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Moreover, a lack of condemnation does not make clear exactly what the
international community is condoning and why. Is acquiescence a
product of political concerns, or does it indicate agreement with the
moral necessity of a particular intervention? Does the Security Council
entirely accept the method of intervention or only the circumstances?
While the Security Council could answer these questions on a case-bycase basis when confronted with collective humanitarian
intervention, such a flexible precedential approach is incapable of
establishing a coherentdoctrine of unilateral humanitarian
intervention. Therefore, the issue remains whether unilateral
humanitarian intervention should be codified as an exception to Article
2(4)'s prohibition on the use of force or should remain a technically
illegal use of force. 19 As addressed below, this note argues that
codification is the more desirable alternative.
A. ROLE OF CODIFICATION IN CURBING ABUSE
Scholars opposed to the codification of unilateral humanitarian
intervention point to the potential abuse of the doctrine by states
seeking to legitimize pretextual interventions against weaker
states. 20 This skepticism toward the altruistic motives of intervening
states has been largely influenced by Adolf [*422] Hitler's annexation of
Czechoslovakia under the guise ofhumanitarian intervention in
1939. 21 It is not difficult to imagine contemporary scenarios in which an
aggressor state might justify its violation of a weaker state's territorial
integrity by alleging humanitarian motives. Even proponents
of codifying a doctrine of unilateral humanitarian
intervention acknowledge that the possibility of
pretextual interventions should not be discounted. 22 However, the fear
of abuse argument exaggerates the likelihood that codifying a limited
right of unilateral humanitarian intervention would encourage abuse
and overlooks the benefits of codification, particularly the restraints that
codification may impose upon both legitimate and illegitimate unilateral
intervention. 23 While no legal norm is entirely free from potential
abuse, 24 limiting the right of unilateral humanitarian
intervention through the use of codified criteria will diminish rather
than exacerbate the problem of pretextual interventions.25 A codified
rule of intervention is less prone to abuse than is the current "sublegal"
status accorded unilateral humanitarian intervention. 26
Providing an objective standard against which to measure the legitimacy
of a given intervention would deter would-be aggressors and minimize
abuse in two respects. 27 First, codification would impede states' ability to
assert humanitarian rationales for illegitimate intervention. 28 Unlike a
subjective approach that judges the legitimacy of each case in an ad hoc
manner, codification enhances the international community's ability to
discern abuse, thereby making it more difficult for an intervening state to
characterize its action as a
lawful humanitarian [*423] intervention. 29 The effective application
of such criteria requires reliable information concerning the conditions
within the target state that allegedly warrant intervention. The use of
modern information-gathering technology can significantly aid in
verifying whether widespread atrocities are in fact being perpetrated,
reducing the need to rely solely upon the credibility of the intervening
state. 30
Second, codification would discourage well-intentioned intervention "in
a situation or in a manner falling short of the requirements set forth for
its legality." 31 By clearly communicating thatintervention which does
not meet the objective standard would be subject to possible
condemnation by the international community, the deterrence of
illegitimate intervention would be enhanced. 32 Furthermore, objective
criteria would indicate whether intervention is legal prior to
taking unilateral action, rather than relying on a determination of the
act's validity only after a state's territorial integrity has been
violated. 33 Codification would restrain intervention not only by selfinterested states, but also by altruistic states that, in the absence of an
objective standard, might misjudge the appropriateness
of intervention. 34 Thus, contrary to the claims of scholars who fear that
any additional exception to Article 2(4) threatens to increase the use of
armed force, 35 codifying a limited right of unilateral humanitarian
intervention would likely decrease both
pretextual interventions [*424] and well-intentioned but
inappropriateinterventions. 36
Of course, codification will not eradicate all instances of abuse. States
bent on aggression will engage in unilateral interventions even if such
actions are per se illegal. 37 This problem is exacerbated by the numerous
justifications that an aggressor state may assert to rationalize its
encroachment upon the territorial integrity and political independence of
a victim state, 38although abuse of international legal justifications is by
no means unique to humanitarian intervention. 39 Acknowledging this
shortcoming, scholars opposed to codification argue thatlegalizing
intervention would provide yet another pretext for
illegitimate intervention by powerful states, giving the force of law to
what had been merely a "rhetorical proclamation." 40However, because
the legality of any intervention would be conditioned upon satisfying the
requisite criteria, justifications for interventions falling short of the
objective standard would remain mere rhetoric. Therefore, it is doubtful
that the potential use of such political arguments would encourage abuse
of the doctrine and increase the frequency of
illegitimate intervention above the current level. 41
Furthermore, any incentive to abuse the doctrine would be reduced
because codification would impede neither the Security Council's ability
to condemn actions falling below the objective standard nor its power to
take enforcement action against illegitimate intervenors. 42 Thus,
pretextual, or even questionable, unilateral humanitarian
intervention would remain subject to international scrutiny, with the
intervening state assuming the risk that its actions might
provoke [*425] Chapter VII collective security measures by the Security
Council. 43 Codification would also increase the probability of U.N.
reprisal by helping to distinguish legitimate from
illegitimate interventions. 44 The bright-line standard, coupled with the
threat of U.N. reprisal, would minimize any incentive for states to invoke
the doctrine as a cover for pretextual interventions. 45
In addition to restricting illegitimate intervention, codification would
tacitly encourage legitimate intervention when the Security Council is
unable to intervene. 46 The same guidelines indicating
when intervention is not justified would also identify the rare
circumstances when unilateral humanitarian intervention would be
appropriate. 47 The current de jure illegality ofunilateral humanitarian
intervention dissuades states that might otherwise conduct
genuine humanitarian interventions from doing so for fear of being
stigmatized and labeled an aggressor. 48 "The prospective intervenor
knows that, regardless of his motives, he breaches the law, but can hope
that the world community will remain silent . . . and thus implicitly
condone his intervention . . . ." 49 Consequently, even when a state would
not face condemnation for its action, the very illegality of such actions
may impede legitimate intervention by law-abiding states -- states that
value adherence to international law independent of the practical
consequences of its violation. 50 Because truly aggressive states are least
deterred [*426] by legal prohibitions, 51 the current law illogically
deters most effectively law-abiding states that are least in need of
deterrence, ultimately benefitting only human rights abusers. 52 By
setting a standard for legitimate intervention, a limited codified right
of unilateral humanitarian intervention might help to deter
governments from committing gross human rights abuses against
persons within their borders. 53
B. ROLE OF CODIFICATION IN INCREASING THE LEGITIMACY OF
INTERNATIONAL LAW
A codified right of unilateral humanitarian intervention would
increase the legitimacy of international law 54 by: (1) removing reliance
on the "sublegal" approach to humanitarian intervention; (2)
balancing the tensions within the international legal system between
state sovereignty and human rights and between peace and justice; and
(3) preventing states from invoking strained interpretations of
recognized legal justifications, including those embodied in the U.N.
Charter.
First, by obviating the need to rely upon the de facto tolerance of
legitimate (morally justified) but nonetheless illegal intervention, a
codified doctrine of unilateral humanitarian intervention would
increase respect for international law. The fervent debate over the
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legality of unilateral humanitarian intervention generally divides
scholars into two camps, "classicists" and "realists." 55 Relying [*427] on
the intent of the drafters of the U.N. Charter as expressed in the Charter's
text and travaux preparatoires ("preparatory work"), classicists argue
that Article 2(4)'s prohibition on the unauthorized use of force permits
exception only in cases of self-defense that conform to the requirements
of Article 51. 56 As evidence that the international community
considers unilateral humanitarian intervention a violation of
international law, classicists frequently cite the "principle of nonintervention" as expressed in Article 2(7) of the Charter, as well as the
Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of Their Independence and
Sovereignty, and the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations. 57
Realists, on the other hand, interpret the Charter as permitting unilateral
humanitarian intervention for three reasons. First, realists assert that
Articles 1(3), 55, and 56, as well as advances in human rights law,
establish the protection of human rights as a primary purpose of the
United Nations, such that unilateral humanitarian intervention is
justified when the Security Council fails to intervene. 58 Second, realists
posit that the failure of the United Nations to respond to atrocities has
precipitated a "revival of the [pre-Charter] customary right
of humanitarian intervention." 59 Third, realists contend that
the unilateral use of force is not prohibited by the language of Article
2(4) provided that the force exerted does not "infringe upon the longtermterritorial integrity and political independence" of the target state. 60
Unlike classicists, realists do not consider the original intent of the
founding states controlling, but rather seek to discover the law by
examining state action beyond the negotiating table. Because realists
"deemphasize what governments say, however solemnly, in favor of what
they do," 61 they contend that the U.N. Charter must constantly be
reinterpreted in light of contemporary
international [*428] relations. 62 Like international politics,
international law is viewed as being in a perpetual state of flux. While
classicists do not maintain that positive expressions of state intent
necessarily preclude the evolution of law through state practice, they
assert that instances of humanitarian intervention are too few to
demonstrate a shift in states' perception of the legality of unilateral
humanitarian intervention, particularly because no intervention has
ever been justified solely on grounds of humanitarianism. 63 Moreover,
classicists question what role international law plays in governing
international relations if law is but a mere reflection of state behavior.
While classicists fear that international law will be "transformed from a
stern judge of political action into a pathetic dependent[,] . . . realists want
to save it from irrelevance." 64
Although the realist arguments should not be summarily dismissed, "if
one deems the original intention of the founding states to be controlling
with respect to the legitimate occasions for the use of force,
then humanitarian intervention is illegal." 65 Indeed, the predominant
view considers unilateral humanitarian intervention an illegal use of
force prohibited by the Charter. 66Yet, despite this technical illegality, the
most genuine instances of unilateral humanitarian intervention are
seldom condemned. 67 As Byron Burmester states, "The international
legal system currently imposes virtually no sanction on states that
conduct limited intervention for relatively unselfish reasons. Thus, the
system allows benign violations of territorial sovereignty, naturally
separating the 'wrong' from the 'necessary' invasion." 68 Jean-Pierre
Fonteyne similarly observes that [*429] "in circumstances of extreme
gravity, the world community, by its lack of adverse reaction, in
practice condones conduct which, although a formal breach of positive
legal norms, appears 'acceptable' because of higher motives of a moral,
political, humanitarian, or other nature." 69 Fonteyne has dubbed
this sublegal status conferred upon unilateral humanitarian
intervention the "double level" approach. 70
Codifying an affirmative right of humanitarian intervention is less
injurious to the legitimacy of international law than the international
community's de facto approach, which implicitly recognizes such an
exception to Article 2(4). 71 Proponents of this "double level" approach
argue that codification has limited utility because the international
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of peace and sovereignty at the expense of justice and human rights. 87 By
prohibiting even the most well-intentionedinterventions, 88 the current
per se illegality of unilateral humanitarian intervention perpetuates
this imbalance and calls into question the desirability of a body of law
that protects human rights abusers more than the abused. 89 Because the
"legitimacy [of the international legal [*432] system] depends on
continuing responsiveness to basic human values," 90 international law
must recognize the importance of safeguarding the individual from
atrocities, while continuing to limit the unilateral use of force to
minimize conflict and prevent states from themselves rejecting
international law. 91 Thus, a codified, limited right of unilateral
humanitarian intervention would more "effectively balance human
rights and legitimate state sovereignty, while maintaining international
stability." 92
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conception of sovereignty consistent with unrestrained unilateral
intervention, humanitarian or otherwise.
Given the threats to traditional state sovereignty posed by popular
sovereignty and moral forfeiture theory, states would be prudent to limit
the appeal of these concepts and the potentially
massive interventions that they might legitimize. By addressing the
underlying frustrations with the current system, a limited codified right
of unilateral humanitarian intervention would undercut the
persuasiveness and moral force of these arguments. In addition, because
codification would allow states to restrict the means of intervention and
the circumstances warrantingintervention, even the target of unilateral
humanitarian intervention would retain certain rights -- and thus some
measure of sovereignty -- under international law. Paradoxically, states
may actually preserve sovereignty in the long run by giving up the small
portion that would be lost through recognizing a limited right
of unilateral humanitarian intervention. 117 Thus, [*437] codification
"'should not be viewed as an affront to sovereignty, but as a necessary
tool to preserve it.'" 118
II. POLITICAL REALITIES OF CODIFICATION
Despite the theoretical and practical advantages that could be realized
by codifying a limited right of unilateral humanitarian
intervention, state opposition to such a doctrine presents a major
obstacle to any codification effort. While many states have gradually
come to accept that conflicts beginning within their borders but
threatening international peace and security are not exclusively within
their domestic jurisdiction, 119 these states nonetheless jealously guard
against humanitarian intervention's encroachment upon
sovereignty. 120 Whether or not sovereignty, in the legal sense of the term,
is in fact weakening, sovereignty remains a powerful rhetorical tool with
which to voice political opposition to humanitarian intervention and to
challenge attempts to codify such a doctrine.
The unenthusiastic tolerance of de facto collective humanitarian
intervention suggests major political opposition to a de jure doctrine of
unilateral humanitarian intervention among U.N. members. The
Security Council debates surrounding the narrow passage of Resolution
688, which became the basis for establishing a "no-fly" zone to protect the
Kurds in northern Iraq, illustrate that "substantial political barriers to
action remain" to even ad hoc collective humanitarian
intervention. 121 Resolution 688 narrowly escaped defeat by a margin of
two affirmative votes and China's decision to abstain rather than veto the
resolution. 122 China's vehement remarks in support of its abstention do
not bode well for expanding the concept of humanitarian
intervention, 123 especially in light of its power to veto Security Council
resolutions and amendments to the U.N. [*438] Charter. 124 According to
the Chinese delegation, China "is opposed to interference in the internal
affairs of other countries using the human rights issue as an
excuse." 125 Similar concerns over noninterference in domestic affairs
were echoed by Yemen, India, and Zimbabwe, illustrating a significant
wariness to opening state borders to external intervention even for
ostensibly humanitarian purposes. 126
Moreover, to persuade China not to exercise its veto power, the text of
Resolution 688 did not expressly permit military action in defense of the
Kurds. 127 The subsequent acquiescence to the "no-fly zone" indicates that
the "Chinese and others . . . were willing to tolerate actions de facto that
they would not authorize de jure." 128 This struggle to authorize
collective humanitarianmilitary action even against a rogue state such as
Iraq suggests that codifying a standing doctrine of
collective humanitarian intervention would face vociferous opposition.
If this reluctance has softened, it has not softened much; for example, the
drafters of Resolution 794, which authorized the use of "all necessary
means to establish . . . a secure environment for humanitarianrelief
operations in Somalia," 129 intentionally limited its precedential effect by
citing the unique anarchical conditions in Somalia. 130 Even if the more
recent Security Council resolutions authorizing use of force in Haiti and
the former Yugoslavia [*439] evidence a growing acceptance of ad hoc
de jure collective intervention, 131 codification of a general doctrine of
collective, much less unilateral, humanitarian intervention remains
unlikely in the near future.
One of the most significant, though modest, steps toward the codification
of a standing doctrine authorizing intervention in response
to humanitarian crises is General Assembly Resolution
46/182. 132 Though limited to the delivery of humanitarian assistance to
relieve human suffering, Resolution 46/182 is noteworthy because it
codifies a doctrine of humanitarian assistance not entirely based on
state consent. 133 Despite its relatively benign language and reiteration of
the importance of sovereignty and territorial integrity, 134 Resolution
46/182 was widely opposed by developing nations who feared that
the doctrine could be similarly invoked as a pretext for interference in
their domestic affairs. 135
This "strong current of opinion in the developing world, and particularly
in China, . . . upholding the principle of noninterference in the internal
affairs of states as the only bulwark against the intrusive designs of the
West's 'New World Order,'" 136 has impeded less ambitious attempts to
expand norms of humanitarian intervention and may render futile any
attempt to codify adoctrine of unilateral humanitarian
intervention. Opposition to such an interventionist doctrine would be
all the more fierce.
There are, however, modest indications of progress toward codification.
For [*440] example, India and Zimbabwe, both of whom expressed
concern over Resolution 688 as an encroachment into Iraq's domestic
affairs, expressed an interest in drafting criteria to guide future cases of
collective humanitarian intervention. 137 Such statements implicitly
suggest a growing recognition that codification offers the potential to
limit intervention by curtailing the arbitrariness inherent in ad hoc
authorizations of humanitarian intervention. However, support of
codification has thus far been limited to collective humanitarian
intervention. 138
Despite these preliminary signs of support for codifying a doctrine of
collective humanitarian intervention, as well as Resolution 46/182's
guidelines for coordinating humanitarianassistance, the emerging trend
in favor of codification has "not yet breached the wall of opposition
to unilateral measures." 139 Whether further steps toward codification
are likely to garner enthusiasm remains the subject of much
skepticism. 140 However, the success of any future effort at codification
will largely depend on two factors: (1) the form of codification and (2) the
substantive criteria of the doctrine. It is the consideration of these issues
to which the analysis now turns.
III. FORM OF CODIFICATION
A limited doctrine of unilateral humanitarian intervention could be
codified in one of three forms: (1) an amendment to the U.N. Charter, (2)
a multilateral intervention treaty, or (3) a General Assembly resolution.
Assessing the merits of each form requires acknowledgement of the
substantial political impediments to codification. The following analysis
demonstrates an inverse relation between the legal force of each
proposed method of codification and its political feasibility.
[*441] A. CHARTER AMENDMENT
While little consideration has been given to the possibility of amending
the U.N. Charter to recognize a right of unilateral humanitarian
intervention as an explicit exception to Article 2(4), a number of
scholars have proposed a Charter amendment in the context of
collective humanitarian intervention. 141 Articles 108 and 109 establish
the procedure used to amend the Charter, which has been amended on
several occasions. 142 Expressly recognizing a doctrine of unilateral
humanitarian intervention by amending the Charter would eliminate
controversy over the legal status of the exception and reap the maximum
benefits of codification. However, debate over other critical issues, such
as the amendment's relation to other provisions of the Charter or
whether the exception governed a particular case, would undoubtedly
persist. Amending the Charter, nonetheless, would be the most clear-cut
and forceful method of codification.
While amending the Charter remains a legal possibility, the political
impediments to such an ambitious effort render the prospects of such an
amendment extremely unlikely. 143 Those opposed to codifying a right
of unilateral humanitarian intervention in any form, particularly
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developing states, would be even more vehemently against enshrining
such an interventionist doctrine in the U.N. Charter. 144 Even among
states sympathetic to the concept of codification in general, proposals for
Charter amendment would prove highly controversial and might
precipitate a shift away from supporting codification in any form. 145
The amendment procedure itself further diminishes the prospect
of codifying a doctrine of unilateral humanitarian intervention in the
Charter. Under the stringent voting requirements of Articles 108 and 109,
any amendment to the Charter requires two-thirds of the members of the
United Nations, "including [*442] all the permanent members of the
Security Council," 146 to vote in favor of and subsequently ratify the
amendment in accord with each state's domestic law. 147 The amendment
process is sufficiently difficult that the Charter has been amended only
five times since its entry into force on October 24, 1945. 148 Although
mustering the support of two-thirds of the United Nations would be
highly improbable, obtaining the support of each permanent member of
the Security Council would prove virtually impossible. Even in the United
States, which has perhaps the smallest chance of ever being targeted
for intervention, one can hardly imagine the U.S. Senate giving its
"advice and consent" to the President to authorize ratification of what
would likely be a domestically unpopular amendment. 149 Moreover, each
permanent member of the Security Council has the power to veto any
proposed amendment. 150 Consequently, China could unilaterally block
the amendment even if every other U.N. member supported the
amendment. In light of its fierce opposition to humanitarian
intervention, the near certain prospect of China's vetoing any
amendment recognizing a right of humanitarian intervention
(unilateral or collective) renders consideration of a Charter amendment
largely academic. 151 Whatever potential advantages amending the
Charter may offer, it is the least feasible of all the proposed methods of
codification.
B. TREATY-BASED INTERVENTION
A doctrine of unilateral humanitarian intervention might also be
codified in a multilateral intervention treaty in which states express
prior consent to intervention should their governments act in violation
of certain agreed-upon criteria. In the context of collective humanitarian
intervention, Professor Stanley Hoffman advocates the negotiation of
a treaty, open to (but unlikely to be signed by) all states, that would
define rigorously the circumstances in
which collective intervention for humanitarian purposes could be
undertaken, for a limited period, by a group of states whose action would
be authorized by a strong majority of the treaty's signers. 152
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resolution would face less political opposition than alternate methods of
codification; and (2) General Assembly resolutions are passed under less
stringent voting requirements. First, the nonbinding nature of a General
Assembly resolution would defuse much of the intense opposition to
more binding means of codification. Many states would perceive a
General Assembly resolution as largely hortatory and thus a lesser threat
to state sovereignty than either a Charter amendment or
an intervention treaty. Assuming that the resolution neither "purports to
be declaratory of contemporary international law" nor crystallizes into a
norm of customary international law, 172maintaining the de jure illegality
of unilateral humanitarian intervention would allow states to preserve
their rhetorical opposition to unilateral humanitarian
intervention, thereby reducing fears that such a doctrine might be
expanded. Moreover, the guidelines would provide states with specific
grounds on which to criticize the legitimacy of interventions that fail to
meet the established criteria. Thus, developing states fearful of
pretextual intervention may be more inclined to accept a General
Assembly intervention resolution because it would increase deterrence
of illegitimate intervention while only minimally infringing upon state
sovereignty. Nonetheless, the widespread opposition to General
Assembly Resolution 46/182, particularly among Third World states,
suggests that many states would reject even a nonbinding
resolution codifying guidelines [*447] for unilateral humanitarian
intervention. 173
Second, the less stringent voting requirements for General Assembly
resolutions would increase the probability of passing a unilateral
humanitarian intervention resolution even in the face of substantial
political opposition. Article 18 of the U.N. Charter provides that "decisions
of the General Assembly on important questions shall be made by a twothirds majority of the members present and voting. . . . Decisions on other
questions . . . shall be made by a majority of the members present and
voting." 174 Because setting forth the circumstances permitting unilateral
humanitarian intervention would essentially offer recommended
standards on the propriety of condemnation or enforcement action to the
Security Council, an intervention resolution would likely constitute an
"important question," requiring two-thirds of the General Assembly to
vote in favor of the resolution in order for it to pass. 175 While mustering
the support of two-thirds of the General Assembly behind such a
resolution may prove to be difficult, the resolution would neither be
subject to China's veto power 176 nor have an effect only on those states
supporting the resolution, 177 thereby circumventing two of the major
impediments to the Charter amendment and treatybased intervention options.
Ideally, an intervention resolution would be drafted under the auspices
of a General Assembly-convened conference that would provide an open
forum in which states could express their concerns. 178 In reality, political
opposition to the general idea of unilateral humanitarian
intervention could derail these efforts before any
concrete proposals were even placed on the agenda. Consideration and
formulation of a draft intervention resolution should, therefore, be
initiated by the International Law Commission of the United Nations,
specifically the Codification Division. 179 Established pursuant to Article
13 of the Charter, 180 [*448] the ILC would provide the relatively
depoliticized environment necessary to prevent deadlock, as well as a
body of "persons of recognized competence in international law" who
could analyze the legality of any proposals before submission to the
Sixth (Legal) Committee of the General Assembly. 181 As Judge Nagendra
Singh states:
The great merit of the [ILC] is to act as a bridge or two-way valve between
the private scholars, who receive through their participation in the
Commission's work an enhanced authority and status as international
consultants, and the Sixth (Legal) Committee of the UN General Assembly,
where the representatives of states who understand the Commission's
work meet to sift its proposals and take over the most approval-worthy
as a basis for progressive development. 182
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to support such an approach. 194 Thus, above all other criteria,
conditioning intervention upon the commission of "large-scale
atrocities" is crucial to the viability of codification.
Second, unilateral humanitarian intervention should be conditioned
upon Security Council deadlock. 195 Under this procedural criterion, a
state contemplating unilateral intervention would be required to notify
the Security Council of the need for humanitarian intervention and
seek authorization for collective action. Should the Security Council prove
unwilling or unable to authorize collective intervention, 196 a state would
then be justified in undertaking humanitarian intervention unilaterally
as long as the other criteria were satisfied. While unilateral
interventionwould be permitted as a remedy of last resort, this criterion
purposely expresses a preference for collective action. 197
Third, the resolution should expressly reiterate that the Security Council
is empowered to preempt or terminate an intervention. 198 Thus, even if
the [*451] Security Council became deadlocked over whether to
authorize a particular intervention -- satisfying the second criterion
for unilateral action -- the Security Council would not be precluded from
passing a resolution affirmatively prohibiting unilateral
intervention. Because the Security Council might take Chapter VII
enforcement action against states that nonetheless persist in intervening,
such a provision would further alleviate fears of both
pretextual intervention and the use of force beyond the limits of
necessity and proportionality. 199
The second and third criteria would work in tandem to circumvent a
potential Chinese or Russian veto thwarting legitimate humanitarian
intervention. For example, were China to veto authorization of
collective humanitarian intervention, perhaps for fear of establishing a
precedent, 200 a state might nonetheless intervene unilaterally. If China
then called for condemnation of the unilateral intervention, another
permanent member of the Council could veto the condemnation
resolution. Thus, the veto power is shifted in favor of humanitarian
intervention. Although this deliberate undermining of China's veto
over humanitarian intervention might prove politically unworkable,
these two provisions could alternatively be viewed as a face-saving tool.
Consistent with China's de facto tolerance of collective humanitarian
intervention, China could veto an intervention that it tacitly supported
without risking misinterpretation of a decision not to veto
the intervention as acceptance of encroachments upon a state's
domestic jurisdiction. Because China apparently feels more threatened by
the concept of intervention than byintervention itself, Chinese
opposition may be less fierce than it would initially seem.
Fourth, unilateral intervention should be predominantly motivated
by humanitarian concerns. 201 While few states would intervene for
purely altruistic reasons, an intervening state's motives should be
carefully scrutinized to reduce the risk of
pretextual intervention. 202 Conditioning unilateral action upon the
exhaustion of all practicable nonforceful alternatives would increase the
probability that intervention is truly humanitarian. 203 Moreover, such
a requirement would prevent the premature use of force when the
situation may be remedied through peaceful means. 204
Fifth, intervention should be limited in objective, duration, and level
of [*452] force. 205 This criterion essentially reiterates the international
law mandate that the use of force be both necessary and proportional to
the task at hand. 206 Bazyler captures the elusive essence of this criterion
as it relates to humanitarian intervention: "Intervening states should
use only enough military force to cease the killing and, if necessary, to
remove the despot responsible for it." 207 Thus, the primary objective
of intervention should be to put an end to the commission of atrocities
within the state -- which is, after all, the very rationale upon
which intervention is predicated. When possible, intervention should
be conducted in a manner that minimizes disruption to existing
governmental authority within the state, so as to avoid unnecessary
infringement on the political independence of the state. 208 However,
when the only means to prevent further atrocities is to depose the
abusive regime, this option should not be categorically precluded. As
Fonteyne states: