Law And Human Rights: Building A Complimentary Relationship In Humanitarian Intervention

• Author: Paul Flynn
• Position: BCL, MA
• Pages: 45-57

LAW AND HUMAN RIGHTS: BUILDING A COMPLIMENTARY

RELATIONSHIP IN HUMANITARIAN INTERVENTION

Paul Flynn*

A INTRODUCTION

The wrongs which we seek to condemn and punish have been so

calculated, so malignant and so devastating that civilization can not

tolerate their being ignored, because it can not survive their being

repeated.1

The end of the Second World War, arguably, saw an end to the

traditional Westphalian system of international relations. The old order,

which regarded state sovereignty as absolute and the cornerstone of

international order, was cemented by the principle of non-intervention. The

principles were relatively clear when it came to use of force; it was justified in

cases of self-defence or defence of allies. Non-interference in the internal

affairs of another State was inviolable while the place of the individual was

relegated to a mere constituent of the fundamental building block of

international society: the State.

The revelations that accompanied the liberation of Nazi concentration

camps in 1945 could not but call into question the unquestioned authority of

the State over its own affairs and the unlimited sovereignty of the State over

the human rights of its citizens. The horrors which greeted allied forces

ushered in a new regard for the human rights of the individual which would go

on to inform foreign policy of States, to greatly differing degrees, over the

coming sixty years.

Whereas the old order might have regarded use of force against a State

as justifiable only when that State had transgressed against another State, and

while this view has certainly not been decisively consigned to history, the idea

of human rights abuses as a just cause in the use of force has grown ever

greater credence in the years since 1945. This essay explores the growing role

of human rights in international political norms and the ways in which the

changed international focus finds voice in the international law of

humanitarian intervention. Through exploring the principles underlying the

emphasis on human rights, the role of extra-legal factors in international law,

the provisions of the UN Charter and of customary international law, this

essay will posit that the gulf between law and reality is marked and in need of

redress, primarily through the recognition as legal of legitimate interventions

for humanitarian purposes.

45

* BCL, MA

1 Opening statement of Robert Jackson J to the International Military Tribunal for Germany;

20 November 1945.