. 416.
66 Nanda, supra, n. 47, at p. 475.
67 Lillich, supra, n. 9, at pp. 347-51. A comment is required on the last criteria.
It is somewhat naive to suggest that “where the decision to intervene falls to
a single state, it should be safeguarded by a requirement that the state be
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INTERVENTION TO PROTECT HUMAN RIGHTS
219
Applying these criteria, it would seem that the Congo airdrop
into the
and the initial introduction of United States Marines
Dominican Republic were permissible uses of forcible self-help in
the absence of supranational action. Obviously the latter is prefer-
able, but until the United Nations and perhaps the OAS and the OAU
establish effective procedures for handling the problem their roles
will remain essentially passive ones, with states having the motivation
and possessing the capability for action resorting to it. Sooner or
later, of course, the United Nations must create or adapt some
institutions to regulate the use of force in humanitarian situations.
Perhaps, as Senator Kennedy has recommended, the United Nations
should establish an Emergency Relief Force.6 8 Perhaps, as Doctor
Reisman has suggested, the International Law Commission should
consider drafting a Protocol of Procedure for Humanitarian Inter-
vention. 9 What seems certain is that a good deal more work needs
be done to find out just what additional procedures are needed and
how they can be made binding upon states.
This second important task undoubtedly is less glamorous than
work on the clarification and codification of the substantive norms
of human rights that has occupied center stage for so long, but it
is no less important. There already exists an abundance of literature
in the area of substance: what is needed is some good old-fashioned
field research on procedural techniques to bring the substantive law
of human rights to bear on governments. Mr. Justice Frankfurter
reminds us in his Reminisces that such creative research “requires
a lot of digging. It’s so much easier to think than to dig, but
thinking without digging isn’t very good thinking.’0 This writer’s
plea today, in the wake of Biafra, is for a few readers to pick up a
shovel and have a go.’ 1
totally disinterested.” Bogen, The Law of Humanitarian Intervention: United
States Policy in Cuba (1898) and in the Dominican Republic (1965), (1066), 7
Harv. Int. L. Club J. 296, at p. 11. As Bogen himself later acknowledges, unless
it has some definite interest “no single government is willing to expend the
money and manpower necessary for action.” Id., at p. 313. Thus, while it is
patently unfair to suggest, as Barnet has concerning the Congo, that “the State
Department’s humanitarian concerns were aroused only when it appeared that
Americans and Europeans might be the next victims”, R. Barnet, supra, n. 45,
at p. 249, it is a fact of international life today that states rarely take affirmative
steps unless their own nationals are involved. Biafra is an unfortunate case in
point. Great effort is needed to develop an “external constituency” which identi-
fies with the victims of human rights deprivations regardless of their nation-
alites. See Falk, in J. Carey, supra, n. 1, at pp. 46-48.
6s N.Y. Times, Feb. 9, 1969, p. 1, col. 4.
69 Reisman, supra, n. 36, at p. 46.
7oF. Frankfurter, Fel Frankfurter Reminisces, (1-960), p. 74.
71 See, supra, n. 7.
