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

AuthorPaul Flynn
PositionBCL, MA
Paul Flynn*
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
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.
1 Opening statement of Robert Jackson J to the International Military Tribunal for Germany;
20 November 1945.

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